Taking his lead from Robert Nozick (who observes that “the fundamental question … one that precedes questions about how the state should be organized, is whether there should be any state at all” (Anarchy, State & Utopia, p. 4)), Jeremy Garrett investigates, not how the institution of civil marriage should be organized, but whether there should be any such institution at all.  Finding there to be a compelling prima facie case against the institution, and finding two important arguments against this prima facie case to be wanting, Garrett concludes that we should not, in fact, have the institution of civil marriage.  Instead, he defends a view called Marital Contractualism (henceforth ‘MC’), a proposal for a ‘privatized’, ‘dis-established’ marriage regime.  On such an arrangement, the state’s involvement in the institution is to act as a third-party enforcer of contracts for life-partnership; the sanctification of such unions as ‘marriages’ is left to the private sphere.

Though a regime of civil marriage represents the status quo, Garrett cleverly organizes his discussion so as to shift the argumentative burden to the institution’s defenders.  This feature, though not explicitly signaled in the text, is perhaps the article’s distinctive merit, and among its more important contributions.  For by illustrating MC’s congruence with basic liberal principles, Garrett astutely demonstrates that – from the perspective of liberal political theory, if not from the perspective of contemporary social policy – disestablished marriage should be regarded as the natural default position.  One might even suspect an attempt at covert agenda-setting here: by thus organizing his argument, Garrett is tacitly inviting further theorists to likewise regard MC as the default liberal position.

Garrett’s case for a presumption in favor of Marital Contractualism is threefold.  First, citing its affinity with core liberal values such as personal liberty and freedom of contract, he argues that MC is “default-justified” (163-4).  Secondly, Garrett cites five important virtues of MC.  These are as follows:

(1)  “Efficiency in social policy”: Garrett concedes that marriage policy is currently put to use, albeit awkwardly, in serving worthwhile social policy goals.  However, under MC, the state could serve these same ends less clumsily by other means, which do not involve marriage policy: “For example, in securing the legitimate interest of children, the state would be encouraged to work directly through the categories of parenthood/guardianship to provide education, material resources, etc.  Since every child will be assigned parents/guardians but not every child’s parents/guardians will be married, this more direct approach to social policy should be more efficient in achieving the desired goal” (164).

(2)  “Treats citizens as equals”: Under a regime of MC, a certain form of inequality-before-the-law would be excised from current practice – viz., no longer would citizens be treated differently (for, e.g., tax purposes) according to their marital status.

(3)  “Respects diversity and individual freedom”: Together with the preceding virtue, this attraction is best illustrated by considering its implications vis-à-vis the same-sex marriage controversy: MC “immediately resolv[es] one of the most divisive issues in contemporary democratic life … Since MC would not recognize anyone’s ‘marriage’ per se, its equal treatment would remove the issue from democratic debate altogether” (165).

(4)  “Increases likelihood of informed consent”: By playing up the ‘contractualist’ element of marriage, and eliminating its ‘status’ component, MC encourages prospective life-partners to attend more carefully to the terms of the unions they contemplate entering.

(5)  “Compatible with many theories of justice”: While I share some of his optimism in this regard, I am a bit less sanguine than is Garrett that “[o]ne could be a conservative, libertarian, liberal, feminist, or utilitarian and still consider MC the appropriate” marriage regime.  Consider, for instance, that throughout his piece Garrett draws heavily on a 2003 article by Anita Bernstein – an article in which the legal theorist examines MC and, as Garrett himself tells us, explicitly rejects it on utilitarian grounds (174).

Third, Garrett appeals to important disadvantages inherent in MC’s primary alternative.  On this front, he cites both direct and indirect costs of the institution of civil marriage.  Among the former, there are the administrative costs associated with regulating the institution, and the foregone revenues resulting from tax incentives designed to encourage marriage.  Among the latter, there are both the familiar impacts (“the effects of marital status on access to employment, health insurance, and other benefits”, where nonmarried citizens “either cannot access these goods at all or can do so only at higher costs than would otherwise exist” (167)) and the less familiar (such as “ideological subsidies” by which “social currency” is transferred “in ways that work to the detriment of both the married and unmarried” (167)).  This third section of Garrett’s tripartite prima facie case in favor of MC is perhaps the only place where I detected substantial room for improvement.  For the case that civil marriage suffers from substantial costs to be fully convincing, it must also be demonstrated that these costs significantly outweigh the institution’s benefits.  (Garrett acknowledges this same point later in a different context, when he is rejecting the objection that MC is unduly impracticable.)  Unfortunately, at this stage, Garrett does not take this further step.

