9 | MORALITY AND CIVIL RIGHTS

I AM GRATEFUL TO Franklin Perkins for coming up with another important challenge to my defense of amorality in connection with the issue of ethics and law. Frank acknowledges that ethical discourse can be dangerous and often quite appalling, for instance with respect to such cases as the war in Iraq, the Lewinsky scandal, or the murder of doctors who perform abortions. But he says that there are also ethical discourses that are very beneficial, such as those of civil rights movements. He suggests that the benefits of ethical discourse and moral appeals might well outweigh the dangers of the abuses of ethics. I comment on the problematic notion of abuse in the introduction, so I won’t repeat myself here. I will, however, discuss the issue of ethics and civil rights in this chapter in more detail. There is a great deal of merit to Frank’s position and it must be addressed.

My response to Frank’s challenge is very much in line with the argument that I presented in the preceding chapter. I think that the idea that ethics were an important aspect of civil rights movements is probably historically correct, but society has evolved in such a way that ethics are no longer needed to fight for rights. On the contrary, I think that civil rights movements have moved beyond ethical positions and have, to a large extent, separated morality and law. These movements have benefited from this separation and have become more successful because of it. The very term “civil rights movements” gives us a clue: Civil rights movements are not called “civil ethics movements”; they focus on rights, not on morality.

Following Niklas Luhmann, I believe that “functional differentiation” is the most important structural characteristic of contemporary society. In our globalized world, society is no longer primarily divided according to geographical or class differences (although these differences obviously still exist) but into different function systems. For the most part, what we are socially is determined by the roles we play within these function systems: We may be students in the education system, patients in the medical system, husbands at home, the opposition in parliament, a defendant at court, or a customer in a shop. How we communicate (what we actually say, how we behave socially) is determined not so much by where we live or by the family that we were born into but by the various function systems we are in at any given time. At the university, for instance, we communicate according to the communicational forms that were developed in the systems of education and science. We write exams, assign marks, write academic papers, counsel students, and write letters of reference. At court, we have to communicate in the way that one communicates within the legal system. If we do not, we are not taken seriously in the system. We are not supposed to express our love, bargain about a fine, or give a political speech in the courtroom. Under different forms of social differentiation, our family status or place of birth may well have been more important in court than any other criteria. Nowadays such things still matter, but one can only communicate effectively if one does so according to the communicative patterns of the various social function systems. In this way, functional differentiation structures contemporary society.

It does not seem to be the case that there is such thing as a moral system, that is, a specific function system comparable to education, politics, the economy, or the legal system. Obviously, moral communication can be used—and is used—in all systems from time to time (politicians especially tend to do so), but no system operates on the basis of the code good/evil. With respect to the legal system, for instance, the code legal/illegal is not primarily a moral distinction but a legal one.

Civil rights movements are also subject to functional differentiation, and they seem to have evolved historically in a fashion that allows them to operate quite effectively under the conditions of this social structure. They have understood that in order to reach their goals they cannot simply demand moral recognition (once more: there is no moral system in society) but must strive for certain rights in the legal system, certain political powers, and access to institutions in the education or medical system. Historically, civil rights movements may have focused on moral recognition, but it has become quite obvious that the demand for such recognition, some sort of a social consensus that it is not evil to be black or gay, for instance, does not get blacks or gays very far in society. Legal rights, political powers, and access to education are much more important for these groups than moral acceptance. It seems to me that African Americans, gays and lesbians, women, and immigrants are no longer very interested in moral recognition. Many homosexuals and African Americans, for example, think that they should be treated not morally, but amorally. They are not so concerned about how moral others think they are as whether they have the same rights as other people.

