Abstraction or Idealization in Natural Law

Critically drawing on Avramescu’s An Intellectual History of Cannibalism, Mann locates the norms expressed in the providential and catastrophic images of the lifeboat in ‘two longstanding orientations in natural law theory:

Mann’s critical point in relation to natural law theory is that ‘both concepts ultimately stem from naturalist philosophies that overlook the embodied historical practices of seafarers—their custom’ (p. XX). His critical point in relation to Avramescu’s insightful reconstruction of cannibalism is that while Avramescu recognizes that the customary practice of seafarers of drawing lots to see whose life will be sacrificed for the survival of the others represents a rational method for negotiating the tension between, and upholding both of, the principles of natural law in play, understanding ‘the drawing of lots as a transition from nature to political order dismisses the pre-existing community whose norms gave rise to this custom’ (p.16). The temptation is easy to see. The custom in question – drawing lots – is one that respected and reconciled the twin poles of natural law: voluntary sacrifice for the greater good and survival at the expense of others. Participating in drawing lots is to assent to making a voluntary sacrifice for the greater good (you may draw the short straw) and to survival at the expense of others (if you aren’t chosen, you will eat). The problem with Avramescu’s argument is that it reads the use of the lottery in terms of natural law, rather than seeing the two contrasting principles of natural law as products of abstraction from custom. Seen from this perspective, the two traditions in natural law represent competing abstract models, each of which is parasitic on pre-existing custom and both of which represent abstractions away from the normative complexity of the lives that customary practices, such as drawing lots in context of extremity, emerge to regulate: ‘Avramescu is as guilty of such abstraction as are modern proponents of both catastrophic and providential imaginations. Such abstractions vie for normativity but fail the test of fact.’ (p.17).

But is abstraction really the problem here? Abstraction is certainly – and necessarily - part of what is involved but, contra Mann, I think that the problem to which he is drawing attention is not that of abstraction but that of idealization.

A general challenge to the reliance on idealizations and idealized models in legal and political philosophy is advanced by Onora O’Neill taking Rawls as her immediate target. Thus, she points out that abstraction ‘is simply a matter of detaching certain claims from others’ and ‘hinges nothing on the satisfaction or nonsatisfaction of predicates from which it abstracts’ (O’Neill Reference O’Neill1989: 208), it ‘is a matter of bracketing, but not of denying, predicates that are true of the matter under discussion’ (O’Neill Reference O’Neill1996: 40). By contrast, idealization involves making claims that are, taken strictly, false (for example, the non-existence of envy, the idea of a closed society). O’Neill’s (Reference O’Neill1989: 209–10) charge here is twofold, namely, that whereas abstraction is ‘unavoidable and in itself innocuous’, the use of idealization is neither necessary nor innocuous: ‘Idealization masquerading as abstraction produces theories that may appear to apply widely, but in fact covertly exclude from their scope those who do not match a certain ideal.’ O’Neill’s point is that the (avoidable) choice to engage in the use of idealizations may serve to make the theoretical task more manageable, but it comes at a significant cost in terms of the claim to offer guidance to political agents in general and does so even if we were to grant the priority of ideal theory for this purpose.

We can bring this general critique more closely into contact with Mann’s argument and its purposes. The use of idealization is true of both the ‘providentialist’ Spaceship Earth proponents and the ‘catastrophic’ alternative exemplified by Hardin. Since the problem to which O’Neill points can be most easily and economically illustrated with respect to Hardin, I will focus on his case.

