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Man v. Machine: The Ethics of AI Art

The creation of digital art is nothing new, but advances in artificial intelligence have created a novel environment where all sorts of media can now be created without much human input. When Jason M. Allen won the Colorado State Fair for his piece “Théâtre d’Opéra Spatial” it sparked fierce debate about the nature of art and the merits of AI creations. But we should be careful not to confuse the many ethical issues involved. Is the outcry about the fairness of contests or about the future of art?

Allen, a video game designer, created his entry using an AI called Midjourney. It works by creating images from textual descriptions. Allen claims that he created hundreds of images before selecting only three. He then made some additional adjustments using Photoshop and boosted their resolution with a tool called Gigapixel. He entered the Colorado State Fair under the digital arts category which is defined as “artistic practice that uses digital technology as part of the creative or presentation process.” Allen claims that he informed the competition that the image was created with AI. The competition’s judges, meanwhile, say that they were not aware. Nevertheless, they said they would still have given it first place based on the piece itself.

Online reaction was harsh.

While the uproar isn’t surprising, it’s not clear that everyone has the same objections for the same reasons.

Let’s address the first major ethical question which centers around the contest: Was it wrong of Allen to submit the AI created work and be awarded the blue ribbon over other artists who created their works by hand? The contest’s definition of digital arts was sufficiently broad enough that AI created works were eligible. The work was entered using the name “Jason M. Allen via Midjourney.” Also, according to Allen, this was not simply a case of a few button presses, but 80 hours of work – tweaking the prompts to get the image he wanted and making a selection out of 900 iterations. While Allen spent his time differently than the other artists, this doesn’t mean that creating the image lacked skill, effort, or the aesthetic taste.

On the other hand, others might object that it was wrong for Allen to enter the contest since he was not the artist; it was the artificial intelligence who actually created the piece of art. Did the AI create the work, or is the AI merely a tool for Allen – the true creator – to manipulate?

The judges selected this particular work because of the impact it had on them, and Allen was deliberately attempting to tie together the themes that the painting conveys. The AI, meanwhile, has no notion of the impact that imagery might have; it doesn’t think any differently about the art conveyed by painting 899 or 900.

To further complicate things, the AI’s creation is based on training data from other artists, raising the issue of plagiarism. While the AI piece is not a direct copy, it does take “inspiration” from the art it was trained with. Often art is about meshing together styles and techniques to create something new, so it is difficult to view this purely as copying other artists. If the piece is not a copy of other artists, and if the AI is not the artist, then it stands to reason that Allen is the artist. If not, then this would be a piece of art without an artist, to which many might say that it therefore is not a piece of art at all and thus should not be allowed entry in the contest.

Answering the question “what is art?” might tell us if AI can actually create such a thing, but such a definition is hard to pin down and it’s easy to rely on preconceived notions. Generally, art follows certain aesthetic patterns and conveys content that people find meaningful. The judges awarded the prize based on the spirit it invoked. We can’t unpack such a complicated question here, but we should ask whether this understanding of the creative process truly threatens art. Was Allen right to declare that “Art is dead Dude”? Is there any role left for artists?

When the camera was first developed, people said that it would mean the end of the painter, but obviously painters still exist today. Ultimately, the human artist brings a kind of authenticity and uniqueness to the work.

AI doesn’t replace aesthetic choice and esthetic judgment since at the end of the day, it is we who must decide if anything produced has merit. While the role of the artist may be changing, their place in whatever system that produces such works remains paramount.

A final ethical issue is the question of the future of the artist in general. Even if we accept that Allen did nothing wrong, many still decry the end of the professional artist. As digital artist RJ Palmer claims, “This thing wants our jobs, it’s actively anti-artist.” Even if we accept that Allen’s work itself isn’t plagiarism, there is no denying that AI produced images only work by being trained on the work of real artists, which the algorithm can then borrow any stylistic elements it wants. This has the potential to create an intellectual property nightmare since smaller artist won’t be able to profit from their work to nearly the same degree as a company using AI, which will produce images in the style of that artist at a far faster pace. Federal courts are now hearing a case over whether the U.S. Copyright Office was wrong to reject a copyright for an AI-made piece.

Of course the application of AI to a given field and the threat that it creates to the workforce is not confined to the world of art. Eventually there may be legal and industry reform that can mitigate some of these issues, but many artists will no doubt suffer and it could undercut the art industry as whole. As one artist notes, it isn’t so much that AI can create something, but that it will always be a kind of “derivative, generated goo.” Clearly, the implications of Allen’s win run deeper than a single blue ribbon.

A Game Worth Dying For?

image of "Game Over" screen displayed on monitor

There’s a game mechanic called permadeath. The idea behind it is simple. If your character – be that on a computer, board, tabletop, or any other medium – dies, they stay dead. So instead of the standard gaming affair of having extra lives or being revived at a save point, for those games with permadeath, you lose all your equipment, merch, coins, etc. and are considered entirely dead. Some of the most famous games that use this feature include The Long Dark, XCOM: Enemy Unknown, and DayZ.

The purpose of permadeath is relatively simple. It drives up the tension by driving up the stakes.

