| The "norm" I understand as the value or fundamental admonition ("though shalt not kill", "thou shalt not defile oneself sexually") underwriting custom, not the custom itself. Thus, "the situation" need not be an incidental circumstance, but can be the custom itself, as in my initial response to the issue of genital mutilation. Furthermore, one of the reasons to claim that a norm does not apply is that it has been trumped, whether narrowly or broadly, by other normative considerations. For example, a slave was contractually the property of his master, and the sanctity of private property might be invoked against forced emancipation. However, one might argue in a narrow sense that a slave who has performed an heroic service for his master, such as saving his life at great personal risk, has obligated the master, and that such an obligation should be discharged immediately and unconditionally by emancipation. If the master balks, the state might intervene to force the issue. More broadly, one might argue that there is no contract, since the slave has never been a consenting party, but has been subject to coercion, and any ownership claims were made through brigandry, essentially stealing away the person enslaved at the point of a gun. In either case, whether narrowly or broadly, the sanctity of property has lost its force in the contemplated situation..... |
