accountabilitybloke (old blog)

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A comment on “moral status” and so-called “reform”…

(Warning: Entering high density zone!!!)

This morning I read, with considerable interest, a New York Times analysis of Justice Ginsburg’s “time bomb” planted in an otherwise innocuous sentence of a recent decision. My interest was piqued by the focus on the concept of “status” in the legal realm. Put briefly, issues related to the status of an individual or group shapes and defines how that individual or group will be treated within the legal realm. To have status is to have standing when it comes to protections (i.e., rights) established in law. What is happening in the US courts at the moment related to gay rights, etc., is a reflection of efforts to establish the status of that group within the current protections of constitutional law. Once that status is established, all laws and actions by law enforcement personnel would be measured against those protections. As the article points out, it is status that is central to the quiet legal revolution now taking place in federal courts.

My interest in this question of status goes beyond the specifics of gay rights discussed in the article. It extends as well to an idea I’ve been working on when studying accountability. For the past several years I have been arguing that accountability requires the establishment of a moral community within which the accountable individual operates. Without such a community in place, accountability is merely mechanical and legalistic without any real substance. My criticism of the recently passed banking reforms (see previous post) is that they are merely regulatory and lack any substance; in other words, there is no sense of what bankers are “accountable for”. Being a banker under the proposed reforms is a morally meaningless role–it is a position subject to oversight and control rather than a status that requires responsible behavior.

Philosopher Thomas Nagel (1995, p. 85) made the point much better than I can in his discussion of moral status and relationship to personal rights:

I believe it is most accurate to think of rights as aspects of status–part of what is involved in being a member of the moral community. The idea of rights expresses a particular conception of the kind of place that should be occupied by individuals in a moral system–how their lives, actions, and interests should be recognized by the system of justification and authorization that constitutes a morality. Moral status, has conferred by moral rights, is formally analogous to legal status, as conferred by legal rights, except that it is not contingent on social practices. It is a universal normative condition, consisting of what is permitted to be done to persons, what persons are permitted to do, what sorts of justifications are required for preventing them from doing what they want, and so forth.

“The existence of moral rights does not depend on their political recognition or enforcement,” states Nagel, “but rather on the moral question whether there is a decisive justification for including these forms of inviolability in the status of every member of the moral community.” Within a moral community, status confers not merely protections and rights but also expectations and obligations. Assuming that the legal system mirrors society’s moral system, legal status will also reflect moral status. In our system of “negative liberties,” the translation of moral status into legal status typically takes the form of protections under law rather than a positive expression of role expectations.

While the the negative liberties approach is relevant as a means of dealing with potentially discriminatory actions, the approach has its limits when (1) addressing the need to prevent behaviors that the community regards as inappropriate or (2) seeking to foster what that community regards as morally appropriate behavior. In such cases, the law must provide a more positive assertion of expectations–something which our political system finds extremely difficult to do under current conditions. Until we are able to overcome our collective reluctance to articulate what it means to assume the moral status of a role. e.g. what it means to be a banker, we will have to settle for the vacuous types of reforms that Obama will sign into law this week. What passes for accountability is in fact a superficial and thin variation of what accountability ought to be….

July 20th, 2010 Posted by | accountabilitybloke | no comments