In fact it is not only more important but also more realistic to claim certain rights, powers, and access to institutions than moral recognition. How do you make everyone think that gays or African Americans are morally good? This would be quite a difficult thing to do. It is comparatively easier, and more in line with functional differentiation, to grant voting rights to women, legalize gay marriage, and accept African Americans at universities. Struggles for such civil rights have proven to be quite effective because they operate in line with existing social structures. Moral struggles are more difficult to fight and are not so likely to bring about any concrete social results. Perhaps it was historically useful for civil rights movements to begin their struggles with ethical communication, but in order for them to be successful in contemporary society they had to go beyond morality. They had to adjust to the existing separation between morality and law (and the other function systems).

Civil rights movements for women, African Americans, and gays have been relatively successful. Of course, they did not bring about total equality, but a good number of their demands have been met. Women can vote in most countries; African Americans can go to any university in the United States; and gays can marry in Canada. I think that there is a significant difference between civil rights movements and protests such as antiwar, antiglobalization, and environmental movements. The difference is, I believe, that, for various reasons, protest movements are not as advanced. They are not as successful as civil rights movements because they have not yet been able to switch from primarily moral discourse to, for instance, legal discourse.

Antiwar movements such as those against the conflicts in Vietnam and Iraq have been dominated by ethical arguments. Most protesters considered the wars to be immoral. This, of course, reflects the moral argumentation of political leaders. Nixon could not end the Vietnam war as soon as he might have wished because he aimed at a peace with honor. Tony Blair pointed out again and again the moral necessity of the war against an evil regime in Iraq. While many protesters point out that the second Gulf War is not only immoral, but also illegal, this argument does not, in my view, get the same attention or emphasis as the argument from morality. There have been no specific demands for changes in the law, at least none that I am aware of. This is, I think, quite different from the civil rights movements discussed above. I am not suggesting, however, that the antiwar movements should be blamed for their relative inefficiency and backwardness. They cannot demand legal changes because war is not a legal matter to begin with. The problem with wars is that they are too loosely coupled to, for instance, the legal system. The legal system has not really developed the capacity to effectively irritate wars. There are laws in place that deal with armed conflicts but they do not have much influence on actual wars. Military and political leaders are able to make their decisions without having to worry much about legal consequences. Wars seem to have a closer coupling with the economy and the mass media. The U.S. military and government are more worried about media coverage of war than about any legal resonance. War can be waged without legal or political consent (at the UN) but it cannot be fought without a certain support from the media, particularly in North America. The success or failure of a conflict seems to be more closely related to the mass media than to the legal system. (This is an issue that I discuss in chapters 11 and 12.)

The antiglobalization and the environmental movement share the moralist inclinations of antiwar movements. They too have not yet matured. The demands, at least those that are made known, of the antiglobalization movement are not specific: It is against capitalism and multinational corporations, and it is for the poor and a world that is fairer and more just. There may well be a number of legal and other functional demands but these seem to be overshadowed by a general moralist rhetoric. The ethical appeal of such words as “fair” and “just” seems to be too strong for this movement to actually focus on demands that can be fulfilled by society.

The environmental movement has made a lot of progress toward becoming as effective as certain civil rights movements. Concrete legal, political, and economic demands are increasingly made. There are calls for political treaties and a regulation of emission standards. Some countries have introduced tax penalties for pollution. Still, the label “green” is quite diffuse and often represents not much more than the moral self-accusation of society: We have spoiled the earth for our children; we are living an excessive life; we have lost touch with nature; we need to change our environmental consciousness; would Jesus drive an SUV? Such ethical appeals are rather widespread among environmentalists. Within this movement there remains an obsession with environmental ethics that distracts it from more functional demands.

