Abstract
Any controversy to be resolved by agreement (without force) can be extended into a meta-controversy about whether permission or agreement has been obtained (force is used). If a requirement for agreement is extended from an abstract ideal to actual agreement, and if the actual agreement concerns the meta-controversy as well as the controversy, an agent’s resolve to act in ways that involve agreement can imply a host of very strong constraints on action. This can significantly alter the implications of a transcendental argument that demonstrates agreement is the sole sufficient basis for an ethic that can be used by people who do not share robust commitments regarding the right and good. H. Tristram Engelhardt has advanced such a transcendental argument to ground his minimal ethic for moral strangers. An inversion from a minimal to a maximal ethic can arise because of an additional ambiguity regarding the moral standpoint. When an actual agent takes up the moral stance, that agent resolves to act in such a way that contingent, subjective grounds of action (Kant’s “maxim”) are consistent with the requirement for permission/agreement that governs agent interactions. The requirement for agreement functions as a constraint relative to which contingent aspects of agency must be taken as indifferent and subject to reconstruction. If the agreements and permissions must be mutually acknowledged, external agents can withhold recognition of all reasons for action that are not mutually recognized as reasons. Engelhardt’s requirement for a mutually recognized, common basis of ethics can be extended to the whole set of conditions that make an agreement into a mutually recognized agreement. To avoid this interpretation, Engelhardt needs to explicitly make deference to other agents with inaccessible reasons for action into a constitutive moment of the moral standpoint. He also needs to make peaceable resolution of conflict constitutive of the way the game of blaming and praising is defined. This will require independent criteria for when force is deployed by an agent to resolve a controversy.
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- 1.
This interpretation is defined by two commitments: (1) A recognition that an independent account of force is required, and (2) explicit positing of peaceableness as a value, end, and good. When, for example, Engelhardt defines a person’s innocence as “they have not used force against others without their consent” (1988, 387–388), he must assume some framework that enables him to determine whether force has been used. His ethic does not provide criteria for determining when force has been used. Some independent account is needed for determining that. In another early essay, Engelhardt presents his secular ethic as an effort to “sketch … the consequences of a commitment to a peaceable community” (1973, 1982, 65). Secular ethics “presumes only that one is interested in resolving issues in ways not directly grounded in unconsented force against the innocent. It also defines ‘innocence’ in terms of not engaging in force against the unconsenting who similarly eschew force” (67). In these accounts, peaceable community and notions of force enter into the very constitution of ethics.
- 2.
Engelhardt uses his contrast between a purely procedural ethic and a content-full ethic (1996, 126) to define and clarify several other contrasts: between a secular ethic for moral strangers and diverse forms of ethics for moral friends; a deontological ethic and a consequential ethic; a principle of permission and a principle of beneficence; the right and the good; society and community; Abstract Right and Sittlichkeit; negative rights and positive rights. These strata are not independent. Rather they involve co-implicated concepts that Engelhardt uses to clarify what is required for his ethic of moral strangers. But there are other ways to develop the contrasts that are in tension with his dominant interpretation. For example, one other way to present his contrast involves a hierarchy in the specification of the good. At the most general, abstract level, the good is specified in terms of the interests of a purely rational agent, who values contents in terms of their transparency to thought. The ethic for moral strangers provides the most general categorial structure integral to any other ethic. Any communal ethic completes the content by filling in the noncategorial, contingent strata until a complete account of the good is specified. In his earlier work, Engelhardt tended to such an interpretation. His secular ethic gave “the most general sense of what it means to speak of an ethical order” (1973, 1982, 67), and any more specific ethic of community needed to be worked out in ways that were consistent with this. This preserved a dialectical relation between the two (1973, 1982, 76), and reflected a Hegelian confidence in the capacity of reason (1973). (Engelhardt presents this as Hegel over Kierkegaard, 1973, 1982, 77; it is also Hegel over Kant 1987, 389; i.e., Sittlichkeit over Abstract Right. But here emphasis falls on the increasingly comprehensive categorial specificity of categories like community, society, and state, rather than the contingent givenness which is regarded as an indifferent negativity from the categorial standpoint. In his later work, the emphasis shifts to the contingent givenness, e.g., 1994b). This approach to secular ethics (as the most comprehensive, but also involving the most abstract specification of the end/good) assumes that the ethic for moral strangers does have some discursively available content that is included in any other ethic, including that of a robust religious community. This seems to be the reason he moves away from such an interpretation. However, while he moves away from viewing the most general ethic as a sparse specification of the good, i.e., the good of a pure rational agency, he at times seems to miss the way the valuation integral to such an intellectual standpoint informs his ethic and makes it more than “purely procedural.”
- 3.
Engelhardt acknowledges in several places that his ethic might not be sufficient. He seems to allow for two kinds of insufficiency. The first concerns possible tragic contexts where considerations related to the good are so great that they override the forebearance strand. The second concerns contexts where “problems stand indefinitely in a state of insolubility” (1996, 130). He presents both of these under the heading of “TEYKU problems” (129–131), but there might be forms of insolubility that only assume the forebearance strand; i.e., two agents committed to resolving disputes without appeal to force may find themselves in a controversy where use of force or appeal to force is unavoidable, and thus the interaction necessarily is not peaceable.
- 4.
In his book on secular humanism (Engelhardt 1991), he seeks to tease apart the philosophical strands and isolate the variant of philosophical ethics that is distinct from the rest. There is an interesting parallel between the way Engelhardt describes stages of Western history and the development of his own views about the prospects of philosophy. He notes in the first edition of his Foundations of Bioethics (1986, viii) that his recognition of the limits of philosophy came as an unhappy discovery: “I have endeavored to find grounds for establishing by reason a particular view of the good life and securing by general rational arguments the authority for its establishment. To my dismay and sorrow, such have not been available.” He describes the transition from modernity to post-modernity in a similar way. It would be interesting in another study to explore where, exactly, this discovery came, since some aspects of his sparse ethic go very far back and reflect commitments that antedate his philosophical writings (e.g., his view of Texas, 1986, 46–49). A comparison of the first edition (1986) and second edition (1996) of the Foundations of Bioethics shows that the language of ontology was much more prominent in the first edition. This theme traces back to his dissertation (published as a book in 1973). But we also see a shift in more subtle uses of language; for example, he earlier would speak more of “insights” that “distinguish” Western philosophical ethics (as a privileged approach to ethics because of its generality (1982, 67). In his later works, he tends to speak of the “presumption” of such a Western tradition and regards most work on philosophical ethics as heretical versions of Christianity (2000).
- 5.
