In what Willmoore Kendall likely thought was his most important paper, "The Ultimate Issue Between Liberalism and Conservatism," the author's principal goal was to contrast what he took to be the correct (conservative) view of morality with a radical relativism that he attributed to liberals of every stripe.# His claim was that Locke, who Kendall came to believe merely used natural rights as a cover, while never sincerely believing in them, thought that it was not only laws and penalties for their violation that are ultimately created by contract, but the most basic ethical rights and wrongs themselves.
On Kendall's view, all self-styled conservatives who either consider themselves contractarians or believe that the "Founding Fathers" of the U.S. (other than, perhaps, the evil Jefferson) were Lockeans are simply deluded. Real conservatism, he argues, is never based on the consent of the governed, but rather upon faith in the same eternal moral truths that were urged by Plato and Aristotle.
According to Kendall, an entire, quite popular picture of the origin of American society is wrong. Locke's view that "the way society and government came into existence was by man emerging from the state of nature to make a compact, which could only go into effect if all men consented to it; and that the essence of that compact was that man retained, or held back, certain natural rights which the compact accordingly set down in black and white" is not just false, but based on "whopping fibs" and "all manner of absurdities." For, on Kendall's view, most of the Founders were not Lockeans at all (opposing as they did any Bill of Rights*). Furthermore, even if those men had been Lockeans, there would have been three further problems. First, Locke was a poor guide to the ancient traditions, and true conservatives should always remember to stick exclusively to what has lasted since time immemorial. Second, Locke was not understood at the time of the creation of the U.S. Constitution to have been insincere with his talk about natural rights when, in reality, he thought there could be no rights not agreed to by compact. Finally, Kendall held that conservatives, being both wise and righteous, must understand that a pile of wildly different voters — even if by some miracle each person's vote among them happened to merit the same consideration as every other person's — a poll must never be depended on to reach any important verities.
Kendall traces what he takes to be an all-inclusive dichotomy between those who ground morality and political obligation in eternal truths discoverable by reason — what he calls the Great Tradition, running from Plato and Aristotle through the medieval period — and those who hold that society, law, and the principles of right and wrong are entirely man-made, the products of agreements among self-interested parties. The first camp, on his telling, speaks with a single clear voice across two millennia about the merely subordinate role of consent in political life. The second camp, represented most vividly by Glaucon's speech in Plato's Republic and then again by Hobbes, Locke and Rousseau, holds that justice, as well as right and wrong, are simply what we have agreed to. Kendall's claim is that this dichotomy is exhaustive — that every serious position in the history of political philosophy falls on one side or the other — and that liberals, whether they know it or not, are always in the second camp. There is no escape via "natural rights" that, even if existent in the world, would nevertheless need to be specifically enumerated by contract.
Kendall's picture has a certain grandeur and historical sweep, but one problem with it is that it leaves out a crucial middle territory; in reality, there are not two relevant dimensions to the value landscape but three; and the conflations that follow from missing that third dimension are numerous and consequential.
One might put Kendall's list of the relevant categories this way: (1) moral and ethical values and obligations; and (2) legal properties and obligations. Kendall took (1) to involve values that are objective, discoverable by reason, and independent of what anybody happens to want. And he claimed that honest Lockean liberals must deny the existence of any such dimension, holding instead that the elements of (2), including such characteristics as, e.g., being punishable by imprisonment, are all that can be found in the (imagined) world of values. "Imagined," because what is or is not legal is actually a matter of fact, and only derivatively suggestive of any authentic value.
It should be noted, however, that Kendall here fails to distinguish Benthamic hedonism (a consequentialist view of what constitutes good and evil) from legal positivism (the position that what laws are is solely a matter of what people have done at some particular place and time). He writes, "What is the origin of organized society? of law? of justice? of the principles of right and wrong that justice and law are said to embody?" And his answer is that, according to liberals, "Organized society came into being as a result of agreements arrived at among its members, and is, therefore, artificial, man-made. Law, justice, the principles of right and wrong, are also man-made, and are merely that which men have agreed to." On Kendall's view, then, liberals believe that any obligation one has to follow societal dictates or alleged principles of right and wrong, simply follows from some original consent, though he recognizes the view of those involved was that consent was "most likely to conduce to their well-being." And perhaps he is also suggesting here that liberals, whether or not they agree with the argument famously made by philosopher John Searle that uttering a promise or signing a contract generates a moral "ought" and so creates real a obligation in the universe, will surely always deny that there are any other kinds of "oughts" that can be found in the world. For liberals, obligations are constructs.