I stress that I do not think of any of the above movements as morally right or wrong. I do not know and am not interested in the question of whether the war in Iraq is ethically justified or not. It is not helpful to discuss war in ethical terms. However, I think that it was illegal to begin with. I also do not care much about the ethics of women’s rights. I cannot vote in national elections in the country I live in (because I am not an Irish citizen), and I do not care. I do not find this unethical or unfair. I am not sure if voting is a human right. It is legal for women to vote in Ireland and this obviously contributes to the stability of the political system and society as a whole. Here it would be absolutely unjust, in a legal sense, to deny a woman the right to vote—except if she were under eighteen years old, in which case her vote would be illegal. I do not know how to ethically justify why a seventeen-year-old cannot vote (or that a citizen can, and a permanent resident cannot), but this is the law and both the legal and political systems function quite well in this way. I do not think that issues about war, voting rights, the treatment of ethnic or sexual minorities, or the environment are fundamentally moral issues nor do I think that an ethical approach is very effective in dealing with them. It is my opinion that women should have a legal right to an abortion, but this opinion does not follow from any ethical principle. I am too much of a moral fool to say if women have the moral right to do so and if this legal right can therefore be deducted from an ethical principle. I would not take part in a debate about the ethical justification of abortion but I would defend this right legally.

I think it is only fair enough (just as I think that basketball rules are fair enough) for women to have certain rights with respect to their bodies. In most but not all countries in which the legal system operates autopoietically, abortion has been legalized under various conditions and often in response to demands for women’s rights. In countries with drastic antiabortion laws (Poland, for instance), the legal system seems to be highly sensitive to irritations from religion, which, in turn, appears to diminish the potential for certain civil rights movements (women, gays, etc.) to be successful.

When the legal system is very tightly coupled with other systems (such as the religious system, but one may also think of political or economic systems), civil rights movements seem to face greater difficulties. Just as moral discourse and moral arguments may in some cases help civil rights movements, it is equally possible (and perhaps even more likely) that the influence of moral discourse on the legal system can act as an obstacle. It simply depends on where the moral majority lies—and typically civil rights movements represent minority claims. In many U.S. states people hold religious and other beliefs that make gay marriage appear immoral to them. Since in some of these states the law lacks autonomy, civil rights initiatives to legalize gay marriage are unsuccessful. So far, every single U.S. state that has had a referendum on gay marriage has denied this right. The right has only been granted where legal institutions are autonomous enough to come to legal decisions independently of the moral majority. I think it is quite obvious that there is no correlation between the success of civil rights movements and the use of moral discourse. It can be, has been, and still is as useful in arguing for certain civil rights as it is for arguing against them. In some cases civil rights movements have profited from moral arguments; in other cases the opposite is the case. In every case, however, such movements profit more from and aim more at certain legal rights than moral recognition. Of course, the granting of legal rights may also lead to greater moral acceptance of certain groups, but if this is the case, this only demonstrates once more that these groups seem to fare better if they focus primarily on the law rather than on ethics.

I support my hypothesis that moral discourse, indeed ethics in general, is a very dubious and uncertain ally of human rights movements by taking a closer look at what is probably its most crucial historical predecessor in North America, namely the abolitionist movement of the nineteenth century—and at its peculiar sister, the prohibition movement.

To begin with, I point out what, in my view, is the most important difference between these historical movements and more current civil rights movements. Abolitionism and prohibition were mainly movements against something; they focused on abolishing and prohibiting widespread practices whereas today’s movements are largely movements for something. I know, of course, that every against corresponds to a for (to be against slavery is to be for freedom, to be against drinking is to be for temperance), but I think that the emphasis here is important, and the self-designations of those groups were very explicit about where this emphasis lay. The abolitionists and the prohibitionists wanted laws that forbade something, whereas most contemporary civil rights movements focus on demanding new rights—and even those that want to abolish certain rights today, such as the antiabortionists, prefer to give themselves a positive designation, such as pro-life.