If you know your character comes back to life when they’re killed, then there’s little risk. The time you invest in a game is safe because it won’t be lost when you get hit by a fireball or trip into a bottomless pit. You can simply dust yourself off and try again.

But, if you’re at risk of losing that progress, the time, effort, and emotions you’ve put into a game become far more precious. Knowing that one wrong move means all that progress gets thrown into the bin means that every step, every look around the corner, and every opening of a mysterious box has tension. Knowing that in-game death means starting over again after spending days reaching a game’s final stages means your investment skyrockets.

However, a game’s stakes are rarely anything more valuable than time. Sure, losing all your progress can be frustrating when a ghoul kills your character in the game’s final moments, but you’re still able to get up and walk away.

While your character may face oblivion, you, as the player, don’t. You may think you’ve wasted your time, but ultimately, that’s all that would have been wasted (and if you had fun, is it really wasted?).

But, in early November 2022, Palmer Luckey, the founder of the VR firm Oculus, claimed he designed a headset that transcends permadeath out of a game and into reality – he developed a headset that kills you if you die in-game.

The headset is fitted with three explosives. Luckey wired these to detect certain shades of red at a specific frequency. So, when your character dies in-game, and the VR headset displays that shade of red, the explosives detonate, and the player’s brain is destroyed. This system is still in its developmental stages, with the headset currently acting as a piece of office art. However, Luckey’s stated that he wants to explore its potential further, eventually ensuring that it’s tamperproof and cannot be removed by external parties. In effect, he wants to prevent someone from helping the player remove the headset if they change their mind after starting the game. Also, a game that would work with the headset needs to be created. Specifically, one that avoids using the triggering shade and frequency of red before the character, and consequentially the player, meets their end.

The prospect of someone using such a headset raises numerous questions. These include whether someone could genuinely consent to use the headset and whether Luckey would be a murderer if/when someone died while using it to play a game.

We may return to these in another article. For now, however, I want to focus on why Palmer Luckey created this maniacal contraption.

Luckey says he got the idea from the manga and anime series Sword Art Online. It features a VR headset called the NerveGear, allowing total immersion in a virtual world. The headset is released with the titular Sword Art Online game. Ten thousand beta players sign in when the game launches but soon discover they cannot sign out and are trapped within the game. The game’s designer then appears to the players and tells them they must beat all 100 floors of the game’s monster-infested mega-castle if they want to escape. At this point, he also reveals that death in the game results in death in real life. The idea of an immersive virtual world captured Luckey’s imagination, as he writes in his blog:

The idea of tying your real life to your virtual avatar has always fascinated me – you instantly raise the stakes to the maximum level and force people to fundamentally rethink how they interact with the virtual world and the players inside it. Pumped up graphics might make a game look more real, but only the threat of serious consequences can make a game feel real to you and every other person in the game. This is an area of videogame mechanics that has never been explored, despite the long history of real-world sports revolving around similar stakes.

At first, this prospect might strike many as patently absurd. It seems that few, if any, would sign up to play a game that could result in death. Games usually are a form of escapism from real-life’s woes, and a game that includes as a mechanic one of life’s (arguably) most significant downsides – mortality – seems to run entirely counter to this goal.

But, with some consideration, Luckey’s perspective on risk’s relationship with gaming seems to hold at least some value, specifically concerning gaming’s attempts at raising the stakes. Games have little material value in and of themselves – it’s what makes them games. This is one of the reasons gaming, in its various forms (including sports), is closely tied to gambling.

Gambling raises the stakes of what is happening in the game and gives it real-world value and impact. For example, you’re much more likely to care about who wins a round of Super Smash Bros if you have money riding on the outcome.

The in-game risk is given real-world form, and the greater the value bet, the greater one’s emotional and cognitive investment is; you care more when there’s more on the line. When it comes to putting things on the line, there’s nothing more valuable than your life.

Also, while it might seem madness to design a game that kills the player if they fail to perform, countless people already undertake recreational activities that involve the prospect of death if mistakes are made. Skydiving is an obvious one.

Plummeting out of a plane and reaching terminal velocity, with only a couple of layers of fabric preventing you from dying upon impact with the earth, is a risk most of us don’t have to take. But the prospect of death in this context doesn’t have people up in arms demanding that skydiving be stopped.

On the contrary, the activity’s value is, in some measure, derived from the inseparable risk of immeasurable harm. It’s arguably what makes diving out of a plane different from indoor skydiving; despite all the measures put in place, you’re aware that death is a potential outcome.

So, provided safeguards are put in place to prevent system errors, and the games offer players a beyond excellent chance of survival, is it such an obscene prospect?

Having said that, if offered the chance to play an almost unlosable game on Luckey’s murderous headset, you can be sure I’d say no

Does Anyone Deserve Anything?

image of ladder with multiple rungs affixed to Twitter cloud

Elon Musk buying Twitter displays the incredible power – economic, political, and social – wielded by the super-rich. Did they earn their place?