Having defended a ‘presumption of MC’, Garrett now turns to consider possible arguments that might be deployed so as to rebut this presumption.  He identifies three broad strategies the defender of civil marriage might invoke: (1) holding “that certain kinds of intimate relationships have significant value … that is sufficient to warrant their recognition and promotion by the state”; (2) arguing that “whatever value is had by a given form of civil marriage, MC is morally unacceptable” in its own right; or (3) “challeng[ing] the practicability of MC” (168).  Due to space constraints, and noting that he has taken up strategy (1) elsewhere, Garrett considers only the latter two objections.

Garrett contends that the second criticism – which he calls the ‘moral defect’ charge – almost always relies on a mischaracterization of MC, or upon an exaggerated expectation regarding the social goals MC ought to effect.  To illustrate the latter sort of error, Garrett examines Susan Moller Okin’s charge that MC is ill-equipped to ameliorate many of the various gender-related inequities associated with the traditional institution of marriage.  Garrett dismisses Okin’s worry on grounds that such comprehensive policy goals lie outside the scope of what one might legitimately expect from MC – or from any single public policy.  Instead, he suggests that these (worthwhile) policy goals are best facilitated by “’outsourcing’ them to other areas of the law or social policy that can address them in ways that are more efficient, effective, wide-reaching, and consistent with treating citizens as free and equal” (169).

The third criticism – what Garrett calls the ‘impracticability’ charge – merits a three-part response.  First, Garrett alleges, this accusation has all the features of a desperate ‘last resort’ strategy for the opponent of MC; besides, it might have been invoked with equal plausibility as a rationale for resisting any number of previous admirable social reforms – for instance, abolishing slavery or extending voting rights.  Second, and like the ‘moral defect’ charge, this criticism typically relies on a mistaken assumption about MC – for instance, the previously-encountered (and dismissed) assumption that marriage policy is necessary inasmuch as the state must deploy the legal category of ‘married’ pursuant to its legitimate interest in securing children’s welfare.  Third, and most damagingly to the MC opponent, this appeal underestimates the adaptability of contract law.

Jeremy Garrett has contributed a clear and convincing case to the burgeoning literature on the ‘disestablishment’ of marriage.  Garrett’s discussion is singular, in my estimation, for its most perspicuous survey of the conceptual terrain: he recognizes clearly that, while civil marriage represents the status quo as a matter of current social policy, it ought not represent the status quo as a matter of liberal political theory.  Readers will profit from engaging both his case for a philosophical ‘presumption of MC’, and his treatment of arguments which seek to rebut that presumption.

“Philosophical doubts about moral responsibility,” writes William FitzPatrick, “have typically been rooted in worries about free agency in the face of causal determinism, culminating in familiar metaphysical arguments against the very possibility of moral responsibility” (589).  So it is noteworthy that a novel argument for moral responsibility skepticism (hereafter ‘MRS’), recently advanced by Michael Zimmerman and Gideon Rosen, does not rest on controvertible metaphysical claims such as the defense of an incompatibilist determinism.  FitzPatrick’s article presents a critical assessment of this new argument.  While he applauds it for drawing our attention to difficult problems surrounding the theory and practice of our attributions of moral responsibility, FitzPatrick concludes that the argument’s skeptical conclusion is too strong.

