Political and moral rights

This is adapted from something I posted the other day over at Blinded Trials. I know there are many Friends of Rights who read the front page, and not Blinded Trials, and I’d love to hear their thoughts.

My political intuitions and my moral intuitions are totally out of whack. I know there’s a huge literature on the connection between political theory and moral theory, and I know exactly none of it. My philosophical specialties are philosophy of mind and aesthetics. I know less about political theory than I do about ethics, logic, metaphysics, epistemology, and philosophy of language. I did hear of someone recently who specialized in philosophy of nanotechnology. I probably know more about political philosophy than that. But not all that much. So these musings are extremely ill-informed, but what the heck. I’ll share them anyway!

My ethical leanings are reasonably anti-consequentialist. That is, I don’t think what makes shoplifting a soda right or wrong is a matter of the unhappiness it causes. I lean toward virtue ethics, or a blend of virtue ethics and Kantian ethics. What makes something right or wrong are the character traits it manifests and develops (virtue), or the degree to which it fails to respect a person’s dignity (Kantian). That is, what makes shoplifting wrong is that it exhibits greed, inflated self-centeredness, and lack of sympathy. And it fails to respect the shopkeeper. It does all this even if the shopkeeper never finds out or is never made unhappy about it.

So the other day I was thinking about why I am not a libertarian. Libertarianism kind of matches with Kantian ethics. I am assuming here that a political right is similar to a moral right – that is, something that must not be violated under any circumstances, even if doing so would create better outcomes. It seemed to me that the consequences are so terrible if one is wrong about being libertarian that it was too much of a moral risk to be libertarian. The comments on Alex’s interesting open thread suggested that we are far from certain about how we know which rights we have. There seems to be some connection to moral reasoning, but it’s not clear what it is. If libertarians are right, then of course a wrong is committed by, say, demanding people buy healthcare. But let’s say libertarians are wrong. You actually don’t have a right preventing citizens taking your property against your will in order to promote greater well-being. Then people will die who would not otherwise die. And it seems to me that the moral risk of violating a right by taking some of someone’s property is much lower than the risk of letting people die.

Also, if we have a right that the government not take our property without permission, even if it promotes greater well-being, it should presumably always be enforceable. Which means any tax whatsoever is wrong. That is not a world I would care to live in. Unless I’m damn sure that we really do have a right not to be taxed, I’m going with taxing. And if we tax at all, why limit it simply because it partially respects a right? Aren’t rights absolute? If we think there’s no right not to be taxed, why don’t we tax until the greatest well-being is achieved? In practice, in order to drive competition, I’m guessing that won’t be Sweden high.

Of course, the whole point of libertarianism is that there are some things a government cannot do even if most people, even if everyone would be better off. But, again, how do we know that we have those rights and what we are?

So, in the end, my political feelings are entirely consequentialist. I am pretty much always in favor of pragmatism rather than idealism driving policy. Whichever form of government that promotes the greatest well-being (NB: by which I mean flourishing or eudaimonia, NOT the greatest amount of pleasure) is one that seems less risky.

Then I thought about why I do favor some rights. For example, the government really ought to leave you and your property alone unless it is clearly justifiable for the promotion of the greater good (and I thought Kelo was an overstep). And democracy is pretty good. And it’s nice that you can criticize the government without fear of retribution. When I think about why I support those rules, though, it’s because those sorts of rules tend to promote the kind of society where well-being can reach its maximum. It’s not because of the rights in and of themselves. It’s because I think those rights are useful. I wouldn’t want to live in a world without them. Really, it’s rule-utilitarian.

So, my question is, is this a mismatch? Do I have to do some serious re-jiggering of either my ethical or (more likely) my political view? I tend to think I don’t for two reasons. But I’m really not sure, and if I still have any readers of this post who’ve made it through this far, I’d love to hear from you.

First of all, the government is not a person. Rights and duties are supposed to be correlative. People have rights in virtue of respect for their rationality (or other cognitive qualities). The government, as a body, doesn’t have rationality (ha!) or cognitive properties. So can it have duties to us? Even if there’s some way to say that it does have duties to us, are they the same duties a person has to us? We certainly don’t have the same duties to government that we do to a person! For example, we don’t respect government’s autonomy – we try to interfere to make it suit our preferences, whether those preferences are ideological or pragmatic. We try to set its ends for it. This would be a violation of a person’s rights.