Engelhardt’s overview of diverse approaches to ethical theory does clearly and convincingly make one crucial point: that prominent philosophical approaches to ethics are just as dependent on contingent contents as the religious approaches they were supposed to replace. His criticisms of a Roman Catholic natural law ethic are of exactly the same kind as his criticisms of consequential, Rawlsian, and discourse ethics, and they make clear that none of these approaches are more or less fitting for a secular, pluralistic society. His overview calls into question the way civic discourse is normally framed. What usually is presented as a demand for ethical justifications that are universally accessible, i.e., based on reason, turn out to be an effort to impose a secular, naturalistic content-full vision (such as the quasi-religious versions of secular humanism he discusses in 1991) at the expense of religious content-full visions. It is a pity that Engelhardt has so closely tied his criticisms of philosophical ethics – i.e. that they are just as particularist as the religious traditions they are supposed to replace – to his strong modal claims about the impossibility of a content-full ethic for moral strangers. The general claims he makes about the contingent character of philosophical ethics depend on very different evidential criteria than the strong modal claim he makes about the impossibility of a content-full philosophical ethic. His arguments for the former are compelling and have significant, unappreciated implications for the way ethical discourse takes place in our society. His strong modal claim is far more difficult to justify. If we evaluate Engelhardt’s arguments for that strong modal claim, we can notice two kinds of problems. First, when he shows that specific ethical theories utilizing each of the standards involve contingent, contestable content, he usually does not demonstrate that any ethical theory using such standards must involve contingent, contestable contents. For example, he first considers intuition (1996, 42–43). While the examples he gives do show how various appeals to intuition utilize contingent, contestable contents, they do not show that there is no way to draw on just those intuitions that all moral agents must share. To show that, he needs to provide an account of what is necessary and sufficient for a moral standpoint that must be assumed by anyone who properly plays the game of blaming and praising, and then show such a standpoint does not involve universally shared intuitions. In other words, the explication integral to his transcendental argument is actually a condition for making the strong modal claim he wants to make about the impossibility of a content-full philosophical ethic. The second problem with the argument based on his disjunction of ethical standards concerns the relations between the nine possibilities he considers. He presents them as independent, e.g., an ethical theory based on intuition is independent from one based on exemplary cases, and that from consequences, and so on. However, there might be an ethical theory that uses sparse, generally available intuitions, representative cases, and so on, and unites these in such a way that the combination yields a content that cannot be obtained when these standards are considered independently. In sum: even if his disjunction of ethical standards mapped the whole possibility space of options, Engelhardt’s justification of a strong modal claim about the impossibility of a content-full, philosophical ethic for moral strangers would be at best problematic.
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A tenth approach to ethics that would cover Engelhardt’s argument might be called “ethical theories based on transcendental arguments.” A recent appraisal of the role of transcendental arguments in grounding ethics is provided by Illies (2003). Alternatively, Engelhardt’s ethic for moral strangers might be covered by one of his nine options; for example, his fifth standard (1996, 52–55) which concerns norms of rational discourse. Engelhardt’s ethic for moral strangers might be regarded as an ethic that emphasizes norms of rationality, but restricts rationality to just that content and resolve which is necessary and sufficient for sustaining the game of blaming and praising. His dispute with Habermas and others would then relate to whether any content can be introduced into ethics, i.e., whether there are norms of rationality that are not just negative and thus go beyond Engelhardt’s worry about rigorous justification (38), contradictions (105–108), and irrationality (104). When emphasizing the Kantian aspects of his work, Engelhardt highlights the will, rather than reason: “authority is derived not from reason … but from the bare will to have one authority moral strangers can share: permission. Secular moral authority is derived from a bare will to morality” (72). But when he emphasizes the Hegelian aspects of his work, general norms of rationality govern: concerns of finite knowing and willing are placed within a general categorial framework, and the norms of rationality are worked out in relation to a systematic ordering of the categories. These alternative ways of understanding his ethic for moral strangers – Kant vs Hegel – map to the alternative interpretations discussed in the opening section.
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Here I am using “transcendental dialectic” in Kant’s sense as a “critique of dialectical illusion,” an illusion that arises with efforts to use logic, as the form of understanding, as an organon for the production of objective assertions. Kant’s transcendental dialectic thus involves “a critique of understanding and reason in respect of their hyperphysical employment” (e.g., Kant 1965 [1781/1787], 99, 100). This definition from Kant’s first critique is qualified in relation to knowledge. In the second critique, Kant’s dialectic concerns inappropriate inferences that move from the formal aspects of right to the supersensible conditions or highest good (Kant, 1956 [1788], Book II of Part I). In his third critique, Kant is concerned with reflective judgments that lack a given, determinate concept that can be used to subsume given contents, and thus uses of judgment where the faculty of judgment itself must provide the basis for subsumption. In this context, Kant brings together his account of knowledge and moral willing, e.g., by considering the supersensible basis (as a kind of supersensible community) of mechanical and teleological principles for understanding products of nature. Dialectic is given the negative role of blocking those inferences that lead to some kind of contradiction, e.g., when teleology is regarded as an objective, rather than subjective principle of nature (Kant 1987 [1790], sections 69–78). A fully general account of dialectic is given in Kant’s Logic (1988 [1800], 19): it contains “the characteristics and rules by which we can tell that something does not agree with the formal criteria of truth, although it seems to. Dialectic in this sense would then have its good use as a cathartic of the understanding.” Jointly, these uses of dialectic in Kant are especially important for Engelhardt’s ethic because they clarify how rigorous contradictions (antinomies) arise with efforts to extend past the appropriate scope and limits of a given domain. Engelhardt will thus seek to specify the scope and limits of his ethic for moral strangers in ways that are patterned after Kant’s mode of argumentation: first, providing an analytic and deduction of a restricted domain of valid judgments; second, providing a dialectic that exposes the irrationality that arises with efforts to extend past that restricted domain (1996, 105–108). However, he will also use “dialectic” in a more positive sense that is associated with Hegel’s categorial ontology (1994b, esp. 212): a “categorial dialectic shows how conceptual problems that arise within one level can only be resolved at a higher conceptual or categorial level.” In this same context, Engelhardt positively cites Klaus Hartmann’s account of dialectic as “a means of linking categories with one another … to establish affirmative relations between the various levels of social formation that may be legitimate” (Hartmann 1984, 116). He even goes so far as to say that the dialectic (in a sense Engelhardt affirms) “may be regarded as a way of rationally reconstructing history from a particular content-full standpoint. It is most properly the method for organizing the categories in terms of reason’s systematic needs” (1994a, 4–5; see also 17, note 16 where this reconstruction is associated with Hegel’s Philosophy of Right). In the same overview of Hartmann and Hegel, he presents both his published dissertation (1973) and his Foundations of Bioethics (1996) as “realizations” of Hartmann’s reading of Hegel, and takes that insight to be “the inability of secular reason to discover and justify moral content” (1994a, 17, note 17). He thinks his Foundations of Bioethics better advances this Hartmannian Hegel, presumably because his dissertation still exhibits too great a confidence in the capacity of reason to provide an ontology that maps real relations, e.g., between mind and body, and in such a way that establishes continuities between domains of fact and value. But this leaves unexplored how the “particular content-full standpoint” (1994a, 4) associated with the dialectical mapping of categorial relations (with its admittedly sparse and abstract content, but a content none the less) is related to the supposedly content-less “moral standpoint” and “bare will to morality” (1996, 72) of Engelhardt’s ethic for moral strangers. The tensions between these Kantian and Hegelian strands are not reconciled in Engelhardt’s secular ethic.