This new argument for MRS (FitzPatrick focuses his discussion on Rosen’s 2004 presentation, which I have summarized here) is distinctive insofar as it is an epistemological argument, focusing on the warrant for our attributions of moral responsibility, rather than a metaphysical argument concerning the very possibility of moral responsibility itself.  Rosen’s argument is two-staged.  First, he argues that for any agent’s action to qualify as blameworthy, an instance of genuine akrasia must appear at some point in the “causal etiology” of that action.  Second, Rosen argues that we never have good grounds for judging an action to be akratic.

FitzPatrick (correctly, in my assessment) quickly dispatches with the second, “epistemological” stage of Rosen’s argument.  This stage amounts to little more than the assertion that reliable attributions of akrasia are difficult to make.  According to Rosen, we have scant grounds for such attributions, even in the first-personal case.  This claim rests on an appeal to the general “opacity of the mind”, together with the observation that it is often difficult to distinguish cases of genuine akrasia from those of “an imposter – ordinary weakness of will” (593-4).  But as FitzPatrick capably demonstrates, our grounds for akrasia-attributions are not nearly as scant as Rosen seems to suppose.  To begin with, consider cases of first-person attributions.  FitzPatrick points out that the experience of guilt and shame, sometimes felt even at the time of performing an action, can serve as a form of evidence (admittedly defeasible) that our present action is akratic.  Likewise, we need not think that second- and third-personal attributions of akrasia face insurmountable epistemic problems.  For consider the evidence provided by testimony: “people are sometimes honest with themselves about having acted akratically… and are honest with others about it, too” (596).  So the fact that people will sometimes flat-out tell you they have acted akratically is sufficient to undermine Rosen’s claims regarding the alleged inscrutability of akrasia.  Furthermore, FitzPatrick argues, certain forms of circumstantial evidence might warrant these attributions.  Inference to the best explanation, for instance, might demand that we regard a person’s action as akratic, even if that person testifies to the contrary: “Sometimes the alternative of ignorance is just so implausible that the principle of charity requires the attribution of akrasia” (598).  Likewise, a person’s efforts to conceal her morally incorrect behavior – if later uncovered – often provide “good evidence that she knew what she was doing was wrong,” and thus that she was acting akratically (598).  FitzPatrick concludes that there are “plenty of real cases – involving both our own actions and those of others – in which we can know, by any reasonable epistemic standards, that an action involves … akrasia” (599).

FitzPatrick takes little solace in his quick dispatch of the second stage of Rosen’s argument, however, as he reckons that the more forceful challenge lies in its first stage, wherein Rosen defends a tight link between moral culpability and akrasia.  Thus, FitzPatrick devotes the bulk of his article to examining and refuting Rosen’s contentions there, to the effect that assignments of moral responsibility for the performance of wrong actions must always terminate with the identification of an akratic act.

Let me first set out Rosen’s argument at this stage, borrowing liberally from my earlier review of Rosen’s 2004 article, “Skepticism About Moral Responsibility.”  Imagine Sally performs wrong action A.  There are two relevant possibilities here.  The first is that Sally knows that A is a wrong action.  If so, we have a clear case of akrasia, and clear grounds for an attribution of moral responsibility.  The second possibility is that Sally does not know that A is a wrong action.  In this case, we say that Sally acts “from ignorance” – either “circumstantial ignorance” (wherein Sally’s failure to know that A is wrong results from her ignorance of some matter of fact) or “normative ignorance” (wherein her failure to know that A is wrong results from her ignorance of some normative or moral truth).  Does Sally’s ignorance – whether circumstantial or moral – excuse her from responsibility for her wrong action?  Only if she bears no responsibility for her ignorance itself.  If Sally is not to blame for her ignorance, we regard this ignorance as a mitigating factor, and exempt Sally from judgments of responsibility for performing wrong action A.  If Sally is responsible for her ignorance, however, we say that she is “culpably ignorant”, and we do not regard her ignorance of A’s wrongness as an excuse.