Second reason is that the moral risk is much lower respecting rights in person-to-person ethics than in government-to-person ethics. Kantian ethics does a halfway decent job of capturing our moral intuitions. When followed by people in their everyday lives, untoward consequences usually do not occur. So we don’t incur a risk by respecting Kantian moral rights. Yet, arguably, some risk of worse consequences is incurred by respecting libertarian-style political rights.

I would love to have some feedback from people who know more about this than I do.

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60 thoughts on “Political and moral rights

  1. I am a lousy philosopher, so I can’t really address much of what you are asking, and I don’t know if what I have to say here really helps, but I’ll chip in this bit anyway.

    I think you’re using libertarianism too determinately, assuming that libertarianism requires these absolute rules. There are such libertarians, to be sure, but I think you’ll find them predominantly among those who have the least familiarity with philosophy overall, so I think you can safely dismiss them for the purposes of your own analysis.

    That doesn’t mean libertarians in general won’t be dubious about the approach you outline, but that the more philosophically inclined are likely to be merely uncomfortable, not flatly rejecting it, precisely because they recognize the tensions you’re addressing.

    Many libertarians are, of course, deontological, but some of us are in fact consequentialists; political consequentialists to be exact. And I think that tends to moderate our libertarianism. We’re not the radical “taxation is oppression, government can’t never touch my property, damn right I’m a goldbug” types. We think libertarianism most respects the individual’s dignity, and best promotes utility by allowing individuals to pursue their utility as best they judge it (and we tend to think nobody else can judge it for anyone). Probably not all consequentialist libertarians are utilitarians of that particular stripe (which differs from standard utilitarianism by emphasizing the subjectivity of utility), but that’s my type. And while it’s always dangerous to speak for others, I think that’s probably James K’s type, too (based on many past on-line discussions with him, and the fact that he and I are so often in agreement).

    Which is to say, at least some libertarians will have some of the same hesitations as you, and if they may not ultimately come down politically where you do, they also are unlikely to come down politically (at least not all the time) with the type of libertarianism you are responding to.

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    • Well I was basically going to post this myself, so I suppose I won’t bother now :)

      I’m a rule utilitarian myself, so definitely not a deontologist. My support for libertarians is informed principally by my study of economics. Given the unimaginable complexity of an economy I don’t see how a government could possibly do even a semi-competent job of doing most of the things people think it should do.

      Note that the simpler tasks, like paying out welfare, I tend not to object to. Equally so correcting for bona fide market failures. When I object to those things it tends to be about how they’re done rather than the fact that they’re being done.

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        • By the way, JK, are you a moral rule utilitarian, or do you just think that societies will tend to operate best via rule utilitarianism?

          I know that sounds confused, but the difference is that it seems a moral utilitarian suggests we should be utilitarians. A consequential rule utilitarian would say that the best way to accomplish our goals, whatever they may be, is to follow the principles of rule utilitarianism. I would agree with the latter, but I have no insights on what someone else shoul be. Am I making sense?

          Anyway, I think it woul be great if you wrote a OP on rule utilitarianism.

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          • I see that as a distinction without difference. From where I’m sitting the whole point of morality is to have a set of rules that make society work better.

            Anyway, I think it would be great if you wrote a OP on rule utilitarianism.

            Oh I really don’t think I’m qualified to do that, morality’s not something I spend much time thinking about.

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  2. Rose,

    I think the majority of libertarians here are of the consequentialist variety. We believe in liberty and property rights not because they are sacred, but because they tend to lead to better results. My read is that Jason, Tim and maybe Jaybird are more of the fundamentalist variety, but I will let them speak for themselves.

    As I have written:
    https://ordinary-times.com/blog/2012/06/03/economics-property-rights-and-surfing/
    I believe good rights are good conventions that lead to the type of social results that we value. The most effective conventions are ones that seem sacrosanct, that is which are followed even when it seems personally imprudent to do so.

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  3. If Bloomberg-style laws were empirically demonstrated somehow to have raised general well-being, would you guys be willing to abandon utilitarian libertarianism? (non-snarky, genuine question).

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    • First I need a definition. ;). But in general, empirical evidence is persuasive to me. I can’t say it would cause me to abandon my position, but at least it is likely to cause me to moderate it. The difficulty, of course, is in actually demonstrating such things empirically, when utility is subjective, hence effectively unmeasurable. I know that can look like quite a convenient dodge, but it’s actually quite a frustration, as it means it’s no less difficult for me to empirically prove my claims as it is for others to empirically disprove them.

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      • Yes.

        If liberty and property rights led to bad results they would be terrible ideas. If regulations clearly and consistently led to better results, they would be very good regulations. Indeed, I think property “rights” are an example of good rules and regulations.