It should be noted that, in spite of the alleged all-inclusiveness of the two above-mentioned categories, Kendall also suggests that such legal "principles" as liberals do admit are likely a function of beliefs regarding well-being —what (whether actually morally appropriate or in anybody's interest) is believed to be good for some person or group at a relevant time. What is crucially missing from Kendall's bipartite picture, then, are prudential values and obligations — what a person or group should do if it wants to produce as much well-being as possible. Therefore, we must add to Kendall's two value types prudential values and the obligations they create.$ I say that, like moral values and positive law, prudential values also produce obligations, because there, too, we will find "oughts"--what a people should do if they want to make as many folks as possible as happy as possible. I therefore claim that prudential values should be seen as a distinguishable third dimension, rather than just factors in the historical choices leading to the production of legal properties in the manner Kendall suggests, because it is possible for the obligations emanating from prudential values to reflect neither what is truly right nor any actual laws of the land. Consider that a canny, prudent person may have settled on taking action X, while her crafty lawyer instead urges action Y on her (since X is illegal), and her saintly aunt Eleanor argues for Z, simply because the other two activities wouldn't be very nice.
Now, it is hard to disagree with the claim that legal positivism, which makes laws no more than a function of procedures that can be said to have been originally initiated by some sort of popular consent, has, at least since the days of Bentham and Austin, been espoused by numerous individuals we would now characterize as liberals. But it is important to note, too, that legal positivists have not generally conflated legal with moral claims. In fact, for Bentham and Austin, the two above-mentioned godfathers of positivism, laws (positive or no) should be considered excellent or poor based on the overall utility they have produced — or can be expected to produce — on societies in which they have been or will be enacted. In other words, being prohibited by law should not be understood as another way of saying some particular actions are bad or wrong. In the views of those early consequentialists, goodness and rightness are matters of what produces the most happiness, and cannot be deduced from the fact of any historical legal procedure.
Now, if one is both a legal positivist and a Searlean, one may assent to the claim that citizens have not only legal, but also moral obligations to obey properly generated laws. And it may also be true that such a contractarian could hold that the signing of some "original compact" resulted from the estimates made by the populace regarding the future utility of agreeing rather than holding out and so being stuck forever in an awful, Hobbesian "state of nature." I don't know of any such Searlean positivist myself, but it is surely possible that some have existed. But even if they have, the problem would remain that Kendall's summary of the liberal position, by conflating both moral and prudential values with legal outcomes, runs together several theses that are importantly distinct and additionally accuses liberals of mistakes they have been exceedingly unlikely to make.
In sum, Kendall's dichotomy leaves no room for a position that takes neither the Great Tradition's eternal moral truths nor Lockean contractarianism as its foundation, but, e.g., rather treats democratic equality as an axiomatic commitment — chosen rather than discovered, and not derived from any calculation of future utilities. Yet that, and other "middle" positions have not been terribly rare. My own work on democratic theory provides one example, though I make no claim that it is the only or even the best one. Readers familiar with that work will know that I support a position I originally found in the work of Everett W. Hall and subsequently tweaked into something I have called "CHOICE voluntarism."🗡 On that view, a public policy is appropriate in some jurisdiction if and only if it is supported by a majority of the people there, as indicated by a fair election.
But wait a moment. This "appropriateness" I speak of -- what is its nature? Presumably, I am not suggesting that the particular manner of making policy I advocate is the lawful one, since it may very well not be in accordance with any law. Is my claim, then, that only the mechanism I endorse can be prudentially good? Absolutely not! It would take a large quotient of omniscience to confidently make any claim of that type. While I certainly do believe that giving people what they ask for is probably the safest way to maximize their well-being, I quite understand that people are often wrong about what is in their best interest.
So, surprising as it may seem for one who Kendall would surely declare to be a dastardly liberal, I take acceptance of my sort of majoritarianism to be a moral requirement. But I hasten to note that this is the case even though it is my view that every moral commitment that I (or anybody else) makes is very likely to be mistaken. For I take it that none of us can really know that such commitments are the correct ones. In a word, I am a skeptic with respect to moral claims who nevertheless rests my political theory on an ethical postulate.
