Moral Universalism and Pluralism: NOMOS XLIX

4 Contingency at Ground Level

81 4 contInGency at Ground LeVeL a rePLy BarBara herMan Morality as the subject of philosophical study is often only indirectly related to the morality that persons live.1 theory to practice is pretty much a one-way street. From the side of theory, we could not say what a moral life would look like, though we could point to various norms and principles that frame or define it. a good person respects others, avoids violating their rights, is responsive to threats to their welfare, and so on. While some actions (or action kinds) are morally forbidden regardless of context, it is only within a specific social world that we can tell what respect for others looks like, or appreciate the requirements of friendship.2 If a good person is lucky, she lives in a social world whose norms and institutions do moral work, don’t threaten moral well-being, and encourage right action. But if she is not so lucky, the demands on her may not comport so easily with theory-driven expectations. one of the aims of my essay “contingency in obligation” is to consider whether there might be distinctive questions for moral theory that arise from within moral practice. the point of asking the question in these terms is to suggest that morality, and so moral theory, might be incomplete: that the connection between unchanging universal values and ground-level obligations relies on facts or premises that can introduce variation in outcomes at the level of duties and obligations, permissions, and burdens.3 after 82 barbara herman the fact, adjusted patterns of justification will make theory whole again, hopefully not in an ad hoc manner, but in ways that reveal deeper or more complex moral structures. to navigate this terrain one needs to attend carefully to the moral phenomena, and to be open to rethinking some moral features one has regarded as fixed. one such feature that I identify is stability—that persons have a legitimate interest in the constancy of the moral elements of their world. this is not to say that there are per se moral reasons to resist change. that some group of persons might be seriously discomfited to learn that they cannot go on in their old ways does not weigh against correcting wrongdoing. But the issue is sometimes not simple: moral correction is rarely like fixing an arithmetic error on a balance sheet. once identified as wrong, some kinds of action must simply cease being done (nonconsensual sex in whatever context, for example). But if personal and social relationships are built on norms that sanction gendered disrespect, while behaviors need to change, there are reasons to make the change in ways that are attentive to preservation and repair, and so more slowly. here practice makes demands on theory for intermediate principles ; they are contingent demands, at least in the sense that things might have been, or we might have been, otherwise. Issues of this sort tend to arise where wrongful practices are entrenched, where moral problems have no unique solution, or where, depending on the history of conflict and the importance of a shared future, even the moral imagination of the parties, some but not all possible options are available to agents. In complex cases —what often makes the cases complex—all options involve morally significant costs. When costs get large, perhaps extending to the violation or abrogation of rights, arguments tend to engage a familiar palette of justifications—practical necessity, rights overriding rights, moral balancing—all of which suggest some resignation about morality’s ability to solve its own problems. the trc looked like an ideal case for working on these issues: the difficulties were and were recognized as being fundamental moral ones; a solution to the moral and political problem of transition was devised that was in key ways circumstance specific; the recognized challenge to the trc was that the costs it would impose were ones, it was claimed, that victims had a right that they not bear. If the trc Contingency at Ground Level 83 was morally justified, then some rethinking of that claim would be necessary. In her comment on “contingency in obligation,” F. M. Kamm takes me to be arguing that the trc, though it involved loss of rights, was an institution of civic benevolence which became obligatory when large numbers of people, disenchanted with the normal institutions of justice, felt it was the only...