In 1998, Charles Kushner donated 2.5 million dollars to Harvard.  In 1999, his son Jared – apparently with mediocre grades and mediocre test scores – started college there. At 19, he served as a corporate vice president – within the umbrella of his father’s company. He is now worth several hundred million dollars. Jared Kushner, one might argue, did not achieve financial success based on merit but was largely the beneficiary of parental largesse. What about Jeffrey Bezos, the founder of Amazon? His family was less wealthy, his personal academic skills more apparent. Did he deserve to go to Princeton? Does he deserve his fortune of over 100 billion dollars? These are extreme examples. Take a studious college student who, when everyone else was drinking, would study. Do they deserve to go to medical school?

Meritocracy is a political and economic system that aims to award people based on personal merit (e.g., skill, talent, and diligence).

The United States is, ostensibly, meritocratic. One question to ask is whether this is a good way to organize society.

Merit has some obvious advantages. Given any societally important job – plumber, teacher, nurse, construction worker, artist – there are benefits to having people good at that job do that job. Similarly, internal to the logic of a market economy, companies should want capable, talented people fulfilling specific roles. Although we should not assume that compensation is a metric of the societal value of a position, nor that meritocracy automatically serves the public interest. The ethicist Michael Sandel contrasts the poorly compensated high school teacher with the successful meth dealer. Likewise, it is in the economic interest of ExxonMobil to hire excellent lawyers, but perhaps not in the public good.

There are then broader considerations of what kind of merit should be rewarded in a society. Is it purely about the capacity to deliver shareholder value, or do we want a society that awards moral virtues like kindness, justice, and compassion as well?  Meritocracy is also challenging to implement.

How does one construct an effective meritocracy that prevents the caprices and injustices of society from interfering in the assessment of effort and achievement?

The concern is especially acute as it is in the personal and family interest of those who succeed to attempt to warp and distort that system to secure further success. Many would deny the United States is a functioning meritocracy at all. Would Jared Kushner have achieved his level of personal financial success if he had been from a poor family in a hollowed-out mining town?

But there is a different question to ask about meritocracy, regardless of how well it happens to be functioning. Do those who succeed in a meritocratic system deserve their success? In a widely circulated tweet, political scientist Sarah Liu asserted: “Academics who announce their accomplishments should disclose their privileges. Do you come from an academic family? Are you white? Are you a man? Are you straight? Are you cis-gender? Are you able-bodied? Are you a citizen of where you work? All of the above?”

Liu is making at least one obvious mistake. As Elizabeth Williams recently argued here, privilege is not about some set of personal checkboxes, but about structural injustices.

We can accept that racism is a societal factor that, on average, benefits white people and harms those of other races without taking it to be the determining factor in the life of every white person and every black person.

But let’s follow Liu’s logic for the moment. If society eliminated problems of wealth inequality, racism, sexism, homophobia, transphobia, and ableism, would success then be earned? Presumably not, for we can always extend the list. Did people come from family money, go to a private school, have fortunate mentorship? Alternatively, do they struggle with mental health, family responsibilities, or just straight-up bad luck?

What about intelligence, hard work, and diligence? Can we claim credit for these? Hardly.

Our natural gifts are as arbitrary as parental wealth. One does not deserve to be smart, good-looking, or even hard working ­­– they simply are.

It does not matter whether or not these traits are genetic, or if they are a result of good schooling and parenting. In no case are they truly self-made. Iterated out, while choices may matter, everyone’s life is impacted by a thousand and one things that they had no control over. Ultimately, our success is not our own, but due to our family, our friends, our colleagues, institutional support, and just plain luck. If we accept such logic, what are the implications?

It does not tell us whether meritocracy is a good or bad system of political organization. Awarding merit may be instrumentally valuable, and far preferable to aristocracy or nepotism. One still can judge Kushner’s success a failure of meritocracy. What the above argument denies is that anyone “deserves” anything based on their merit, for ultimately that merit itself stems from good fortune. And if we deny the position that there is an inherent logic such that the successful deserve their success, we can think more clear-headedly about meritocracy and what we, as a society, want it to do for us. Do we want the studious college student to be able to attend medical school? Do we want billionaires to run Twitter?

Debating the Death Penalty: Judicial Override of Life Sentences

photograph of gavel and judge's seat in courtroom

In 1986, 18-year-old Ronda Morrison was shot in the back multiple times while working her job at Jackson Cleaners in Monroeville, Alabama. Under pressure from police, Ralph Meyers, who was facing charges for a different crime implicated Walter McMillan in the murder of Ms. Morrison. McMillan, however, insisted that he was hosting a fish fry at his home at the time of the crime and his account was supported by many witnesses who were present at the event. All of these witnesses were Black. Ultimately, McMillan was tried and convicted of aggravated murder by a jury comprising eleven white jurors and one Black juror. The jury recommended life in prison, but the state of Alabama at the time allowed judges to override the sentencing recommendations of juries. The judge in McMillan’s case ignored the jury’s recommendation and sentenced him to death. Despite the outcome of the trial, MacMillan was factually innocent of the murder. (And Myers later recanted his account of the events.) As a result of the appeals process, after spending six years on death row, McMillan was exonerated and released.

In 1975, Furman v Georgia effectively abolished the death penalty across the country. One dominant rationale for the decision was that there was strong evidence that the death penalty was not imposed in a consistent way – the manner by which it was meted out in practice provided evidence of strong racial bias. The court ruled that states must ensure that sentencing not be discriminatory or capricious.