- 8.
In The Grounds of Ethical Judgment: New Transcendental Arguments in Moral Philosophy, Christian Illies (2003) explicitly considers what can be inferred from the failure of previous efforts at providing a rigorous justification for ethics. He notes that any inference from previous failures to the impossibility of a justification is itself a fundamental claim that requires a special kind of rigorous justification. “But how could this ever be provided, if the very claim is that there is no possibility of justifying first principles? Categorically to reject the possibility of any alternative method to achieve secure knowledge is therefore inconsistent. Hence we have no reason to assume that the search for a different method must be in vain – and with transcendental arguments we have further candidates for the task” (29).
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Engelhardt acknowledges at least three legitimate roles for contingency in his ethic for moral strangers: (1) Contingency is required for specification of content; this leads to his contrast between a content-full ethic for moral friends (community) and a content-less ethic for moral strangers (society). This contrast is also put in terms of abstract right vs. Sittlichkeit: “Sittlichkeit is not just the category of social reality in which content is provided; it is most importantly the category within which contingency of moral content is recognized as necessary. None of the particular content is necessary. But its presence as contingent content is acknowledged to be necessary. … The problem is now to understand the unity of the diverse communities within which one comes to live a content-full, ethical life. The problem is to understand the unity of the diverse Gemeinshaften with their different Sittlichkeiten” (1994b, 216). (2) Contingency enters into selection of conventions that make peaceable interaction possible, e.g., while some convention regarding which side of the road to drive on is necessary (a physical necessity arising from the way embodied creatures like us circumnavigate using artifacts like cars), the convention to drive on the right side of roads is contingent, as are conventions for registering property, and so on. This form of contingency is central to the account Engelhardt gives of property, society, and state (1994b; 1996, ch. 4). It moves beyond the purely abstract, categorial specification in (1) to the contingent necessities, e.g., of giving content to a standard for driving. (3) Contingency also enters into the subsumption relations of the categories in so far as the systematic categorial order reflects something like inference to the best explanation rather than a strong logical or metaphysical necessity. On this score, we might notice the difference between Engelhardt’s reconstruction of the relations between the Hegelian notions of an estate, community, and property (1994b, 218–221) and Pinkard’s reconstruction (1994, 312–316). In Pinkard (following the real Hegel, rather than Engelhardt’s reconstructed Hegel), there is a sharper criticism of religious communities (Pinkard 1994, 249–260) and a more positive appraisal of philosophy (261–268), and this leads to a sharper restriction of community by the state. Pinkard’s account of the relations between these social categories (1994; 1988, chs 6–7) reflects commitments that Engelhardt held at an earlier stage (e.g., 1973, 22–27, and ch. iv). On the character of the “necessity” associated categorial order relations, see Pinkard on categories as “explanatory posits that are justified only by their explanatory value” (1988, chs 1–3, esp. 21–31; 1990 with Pippin 1990) and Engelhardt on the “must” of the dialectic and the quid juris (1973, 123–126). The crucial thing to note is how the categorial ordering itself involves contingency, and this ordering at the purely categorial level informs the way Engelhardt specifies the relations between the actual instances of community, society, and state. The contingencies associated with (2) and (3) lead to specification of the conditions necessary for applying Engelhardt’s secular ethic to actual humans. If we were to review Engelhardt’s ethic in the same way he reviews the standards integral to current ethical theories, then we would take (2) and (3) as evidence that his ethic of moral strangers likewise involves contingency. We might also add a fourth legitimate role for contingency to the three that Engelhardt explicitly recognizes; namely, the contingency associated with having an actual instance of any category. Deborah Chaffin (1994) discusses this in relation to the “concrete universal,” and it is unavoidable in any application of an ethic by real world agents in real world contexts. This will be considered in relation to “reflectively aware agents” in Sect. 7.4.4 and 7.4.5.
- 10.
Engelhardt speaks of the “centrality of forbearance rights” (1996, 124–128). His principle of permission “marks the very boundary of all moral communities. … [T]he principle of permission is a principle of forbearance only. It is a negative principle. In general secular morality, the principle of permission is not beyond, but it is before, any concrete good or evil. It is only through the positive principle of beneficence that content is acquired for the moral life. Thus, not being beneficent is not to be an enemy of the moral community, but neither is it to be a member of the moral community. An individual who pursues his own solitary good, but without violating the rights of others, falls into a sort of moral limbo” (115). “In the context of general secular morality, the principle of permission always trumps the principle of beneficence” (1996, 127, my emphasis). What Engelhardt says here about an individual without beneficence not being a member of a moral community reflects his stipulated distinction between community and society (7), but it is in tension with what he says in other places when he speaks of a “notion of a general secular moral community” that is associated with the “moral standpoint” (136–137).
- 11.
In the first edition of the Foundations of Bioethics, the fourth basis is presented as “agreed-to procedures” rather than “agreement,” and “resolution of controversy according to a basis” is presented as an answer to “a rational question regarding why the controversy ought to be resolved in a particular fashion” (1986, 39). In the second edition, the fourth basis – his sole moral authority for a secular ethic – is changed to agreement, and much of the language about resolution of rational questions is eliminated. He also adds a lot of wording about the agreement as a brute resolve and he introduces a different kind of bare resolve associated with the moral standpoint: “Secular moral authority is derived from a bare will to morality” (1996, 67–72, with the citation on 72). This “bare will to morality” seems to be different from the bare resolve integral to an agreement which serves as a basis for resolving a controversy. I couldn’t find any place where he discusses the relations between these different kinds of bare resolutions of will. Understanding the fourth basis as “agreed-to procedures” would avoid many of the problems of interpretation I consider regarding the nature of that agreement Engelhardt takes as the basis of a secular ethic (ideal vs surd content), because the agreement now only concerns the procedures. But that would shift the whole focus of his ethic, since the basis of the secular ethic would now be the procedures, not the agreement. This would raise even greater problems in relation to the kinds of claims Engelhardt wants to make about the nature of moral authority in secular, pluralistic contexts. We should thus take the second edition as the more fitting account of his crucial fourth basis. The first edition represents a transitional stage between the more robust categorial ontology of his dissertation (where the emphasis falls on intracategorial relations) and the ethic of his second edition (where the emphasis falls on actual agreements and the communal contents of moral life inaccessible to discursive thought).
- 12.