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        • True, Roger. FTR, “natural law” demands a posteriori proof. And we might observe something like property rights or spontaneous combustions like capitalism and decide these “demonstrations” are worth enlisting.

          If we found that “liberty” made man poorer and unhappy—as we perceive tyranny does—we would not see liberty as a “natural right.” [Hedonism, libertinism, not self-evidently “goods.”]

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    • Killer question, Rose. Better we all eat vitamin-enriched gruel than hot dogs w/the works? Bit by bit, life becomes grayer for “our own good.” The morality of the anthill.

      “General well-being” is of course measured only materially, so once again we hand the reins over to the medicos and the social scientists.

      BTW, in case you missed my recent posting of the apt quote on all this:

      “Hood ornaments. They were just lovely, and they gave a sense of respect. And they took ‘em away because if you can save one human life- that’s always the argument- it’s worth it, if you can save one human life. Actually, I’d be willing to trade maybe a dozen human lives for a nice hood ornament.”—Michael O’Donoghue

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    • If Bloomberg-style laws were empirically demonstrated somehow to have raised general well-being

      Well, imagine a kid going to college while living at home and, then, graduating.

      Would it raise his/her general well-being to keep living at home after graduation (when compared to moving out and into a $350/month apartment)?

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  4. A thoughtful article. “If it only saves one life”, the seat belt law supposedly is an example of a better outcome. It is a question of the thing we see versus the thing we don’t. Yes a life saved is an awesome outcome yet what of all the pain delivered by the police force, coerced education, and higher insurance premiums. While its true that this is a small slice of life compared to death, millions have been subjected to it. Using government force to create “better” outcomes almost always creates a worse outcome for most individuals and at cost very high for the fortunate beneficiaries. Libertarians I know mostly would rather err on the side of less government because most people are too quick to grab the benefit without even stopping to consider the negative effects.

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    • Seat belt laws are a great example of the dilemma, Ron.

      My guess is that we are probably all better off with something that reminds us or incentivizes us to wear seat belts. A law is one such thing. We can debate whether this law is on net worth the costs and benefits (it may be more reasonable for children). The costs being the ability of cops to pull people over for something that does no harm to others, and to use violations as a revenue source (the fines in some states are outrageous).

      In a perfect world, I would like to see incentives such as this in a non coercive form. For example, with telematics devices, it is now possible for insurance companies to use seat belt sensors in the car to provide discounts to those using belts. I would voluntarily agree to this type of insurance contract for lower premiums. Problem solved non coercively.

      In summary, this libertarian is convinced that some rules and regulations are good, practical and necessary. Not most, but some.

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      • I’m all for problems solved non-coercively, but again, mostly because I suspect that’s more effective. I think we’re actually on the same page, it’s just that we have slightly different beliefs about what is likely to bring about the greatest well-being. Which is, in principle, an empirical question.

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        • Rose, I would add that non-coercive problem solving is morally unproblematic, because by definition no one is harmed, nobody’s autonomy is violated, etc. Coercive problem solvin can, in specific cases, be justified, but in fact does require that justification in a way that non-coercive problem solving does not. So coercive problem solving is inherently mor morally problematic than non-coercive problem solving.

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      • I pretty much agree with that Roger. It seems to me that the rationale for seat belt laws is to protect people from themselves, and the libertarian in all of us finds that irritating. But the cause of seat belt laws is insurance lobbying: they were paying out lots of extra money that could be saved if people would only buckle up. It’s one of those situations where I think the self-interest of insurance companies maps onto the rational self-interest of individuals pretty closely. But really, if it’s such a good idea that people will do it without a law, then appealing to the rational part of drivers by creating an incentive to buckle up would accomplish the same goal (reducing insurance company costs) with an even better outcome (the savings would be passed along to the belt-wearing customer).

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      • Roger, I have heard that not wearing seat belts only hurts the driver from several different sources and believe it is so wrong. I went to a funeral a few years ago for a friend who was thrown out of his truck and killed. To me, it sure looked like his mother, brother, kids, and friends were hurt.
        Another thing, I don’t mind if you scuba dive, sky dive, cliff jump or go shark fishing using your bloody foot as bait because that does not cost me money, but people not wearing seat belts cost me money in higher premiums. Wrecks are bad enough without some idiot turning a 30,000 thousand dollar wreck into a 500,000 dollar wreck.

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        • I understand what you’re saying, but the principal you’re espousing has no logical limit. We are deeply interconnected, and to take that kind of notion of consequences to its logical conclusion, we would be regulating everything.