In response to the Furman decision, four states passed legislation allowing for judicial override of jury sentencing recommendations: Alabama, Delaware Florida, and Indiana.

The initial rationale for passing these laws was to reduce the number of cases in which the death penalty was imposed. The idea was that judges could overturn jury recommendations of a sentence of death and instead impose a sentence of life in prison.

However, the legislation also gave judges the power to go in the other direction — to overturn a jury’s sentence of life in prison and instead impose death.

The primary concern with this kind of legislation is that it violates the defendant’s sixth amendment right to a trial by jury. In recent years, all of these states have, in principle, abolished the practice of judicial override of this type. In practice, however, Alabama still executes individuals who were sentenced to life by juries but death by the judge, even though it abolished judicial override in 2017.

This issue made news again earlier this month as the execution date of Kenneth Eugene Smith approached. In 1988, Smith was convicted of murder for hire; a preacher paid him $1000 dollars to kill his wife, Elizabeth Sennett. Smith stabbed her eight times in the neck and chest. The jury in his second trial voted 11-1 to impose a life sentence, and the judge took advantage of his ability to override this decision and impose the death sentence instead.

The right of a person to be tried and sentenced by a jury of their peers is a cornerstone of democracy. We do not want punishment to be exacted at the hands and in the interests of tyrants.

We value a process of rational deliberation and discourse that allows a group of people who share similar cultural and moral values to evaluate evidence and to engage in discourse to come to agreement on what conclusions the evidence supports. This process, we think, generates the best conclusions we could hope to reach. In theory, the deliberative procedure ensures fairness.

Unfortunately, the decisions a jury reaches do not always live up to the standards of procedural fairness. Individuals are prone to bias and that bias does not always, or even often, disappear when you get more people together. In fact, problems of bias can often intensify under these circumstances. A juror who might otherwise be leaning toward acquittal or toward a lighter sentence might be hopelessly influenced by peer pressure during deliberations.

It’s also true that there are no standards when it comes to the required intelligence levels and educational backgrounds of jurors. So, the same concerns some have about voters may also apply to jurors  — sometimes groups of people who don’t know much about the things they’re being asked to decide make very bad decisions. This is a heightened challenge when cases turn on highly technical evidence or on the finer points of the law.

It might be tempting, then, to think that the most serious and impactful decisions should be left to people who know the system best. Certainly, judges know the law; they’ve heard evidence of all types and presumably have refined methods for processing and interpreting it. They may not be subject to the same kinds of bias that one might expect to see in a group of jurors. If they see a person who might be sentenced to death as a result of racial bias, they can stop it before it happens. On this view, judges are like Plato’s philosopher kings, adept at reason and in a position to serve as a shield against the tyranny of the many, in this case, the jury. Of course, this is hopelessly idealized as well.

All human beings act in biased ways, and judges are no exception. Far from shielding us from tyranny, when judges make decisions unilaterally and in conflict with the decisions of the jury, they may simply be acting as tyrants.

Judges also often have political aspirations and are subject to elections. This means that they have good reason to desire that their decisions in any particular case are politically popular. This seemed to have played a role in the sentencing of both McMillan and Smith. It was common knowledge in McMillan’s community that he had affair with a white woman in an area and at a time during which people had deeply bigoted attitudes toward interracial relationships. For this reason, a death sentence for McMillan may well have been popular with local voters. In the Smith case, the sentence was imposed during a second trial granted after an appeal of the results of the first. In the first trial, Smith was sentenced to death by the jury and many members of the community were distressed that the sentence might change — they viewed a life sentence as a miscarriage of justice. After all, Smith was willing to take someone’s life for the paltry sum of $1000.

To meet their burden of proof, the prosecution must present evidence that convinces the jury beyond a reasonable doubt that the defendant is guilty.

We’d all like to think that jurors always take that standard seriously, but human beings are fallible. One of the reasons why a jury might opt for a life sentence instead of death is lingering doubt about the guilt of the defendant.

If it turns out that the jury got it wrong, a life sentence allows for a much greater possibility that the truth will come to light, and the innocent person will be exonerated. Death preempts that possibility permanently.

In another twist in this case with serious moral implications, on November 17th, the state of Alabama attempted to execute Smith. They tried, unsuccessfully, to find a vein and establish a line to administer drugs that would kill Smith. They prodded him with needles for an hour before finally giving up and calling off the execution for the night. This is the third time that this problem has occurred during an execution in the state, raising concerns about the competency of the people charged with killing human beings in the name of the state.

Critically, this case motivates reflection on one of the most important questions our country faces: should we abolish the death penalty outright? Death is the most extreme and irreversible punishment a society can impose. Ought we be imposing a sentence this severe when judges and juries can come to such dramatically different conclusions about whether it is appropriate in any given case? If we think that there are fundamental flaws with both jury and judicial sentencing, should we be willing to accept death as an outcome of an inescapably flawed system? If, on top of all of this, the ability to impose the death penalty humanely in practice is so often called into question by botched case after botched case, isn’t the death penalty obviously cruel and unusual?