Engelhardt uses the term “moral stranger” for the flesh and blood agents who interact in society (1996, 24, note 13; 74–83). These agents are individuated in terms of contingent contents that differentiate each moral stranger from other moral strangers. However, when such moral strangers are regarded as ethical agents, emphasis falls upon the minimal content that they share qua rational agents with a resolve to interact in a way that sustains the game of blaming and praising. Here emphasis falls upon the “moral standpoint” as a kind of “intellectual standpoint” of a self-legislating agent in an intelligible world (Kant’s mundus intelligibilis). What is shared by moral agents in a general secular community is the notion of “a community of entities who are self-conscious, rational, free to choose, and in possession of a sense of moral concern” (1996, 136). There is thus a shift that often takes place between individuated moral strangers where each is maximally differentiated from all others, and the general category for such moral strangers qua moral agents. The latter, general category includes only that sparse rationality and resolve that is found in any agent. Thus, when considering the sparse content shared by moral strangers, one has the maximally intersubjective content. This would be shared by moral friends as well. Viewed in this way, i.e., in terms of the shared, sparse content, moral friends and moral strangers are bound up in a common sparse community.
- 13.
The background for some of Engelhardt’s account of controversy might be found in a 3-year series of Hastings Center meetings on scientific controversies led by Engelhardt and Caplan (1987a). This set of conferences straddles the completion of the first edition of Engelhardt’s Foundations of Bioethics, and he acknowledges his debt to conference participants, especially Tom Beauchamp (1987), in 1996 (92, note 74) and in his coauthored introduction for the controversies volume (Engelhardt and Caplan 1987b). But Engelhardt’s interest in “resolving issues in ways not directly grounded in unconsented force” and his contrast between appeals to force, reason, and “peaceable manipulations” is a pervasive theme in earlier work (1973, 1982, 67). At best we might say that Engelhardt further refined the ideas in his Foundations of Bioethics while he was also actively thinking about the entanglement of questions of “knowledge, value, and political forces” in resolution of scientific controversies.
- 14.
Specification of controversies in terms of categorial contents is a central theme in Engelhardt, 1973. This work can be taken as an effort to provide a set of increasingly refined specifications of general types of controversies and their general resolutions. Actual controversies might then be explained and a resolution suggested by identifying the general type that covers that controversy, and the general form of resolution it allows. Questions of controversy and resolution are quite explicit in his account of the dialectic, the categorial “must,” and closure in relation to the de jure exhibition of categories that provide regressive justification (ch vi). Since conflict arises “progressively” and resolution is worked out “regressively,” one might even find in his account of the dialectic a way to clarify what, specifically, a resolution of a controversy entails as a distinct step. Even when Engelhardt talks about real world controversies, his categorial account seems to hover in the background, e.g., in the way he associates ethics with a categorially specified moral standpoint.
- 15.
A more complete analysis of controversies might proceed by gathering examples of controversies from Engelhardt’s works and categorizing them. One classification scheme might sort them from most abstract (emphasizing the thought content integral to a controversy) to most concrete (emphasizing the opposition of embodied, socially and historically situated agents). Such a taxonomy of controversies would range from the pure categorial oppositions and their dialectical resolutions (Engelhardt 1973), run through disputes about criteria for preferring one abstractly described possible world over another (Engelhardt 1996, 42–43), move to controversies about specific policies on topics such as the clinical determination of death (241–252), grade over toward general disputes between groups (e.g., Dominicans vs Orthodox on the nature of true conversion, 44), and finally move to specific, historical confrontations between named agents such as the 47 ronin and Kira Yoshinaka in 1703 Japan (44). Such a gradation of controversies in terms of the ingredients of thought and contingent givenness integral to specification of a controversy would clarify how a rank ordering of categories that cover the controversy type may alter the ways we understand bases for their resolution. It is not clear, for example, how force could ever be used to resolve a controversy about the criterion that determines which of two abstractly described possible worlds should be preferred. Any agent attempting to use force to compel another agent to accept World A rather than Worlds B or C (1996, 42–43) would simply demonstrate that s/he didn’t understand the controversy properly. On the other hand, it is not clear whether political controversies or historical disputes between individuals such as the 47 ronin and Kira Yoshinaka could be properly understood in a way allows for a resolution that doesn’t involve some use of force.
- 16.
Engelhardt provides a rich account of property, ownerships, and persons in 1996, 154–166. He fully appreciates what an ethic must accomplish if it is to account for how a person gains ownership of a thing: “The difficulty is bringing things, objects, within a conceptual framework of possessions and possessors. Any particular system for speaking of possessions and possessors appears to be culturally relative and open to challenge by members of other communities with other conventions” (154–155). Engelhardt provides an account based on Locke and Hegel, and tries to root what he takes from them in his principle of permission. Objects owned are regarded as extensions of persons. But the crucial work required for understanding such an extension depends on an account of embodiment, and it runs up against a reality that Engelhardt clearly discerns in his early project on mind and body (1973): at any stage, the extension from person to possession of a thing (whether of one’s body or other possessions) already reflects a long sequence of accommodations and resolutions of antecedent oppositions. We don’t simply get persons and their bodies and then extension to things. Bodies are already communally configured products of mind, and any extension into other external bits of matter must somehow tie into the antecedent mediations of body and mind. This is problematic for an account that seeks to trace a notion of right back to a fully transparent basis. Even when general principles of ownership are worked out (as in 164–166), these reflect contingent, culturally conditioned conventions regarding ownership. A controversy over ownership thus cannot in a straightforward way be resolved by pointing to a principle of permission, as he seems to suggest. Here the problem is roughly like that in Hobbes’s state of nature: different persons might lay claim to the same bits of matter. This is the kind of controversy for which a basis of resolution is sought.
- 17.