Hardin’s essay ‘Lifeboat Ethics’ is, as he acknowledges and Mann rightly notes, indebted to his earlier and more famous essay ‘The Tragedy of the Commons’ which argues, in relation to common pool resources, that individuals would – as a matter of rationality – act in ways that destroyed the resource. Thus, for example, pastoral nomads would engage in overgrazing that destroyed the capacity of the commons to sustain grazing animals.Footnote ¹ The major problem with this argument is that, at least in many contexts, it is empirically false.Footnote ² Pastoral nomads developed a range of customs and conflict-resolution institutions to avoid this outcome. The idealization of utility maximizing individuals that Hardin deploys falsifies the concrete empirical reasoning of socially embedded individuals. Of course, Hardin can ‘covertly exclude’ such cases on the grounds that the absence of a tragedy of the commons only shows that such pastoral nomads are not acting rationally, but this simply make O’Neill’s point for her. The classic response to Hardin within the broadly rational choice field is, of course, Elinor Ostrom’s Governing the Commons (Ostrom Reference Ostrom2015) which used fieldwork in the domain of rational choice theory in order to move from a form of theory based on idealizations to one that was realistic in the sense of being empirically grounded. Her scepticism of reliance on idealized modelling (not modelling as such) in policy making derives from precisely the kind of mismatch we find between Hardin’s idealized picture of the commons as a site of moral tragedy and the much messier but also less tragic reality of practice that fieldwork discloses. It is worth noticing that part of the power of Ostrom’s realistic account of community governance of common pool resources is that it can both make sense of the emergence of customary norms as a way of addressing the ethical tensions involved in the sustainable management of the resource and the persistence of customary norms even when they may not represent the most optimal solution to the problem. I will come back to the significance of this latter point later in this commentary.

If we have good reason in legal and political philosophy to be suspicious of a methodological commitment to the use of idealization, what follows? Bernard Williams argues that a realistic orientation to legal and political philosophy means adopting an ‘impure’ approach, one in which philosophy draws on other disciplines (history, social sciences, and natural sciences) as needed to get a grip on the problem – and we can see Mann’s argument as an exemplar of such impurity. In this respect, we can situate Mann’s argument within the general terrain of a critique of idealization, rather than abstraction, as a methodological tool in legal and political philosophy.

Lifeboat Ethics and Political Form

Let me now turn to my central concern in this commentary, namely, the question of political form. In this section, I will try to motivate this issue as raising a question for Mann’s argument. In the following section, I will develop a response to it.

In his essay ‘Lifeboat Ethics’, Hardin casts scorn on the spaceship metaphor deployed by environmentalists:

Suppose, temporarily and for sake of argument, we agree with Hardin’s essentially Hobbesian claim about spaceship ethics. This would support a shift to considering the lifeboat as a model of Earth as a human community in which there is no captain and developing an ethics appropriate to that context. But this is not the move that Hardin makes, rather he abruptly shifts the focus from a single spaceship (Earth) not to a single lifeboat (Earth) but to a plurality of lifeboats (States). With this move, he is free to indulge his primary concern which is to attack the moral cosmopolitanism of his environmentalist opponents.

Mann is surely right to reject Hardin’s sleight of hand and to treat both views as rival conceptions of lifeboat ethics. But it is important also to notice that what makes Hardin’s rhetorical move plausible is that it is predicated on the background assumption that the existence conditions of cosmopolitan global justice require a Global Leviathan and that since there is no such political condition, then political cosmopolitanism is inappropriate as a guide to political ethics: ‘Complete justice, complete catastrophe.’ (as Hardin Reference Hardin1974 puts it). Hardin’s assumptions, we might say, anticipate dogmatically the kind of stance that will be given the form of argument by Nagel (Reference Nagel2005) concerning the existence conditions of global justice. I draw attention to this point, not to defend or attack this background assumption (at least at this stage), but to do two things. First, to indicate the point that the grounds on which Hardin wants to distinguish Spaceship ethics and Lifeboat ethics hang on the political conditions under which he takes each to have application: ‘Without a true world government to control reproduction and the use of available resources, the sharing ethic of the spaceship is impossible. For the foreseeable future, our survival demands that we govern our actions by the ethics of a lifeboat, harsh though they may be.’ (Hardin Reference Hardin1974) Second, to highlight the fact that the fight that Hardin is picking in and with his essay is, if we bracket his assumptions, a fight concerning the governance of Spaceship Earth. Hardin does not, because he cannot, reject the point that we all inhabit the Earth, rather his focus on how this fragile finite sphere is ruled given the political conditions we inhabit. Of course, one response to Hardin’s argument, operating within his own terms, is to urge that we commit ourselves to the construction of a world state. Such a response could be grounded straightforwardly in recognition of the moral costs and political dangers of the global competition between states that Hardin takes as our current fate. Indeed, such a Hobbesian case for world government has been advanced by Saetra (Reference Saetra2022) and a more ecumenical argument of this kind has been proposed by Cabrera (Reference Cabrera2004).