At the Core of Anti-Trans Legislation

photograph of person walking through crowd draped in transgender flag

Tennessee Senate Majority Leader Jack Johnson has introduced two new anti-LGBT bills immediately after his reelection in the midterms. Senate Bill 1 targets gender-affirming care for minors; Senate Bill 3 regulates drag shows with children present. Johnson campaigned on the promise to preserve Tennessee’s conservative values, including the idea that marriage “must remain the sacred union of one man and one woman.”

Senate Bill 1 would ban hormone therapy and procedures that remove organs (practically this targets top surgery, or a double mastectomy) for minors who wish to have those procedures done to alleviate gender dysphoria, or, as the bill words it, “purported discomfort or distress from a discordance between the minor’s sex and asserted identity.” The bill provides an exception for congenital defects and chromosomal abnormalities. When writing SB1, Jack Johnson sought out input from notorious anti-trans, right-wing political commentator and leader of the recent “Rally to End Child Mutilation” protest against the Vanderbilt University Medical Center gender clinic, Matt Walsh.

Senate Bill 3, meanwhile, expands the definition of “adult cabaret performance” to include a performance that features “male or female impersonators who provide entertainment that appeals to a prurient interest,” along with other legally recognized categories of performers including topless dancers, go-go dancers, exotic dancers, and strippers. Since the current law governing adult cabaret performances states that they cannot take place where minors could be present, the amendment would ban certain drag shows from taking place in public spaces.

While the first bill may be obviously questionable to anyone familiar with trans activism, the negative impact of the second is less immediately apparent. If drag shows are of an 18+ nature, it seems fine to confine them to 18+ spaces. If drag shows are of a family friendly nature, then they should still be allowed in public spaces by the amended law, right? Wrong.

There is a throughline that connects these bills: a traditional, patriarchal worldview that paints drag queens and trans women as essentially sexualized and trans men as easily swayed victims whose reproductive capacities should be protected.

In other words, all drag is seen as entertainment that appeals to a prurient interest, and all trans minors seeking gender-affirming care are misled victims. Trans and gender non-conforming adults are thus seen as grooming children by influencing them to identify as trans and to have medical interventions performed that mutilate their bodies and interfere with their reproductive ability (which is why the idea of sexual abuse is brought in).

These background transphobic attitudes can be clearly seen in two recent incidents, both in Tennessee. In September of this year, Chattanooga Pride held a family-friendly drag show event from which video footage emerged of a small child rubbing her hand up and down the front of a mermaid performer’s tail, near the performer’s groin. That video prompted a huge backlash against the event. Although the performer in question was a cisgender woman who regularly performs as a princess, many took the event as another example demonstrating that no drag shows are appropriate for children.

In October of this year, the Jackson Pride festival was moved indoors after lawmakers and community members complained about the scheduled, family-friendly drag show. The festival was planned to be held in the city’s public park, as it had been in past years, but organizers were pressured into changing the event to 18+ and moving to a venue where IDs could be checked. In part, this was done to appease community worries but to protect the event-goers given a number of violent threats levied by the Proud Boys and the Westboro Baptist Church.

As we can see in both of these examples, concerns about protecting children from inappropriate sexual content are being used to make even family-friendly drag performances private and inaccessible to children.

If almost all drag is sexualized by anti-trans legislators and residents, then the law may, in practice, treat a drag queen reading Goodnight Moon at a local library as no different from a drag queen suggestively performing WAP to an adult only audience.

In other parts of the country, there have been an increased number of hate crimes targeting drag reading hours.

These reactions and misunderstandings aren’t new — there’s a long history of harmful and inaccurate stereotypes that paint LGBTQ people as pedophiles and groomers. Transfeminine people, in particular, face excessive sexualization, from false autogynephilia narratives that claim trans women transition because they get off on seeing themselves as women, to the fetishization of trans women, to ideas that trans women will assault cis women in bathrooms, and on and on.

On the other hand, transmasculine people are often painted as innocent, misled victims who have been caught up in a kind of public social contagion that targets young girls who don’t want to have to face misogyny or who see transition as a way to solve unrelated mental health problems. And, for those who choose to undergo medical transition, they are seen as having done irreversible damage to their bodies from the effects of testosterone or the results of top surgery, with a focus on damage done to reproductive capacity.

These negative stereotypes and narratives rather neatly line up with patriarchal ideas that attach certain traits to cleanly divided ideas of biological sex (note that SB1 allows surgeries on intersex people to make them conform to binary ideas about sex). On this picture, men are seen as active, sexually powerful beings who can prey on the weaker sex. Women are seen as weaker, mentally and physically, and their purpose is to reproduce (in white supremacist patriarchal ideology, the point is to reproduce to repopulate the white race).

Gender non-conformity is a threat to the patriarchal system, because it implies that biology is not gender destiny and that gender categories, and thus power structures, are fluid.

While cisgender people may be allowed or encouraged to access gender-affirming care like breast implants and supplemental testosterone, intersex people and trans people either receive forced medical intervention or are denied access to care. These negative attitudes also affect trans and gender non-conforming people who choose not to undergo a medical transition, as they too disrupt the narrative of biological destiny.