When, then, is Sally morally responsible for her ignorance that A is wrong?  When she is morally responsible for her failure to discharge one of her “procedural epistemic obligations” – the procedures “any reasonably prudent person in [her] circumstances would have done in order to see to it that [she] was adequately informed” (Rosen 2004, p. 301).  And when is Sally responsible for her failure to discharge one of these procedural epistemic obligations?  Here is the crux of Rosen’s argument: Sally is thus responsible only when her failure to discharge these epistemic obligations is itself a clear instance of akrasia.  Were Sally (non-culpably) unaware that she stood under any such procedural epistemic obligation, her failure to discharge this epistemic duty – and thereby her resulting ignorance regarding A’s wrongness – would be non-culpable.

We now see why Rosen believes that for any putative case of moral responsibility for a wrong action, an instance of genuine akrasia must appear at some point in the “causal etiology” of that action.  We can also see why, even if we reject the second stage of Rosen’s argument for full-blown MRS, the sub-conclusion of this first stage poses an important challenge: for as FitzPatrick puts it, the “striking result” is that Rosen’s akrasia-invoking condition often “will not be met in many cases where we normally attribute responsibility, particularly in cases involving basic normative ignorance” (599).

Thus FitzPatrick defends an alternative condition for culpable ignorance, “CI”, which is weak enough to include (rather than to exclude, as Rosen’s does) many of the central cases in which we typically wish to attribute responsibility for normative ignorance.  FitzPatrick formulates CI thusly: “Ignorance, whether circumstantial or normative, is culpable if the agent could reasonably have been expected to take measures that would have corrected or avoided it, given his or her capabilities and the opportunities provided by the social context, but failed to do so either due to akrasia or due to the culpable, nonakratic exercise of such vices as overconfidence, arrogance, dismissiveness, laziness, dogmatism, incuriosity, self-indulgence, contempt, and so on” (609).  Among the central cases which CI (but not Rosen’s condition) countenances as examples of morally-culpable ignorance (cases to which FitzPatrick devotes considerable discussion, so as to motivate his view) are both fictional and non-fictional ones.    Among the former, there is the case of the character Mr. Potter from It’s a Wonderful Life.  Among the latter, there is President George W. Bush.  (FitzPatrick confesses that his motivation for formulating and defending CI may have been his recognition that Rosen’s criterion could serve – wrongly, in FitzPatrick’s estimation – to exculpate President Bush from responsibility for many of his actions while in office.)

Gideon Rosen’s contention that moral responsibility for wrong actions only arises as a direct or indirect result of clear-eyed akrasia is clearly articulated, forcefully argued, and – one feels – incorrect.  William FitzPatrick’s rival criterion for responsibility-generating culpable normative ignorance, CI, is unwieldy and imprecise in formulation; it is vague and relies heavily on anecdote in its defense; and yet it is – one feels – largely correct.  Thus the dialectic here is as it ever was between philosophical skeptics and their critics.  Neither Rosen, with his elegant and compelling argument for a radical and counter-intuitive conclusion, nor FitzPatrick, with his less-dazzling defense of a more-plausible position, clearly wins the day in this exchange.   Fortunately, though, inasmuch as it comes away from this contest with a vastly-improved understanding of the issues and options at hand, their audience does emerge as the clear winner.

Typically, skepticism about attributions of moral responsibility bears two features: (i) it relies upon metaphysical claims regarding the impossibility of free agency in a deterministic universe; and (ii) it encompasses all cases of moral responsibility, good and bad – judgments of blameworthiness and praiseworthiness alike. Thus it is noteworthy that Gideon Rosen offers us an argument for moral responsibility skepticism (hereafter ‘MRS’) bereft of either of these standard features.

In essence, the argument is two-staged. First, Rosen argues that for any agent’s action to qualify as blameworthy, an instance of genuine akrasia must appear at some point in the “causal etiology” of that action. Second, Rosen argues that we never have good grounds for judging an action to be akratic. Let us consider each stage in turn.