However, I will not focus on this line of response, rather I want to highlight the point that the images of the providential lifeboat and of the catastrophic lifeboat as Mann reconstructs them point to very different conceptions of the political form of global governance. The former appeals – and here, echoing Cohen and Sabel’s (Reference Cohen and Sabel2006) response to Nagel, we can push back against Hardin’s Hobbesian view – to cooperative global structures of regulation and rule which can, but do not necessarily, take the form of a unitary global state or federal global polity. The latter invokes a world of competitive nation states in which global justice is a chimera, the pursuit of which is, on Hardin’s tersely argued view, a dangerous one. The important point here is that competing conceptions of lifeboat ethics are tied to distinct visions of global governance – and hence a question naturally arises for Mann’s argument: what is the political form that aligns with the idea of the commonist lifeboat?

Political Form and the Commonist Lifeboat

In developing a response to this question, I want to start by noting that the shift towards beginning from customary norms has significant implications for how we think about citizenship and polities. It may be helpful here to draw on James Tully’s distinction between civil (modern) and civic (diverse) pictures of citizenship. The basic contrast between these two modes – modern civil citizenship and diverse civic citizenship – is sketched thus:

In general terms, ‘modern citizenship’ as a mode of citizenship/citizenisation stands towards citizenship ‘as a [legal] status within an institutional framework’, whereas ‘diverse citizenship’ is oriented to citizenship ‘as negotiated practices, as praxis – as actors and activities in contexts.’Footnote ³ On the former view, civil action necessarily presupposes an institutional structure of legal rules; on the latter view, primacy is accorded to ‘the concrete games of citizenship and the ways that they are played.’ (Tully Reference Tully2008: 269) Thus, in relation to diverse citizenship, Tully stresses: ‘Civic activities – what citizens do and the ways they do them – can be more or less institutionalised and rationalised (in countless forms), but this is secondary.’ (Tully Reference Tully2008: 269) Notice that this general contrast already constructs a fundamental difference in the mode of self-relation of individuals to themselves as citizens. The mode of citizenship-formation characteristic of the modern civil stance is of the individual standing to him- or her- self as occupant of an ‘office’ specified by a range of rights and duties, whereas that of the diverse civic stance is of the individual standing to him- or her- self as an agent with a (non-fixed) range of powers. Civil citizens stand towards themselves as persons who are at liberty (i.e., free from subjection to the will of another) in virtue of their enjoyment of the civil rights and duties that compose the office of citizenship under law to take up opportunities to participate as political equals in determining the law to which they are subject as subjects of a given political institution of governance. By contrast, civic citizens ‘manifest the freedom of participation’:

Seen from this perspective, Dudley and his fellow seafarers are civic citizens of the free maritime city constituted by the customary norms that have developed through seafarer’s exercise of their freedoms of and in participation with eachother. Regina v Dudley and Stephens can be thus seen as the coercive imposition of a civil order onto a civic practice in ways that are analogous to imposition, via settler colonialism, of the state’s civil order onto the civic practices manifest in customary norms of indigenous bands. It is reasonable to describe Regina v Dudley and Stephens as a crucial step in the colonization of the free maritime world by the civil order of the state.

What implications does this have for the question of political form? Does not it imply that there is no such form in relation to the commonist lifeboat? Such a response would miss the fact that the commonist lifeboat is a lifeboat, that is, it is directed at serving a practical function, namely, securing survival on free and equal terms for those subject to climate change. It would also fail the register the import of Ostrom’s point, mentioned in Section 1, concerning the persistence of customary norms even when they may not represent the most optimal solution to the problem. What is needed is a political form that accommodates diverse civic practices, allows connections across these practices at scales from the local to the global, and enables flexibility of practices and connections in relation to changing conditions. One way to meet these requirements is to think of the commonist lifeboat in terms of polycentric governance. Rather than a single lifeboat Earth (global polity) or a plurality of separate competing lifeboats (the international state system), think of a multiplicity of lifeboats that are linked and in which the links can be elongated, shorten, and switched about to generate larger or smaller boat clusters that pursue project together before re-organising for other purposes. This is a lifeboat collective with multiple overlapping lines of authority directed to governing particular problems and open to reconfiguration of its customary forms and norms through the free activity of its civic citizens.