Another way of putting this is to concede that for my sort of "distilled populism" to be the way to go, democratic principles must be taken to be intrinsically good. My claim for the intrinsic goodness of democracy involves stoutly defying Kendall's deprecation of egalitarianism and insisting instead that every person and every vote must be given exactly equal weight. And I would add that we do this not because we feel we can be sure that no possible arrangement can ever provide as happy a populace as self-government (as Huxley illustrated, even distribution of "soma" might do better), but because the correct view involves taking self-government to be of unparalleled value. As Kelsen joined Locke in saying, without real democracy, nobody can be said to be free.%
As mentioned, distilled populism isn't the only way to avoid Kendall's dichotomy. The most sophisticated contemporary attempts to escape Kendall's dichotomy may be those made by a variety of Rawlsians, a group that is still numerous enough to constitute something like a dominant school in Anglophone political philosophy. The early Rawls, whose 1957 paper on justice as fairness was already fully formed enough to draw a characteristically sharp response from Everett Hall, might seem to fall squarely into Kendall's contractarian camp — grounding principles of justice in what self-interested but rational parties would agree to under idealized conditions. But the later Rawls explicitly distanced himself from any such metaphysical foundation. His mature position, developed through the 1980s and culminating in his book Political Liberalism, was that justice as fairness should be understood as 'political not metaphysical' — that is, as freestanding with respect to any controversial moral or religious doctrine, including natural law. On this reading, Rawlsians would claim to occupy precisely the middle territory that Kendall's dichotomy excludes: neither committed to the Great Tradition's eternal moral truths nor to a crude derivation of right and wrong from self-interested agreement.
Whether this escape actually succeeds is another matter. Hall already noticed in 1957ω that the normative force of Rawls's fairness principles seemed to depend on commitments that the procedure itself could not generate — that there was, as Hall put it, a hidden intuitionism at work beneath the contractarian machinery. The later, political Rawls might seem to have sidestepped this objection by grounding his principles in an 'overlapping consensus' among citizens who hold diverse comprehensive doctrines. In this way, the later, more 'political' Rawls might be seen as attempting to construct a procedural version of exactly what Kendall demanded: a 'Public Orthodoxy' that defines the boundaries of the community, albeit one grounded in shared democratic reasonableness rather than 17th-century covenantal truths.
But the question remains whether such a consensus, even if achievable, can do the normative work required of it without smuggling in substantive moral commitments of exactly the kind Rawls wanted to avoid presupposing. I'll leave it to Rawlsians to say whether that objection can be answered. The point for present purposes is simply that even the most sophisticated contractarian tradition finds itself navigating the same terrain that Kendall's dichotomy pretends to exhaust — and that the axiomatic voluntarist position staked out by Hall and developed in my own work represents a genuinely different approach to that terrain, one that Kendall's picture has no room for.
Like other moral realists, Kendall seems to have taken the position that moral truths can somehow be "intuited." He doesn't go into much detail regarding such intuitions in this paper, but he does refer to "a higher law" (one that liberals naturally fail to recognize), and he suggests that reasonable conservatives should be focused on "the perfection of man's nature" and "the attunement of human affairs to the will of God."
Now, it may seem churlish to many of my readers to deny that "we can just tell" that it is wrong for a grown person to intentionally kick a defenseless baby, or that it is a good thing to help someone continue to live who is struggling to keep her head above water. After all, some actions seem naturally to produce emotions of empathy or revulsion. If those aren't evidence of good and bad, right and wrong, what in the world could be?
For what it's worth, I actually agree with that questioner. Contrary to Kendall's unsupported accusations regarding all who disagree with him about The Great Tradition, I agree with moral objectivists in believing that moral statements are either true or false, and in denying that they are "made true" (as relativists hold) by human actions or beliefs. Furthermore, I would not try to reduce any moral statement to propositions about utility in the manner proposed by Bentham, Austin, or Mill.
Where I differ from most moral realists is that I deny that we can actually know whether any moral claim is true or false--even when we do have evidence for or against some of them. (For again following Hall, I believe that our emotional responses do provide evidence with respect to moral claims.)
To use Susan Haack's brilliant crossword analogy, in the case of empirical statements we have not only "across clues," the phenomenological evidence provided by what appears to us, but "down clues" as well, a scientific theory that explains why things look (or sound or smell) as they do. But in the case of moral claims, all we have are the across clues, the emotional responses to various entities or activities we confront. There is no "general theory" that explains what is going on when some action seems to us particularly nice or terribly evil.Σ
It's true that hedonists like Bentham have proffered general theories intended to do the trick: they have defined morality in terms of pleasure and pain. For them, our emotional responses are dependable only to the extent that they reflect accurate estimates of associated utiles. Others have suggested that what makes something good or bad is a matter of whether God likes them. Unfortunately, none of these explanatory theories have stood up to criticism. To take a well-known example, there seems certainly to be a moral problem with stealing a healthy person's liver, kidneys and heart even when those organs will be used to keep a half dozen other people alive rather than performing their current functions. So our attitude of revulsion seems to be providing some information that actually disconfirms the hedonic theory. As for theistic voluntarism, the idea that the goodness of some thing or activity is a function of God's happening to endorse it was soundly trounced by Plato, one of Kendall's great heroes. And it might be noted that even when considering the apparently egregious activities of an allegedly omniscient and omnibenevolent diety, we seem unable to ignore what Adam Smith called our "moral sense." We may understand that we might always be wrong, but....there are limits to what we can completely disregard without changing the meanings of words like "righteous" and "atrocious."
