Jan. 19, 2018: Analyzing Rubbery Foundations: An Ethical Stretch?
Not long after The Jourmudgeon family moved to Rockbridge County 27 years ago, The Jourmudgeons’ older son, who had just turned 3 and was in preschool in town, began to bug us. “When can we go see rubbery?” he would say, with the toddler’s classic perseveration. “You want to see some rubber?” The Jourmudgeon would ask. “No, rubbery,” he said. The Jourmudgeon and Mrs. Jourmudgeon could do little but look at each other, puzzled, until the day The Jourmudgeon happened to walk his son past Lee Chapel on the campus of Washington and Lee University in Lexington. “Dad, is that where Rubbery lives?” he said. Came the dawn. “No, son,” The Jourmudgeon said, “but it’s where he’s buried.”
Old Rubbery Lee, the man who led an armed insurrection to defend the indefensible, all the while espousing his reverence for the Union, his belief that slavery should disappear, and his overarching sense of duty and honor. He and his decisions have been analyzed to death. Is there room for any more? There has to be. Consider these quotes from Rubbery, written by him in mid-January 1861:
“Secession is nothing but revolution. The framers of our Constitution never exhausted so much labour, wisdom & forbearance in its formation, & surrounded it with so many guards & securities, if it was intended to be broken by every member of the Confederacy at will. It was intended for perpetual union…for the establishment of a government, not a compact….”
Also: “I know no other Country, no other Government, than the United States and their Constitution.”
Barely three months later, Ol’ Rubbery turned down an offer to head the Union Army and accepted command of the bulk of the Confederate forces, because, as both truth and hagiography have exhaustively revealed, he somehow thought it worse to take up arms against Virginia than against the federal Union he purported to embrace, and that had embraced him. Which led to Manassas, Chancellorsville, Antietam, Gettysburg, and, ultimately, Appomattox.
Remember also Rubbery’s lifelong profession of deep religious faith. More about that in a minute.
The Jourmudgeon acknowledges at the outset being vulnerable to a challenge to his fitness for prodding anything Rubbery at all. The Jourmudgeon is neither historian nor anthropologist nor psychologist. The Jourmudgeon does know a little about applied ethics, and that is the tack he would like to take.
The Jourmudgeon recommends to you The Religious Life of Robert E. Lee, a book by R. David Cox. The Jourmudgeon found it fascinating and insightful. The Rubbery quotes that The Jourmudgeon shares here come from the book, as does Cox’s well-substantiated conclusion that Rubbery did not rely on his Episcopalianism as the foundation for the decision he made to commit treason against the United States. His letters are devoid of evidence that he proselytized at all for the decision he made. Indeed, what evidence there is supports his refusal to do so – telling man after man that he should make his own decision regarding loyalty to the Union. Had religious zeal inflamed Rubbery, Cox reminds us, he would have evangelized.
The Jourmudgeon also owes a debt to the late Lou Hodges, from whom The Jourmudgeon learned much about applied ethics in the context of The Jourmudgeon’s own field. Hodges and The Jourmudgeon co-taught Washington and Lee University’s journalism ethics course for several years.
Cox’s argument, which formed the basis of The Jourmudgeon’s decision to observe Rubbery’s birthday this way, is that the answer to Rubbery’s decision lies fundamentally in his ethics. The Jourmudgeon found that an original and hugely helpful insight, but what evidence do we have for that? The Jourmudgeon has already cited Cox’s observation that a faith-based conclusion would have required Rubbery to evangelize it, and he did not. And his apparent embrace of the Constitution and the federal union it established gives him no Constitutional or political ground on which to stand. His contention that he was honor- and duty-bound to lead armed rebels on their ruinous course is an ethics-based one: that he is compelled by some higher law to disobey the secular supreme law of the land and to bypass the teachings of the Episcopal church that were, as Cox makes clear, in no small measure of flux in the mid-19th century.
The Jourmudgeon’s first challenge in an attempt at an ethical analysis is obvious: What does The Jourmudgeon mean when he says ethics?
Let us start with some ground rules. First, the study of ethics involves looking at how we might answer “What ought we to do?” Now, ought is an archaic past tense of owe, so our first observation is that ethics is about what we owe others, and, by extension, how the decisions we make affect others. We trace the genesis of the Western ethical tradition to Socrates’ observation 24 centuries ago that it is better to suffer harm than to do harm.