          Want to eat a double cheeseburger? Your obesity raises my insurance rates.

          Want to smoke marijuana? Your behavior may influence my children, or increase the risk of accident, or produce second-hand smoke.

          How about watching horror movies? There are studies (non-conclusive but suggestive) that suggests that doing so makes you a little more callous towards human suffering. You are therefore possibly going to be a more dangerous and less helpful citizen, diminishing my quality of life.

          There is no practical end to the third-party consequences of private decisions. I think that at some level, we’d need to set establish some limiting principle(s) establishing where personal choice is constrained in the name of public good.

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          • We have a perfectly reasonable limiting principle when it comes to questions of the consequences of private decisions. It’s called the electorate. The electorate of New York either didn’t care enough about the lack of transfat in their foods or agree with the idea of banning transfats they gave Bloomberg another term.

            Now, we’ll all agree that there are certain limits of the government when it comes to limiting the actions of people, even though I guess we’ll disagree on what actions we should limit. But, for example, I’ve got no problem with a ‘sin’ tax on crappy food. I’ve got no problems with limits on using marijuana in public that are about the same as smoking or drinking. If there were decades of evidence that horror movies actually did affect people that badly, let’s look into it. But, I’m not going to ban Nightmare on Elm Street because a few studies in a few journals say there might be an issue.

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              • Note I said certain limits. You have a fundamental right to privacy to make medical decisions (note I didn’t say right to have them paid for) and a right to fundamental equality in the workplace/school/etcetera.

                Like I said, I’m sure other people have other limits they’d place on the electorate. Surprisingly, they all happen to fall along their political opinions as well. :)

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                • Sure. That’s what I was getting at. I am just extremely uncomfortable with the notion that the the electorate should ever be considered a limiting principle in and of itself, or even if we say “the electorate plus some identifiable externality*.”

                  (I should add that I am particularly hesitant to use “it costs the government more money” as the externality. Liberals in general should be, because it actually gives weight to arguments that government involvement in health care actually is antithetical to personal freedom.)

                  * – Spellcheck apparently doesn’t recognize this word? Clearly, Spellcheck needs to read politics/policy blogs with more regularity.

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                  • I guess maybe limiting principle was a bad descriptor. My point is, that a lot of people die on a mole hill and believe it’s a mountain. The fact you might not be able buy 64oz Cokes in NYC in 2013 does not mean soda is going to be banned in twenty years. Nutritional guidelines in Wendy’s aren’t the first step of Michelle Obama’s Sugar Gestapo. I realize why people are upset, but they also have such little faith in the general populace that truly stupid ideas that cause problems for the average person (as opposed to truly stupid ideas buried in the tax code) will pass easily and not get reversed.

                    I mena, certain issues do have a slippery scope. Large multinational corporations are trying to extend copyright laws to their own benefit. Anti-choice advocates aren’t just going to stop at parental notification and PBA bans. Social democrats like me do want insurance companies to die. But, sometimes a large soda ban is just a large soda ban.

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                    • But, sometimes a large soda ban is just a large soda ban.

                      Sometimes. Though it’s worth pointing out that it took incremental steps to get us to the large soda ban.

                      (As a generally federalist-minded fellow and one who believes in a higher degree of local control than most, I actually don’t have a problem with the soda ban per se. Not as an abstract issue. My main issue is that it was pointless and, I believe, to a degree mean-spirited towards Undesirables.)

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                    • Hey, I’ll happily go through the local code of New York City to get rid of laws I find useless. The problem is the laws I find useless will be different than you, the Police Commissioner, or the visitor from Goldman Sachs. The problem isn’t that everyone likes all laws, but everybody sure as hell likes the law that helps them out.

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                  • I’m with Todd here. I could go on at length about why the concept of the electorate as a “reasonable” limiting principle is fundamentally misguided, but I think the most penetrating disproof is Jesse’s own unwillingness to rely on it for any issue of real importance to him.

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              • Actually, WillT, that’s the conservative/pro-life position: overturning Roe returns it to the states.

                There is a “from the moment of conception” contingent, but the majority realize that returning it to the states is all that is constitutionally possible at this time.

                In fact, most conservatives realize that leaving gay marriage at the state level is the only constitutional strategy: there was very little kicking when the NY legislature instituted gay marriage.

                Conservatives don’t like the judges making law, is the principled objection.

                [As for racial discrimination, that doesn’t fit under the same umbrella, if you were up to something there.]