It is also significant, I believe, that both the abolitionist and the prohibitionist movements were largely white movements and were deeply rooted in various versions of religious (mainly Protestant) fundamentalism. They both relied on religious and moral arguments to make legal demands, and these demands, I dare say, were largely made by whites and were directed primarily at fellow whites. These circumstances are particularly interesting with respect to abolitionism. If my understanding of the history of abolitionism is correct, it consisted mainly of certain whites demanding of other whites not to do something (possessing slaves) because of its immoral and religiously reprehensible character and, accordingly, to outlaw this practice. (The same could clearly be said about prohibition.) Abolitionism’s first aim was to abolish the practice of having slaves and the right to have slaves. It seems that considerations about the positive side of the claim—granting equal rights to African Americans, and so on—were only, and at most, of secondary relevance. Yes, there was a lot of talk about the terrible fate of the slaves and the need to set them free, but this was mainly directed at the slave owners. This moral rhetoric focused more on making those involved with slavery feel guilty than on pointing out that blacks deserved the same rights as whites. In this sense, abolitionism was only secondarily, if at all, an antiracist movement; it was much more a moral and religious movement against sinners. (And, once more, the same is true for prohibition.)

While most historians agree that slavery was only one among many issues that led to the American Civil War, it was certainly the most morally and religiously charged issue. It allowed the North to claim moral and religious superiority over the South. The (white) Southerners were accused of being evil sinners who should thus be deprived of a right that many of them felt was essential to their livelihood and social status. The Southerners were equally sure that they had God and morality on their side. In 1832 Thomas Roderick Dew, professor of history, metaphysics, and political law at William and Mary stated: “Slavery was established and sanctioned by divine authority, among even the elect of heaven, the favored children of Israel. Abraham, the founder of this interesting nation, and the chosen servant of the Lord, was the owner of hundreds of slaves.”¹

The Civil War broke out as a war of secession, and one of the main reasons for this was that Southerners did not want to give up their peculiar institution and be deprived of their slave-owning privileges. On both sides, the abolition of rights and practices, not the granting of rights and practices, was the primary concern and thus the conflict over abolition was not so much about the civil rights of blacks as about the moral and religious (and thus legal and economic) differences between whites.

From today’s perspective no one denies that the abolition of slavery was a good thing and that through the victory of the North, African Americans were granted a most important human right, namely the right to liberty. In this way, one can indeed say that the moral and religious discourse involved in the conflict helped bring about specific legal progress. (Of course, things would have been different, but certainly no less morally and religiously acclaimed, if the South had won.) Even given the strong emphasis on moral and religious issues (by the whites), legal progress did not go much further than the mere abolition of slavery. Once the sinners (the Southerners) were deprived of their rights, once white America had morally and religiously purged itself, few positive legal measures (for the blacks) were deemed necessary. Yes, there was freedom, but not much more. Because the struggle for abolition was (largely) a moral and religious struggle between whites, and only secondarily a legal struggle for the rights of blacks, it led to not much more than the legal elimination of slavery. Abolitionism was more successful and legally influential than prohibition, but both movements were, I believe, based on moral and religious discourse and could therefore not really initiate justice. (I use this term here, of course, in the sense of a contingency formula.) Abolitionism identified and finally led to the abolishment of an injustice, but it did not do much to set up just legal standards.

It took the (largely) black civil rights movement of the twentieth century to actually improve the positive legal status of African Americans. As is unavoidable in a highly moral and religious society like the United States, the civil rights movement of the 1950s and ’60s certainly made ample use of moral and religious discourse, but an emphasis on legal issues was more prevalent. The movement was concerned with specific rights such as access to public transportation and lunch counters, schools and universities, careers and political power. This civil rights movement was not fueled by whites’ wishes for moral and religious self-purification but by blacks’ interests in rights they believed they justly deserved.

While I think that the comparison between the abolitionist movement in the nineteenth century and the (ongoing) African American civil rights movement of the twentieth century shows that morality (and religion) may contribute to or even initiate, to a certain extent, legal reform and change, civil right movements clearly have to leave moral and religious reasoning largely behind in order to realize their legal goals under current social conditions. Ethical communication may help civil rights causes at times, but it can equally well be used against them. It seems to me that African Americans are now much more interested in issues related to social function systems such as the law, the economy, politics, education, and the medical system than with merely ideal, or rather semantic or rhetorical, issues such as morality. If the African American civil rights movement was able to go beyond abolitionism, it is because the former is less ethical than its predecessor.