Second, when we talk about ethics and ethical decision making, what counts? In applied ethics we identify ethical dilemmas as those in which laudable values come into conflict. In The Jourmudgeon’s own field, for example, what the journalist owes her audience – what she ought to do – is to provide truthful information that empowers the audience, that enhances self-determination. But the journalist – like any other human – also owes a duty of respect for an individual’s right to privacy. An ethical dilemma – values in conflict — arises when in order to give an audience critical information the journalist must invade the privacy rights of the individuals about whom she is reporting. We say ethics is about analyzing how we reason our way to the better outcome. By contrast, many cases that are inaccurately identified as ethical dilemmas involve nothing more than yielding to temptation. Many of The Jourmudgeon’s readers – a number that sometimes reaches the high single digits — will remember the case of Jayson Blair, the New York Times journalist who plagiarized numerous stories and fabricated others. The Jourmudgeon loves to tell journalists – to ear-splitting howls — that that wasn’t a case about ethics. Blair didn’t face any dilemma, any values in conflict. He faced a clear-cut choice between right and wrong, and simply yielded to temptation. We all yield to temptation once in a while. It’s common; it’s also not very interesting or helpful as a case study in weighing values in conflict.
Third, the acknowledgment that all of us operate at three recognizable levels when it comes to our own analyses. The first is the gut – “I just feel he shouldn’t have done that. It just feels wrong.” No explanation offered. Second is rule following: The Bible (or the law, or any of a dozen other social, cultural, religious or legal codes we can identify) says we ought not steal, for example. Rule-following is where most of us are, most of the time, for damned good reasons. Without well-grounded universal rules there would be constant chaos and bloodshed. The third level we call ethical reflection: We are aware of the appropriateness of asking questions such as: “What should I take into account in analyzing this situation, and what I ought to do? How reliable is the gut? Is rule-following enough in this case, or is there something in the particular circumstances this time that obligates me to consider an exception to a fundamental rule?” Okay. Nobody operates at the ethical reflection level all the time, and some people never do. But even the most seasoned ethical thinker will revert to the gut once in a while, and to rule-following often.
Now then – and prepare to be shocked – Professor Hodges and The Jourmudgeon, it turns out, were not the first guys since Socrates to think about all this. Allow The Jourmudgeon to identify and briefly characterize just five Western ethical traditions – the ones most of us have stumbled across at some point, and might even have studied formally. The Jourmudgeon hastens to acknowledge that he is leaving out the entire Eastern tradition of ethics, those of lesser-known cultures, and 20th century ethicists, including the robust literature of feminist ethics. This omission is an attempt at fairness to Rubbery. There is no evidence that he dabbled in the ethical traditions of the H’mong, or even of Confucius. (Neither has The Jourmudgeon, for that matter.) But it’s safe to assume that Rubbery was exposed to most of what The Jourmudgeon is about to poorly summarize. When that summary is done, The Jourmudgeon will attempt to place Old Rubbery’s ethics in that context, or maybe just dismiss his secessionist machinations as merely yielding to temptation after all.
Here are the five: Aristotle’s virtue-based, or nonconsequentialist, ethics, Jesus’ love-based ethics, Locke’s rights-based ethics, Kant’s duty-based, or deontological, ethics and Mill’s utility-based or consequentialist ethics. Only Mill was a rough contemporary of Rubbery, and he was preceded by Hume, also a consequentialist. Artistotle’s and Jesus’ are often characterized as theories of being, because they address what qualities make for ethical people. The last three – Locke, Kant and Mill — are considered theories of doing, because they address what constitutes ethical actions. All presuppose, by the way, that people want to behave appropriately toward their fellows. A scoundrel by definition cannot be ethical, and has no desire to be.
Aristotle thought it appropriate to examine what kind of person is virtuous, and what are the desirable virtues. Virtuous people make ethically sound decisions. By being virtuous, I will be ethical. You can recognize the fundamental flaw: its circularity. Virtue is necessary, but hardly sufficient, for sound ethical decision-making. Again, scoundrels don’t care about making ethical decisions. But once we capture virtue, does that help us through every decision? And if being virtuous is the only quality control assurance, then our decisions remained unexamined, again by definition: I am a virtuous person, I made the decision, therefore I can be assured that my choice is ethically defensible – the right one.
On to Jesus’ love-based ethic. But the greatest of these is love. Our fundamental obligation is to love God, and to love others. To be ethical we must be people who love. It’s often, too simply, in The Jourmudgeon’s opinion, expressed as The Golden Rule. Less simply but equally problematic is the parable of the Good Samaritan. Again, the capacity and willingness to love others are necessary, but not sufficient. Here are the problems, as Hodges identified them: First, how do we distribute the love? In the case of the good Samaritan, how do we love equally the victim and the thieves among whom he had fallen? Love the thieves, hate their evil is a start, but it gives us no real guide for deciding what is just. What ought to have happened to the thieves, and to the man who had been harmed by them? Even Aristotle recognized different forms of justice for different applications. Which brings us to the Golden Rule: Do unto others as you would have them do unto you. But if we decide that our moral obligation is to treat others the same as we would want to be treated, is that just? Convicted of murder, The Jourmudgeon would wish not only to be shown mercy, but to be set free. Is that appropriate for the murderer?