The problems associated with individuation of controversies is explicitly addressed in Engelhardt and Caplan (1987b). There “‘a’ scientific controversy is defined by the existence of ‘a’ community of disputants who share common rules of evidence and of reasoning with evidence. If such rules are not shared, then the dispute is not a single controversy” (12). But this account of the individuation of a controversy cannot work for two individuals in an ethical controversy unless “existence of ‘a’ community” itself becomes completely indeterminate. In Sect. 7.4.3, I address the different strata of community of disputants by speaking of first through fifth community of disputants associated with a controversy. The conceptual analysis of controversies provided by Engelhardt and Caplan (esp. 1987b, 4–16) seems to indicate that the problem of individuation of controversies can be addressed by disaggregating controversies about fact, about values, and about collective action (politics), and isolating the relevant communities and criteria for resolution. Resolutions in terms of loss of interest, force, and consensus reflect dynamics of collective action, but are not correct or fair. Scientific controversies are about matters of fact, and are to be resolved by argument. Such resolutions have the quality of being correct. Ethical controversies are about matters of a practical rational nature and relate to values and choices, and these are to be resolved by negotiation. Such resolutions have the quality of being fair. When controversies involve entanglement of scientific, ethical, and political aspects, then resolutions will likely be partly correct (and attained by argument) and partly fair (attained by agreement). To show how the problem of individuation can be resolved, Engelhardt and Caplan consider disputes about Laetrile, and note how “at least two quite different controversies were intermingled in this dispute, one involving rules for establishing a scientific claim and the other involving political rules regarding access to particular medications. These two elements are, in principle, both distinguishable and separable. They are intermingled in one debate out of historical accident, owing to the drug control laws of the United States” (4). However, instead of viewing the entangled, complex controversy about Laetrile as a kind of false description – describing two distinct controversies as if they are one controversy – one might take the complex controversy as a first stage, and take the proposal by Engelhardt and Caplan (following contributions in Part II of 1987a, especially by Baruch Brody and Robert Schwartz) to partition the controversy into two subordinate controversies as one kind of a resolution of the original entangled controversy. The proposal to partition the controversy arises by deliberation and argument. If it is accepted by parties to the original controversy, and subsequent controversy neatly settles out into scientific and ethical/political strands, we might say that the complex controversy was resolved by argument. Nearly all (and perhaps all) real controversies are entangled. Resolutions often take the form of such refinements regarding what is, in fact, disputed. A resolution might take the form of differentiation of an antecedent controversy into multiple, simple controversies. Appreciation of these characteristics of so-called ethical controversies makes the problem of individuation of controversies more intractable and persistent than Engelhardt and Caplan suggest in their conceptual overview. Engelhardt deeply appreciates all of this, and I learned much of what I know about the entanglements of facts and values from his case studies and conceptual analysis. But his insights on the strata integral to actual controversies feed back upon meta-level descriptions of controversies in ways that problematize the way he wants to speak about ethical controversies and their resolution in his ethic for moral strangers.
- 18.
Engelhardt says that “one respects claims to ownership insofar as the entity owned has been brought within the sphere of the owner, such that violating that ownership would be a violation of the person of the owner” (1996, 164). But he leaves the meaning of “brought within the sphere of the owner” ambiguous. In the lawnmower example, “brought within the sphere of the owner” might mean “brought within the garage of Fred (or Bob).” If that’s the case, when Fred has the lawnmower in his garage, Bob should respect his claim. When it is moved from one location to the other, then what the principle of permission would require shifts. This can’t be right, since it would miss the way the controversy is about the right of ownership, and such a controversy remains unaltered by a shift in location of the thing. “Sphere of control” in such cases can’t mean “power to directly use or dispose of the object.” The question of right needs to be resolved prior to any application of the principle of permission, and that question of right raises the question of an ethical basis that is not addressed by Engelhardt’s ethic for moral strangers.
- 19.
Engelhardt’s account of controversies about disease (1996, ch 5) might be taken as representative of all controversies, including ethical controversies. When considering problems of medicalization he notes: “The problem is not simply to decide on the correct sick role or the correct staging or characterization of a disease, but whether to see a problem as a disease at all. The major social institutions offer competing construals of reality with competing costs and benefits. There are advantages and disadvantages in seeing disruptive behavior as a crime, a sin, a moral fault, or a disease. In some circumstances and from certain perspectives, it is more important, useful, and plausible to see individuals as responsible for their actions and in need of punishment or discipline, not treatment. In others it is more useful and plausible to see behavior as determined and open to technological manipulation” (224). This recognition, however, calls into question the way he implicitly frames the task of developing an ethic for moral strangers. Why be so worried about a fully explicit, universal, and authoritative moral basis for resolving controversies if contingency enters so directly into the way we “see individuals as responsible for their actions and in need of punishment or discipline”?
- 20.
When setting up questions about the standard or basis of an ethic, Engelhardt distinguishes ethical controversies from scientific controversies by highlighting the way the latter kind of controversy might be resolved by empirical considerations and secure intersubjectivity in relation to historically conditioned communities with a common sense. “Disputants can test competing accounts with reality and thus falsify some competitors and strengthen the claims of others. Some accounts will stand out as preferable in being simpler accounts of the facts with fewer anomalies and with fewer ad hoc assumptions. The ‘facts’ can cause difficulties for many conjectures concerning empirical reality” (1996, 39). Engelhardt thinks a similar basis for resolving moral controversies cannot be found. But the meta-controversies associated with description of a controversy have the same character as the scientific controversies. Standards of correctness in description of the controversy play as significant a role as those of fairness in resolution of a meta-controversy about the description.
- 21.
When Engelhardt and Caplan (1987b, 12) individuate a controversy by isolating a single community of disputants with common rules of evidence and reasoning, they might be taken as advancing a stipulative definition of just this kind. One need only add that the single community must proceed according to its common rules, and exclude rules that involve force or appeals to force. If at any stage some members of the community attempt to use alternate means for resolving the controversy, this would simply indicate that they are not in fact or no longer remain one community. The controversy is then redescribed as an entangled controversy. By definition, real controversies are the simple, resolvable kind. The messy, entangled kinds are not really controversies but bundles of many controversies falsely described as single controversies.
- 22.
These statements about the “no” and “yes” scenarios might be taken as alternative ways of stating what Engelhardt means when he says “a difference between duties of forbearance and beneficence derives from the fact that another’s refusal is sufficient to create an obligation of forbearance, whereas mutual agreement is required for a concrete duty of beneficence” (1996, 128). However, there is still an unclarified difference between the “no” that constitutes a controversy as a controversy, expressing an opposition or disagreement, and the “no” that constitutes a lack of permission and whose breach would constitute a blameworthy act. The first “no” does not require forbearance, the second does. The difference must relate to some mediating structure or criterion that specifies which oppositional resolutions in relation to which types of controversy establish the requirement for a common basis of resolution. In this case, the “common basis” cannot be the bare, surd movement of will that constitutes permission/agreement or its lack. It must be something that includes both the permission/agreement and the criterion or structure that enables an agent to determine when a “no” generates a duty of forbearance. A similar kind of mediating structure is needed to differentiate between the “yes” of permission and the “yes” of a collaboratively willed end associated with beneficence. To flesh out these mediating structures, more detail is needed regarding the underlying action theory than Engelhardt provides.
- 23.
Variants of this maxim can be found throughout Hobbes’s Leviathan. The wide scope he gives to it may be taken as a distinctive mark of his political theory. One statement of the maxim from an early chapter on reason and science reads as follows: “no one man’s reason, nor the reason of any one number of men, makes the certainty; no more than an account is therefore well cast up, because a great many men have unanimously approved it. And therefore, as when there is a controversy in an account, the parties must by their own accord, set up, for right reason, the reason of some arbitrator, or judge, to whose sentence they will both stand or their controversy must either come to blows or be undecided, for want of a right reason constituted by nature; so is it also in all debates of what kind soever” (1962[1651], 42).
- 24.