Anti-trans activists thus aim to shield children from any knowledge that trans and gender non-conforming people exist so that there will be fewer trans people. The problem is that trans identity is not a contagion but a facet of human experience present across cultures and centuries. Children will continue to grow up and discover their own gender non-conformity, but when they do they seem doomed to find fewer and fewer supports. Ultimately, this rampant anti-trans hate will only increase the number of trans deaths, whether through hate crimes or suicides.

Climate Justice and COP27

image of earth for international climate summit

The 27th Conference of the Parties of the United Nations Framework Convention on Climate Change (known more simply as COP27) is currently underway. These conferences are an opportunity for countries to agree upon policies that will limit global temperature rise. They also provide a forum for discussing ways in which current climate harms can be addressed. This year, climate justice is at the forefront of discussions – with the COP27 Presidency launching the Sharm el-Sheikh Adaptation Agenda. This agenda would attempt to provide assistance for the four billion people living in the most climate vulnerable communities.

But what, exactly, is “climate justice”?

Usually when we think of justice, we think of judges and courtrooms. And while justice might include things like crime and punishment, it extends much further than that. In the context of ethics, “justice” might best be understood as fairness – or as people getting what they deserve.

It is just, for example, for one of my students to receive a good grade for the brilliant essay that they write. It would be unjust, on the other hand, for me to give them a low grade merely because I don’t like their choice of font.

How, then, does justice apply to the climate crisis?

Despite our attempts to limit greenhouse gas emissions, the world is already getting warmer – and this rise in temperature is leading to an increase in the frequency and severity of extreme weather events. It’s behind the heatwave in the U.K., the fires in Washington, and the floods that have left more than one third of Pakistan under water. These climate harms are disproportionately experienced by certain countries. What’s more, those most affected by the negative effects of climate change are some of those least responsible for the crisis. Pakistan, for example, emits less than 1% of the world’s greenhouse gas emissions.

The Adaptation Agenda being discussed at COP27 would establish a “loss and damage” fund to assist countries that suffer climate-related severe weather events.

The important question, however, is who should pay for such a fund. One approach would be to have all countries contribute equally to such a fund. Alternatively, we might look to the idea of justice to establish which parties should contribute – and to what extent.

Generally, three different approaches to justice crop up in these discussions: (1) The Polluter Pays Principle, (2) The Beneficiary Pays Principle, and (3) The Ability to Pay Principle. The differences between these principles are subtle, and can perhaps best be understood by way of an analogy.

Suppose that we’re heading into a severe winter, and that I diligently accumulate a generous woodpile to keep my fireplace lit – and my home warm – for the duration of the chilly season. Suppose, however, that one of my neighbors – Neighbor A – sneaks into my yard one night and steals my entire woodpile. Neighbor A isn’t greedy, however. They already have enough wood for the winter. Instead, Neighbor A delivers the wood to Neighbor B – a neighbor who did not yet have any firewood. I, however, am now entirely without firewood. To make matters more dire, let’s assume that I don’t have the ability to collect or pay for more firewood. Who, then, should be responsible for helping me? Who should restock my woodpile?

While there might be certain exceptions, we generally hold people responsible for the problems they create. If I spill a bottle of milk, I should clean it up. If I break my friend’s phone, I should replace it.

We might refer to this as the duty to clean up your own mess. In the firewood example, this would put the responsibility squarely on the shoulders of Neighbor A. This is the neighbor who stole my firewood in the first place, so this is the person who now has an obligation to restock my woodpile.

In the context of environmental ethics, this approach is referred to as the Polluter Pays Principle. Put simply, it holds that the polluter (or polluters) are responsible for any harms resulting from their actions – and that the cost of remedying these harms should be shared proportionately among those polluters. It’s easy, then, to see what the Polluter Pays Principle would say regarding the loss and damage fund: those who have created the most greenhouse gas emissions should be contributing the most to the fund.

But instead of focusing exclusively on who has caused harm, we might also look at who has benefited  from that harm.

Returning to the firewood example, Neighbor A hasn’t really got anything out of the theft of my firewood. Neighbor B, on the other hand, has. They are now in possession of an entire winter’s worth of free firewood. Given this, we might argue that they – the beneficiary of the theft – are the ones that are best placed to replace my firewood. This approach is what’s known as the Beneficiary Pays Principle.

This approach is particularly useful when it comes to the climate crisis, since those who are benefiting from greenhouse gas emissions aren’t always the ones creating those emissions. Take Australia, for example. Australia is the second largest exporter of thermal coal in the world. When this coal is burned, Australia technically isn’t the one doing the polluting. They are, however, benefiting enormously from selling fuel for others to pollute. In fact, if the emissions from their exported coal were taken into account, Australia’s annual per capita carbon emissions (which are already the eleventh highest in the world) would more than double.

There is one final approach that we might consider, however. Suppose that, throughout my firewood theft saga, there is a third neighbor: Neighbor C. This neighbor plays no part whatsoever in the theft of my firewood. They do, however, have an enormous cache of firewood; enough to keep their home – and many other homes – warm throughout the winter. Given this overabundance, we might argue that they have some obligation to step in and come to the rescue. This is precisely what the Ability to Pay Principle suggests: that those with the means to help are under a moral obligation to do so.

When it comes to something like a loss and damage fund, then, the Ability to Pay Principle would recommend that we don’t waste time trying to figure out who polluted or benefited. Instead, it is the wealthiest countries that should be providing the lion’s share of the assistance.