Far be it from The Jourmudgeon to say that nothing ethically interesting happened for the next 17 centuries, while everybody was pretty much up to their necks in pig poop, blood and bubonic plague, but he is going to skip forward to John Locke anyway, with his rights-based ethics. All humans share – are endowed with — natural rights. We could say God-given rights, but that would not do justice to our Founding Fathers, including Rubbery’s daddy, who were all a pack of Deists. Anyway, for Locke, ethical behavior is acknowledging and honoring our natural rights. So far, so good. But here is the challenge: In acknowledging natural human rights, the track record of Locke and his followers is pretty spotty. Even if we argue a distinction between natural rights and legal rights, in most cases that is a distinction without a difference. In short, how can we acknowledge natural rights and constrict or deny legal rights that ensure self-determination? In other words, who counts as human? Women? Those without property? Blacks? And Locke provides little guidance for weighing the proper course when rights compete.
Gee, are we at Immanuel Kant already? You might have heard of the categorical imperative, the lynchpin of Kant’s duty-based, or deontological, ethics. (Deion, from the Greek meaning an awful singer from the 1950s and ’60s. The Jourmudgeon apologizes. Actually, deion is Greek for duty.). Ethical behavior lies in following our duty, and our duty to others lies in reasoning our way to universalizable rules. The categorical imperative, then: Act in each case so that your guiding axiom for that case can be willed to be a universal rule. If I am obligated not to lie in this case, telling the truth should be the rule in all cases. But the danger in Kant lies in something Kant himself acknowledged but others often do not: the difference between moral universals and moral absolutes. The case of Anne Frank comes to mind, or, more appropriate to Rubbery, the underground railroad example. A person agrees to hide escaped enslaved people in his home. The pursuers ride up, pound on his door, and confront him: “Are you harboring runaway slaves?” An absolutist interpretation of Kant would compel the harborer to recognize his duty as never to lie, even under these circumstances. “Damn,” he says, or something similar. “Come on out folks; these guys are too smart for us.” So, is it ever permissible to lie? Does duty mean rule following only? The universalist interpretation of Kant recognizes exceptions to the rule, when we are not only permitted but morally obligated to lie. “Slaves? Nope. Nobody like that here. You guys might try looking in Antarctica. It’s that way.”
Mill’s utilitarianism is often mischaracterized as the greatest good for the greatest number, and that the ends justify the means to it. Your ethical lodestone is determining how to ensure the most people will benefit the most from your decision. The problem here is obvious: The tyranny of the majority. If all we are concerned about is the greatest good for the greatest number, we have an ethical rationale for mistreating or denying rights to anybody in the minority who won’t benefit. Oops. Like Kant, Mill was a smart guy. He saw the danger. Like Kant, he acknowledges exception, especially where rights were concerned. And that we must always treat people as ends in themselves, and never as means only.
It has probably dawned on you what The Jourmudgeon is going to say next: None of these ethical foundations is sufficient in itself to hold up the building. And all fall at least a little short when it comes to approaching applied ethics as a rational process. What, then, should we take into consideration in that reasoning process?
The Jourmudgeon is going to tip his hand here, just for giggles, but it doesn’t mean he is quite finished. For The Jourmudgeon’s money, by the classical definition of an ethical dilemma Rubbery’s so-called “predicament” doesn’t even come close. To paraphrase Oscar Wilde, he could resist everything but temptation. Again, ethical dilemmas consist of values in conflict, and in trying to use a process to reason one’s way to the better outcome. Let’s give Rubbery the benefit of the doubt for a moment. Assume, as he argued, that his was a principled stance against radical agitators who were perverting the Constitution by trying to remove a state’s right to self-determination, and that his moral imperative was to resist such a threat to the foundational document and the union it established – that his ends justified his means. To The Jourmudgeon that only illustrates either Rubbery’s intentional intellectual dishonesty or his lack of depth – to imagine that the exercise of a state’s right permitted the denial of fundamental rights to others. The granting of rights is not a zero-sum game; by acknowledging blacks as humans and granting them Locke’s – and the Declaration of Independence’s — natural as well as legal rights he would not have inevitably been removing rights from whites. True, the economic well-being of Rubbery’s socioeconomic peers would have suffered, but in no rational moral scheme could we recognize a right to profit economically at the expense of others’ freedom as defensible. By that yardstick, what Rubbery did was yield to temptation – to take the expedient solution. Worse, he painted it with the gloss of moral obligation.