In Locke (1988 [1690], Second Treatise) the full maxim needs to be generated in a sequence of steps. Since I will advance at the end of this essay a modification of Engelhardt’s project that in net effect affirms Locke’s variant of the maxim, and since Locke expresses what I think is a crucial insight about force, agreement, and conditions for sustaining a certain kind of blaming and praising game, it is helpful to briefly sketch his account. Within Locke’s state of nature, each person has the power “to do whatsoever he thinks fit for the preservation of himself and others within the permission of the Law of Nature: by which Law common to them all, he and all the rest of Mankind are one Community, make up one Society distinct from all other Creatures. And were it not for the corruption, and vitiousness of degenerate Men, there would be no need of any other; no necessity that Men should separate from this great and natural Community, and by positive agreements combine into smaller and divided associations” (352). Since Locke, unlike Hobbes, has standards of right and wrong that govern people in this natural community, the maxim to establish conditions for sustaining the game of blaming and praising does not take the fully general, unconstrained form found in Hobbes. Instead, it is anchored in the natural standards of peaceable interaction, but requires elaboration that compensates for deficiencies and “wants” in the state of nature associated with inappropriate uses of force and forms of neglect that make people blind to the standards of right and wrong that they should recognize: e.g., in the state of nature “[t]here wants an establish’d, settled, known Law, received and allowed by common consent to be the Standard of Right and Wrong, and the common measure to decide all Controversies between them. For though the Law of Nature be plain and intelligible to all rational Creatures; yet Men being biased by their Interests, as well as ignorant for want of study of it, are not apt to allow of it as a Law binding to them in the application of it to their particular Cases” (351). For this reason, people transfer their natural power to do whatever they see fit within the bounds of natural law (associated with peaceable interaction) to form a political society which promulgates positive law that in many cases confines liberty to a greater extent than the natural law confines it in the state of nature. People thus jointly establish conditions that constrain themselves in whatever ways they deem necessary for ongoing peaceable interaction. In addition to the concession of legislative authority to make binding positive law, and judicial authority to impartially judge cases according to such law, prerogative is also assigned to an executive power to enforce whatever it considers important for preservation of property (broadly construed to include life, liberty, and what is more narrowly construed as property): “Where the Legislative and Executive Power are in distinct hands, (as they are in all moderated Monarchies, and well-framed Governments) there the good of Society requires, that several things should be left to the discretion of him, that has the Executive Power. For Legislators not being able to foresee, and provide, by Laws, for all, that may be useful to the Community, the Executor of the Laws, having the power in his hands, has by the common Law of Nature, a right to make use of it, for the good of the Society, till the Legislative can conveniently be Assembled to provide for it” (374). “Prerogative can be nothing, but the Peoples permitting their Rulers, to do several things of their own free choice, where the Law was silent, and sometimes too against the direct Letter of the Law, for the public good; and their acquiescing in it when so done” (377). What distinguishes this from Engelhardt’s “agreement” is the way consent of people lead to a political society with discretionary powers to make laws, judge, and execute law with the sanction of force over all who sojourn within its geographical jurisdiction. The blaming and praising are thus not fully general, but rather specified in relation to the legitimate uses of force. The crucial insight in Locke concerns the way the legislative, judicial, and executive powers of political society must track norms of peaceable interaction that are sparser and characterize a universal human community. These involve additional contingent content related to uses of force that are necessary to compensate for the ways actual agents deviate from ideal rational agents. The more a people lack an awareness of the norms of peaceable interaction, and the more they deviate from it in practice, the greater is the contingency that enters into positive law, judiciary, and executive use of its prerogative. For Engelhardt, the forbearance strand involves the sparsest content and is associated with the most universal society. For Locke, people withdraw from the sparsest universal community and form a “private, if I may so call it, or particular Political Society, and incorporates into any Commonwealth, separate from the rest of Mankind” (352). What Engelhardt says of people who irrevocably give up their property when entering a monastery (but not what he says of placing oneself absolutely under an abbott) is what Locke says happens when people with their property form a civil society (compare Engelhardt 1996, 159–160 and Locke 1988 [1690], 348). Since the initial transfer of land to a political society involves an irrevocable consent, once transferred, the property remains under the jurisdiction of the political society. The property, especially land, is permanently transferred and from that time forward comes with constraints on all who sojourn within the land. If this can be validly done for a monastery, why can’t it be done for a whole geographical region in relation to a political society? What distinguishes Locke’s political society is that the contingent content of “private,” i.e., particular society is restricted by the logic of force that checks and compensates for gaps between ideal moral agents and actual agents.
- 25.
This is the problem of Abstract Right which Engelhardt, following Hegel (1967, 1991), contrasts with Sittlichkeit (1994b, 214–217). He presents this as a contrast between right and the good. But here we see the same problem in relation to that agreement that is supposed to be the basis of the ethic for moral strangers. This makes clear that there is another aspect of the problem of contingent content that is not addressed in terms of the intracategorial relations of Hegel’s Philosophy of Right. This is the problem of the “concrete universal” discussed by Chaffin (1994), and which I discuss in relation to the “existential turn” from the pure categorial back to the ordinary domain of actual agents (Khushf 1994).
- 26.
At times Engelhardt seems to use “intellectual standpoint,” “moral standpoint,” “secular moral community” and the “intellectual standpoint of persons” as all synonymous. “Since moral controversies can in principle encompass all moral agents (… and only moral agents), one has a means of characterizing the secular moral community as the possible intellectual standpoint of persons interested in resolving controversies in ways not fundamentally based on force” (1996, 69). “This concept of the person (as well as moral competence) is thus defined wholly within the practice of moral strangers resolving moral controversies by agreement, by giving and withholding morally authoritative permission. The very notion of a general secular moral community presumes a community of entities who are self-conscious, rational, free to choose, and in possession of a sense of moral concern. … Insofar as they wish to collaborate with common moral authority, they create the peaceable moral community. The peaceable secular moral community exists both actually and potentially. It exists potentially as a moral standpoint in terms of which self-conscious rational entities can speak of blame and praise, and through permission and agreement understand themselves as bound by their mutual authority. It is an intellectual standpoint … In terms of this possible moral standpoint, persons can at any time in any place conceive of themselves as belonging to, and being bound by the rules of the peaceable community. An examination of the moral language reveals a very important moral standpoint: the mundus intelligibilis of Kant” (136). Here the “accent” falls on a Hegelian categorial account that “avoids the Kantian difficulty of mediating between the sheer givenness of the object and the predicament of the finite knower. … [C]oncerns of the finite knower can be placed with a general categorial understanding” (95, note 83). Engelhardt is “seeking a characterization of the fabric of morality” that is “tied to the fabric of rationality”(105). A “will to the moral viewpoint” cannot just be an “inclination toward that viewpoint.” It must be a “will to a moral fabric as general as the very concept of morality itself.” By tying the “characterization of the moral fabric” to the “very enterprise of being a person,” one establishes the conditions for its rigorous justification (104). In all of this, there is a nontrivial categorial content and a special kind of rationally legislating will that is involved in making agreements. The agreements involve concomitant willing of the whole fabric associated with the moral standpoint. At other times, he emphasizes that “authority is derived not from reason but from the bare will to have the one authority moral strangers can share: permission. Secular authority is derived from a bare will to morality. Competence to give permission is the ability to so will” (72). Somehow the “will to the moral viewpoint” and the “bare will” associated with giving permission need to come together in an actual, embodied agent. His first book on mind-body as a categorial relation worked out the ways the complex strata of mind and body (with its “force”) are integrated. But it is difficult to see how the rich sequence of mediating categorial relations associated with embodiment link up with both the “bare will” qua permission/agreement of an actual agent and the “will to a moral standpoint.”