The Polluter Pays, Beneficiary Pays, and Ability to Pay Principles, then, all take very different approaches to justice. As a result, they will often identify entirely different parties as being responsible for solving a problem – just as they did in the firewood example. This can stall discussions of justice, as parties quibble over which approach should be taken – usually favoring the approach that doesn’t put the responsibility on them. When it comes to climate justice, however, this should be less of a concern. This is because there is an enormous amount of overlap across these three approaches. Put simply: those who have created the most greenhouse gas emissions (like the U.S.) also tend to be those who have most benefited most from those same emissions. And they also tend to be among the most affluent countries. For these nations, then, it will not matter which approach to justice we ultimately decide to take – they will have a moral obligation to help those ravaged by climate-related disasters all the same.

Hunting with Intention: In Defense of Hunting for Meat

photograph of buck in misty field

Daniel Story recently offered an interesting argument against a common intuition many of us seem to share. We often think that there is an important moral difference between hunting for meat and hunting for trophies. Hunting for meat seems more morally defensible because the benefits of receiving food excuse the harm to animals – but there are no comparable reasons to hunt for trophies (these are, as the argument goes, only egoistical desires to kill something big).

Daniel thinks this is wrong because there is precious little that might mark a relevant moral difference between the trophy hunter and the food hunter.

Both of these hunters (assuming that they are hunting because they want to, not because they need to) will get nutrition anyway and both types of hunter will equally serve conservation purposes. Ultimately, both hunters have killed an animal, and the considerations we typically look to in order to explain why one might be better than the other don’t actually lead to the conclusion we imagine. In the end, Daniel argues, it all comes down to the pleasure that these hunters derive from their kill, and there’s no reason to think that one type of pleasure is morally preferable to the other.

But this seems a perverse result. In fact, trophy hunting might be morally better because the trophy is something the hunter can admire for the rest of his life, it doesn’t get eaten within weeks. The trophy hunter enjoys a longer-lasting pleasure. If Daniel is right then, at the very least, hunting for meat is not obviously better than hunting for trophies, despite our widespread agreement on this. And if it turns out that trophy hunting is morally unacceptable, then it will mean that hunting for meat (if you don’t need to hunt to get food) is also unacceptable.

I think Daniel is offering us something really interesting, and it has given me plenty to think about. So, I want to do what any philosopher wants to do: I want to object.

In particular, I want to look at a response Daniel offers to a particular objection. He imagines a critic who argues that eating hunted meat respects an animal’s dignity. He rightly points out that a slain animal likely doesn’t care if it rots or is eaten. But I think Daniel might focus too closely on the act of killing this one particular deer.

There might be another way of thinking about these issues – one that focuses less on this particular deer’s particular death – that leads to different results.

The philosopher Alasdair MacIntyre, one of the giants of later 20th-century ethics, argued in After Virtue that we should not think about ethics just in terms of actions, but instead in terms of broader narratives. There is much to be said here, so I’ll stick to the core and use one of his examples.

Think about why somebody is digging in the garden. We can’t make sense of why he is doing that unless we know more about the context. Is he getting exercise, is he gardening, is he preparing for winter, is he trying to please his wife? He might be gardening because he wants to get exercise and prepare the garden for winter. He might be doing it solely because it is an easy form of exercise his doctor suggested to him, and he doesn’t care at all about the results. He might be doing it to please his wife – and to understand why taking exercise, or getting the garden ready, would please his wife, we need to understand his marriage.

As MacIntyre puts it, we cannot “characterize behavior independently of intentions, and we cannot characterize intentions independently of the settings which make those intentions intelligible both to agents themselves and to others.”

What does this have to do with our argument about hunting? Well, think more broadly about how we might characterize hunting and the motives around it. I think there’s something to be said for the idea that hunting for a trophy is often egoistic and driven by a perverse machismo.

Take the example Daniel opens his piece with: the American dentist who shot Cecil the lion. We don’t just think of the death of Cecil as an isolated act, we think about it in terms of conservation, respect for nature, and arrogant wealthy Americans showing no respect for this. That narrative matters.

Hunting for food might be driven by a desire to connect to the land, or respect the animal you kill by going through the time and effort to kill it yourself (appreciating that this life should not be taken easily, in a crate in a factory, for instance), or providing for yourself and your family. That’s not to say that they have to hunt, but when a friend hosts us at a party and provides food, they have still given us a gift we might be grateful for, even if we would have just eaten beforehand if there was no food at the party. When we look at things this way, hunting for meat might seem to be better than hunting just for trophies.

Now, Daniel is right that the animal might not accept that explanation (if only it could offer a post-mortem judgment on these things), but that doesn’t mean there is no relevant difference here. To adapt an example from Bernard Williams, Gauguin’s wife might not accept that he wants to leave so he can paint in Tahiti and create great works of art, and she might also not accept it if he leaves her for a younger model. Yet we can see that there is a difference here: one of these aims is nobler than the other. Likewise, the deer might not agree that one death is better than the other, but we can see that one form of hunting is morally superior.