But, since The Jourmudgeon is talking about ethics, not temptation, let’s see if we can be a bit more interesting, and here David Cox helps us again. He identifies Rubbery’s guiding ethic as Aristotelian and nonconsequentialist – his obsession with being virtuous, and his belief that virtuous people make ethically appropriate decisions, and that regard for the consequences is not appropriate or necessary to consider. And it’s also Kantian, in embracing duty as the fundamental obligation of a virtuous man. Again, nonconsequentialist, at least on its face. Do your duty, regardless of the consequences. But that is misinterpreting Kant’s conception of duty to universalize as duty to make absolute, the rule that admits no exception.
Both virtue and duty came from Rubbery’s father, Cox tells us, though he lives on in history – Light Horse Harry, not Cox — as someone who wound up honoring both mostly in the breach. Perhaps his father’s hypocrisy only reinforced Rubbery’s embrace of virtue and duty. But then, maybe hypocrisy just ran in the family. That would be a simpler, though less Freudian, explanation.
Before The Jourmudgeon began trying to slice through the Gordian knot of Rubbery’s rationale for leading an insurrection to defend the indefensible, The Jourmudgeon suspected that he would find (confirmation bias) that Rubbery’s underpinnings were indeed rubbery – flexible, stretchy, wobbly, and no suitable material for setting any sort of foundation.
Earlier The Jourmudgeon presented a couple of Rubbery quotes that illustrated Rubbery’s claim to revere the Union, and wondered how he squared those with leading the armed insurrection against it. In an effort to support The Jourmudgeon’s conclusion that Rubbery’s ethic was expediency – in other words, not ethics at all in the sense of what we owe others — let’s look at a couple of his other assertions:
Rubbery claimed he would be willing to free slaves in return for preserving the union. This, as the Brits say, is all mouth and trousers. He considered slavery to be an evil that God in due course would end, and because of that it was not a subject for human intervention. Cox identifies this as a providentialist approach – the conviction that things should be left up to God, and that it is presumptuous for humans to try to intercede. Apparently Rubbery suffered no similar spasm of providentialism when it came to human intervention to try to prevent outcomes that were less favorable to his side.
A couple of other assertions, both again from mid-January 1861: “As an American citizen I prize my government & country highly, & there is no sacrifice I am not willing to make for their preservation save that of honour….I cannot anticipate so great a calamity to the nation as a dissolution of the Union.” But in claiming fealty Rubbery betrays a self-serving persecution complex: If the union dissolves, it’s those other guys’ fault, and I can’t ignore that without endangering my honor. That, too – endangering his honor — is the other guys’ doing.
“…(I)f the rights guaranteed by the Constitution are denied us, & the citizens of one portion of the country are granted privileges not extended to the other, we can with a clear conscience separate.” Again, self-serving and shallow: Rubbery bemoans the South having its rights taken away while others enjoy theirs. Apparently it doesn’t occur to him that the people being denied not only Constitutional but basic human rights were the four million enslaved humans. If anyone could have separated with a clear conscience, it was them.
For Rubbery, the answer of answers appears to lie in being a virtuous person, meaning to recognize and follow duty, but his analysis stops there. From his perspective, ending what he claimed to acknowledge as an evil – slavery – was not justified by the means – constricting the claimed Constitutional rights of his fellow Southerners. But turn that on its head, as Rubbery apparently never did: Is the end of preserving rights only for some justified by the means of waging a catastrophic and treasonous revolt and keeping million enslaved? It’s ridiculous, and reflects either Rubbery’s own lack of reflection or his rank hypocrisy.
The evidence, The Jourmudgeon submits, is that Rubbery was not a particularly deep thinker, that he did not, as many have claimed, lead the examined life he professed, that his religion was not the core of him. And it is hard not to conclude that his vaunted sense of duty and honor are more properly named expediency.
In the end, Rubbery’s legendary moral fortitude reminds The Jourmudgeon of the old Mark Twain story, “The Man That Corrupted Hadleyburg.” The town that held itself up as a paragon of honesty, trustworthiness and moral rectitude proved to be incorruptible only until it was actually tempted. Similarly, Rubbery remained morally upright only until he faced his first real challenge.
Where the rubbery met the road, he faced no tangled ethical intersection of values. He simply rode around in circles until the way was no longer clear to him.
When you mentioned Dion DiMucci, I thought of Deion Sanders…
But seriously: Your analysis of Lee’s mindset and actions strikes me as entirely possible, even probable, or, at the least, feasible.
As time goes on, I feel more and more that the former Washington College, our own alma mater, now Washington and Lee University, is the only entity to benefit from Lee’s actions.
Serving at this institution has been our good fortune, even if only now are we – the larger We, not just you and I – getting around to thoroughly analyzing Lee’s feet of clay, which would be an easier process had they not been so long alleged, especially but not exclusively by shallow thinkers, to be of marble…
Best piece you have written Prof. Thank you. I will share this article and a few of my nerdy friends will benefit from your wise analysys. Thans.