- 27.
A more detailed discussion of the type, token, occurrence distinction is provided in Wetzel (2009). Chapter 7 provides a defense of the notion of an occurrence. Three individuating parameters of occurrences are identified: “what expression is occurring, in what other expression it is occurring, and where it is occurring in the latter” (131) or “x occurs in y at position p” (132). I use this language as a shorthand for a different kind of logical language worked out in Hegel’s logic. Individuating conditions of occurrences are addressed in Hegel’s Encyclopedia by stating the order of a categorial occurrence within a higher order categorial whole. The individuation of the occurrence is as part within a whole, where the part-whole relation must itself have a place or position in a yet more comprehensive whole. Each higher category constitutes a “categorial place” that gives form and meaning to the notion of a position. Negativity, incompleteness, and inclusion relations between diverse categories are used to clarify the way individuation of an occurrence within a higher order occurrence changes as one progresses through the systematic ordering of the categories. Most significantly, the very structure of individuation of an occurrence in its higher order type changes, especially as one moves from the logics of being and essence to that of explicit concepts (the thinking of categorial thought determinations). This categorial logic is more complete and appropriate than the logic of types, tokens, and occurrences for elucidating the relations between agents, controversies, communities, and societies. It is worked out in Hegel’s Encyclopedia Logic (1991 [1830]), and summaries are provided in Engelhardt (1973) and Pinkard (1988). However, it was too difficult to clarify all of this for the current essay. By means of the notion of an occurrence I seek to highlight a kind of individuation that is different from that associated with concrete particulars, e.g., tokens. Once this difference is appreciated, we can move to a discussion of the relation between the ideal individuation of agent occurrences and the actual individuation of reflectively aware agents.
- 28.
This brings us to the crux of problems associated with Hartmann’s non-metaphysical interpretation of Hegel. The analysis that follows involves further development of a criticism I originally presented in Khushf (1994). The ambiguities arise from the differences between intracategorially specified relations and relations between the actual instances covered by the categories.
- 29.
“A contradiction in will” can be associated with contingent contents of the moral life, for example advancement of freedom as a value rather than just freedom as a side constraint. Engelhardt seeks to distinguish such contradictions from the conceptual contradictions that are the mark of blame in his ethic for moral strangers: “affirming the notion of the peaceable community, in the sense of a community whose authority is not based on force, while at the same time deciding to use force against the unconsenting innocent, would involve a conceptual contradiction” (1996, 106; see also 103–108, 94–99, notes 81–89). If the agent directly and intentionally “decides to use force against the unconsenting innocent,” then we do come to the strong, clear cases of contradiction. Even in these cases, the agent’s understanding of intention would be informed by contingent, background norms of right that say when an action involves an unconsented use of force against the innocent. More significantly, many and perhaps most real controversies involve ambiguities which enable agents to engage in practices that others might legitimately interpret as using force, yet do this in a way that never requires an intention to use such force and in a way that can be interpreted by the agent as consistent with an ethic for moral strangers. We need a framework that enables reflectively aware agents to consistently interpret their actions in convergent ways. Engelhardt’s notion of the “outlaw” is closely related to his account of conceptual contradiction: “if one rejects the principle of mutual respect, one cannot rationally protest when others respond with force. Since questions regarding the sanctions for immorality are intellectual, the sanctions are intellectual. They pronounce outlawry upon the offending individual, a charge against which that person cannot consistently protest as long as he continues in affirming the immoral action” (1996, 111; also 117, 133, note 12 and 137). First of all, Engelhardt interprets being an outlaw in terms of a failure of rationality: one loses a basis of justification for objecting when another would use force in return. Only secondarily does this provide an account of legitimate uses of force. In contrast, Locke (1988 [1698], 280, 284, 309) directly ties the notion of being such an outlaw to the legitimacy of using force (the executive power). By his transgression, the human “declares Himself to quite the Principles of Human Nature, and to be a noxious Creature” … “and therefore may be destroyed as a Lyon or a Tyger, one of those wild Savage Beasts, with whom Men can have no Society or Security” (273, 274). In Engelhardt’s account, an extra step is needed from the inconsistency of an action with the justificatory game to a legitimate use of force against that person. In Locke, there is a direct link between the transgression and the legitimacy of force: by the act of violence, the transgressor demonstrates he “quit the principles of human nature” and thus placed himself outside the “natural society” of peaceable interaction that all humans have with one another. In such a case, it is “natural” to deal with the “wild beast” in the same way one would deal with any other wild beast.
- 30.
- 31.
Engelhardt’s discussion of these three standards of disclosure is in 1996, 310–317. The parallel between his account of informed consent and his account of agreement as the basis of an ethic for moral strangers goes very deep. In earlier writings, his arguments about the conditions of a secular ethic were put directly in terms of consent, rather than permission: “the core of ethics is procedural in focusing on the acquisition of the free and informed consent of the individuals involved in a particular endeavor” (1973, 1982, 67).
- 32.
The circumstances surrounding the professional standard of disclosure are analogous to making a contract or property transaction in a context where there are no laws (common or statutory) for how they become binding, are registered, and can be enforced if there is fraud or a breach of contract. The transaction works fine as long as there is no post hoc problem. If there is a problem, conditions for peaceably resolving the controversy may be lacking. The contingent, common standards of contract and property law aren’t related to legislating content-full visions, but rather relate to establishing conditions for peaceably interacting and peaceably resolving disputes when they arise. In the same way, explicit, admittedly contingent standards for informed consent establish such conditions. In a way that is fully consistent with his purely internal account of consistency, Engelhardt states: “[u]nless individuals have taken steps to create special expectations and/or special requirements, the professional standard meets the principles of permission and beneficence” (312). He thinks requiring common social standards of disclosure involves a shift from “freedom as a side constraint” to “freedom as a value” (313). This response misses the way contingency and common, explicitly promulgated norms establish conditions for peaceable interaction, and thus make “freedom as a side constraint” something more than “abstract right.” Since Engelhardt acknowledges that different physicians might be members of different medical communities and thus, by direct implication, might have different norms arising from “what other physicians similarly situated would disclose,” his professional standard of disclosure is equivalent to allowing just one party of a contract the privilege of determining the standards for how contracts are duly authorized and enforced, for example, establishing as a rule that all and only the person providing services gets to determine how a contract for provision of services is drafted, registered, and enforced, as long as that provides standards that conform to those that would also be used by a self-selected peer group.
- 33.