So I remain comfortable denying that we can claim to know that this or that action is ethically good or bad, right or wrong. But I think we can do pretty well with what we have: beliefs and limited, one-direction-only evidence. We can be moral skeptics, I think, without falling into any sort of abyss of moral solipsism.
And that, finally, is what is most troubling about Kendall's dichotomy. It is not merely that it leaves out positions like my own, or like the many versions put forth by Rawlsians, or like those of any number of other theorists who also find themselves in Kendall's excluded middle. It is that the dichotomy does political work — and ugly political work at that. Work that certainly triggers emotions of repugnance. By presenting the Great Tradition's eternal moral truths as the only alternative to a liberal relativism he has discredited, Kendall licenses the confident exclusion from democratic life of anyone who fails to share his community's 'basic beliefs.' But if my skeptical argument is even roughly correct, not only can those exclusions not be grounded in anything we actually know, they would have to overcome what (admittedly corrigible) evidence we have for our antipathy to them. What warrant we have is limited, but it is something — and it is clearly inconsistent with the kind of moral certainty that ought to be required to declare one's neighbors enemies of the people and show them the door.
Kendall's Great Tradition, for all its grandeur, turns out to rest on a confidence in moral knowledge that none of us — conservative, liberal, or otherwise — is actually in a position to claim. And to presume to act as Kendall thinks we should, this Tradition must deliver at least what is sufficient to override intimations that the conservative philosophy being pushed rests predominantly on desires for supremacy.
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# In his biography of Kendall, Christopher Owen calls "The Ultimate Issue" the keystone paper in the collection of Kendall's work entitled The Conservative Affirmation. Owen notes that Leo Strauss said of that paper that it is "the center of the book, where the reader is led to the deepest philosophical level attempted in the book, and where at last the purpose is to instruct him philosophically, not to propagandize him.” According to Strauss, Kendall wanted that piece “to stand out like a sore thumb, i.e., as quite different in character from the rest of the book.”
*It should be recalled that many of the participants in the Constitutional Convention opposed a Bill of Rights as posing too great a restriction on legislative powers.
$I have discussed the concept of prudential values and their contrast with explicitly moral concerns as that distinction was carefully analyzed by an author homophonically related to John Austin here. I find it interesting to consider that Everett Hall arrived at his axiomatic egalitarianism — the claim that anything freely chosen is by that fact good and equal to any other freely chosen thing — without clearly indicating whether he was making a prudential or a moral claim; in fact, he likely simply thought of both types as being of the form It were well that X occur. But it is my sense that at the level at which one attempts to ground axiomatic voluntarism the distinction between moral and prudential values doesn't matter much. What does matter is that equality be treated as a foundational value rather than derived from either positive law or probability estimates. One may even, if one likes, call it a matter of natural law, but, as I shall argue below, that is something we can't really know, and should not be thought to matter.
🗡There are detailed discussions of this idea both in my book and in this paper.
%For Kelsen, see his General Theory of Law and the State (1949), pp. 286-287. With respect to Locke, I am thinking of his "corporeality" defense of majority rule in his Second Treatise. If, as Locke claimed, majorities always carry more "weight" or force than any minority, it seems fair to take minority rule as necessarily freedom-depleting--like the yoking of several giant oxen to a plow manned by a single person...or a bunny.
ωSee his review of Rawls "Justice as Fairness" paper in Journal of Philosophy. Unfortunately, Rawls never saw fit to respond to Hall, who died at the age of 60 in 1960.
ΣShelly Kagan makes a similar argument regarding the need for a general theory in his wonderful paper, "Thinking About Cases" (2001). The Haack crossword picture is drawn in her seminal 1993 epistemology book, Evidence and Inquiry. Hall makes the case for emotions providing evidence for moral judgments in his Our Knowledge of Fact and Value (1961). It seems to me worth considering whether, in the absence of real knowledge of what is "right" and "wrong," we should be even more comfortable with democratic determinations of public policy -- especially given the fact that the point of democracy isn't a search for truth in the first place. See this. And maybe this.
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