1. The first argument is, in my judgment, quite compelling. Imagine Sally performs wrong action A. There are two relevant possibilities here. The first is that Sally knows that A is a wrong action. If so, we have a clear case of akrasia, and clear grounds for an attribution of moral responsibility (in the form of a judgment of blameworthiness). The second possibility is that Sally does not know that A is a wrong action. In this case, we say that Sally acts “from ignorance” – either “circumstantial ignorance” (wherein Sally’s failure to know that A is wrong results from her ignorance of some matter of fact) or “normative ignorance” (wherein her failure to know that A is wrong results from her ignorance of some normative or moral truth). Does Sally’s ignorance – whether circumstantial or moral – excuse her from responsibility for her wrong action? Only if she bears no responsibility for her ignorance itself. If Sally is not to blame for her ignorance, we regard this ignorance as a mitigating factor, and exempt Sally from judgments of responsibility for performing wrong action A. If Sally is responsible for her ignorance, however, we say that she is “culpably ignorant”, and we do not regard her ignorance of A’s wrongness as an excuse.

When, then, is Sally morally responsible for her ignorance that A is wrong? When she is morally responsible for her failure to discharge one of her “procedural epistemic obligations” – the procedures “any reasonably prudent person in [her] circumstances would have done in order to see to it that [she] was adequately informed” (301). (Such requirements are “obligations to do (or to refrain from doing) certain things: to ask certain questions, to take careful notes, to stop and think, to focus one’s attention in a certain direction, etc.” (301).) And when is Sally responsible for her failure to discharge one of these procedural epistemic obligations? Here is the crux of Rosen’s argument: Sally is thus responsible only when her failure to discharge these epistemic obligations is itself a clear instance of akrasia. Were Sally (non-culpably) unaware that she stood under any such procedural epistemic obligation, her failure to discharge this epistemic duty – and thereby her resulting ignorance regarding A’s wrongness – would be non-culpable.

Thus, we see that assignments of moral responsibility for the performance of wrong actions must always terminate with the identification of an akratic act – either Sally’s performance of A is itself akratic (Rosen terms this a case of “original responsibility” for A), or Sally’s ignorance of A’s wrongness derives from an akratic failure to discharge one of her procedural epistemic obligations (a case of “derivative responsibility”). Attributions of moral responsibility thus track attributions of akrasia: any culpable wrong action A must either itself be an akratic action, or must stem from an ignorance made culpable by an akratic failure to discharge epistemic obligations, causally ‘upstream’ from the action.

2. Having identified akratic action as a necessary condition of any agent’s bearing moral responsibility for any wrong action A, Rosen now turns to the second stage of his argument. And this stage amounts to little more than the bare assertion that reliable attributions of akrasia are difficult to make. According to Rosen, we have scant grounds for such attributions, even in cases of first-personal attributions of akrasia. This claim rests on an appeal to the general “opacity of the mind” (308), together with the observation that it is often difficult to distinguish cases of genuine akrasia from those of “an imposter – ordinary weakness of will” (309). (In contrast to the akratic agent, who “judges that A is the thing to do, then does something else, retaining his original judgment undiminished,” the moral weakling initially judges “that A is the thing to do, but when the time comes to act, loses confidence in this judgment and ultimately persuades himself … that the preferred alternative is at least reasonable” (309).) To illustrate what he means, Rosen offers reflections on his own reflections: “When I consider my own case and ask whether some weakish act of mine amounts to genuine akrasia as opposed to ordinary moral weakness, I have no trouble identifying tolerably clear cases of the latter; but I confess that I cannot identify clear examples of the former with any confidence” (309). A fortiori, Rosen concludes, we ought to have very little confidence in our second- and third-personal attributions of akrasia.

Rosen’s argument does not depend on controvertible metaphysical theses (for instance: an antecedent defense of an incompatibilist determinism) ‘upstream’, nor does it entail ‘global’ MRS (the sort of skepticism that regards attributions of praiseworthiness to be as ill-founded as assignments of blame) ‘downstream.’ For this reason alone, it is an important contribution. However, Rosen’s overall argument is only as strong as the claim that culpability requires akrasia – that in order to be responsible for performing some wrong action A, one must confidently judge that A is wrong, even as one elects to perform A. Philosophers who question Rosen’s tight linkage between culpability and akrasia will find much in this article that is valuable and instructive, but they will not find here a compelling reason to embrace MRS.

Reviewed by Vaughn Bryan Baltzly
Bowling Green State University