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                • TVD, I believe Roe v Wade was wrong and, by and large, support states determining their own abortion laws. I think one natural conflict here is cross-state abortions. Absent RvW, it would be within congress’s purview to regulate that (prevent it), which would run contrary to my view of federalism.

                  I wasn’t “up to something” so much as emphasizing that there are very significant limiting principles for liberals when it comes to the electorate. Something with which Jesse doesn’t disagree (and, to be fair, tipped his hat toward in the post I was responding to).

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              • You know, according to the left’s own logic, if there were any internal consistency to it, a federal ban on abortion would be constitutional. If a fetus isn’t grown up, it’s born. And then it grows up to participate in—that’s right—commerce. Some of that will be actual interstate commerce, and for constitutional purposes all commerce is interstate anyway. That means that abortion has a substantial effect on interstate commerce. And let’s not forget that medical care is interstate commerce, even when it’s not.

                Fortunately, they discovered a secret amendment, written in invisible ink, that says that the federal government can’t regulate things they don’t want it to regulate.

                Disclaimer: I have no problem whatsoever with abortion. I do have a problem with motivated jurisprudence.

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            • We have a perfectly reasonable limiting principle when it comes to questions of the consequences of private decisions. It’s called the electorate.

              But the electorate provides the priorities of the government. What you are in effect saying is the government is limited because it can’t do what it doesn’t want to do. That would be like a dictator saying he has limited government because the government is limited by what he wants it to do.

              To put it another way, you’re addressing the question “how do we stop elected officials messing with people unreasonably?”, whereas Snarky McSnarkSnark’s concern (one I share) is “How do we stop the voters messing with people unreasonably?”

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        • Dexter,

          Interesting points. On the insurance cost one, allowing insurance companies to adjust premiums by measured usage solves that without regulation. For liability insurance you could allow damage claims to be adjusted by negligence of driving with prudent care.

          The other interesting point though is in the nature of what counts as harm. Your grieving family is an example. I am considering writing an OP on defining the nature of harm. It is an interesting topic which I continue to wrestle with.

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  5. So these musings are extremely ill-informed, but what the heck.

    Okay, that, right there? That’s the sound of you doing political blogging wrong.

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      • Well, I was making a joke re Mitt’s famous comment on corporations, with a glancing blow off Soylent Green, in my own mind anyway.

        However, I always felt Romney got kind of a bum rap on the first one, and I’m not a Romney fan, to say the least. More the point, the blogger makes a set of arguments regarding the nature of government that I don’t think bear up very well when you consider first that government is made up of people, and, second and at least as important, that it is, or is meant to be, ours.

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  6. Hey Rose! nice post. The things that go on while I doze…

    There are a lot of things going on here. There are a lot of things that Roger, James Hanley and JamesK have said that I roughly agree with. Like a lot of the guys on this blog my theory is non-monolithic. There are some things like religious and personal liberty etc which are essential to people pursuing lifeplans which are meaningful to themselves (consistent with others doing similarly) Socio economic arrangements are also to be to the benefit of the worst off. To be clear however, a balance must be struck in not placing too many restrictions as there are meaningful lifeplans that involve having control of productive property.

    I view the original position as a version of the categorical imperative reformulated for social institutions rather than individual behaviour. To be clear, even if we are kind of deontological about rights, as long as we recognise pace Dworkin that rights are trumps i.e. that a right merely says that certain claims trump other kinds of claims. However, that does not follow that the trumping claim is not itself trumped by other claims.

    I’m really uncomfortable with the formula of humanity/rational nature which just makes a blanket rejection of actions irrespective of what reasons motivate said action. The universal law formulation of the categorical imperative, is sensitive to the reasons for action, without being all about the motive. Under the formula of universal law, contrary to Kant’s actual conclusions, what constraints we have on our actions is relative to what our reason for acting is. That’s because the FUL invalidates maxims which are formulated with both an action and a motive for that action. Unless, all possible maxims which involve a particular kind of action cannot be willed as a universal law, there cannot be, we cannot get absolute prohibitions. But this still allows us to cover the various central cases. Given the motivations and reasons for acting that we actually do often invoke, a lot of the things that we ordinarily consider to be immoral do turn out to be so. (Of course strictly speaking, our everyday intuitions shouldnt matter)

    If we preface our political theory with what the proper aim of government is, the moral theory I outlined above allows us to come up with a set of constraints that differs from the constraints that ordinarily restrict our everyday actions. So, we get to kind of limited rule prioritarian with some constraints for political structures and more deontological and virtue ethical in our personal day to day lives.

    The tweak is at most a small one. All you have to do is make your deontological constraints relative toyour reason for action

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