Equality and Affiliation as Bases of Ethical Responsibility

• Author: Geoffrey C. Hazard, Jr.
• Position: Professor of Law, University of Pennsylvania Law School and Director Emeritus, American Law Institute
• Pages: 173-180

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Lecture II of the Sixth Judge Alvin B. and Janice Rubin Visiting Profesorship of Law Program Year 2000 Lecture Series given at the Paul M. Hebert Law Center on March 15, 2000.

Professor of Law, University of Pennsylvania Law School and Director Emeritus, American Law Institute.

I Introduction

The strong Western tradition, dominant in the United States and increasingly accepted in the modern democratic era, is to regard equality of human beings as the touchstone of ethical responsibility. This approach derives to an important extent from Christian teaching and belief.¹ Christianity as revealed in the parables discounted the significance of wealth and position, and Jesus specifically said that the meek would inherit the earth. Another important source of the tradition is classic Greek philosophy, particularly philosophy addressing obligations within the polis-the city-state that was the basic unit of society in ancient Greece.² The citizens of the polis were the focus of all Greek ethical and political philosophy. The concept of equality has dominated ethical and moral philosophy for the last two centuries, the period that substantially coincides with the era of democracy signaled by the French Revolution. The dominant ethical philosopher in the modern era is Immanuel Kant, whose concept of universality in ethical justification entails the concept of equality.³ Kant's ethical philosophy can be considered as a secularization or humanization of Christian teaching.⁴

However, formulation of ethical postulates on the basis of equality of humans encounters serious difficulties, both in analysis and in application of "equality ethics" to real world interpersonal relations. These difficulties arise from a combination of intractable facts. These facts are, first, that intelligible and useful ethical precepts must speak to the human condition; second, that in the human condition every individual has a variety of different relationships with other people (for example, the relationships of parent and child, employer and employee, fellow citizen and alien); third, that these differences in relationship entail different components of caring and concern, responsibility, duty, and authority; and, finally, that various human relationships therefore are inherently unequal in ethical terms. That fact implies, it seems to me, that ethical analysis based on the concept of equality is inevitably inadequate and generally unreal. Ethics based solely on equality often contradict the inclination to try to do the right thing.

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I will suggest in this presentation a different basis of ethical responsibility, a basis that I call "affiliation." By "affiliation" I mean the various particular relationships between an actor and some other person or persons whose well-being can be affected by the actor's conduct. Two such affiliations within this definition have previously been mentioned-that of parent and child and employer and employee. Another is that of client and lawyer. It has been reflection on the ethical basis of the relationship of client and lawyer that has led me to address the more general question of whether equality is a sufficient premise for ethical analysis, and that in turn has led me to consider another general concept, that of affiliation.⁵ As I shall develop, "affiliation" encompasses a virtually unlimited set of relationships. Moreover, the concept is both positive and negative in that there are "negative affiliations," i.e., unfriendly or hostile relationships.

II Equality In Kantian Ethics And Bentham s Political Philosophy

Immauel Kant famously postulated his basic ethical norm as the "categorical imperative." The formulation is as follows: "Act only on that maxim whereby thou canst at the same time that It should become a universal law."⁶ Expressed somewhat differently, the fundamental ethical proposition is that an act can be ethically justifiable only if it can be subsumed under a principle that would have universal application, that is, application in all human relationships. For example, according to this principle one would be justified in using retaliatory measures in defending one's self against physical assault being levied by an antagonist only if those measures would also be justified in defending an assault by some other antagonist. In positive terms, by the same token a person would be obliged to confer a benefit on another only if the same obligation would arise toward some other beneficiary in similar circumstances. Moreover, concerning self-defense the actor would be obliged to acknowledge that the same measures could properly be used against him if he levied a similar assault on another.

The underlying idea in the categorical imperative is essentially similar to the classic Golden Rule, that you should do unto others as you would have them do unto you. Both the Kantian formulation and the Golden Rule propound an ethical standard that applies universally, i.e., in all relationships in all contexts. Universal application necessarily implies equality in the treatment to be accorded others.

The thrust of a Kantian imperative, whether concerning assault or lying or any other transaction, or, on the other hand, beneficent acts, can be blunted or deflected Page 175 by careful specification of the conditions in which the imperative applies. Thus, the authorization to use retaliation can be limited by the conditions that the measure of retaliation be "reasonable" and there was no other practicable means of avoiding the antagonist. So also lying can be justified if the actor must make misrepresentations in order to protect others. Specification of a duty to confer a benefit can be justified in terms of quid pro quo, which is the underlying concept of contract obligation, or in terms of "natural objects" of the donor's affections, a concept used in the law of testamentary dispositions. Specification of such conditions is the business of the law,. and interpretation and application of the specifications is the vocation of lawyers. It is also the business of ordinary people trying to cope with their ordinary ethical problems in everyday life. The difficult part in working out specifications is not the universalist point of beginning in ethical deliberation. Instead, the difficulties are encountered in working out definitions of the special conditions or circumstances to which a supposedly "universal" obligation will...