Engelhardt criticizes this “objective standard” as follows: “This departure from using the judgment of reasonable members of the professional community as the standard to that of reasonable and prudent individuals can be justified if the medical profession is under the moral authority of society. However, in the absence of specific agreements and understandings, that is not the case. Members of a profession are as much entitled to their views regarding proper standards of disclosure as are members of the general public. Moreover, there is no socially or historically unconditioned, atemporal notion of a reasonable and prudent person. Such concepts are in fact always dependent on the particular values of a particular community. A reasonable compromise between the two viewpoints is to be achieved, if at all, through negotiation” (1996, 314). This criticism nicely summarizes the whole sequence of moves he has made regarding an ethic of moral strangers. He is clearly correct that there is no atemporal notion of a reasonable and prudent person (although we might question whether his “moral standpoint” is supposed to provide such a notion). He is also correct that any positive standard established as binding for physicians requires that physicians be under the authority of the society establishing those positive standards. But all the same things are true for explicit standards about registering property. Again, the crucial thing is that contingency is required to have conditions for consistently determining which permissions, agreements, and transgressions among actual agents in real world circumstances count as the kinds that are abstractly specified within an ethic for moral strangers. This point is well addressed by Kant in his Metaphysics of Morals (1996 [1797]). A nice commentary on this work is provided by Byrd and Hrushka (2010). For example, when discussing legal requirements for property, they note that Kant “attaches legally significant consequences for our ownership rights to whether we performed or failed to perform some act of registration or documentation – an act of the same character as driving on the right (or left) side of the road, namely an act empty of moral content and, in the absence of positive law, legally irrelevant” (35). These otherwise empty actions are required to establish the external conditions of freedom, not just freedom as a value (although there is this in Kant), but also freedom as a side constraint. One wills the conditions for making actual what is otherwise a purely abstract right (note the maxim from section Sect. 7.4.1 and note 24 in the Lockean variant). My reference to the sensus communis is meant to align the Metaphysics of Morals with another one of Kant’s later works where the sensus communis plays a prominent role, the Critique of Judgment (1987 [1790]).
- 34.
I take recognition of the inaccessible interiority of other agents as the crucial claim that is missing from the way Engelhardt explicitly develops his account of the moral standpoint. In ethics, this insight is closely associated with a principle of respect. Recognition of an inaccessible interiority of the other is a constitutive moment of the moral standpoint. In Kant, this is often associated with the supersensible. Many understand the supersensible in Kant as a purely negative concept, deployed to reconcile domains that would otherwise be irreconcilable (solve some kind of antinomy exhibited in a dialectic). As such a tool to reconcile opposites, it becomes the “negativity” in Hegel’s dialectic. The crucial difference between the categorial and ordinary levels in Hegel hinges on how this otherness is regarded. Hegel, in net effect, brackets the surd content of the supersensible, regards it as nothing, a limit, an incompleteness. With this shift, the other can become nothing but a motive, a driver in the movement of the dialectic. But this reconstruction of the other as negativity involves a specific, highly problematic commitment. It reflects a distinctive valuation and value, namely that of a philosopher interested in the immanent ordering of thought determinations. As the early Engelhardt notes (1973, 166): “The task of thought is to comprehend the significance of being and then to comprehend the significance of the basic categories of being’s significance for thought. Thought’s task is to discover rationality – to come to terms with itself – to think of its own thinking, to reason out its own rationality, especially that which concerns the content of its world.” This is how the task of justification is posed from within the categorial stance, including the task of justification in ethics. Engelhardt’s moral standpoint qua categorial stance has just this commitment. It is not neutral. The crucial difference between his work on mind/body and the Foundations of Bioethics involves the recognition that the categorial stance is not neutral, e.g., it leads to judgments about supersensible contents that are problematic. For example, in 1973 he explicitly states that “[m]ind embraces its other in itself by explicitly having the significance of its other integral to its own concreteness” (94) This embraced significance is understood in terms of value: the intracategorial affinities are said to express “not what is, but what should be” (97). In his own commitments, especially after his conversion to Orthodoxy, Engelhardt is fundamentally concerned with those features of reality that are, in fact, inaccessible to discursive thought. He favors the noetic over the discursive. First of all, he is concerned with knowing God: “Knowledge of God is not secured by philosophical arguments; in this Kant is right. We cannot with discursive arguments reach beyond the bonds of the possible empirical experience to an infinite God Who is by His nature beyond our sensory, spatiotemporal experience and discursive concepts. … Within the bounds of the immanent, the transcendent is always invisible, as Kierkegaard recognized” (2000, 164). But this insight regarding the need for a pause and respect before The Supersensible, God, is not just a feature of the holy, and it does not just reflect the content-full commitments of a religious community. It is also a constitutive feature of any moral standpoint. Without it, all are taken as pure rational agents, and anything that cannot be specified conceptually becomes indifferent and thus subject to the demands of thought thinking itself. Kant explicitly recognized the significance of the supersensuous, and thus did not simply reduce it to negativity. His notion of the supersensible was not just a tool to reconcile antinomies. It also reflected a sense of coming up against a depth and mystery, with a required pause and giving of place to the jurisdiction of the other, although at times it is a rather muted sense. He also continually used the concept of the supersensible to do positive work, for example, in organizing the notion of that distinctive whole/part dynamic associated with organic life (1987 [1790], secs 77–78, note how e.g. he takes “purposes as bases that make certain things possible,” an insight that might feed back upon the way a transcendental investigation into the basis of an ethic is framed). This supersensible other is what, as given, requires the “fence” expressed in Locke’s jurisdictional rights. Engelhardt also recognizes it as a pervasive feature of the moral life, and he implicitly requires its recognition by those who take up his moral standpoint. But he never explicitly introduces this, because of the way he is haunted by the valuation integral to the categorial standpoint. My critical reflections on Engelhardt’s transcendental argument have been oriented toward exposing this feature and making it explicit. To this extent, my criticisms in this essay are a further development of those I made (Khushf 1994, 122–136) of Hartmann (1966, 1977) when he took the categorial ordering of Hegel’s Philosophy of Right as a ranking of value. From a genuinely moral standpoint, the otherness, the inaccessible interiority, the supersensible ground of the other human agent encountered in a controversy is emphatically not nothing, negativity, insignificant. In its own valuations, the moral standpoint qua pure rational stance wills a transparent basis of justification. In dong this, it misses exactly what is most important. By its special bracketing, i.e., its “transcendental turn,” it puts away exactly what requires explicit recognition; namely, that supersensible inaccessible interiority of the other agent.
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Khushf, G. (2015). A Transcendental Argument for Agreement as the Sole Sufficient Basis of a Philosophical Ethic. In: Rasmussen, L., Iltis, A., Cherry, M. (eds) At the Foundations of Bioethics and Biopolitics: Critical Essays on the Thought of H. Tristram Engelhardt, Jr.. Philosophy and Medicine, vol 125. Springer, Cham. https://doi.org/10.1007/978-3-319-18965-9_7
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