Wednesday, December 26, 2012

Moral thinking -- and how we ask about it

I found myself thinking the other day about how important the framing of the question is to the answers you’ll get – even in such a subtle area as the understanding of people’s moral thinking.

Here’s a famous moral question, framed to help gauge the answerer’s level of moral development: the Heinz dilemma posed by Lawrence Kohlberg. As quoted in Wikipedia from Kohlberg’s Essays in Moral Development, Vol. 1 (1981), it reads:

Heinz's wife was near death, and her only hope was a drug that had been discovered by a pharmacist who was selling it for an exorbitant price. The drug cost $20,000 to make, and the pharmacist was selling it for $200,000. Heinz could only raise $50,000 and insurance wouldn't make up the difference. He offered what he had to the pharmacist, and when his offer was rejected, Heinz said he would pay the rest later. Still the pharmacist refused. In desperation, Heinz considered stealing the drug. Would it be wrong for him to do that?

Should Heinz have broken into the store to steal the drug for his wife? Why or why not?

Carol Gilligan, in her book In A Different Voice: Psychological Theory and Women’s Development  (1993), famously contrasted 11-year-old Jake’s perception of this problem as “‘sort of like a math problem with humans,’” to be resolved using an ethic of rights, and 11-year-old Amy’s contrasting response of framing the issue as arising in “a narrative of relationships that extends over time,” to be addressed using an ethic of care. The two responses are strikingly different , though whether that difference reflects a gender difference in ethical thinking is another, and complex, question. What’s striking to me now is a point that Gilligan may also recognize, but as far as I now recall does not make central: that the presentation of the problem itself potentially shapes the answers it elicits.

            To put the matter more directly, Kohlberg’s question is precisely designed to pose an ethics question that is like a math problem. It’s meant, as many a law professor’s Socratic question is, to exclude all possible issues except one: in this case, the sheer conflict between two claims of moral right (respect for property and respect for life).

Those questions have their uses, in particular for encouraging students to practice skills of precision in identifying issues and reasoning about them. The price of asking such questions, however, is that if they work they narrow discussion and thought down to whatever line of reasoning the professor wants to focus on. They may also implicitly devalue, and they certainly aim to disregard at least for the moment, the many other thoughts and concerns that students may want to bring to bear on the matter at hand.

Perhaps these questions also reflect something true about the world – that sometimes stark choices must be made. But this claim is debatable. It’s been debated, in fact, in connection with the “ticking bomb” scenarios often advanced as the basis for moral argument about torture. If the ticking bomb scenario appeared in the actual world, its resolution might be a matter of constructing the right hierarchy of rights, the right of the terrorist not to be tortured and the right of his imminent victims not to be killed. But in the real world, there may never be a question so stark as the ticking bomb scenario’s assumed facts – which imagine that we know exactly who might have to be tortured, under circumstances so urgent as to admit of no alternative except immediate action. As some very thoughtful observers have argued, if the real world is messier than the scenario, then thinking about the ticking bomb scenario may be a beguiling distraction.  

But whatever the virtues and defects of these questions, for pedagogical or truth-seeking purposes, their power as questions is important to recognize. If we ask an 11-year-old, or a 45-year-old, a math problem about morality, it seems reasonable for us to predict that he, or she, will respond with a math answer about morality. Does that mean that the person answering actually views morality as a math problem? Perhaps – that would be one reason to respond this way. But perhaps not. Maybe he, or she, understands the question as ruling out any choices except (to use the Heinz dilemma in particular) to steal or not to steal. The question as phrased doesn’t quite do that, and it might take a much longer problem to explicitly exclude all other options. Still, the problem does seem meant to be understood this way. Maybe the person answering the question views questioners as entitled to answers that address the sort of question they meant to ask. Maybe he, or she, also assumes that math problems are problems to be responded to with math answers.

One might say a lot about the psychological traits these inclinations reflect – a conformance with authority, possibly, or maybe a generous desire to help the questioner. But whatever one might say on those scores, and whatever those observations might have to do with gender, they wouldn’t necessarily have much to do with whether the person being questioned thought about morality in terms of rights or relationships.

Here as elsewhere it’s very important to ask the right question. Otherwise the chance you’ll get the wrong answer has to increase.

Sunday, December 2, 2012

Remembering Arthur Chaskalson

Arthur Chaskalson, a truly great man, died yesterday, December 1, 2012, in Johannesburg. The list of his achievements is almost unbelievable: Fifty years ago as a young advocate (that is, a courtroom lawyer) he helped represent Nelson Mandela in the case in which Mandela was sentenced to life in prison – a victory, since the only other alternative was death, and a victory that meant a great deal to South Africa’s future. In 1979, along with the distinguished lawyer Felicia Kentridge, he founded the Legal Resources Centre, which distilled the lessons of the NAACP Legal Defense Fund’s practice in the United States to become South Africa’s leading public interest law organization – and to win cases challenging apartheid, in apartheid South Africa’s courts. Then he took up the task of representing the African National Congress as one of its principal negotiators in the drafting of South Africa’s first post-apartheid constitution. That constitution created South Africa’s Constitutional Court, the first court in South Africa with authority to enforce a constitution that genuinely protected human rights. Arthur became the Constitutional Court’s first President and then, as this Court’s centrality to South Africa’s legal system became evident, he became Chief Justice of South Africa. And after he retired as Chief Justice, he served as President of the International Commission of Jurists, and in that position he led the ICJ’s incisive examination of the US “war against terror” and its uneasy relationship to law and human rights.

I had the great good fortune to be one of Arthur’s friends for the past 25 years. Our friendship began when we taught a course on “Legal Responses to Apartheid” together at Columbia Law School in 1987. Arthur’s own scholarly approach to South Africa’s law – he was a passionate opponent of apartheid who achieved results in part by being a dispassionate scholar of the law as well – helped me to realize that if I was going to talk about South African law I had to study it as hard as any other body of law, because South African law was easy to denounce, but not so easy to understand. Then he invited me out to South Africa, and I went, in the summer of 1988, and spent three weeks, mostly staying at the Chaskalsons’ home and meeting anti-apartheid lawyers whose work I admired immensely. Those experiences (and other wonderful opportunities I had to teach with and get to know South Africans opposed to apartheid) shaped my professional career, setting me on a course of research and writing about South Africa that remains a central part of what I do, and connecting me to people I’ve remained friends with ever since.

I remember Arthur for the profound impact he had on my professional life, and of course for the extraordinary series of achievements of his own career – enough for several successful lifetimes! But like many others, I also remember him for his humanity. He and his wife Lorraine, also a dear friend of mine, opened their house to their friends. I remember discussing the wellbeing of the many cats living in their backyard, the impolite meanings South Africans and Americans gave to certain Yiddish words, and the important question of how much to wash dishes before putting them in the dishwasher (I believe he and I both belonged to the “a lot” school). I also remember the phone service going dead, presumably in an effort by the apartheid police to prevent Arthur from planning legal strategy, during my first stay in their home. Arthur stayed the course despite that kind of pressure – and the last time we visited in South Africa, he took my wife Teresa, my son Dave and me to the Constitutional Court, and Dave sat next to him in the chairs the justices of that Court use to hear the issues that arise under a democratic constitution.

Flags will be at half-mast in South Africa all this week in remembrance of Arthur Chaskalson. He will be very much missed there, and here.