Certainly I have offered an argument that conclusively shows that there is something more morally noble about wanting to hunt for meat than to hunt for trophies. But I do think that there might be other ways of looking at the issue – ways which suggest that the context, the narrative, the intention, of meat hunters and trophy hunters allow the different moral situations to come apart.

Pick Up My Slack: Is Outsourcing Emissions Cuts Objectionable?

photograph of coin tip with "thank you" note

The 27th annual Convention of the Parties of the UN Framework Convention on Climate Change (COP27) began November 6th in Sharm El-Sheikh, Egypt, and will continue until November 18th. The meeting has, and will involve, the numerous parties to the UNFCCC discussing climate change, steps taken to meet previously agreed upon commitments to mitigate climate change’s worst consequences, as well as potential future action. The matter of who ought to foot the bill for addressing climate change, as well as compensating developing nations for damages, received considerable attention at COP26. This issue will again take center stage at this year’s meeting – representatives from Ireland, Austria, Belgium, Denmark and Germany have recently pledged funds to address climate effects in developing nations. Further, the U.S. has announced a plan to incentivize corporations to purchase carbon offsets that aid the developing world, although details of the plan are scarce.

The moral justification for a climate reparations policy is straightforward. Wealthy nations are responsible for most greenhouse gas emissions. These emissions are the product of economically beneficial activities. However, climate change stands to cause both economic harms and humanitarian crises which will disproportionately affect the developing world. Essentially, industrialized nations have benefited from causing climate change, while countries in the Global South will face its most severe consequences.

The moral principle of fairness deals with the distribution of benefits and burdens. Specifically, fair distributions are those where whoever is burdened the most by a policy or decision should receive the greatest benefits, while those who face lesser burdens should benefit less.

For instance, it would be unfair to assign equal grades on a test – the students who took on the burden of studying and working hard would not be rewarded, while those who coasted would benefit most. This same rationale reveals the distribution of benefits and burdens related to climate change is grossly unfair; those who contributed least to climate change will suffer the most, while those who caused it will both face lesser consequences and have historically benefited.

However, recently some polluting nations have aimed to meet their own climate goals by benefiting developing nations. Switzerland has apparently adopted a policy of funding emissions-cutting programs in developing nations and then counting those reductions towards their national commitments. For instance, the Swiss government is funding a program that will install energy efficient lightbulbs and clean burning stoves in Ghanian homes. The resulting emissions reductions will then count towards Switzerland’s climate goals. The Swiss government has reached similar agreements with Senegal, Georgia, Vanuatu, Dominica, Thailand, and Ukraine. Call the general practice of funding emission reducing programs in poorer nations, for the sake of meeting a wealthy nation’s emissions targets, “International Offsetting.”

One might think that International Offsetting is morally cut-and-dried. On the surface, it is simply a mutually beneficial agreement.

Governments like the Swiss government are better able to reach their emission reduction goals, while comparatively poorer nations can now fund efforts that would otherwise go unfunded. Or in the case of programs that were already funded, they now have additional capital to spend elsewhere. Viewed through this lens, it seems like everyone wins.

Yet there is ample room to question this seemingly simple justification. For instance, wealthier nations would certainly aim to fund programs that provide the most bang for their buck – those that reduce emissions the greatest amount, for the cheapest cost. This would leave developing nations on the hook for more expensive projects, such as changing electrical infrastructure away from fossil fuels to renewables.

By funding programs that reduce emissions, developed nations would leave the other parties to the agreements with no option but to eliminate emissions in order to meet their own reduction goals.

This might be seen as exploitative. Typically, exploitation involves taking advantage of the situation that another party finds themselves in, for the sake of benefiting oneself. Exploitation is similar to coercion, in the sense that both involve someone using another to get what they want. However, coercion typically involves threatening another with something negative. In contrast, exploitative acts may still nonetheless benefit the party that is exploited. The moral problem with exploitation is it fails to appreciate the exploited party’s status as an entity deserving of respect.

For an analogous example to International Offsets, consider the following case. Imagine you live with a very messy and very wealthy roommate. You do your fair share of “damage” to the apartment, sure, but your roommate is far messier and far less likely to clean up. The problem comes to a head after the apartment develops a vermin problem. So, you approach your roommate and ask him to stop making a mess of the apartment, or at least to clean up after himself. He rolls his eyes at your suggestion, and merely offers to pay you a modest sum weekly to clean up after him.

The messy roommate’s offer might seem beneficial at first. He clearly does not want to clean up after himself, you stand to profit from helping him, and at the end of the day you will both have a clean apartment.

Nonetheless, making this offer, rather than agreeing to help, seems to suggest something about the underlying attitudes of your roommate. Although he is causing the problem, he views it as unimportant for him to address.

Rather than taking measures and making sacrifices himself to contribute to solving this problem, he instead thinks he can simply pay others to make the problem go away. As a result, we might describe his attitudes in two ways. First, he does not seem bothered by the burdens his behavior has placed upon you, as he is making no effort to change his behavior. Second, he does not seem to view the both of you as equal members of the apartment, whose interests count equally.

Economically advanced nations seem to be exhibiting the same attitudes as the messy roommates, when they engage in international offsets. Both refuse to change their behavior and instead decide to pay others to perform the work that they ought to do themselves. However, the economically advanced nations may be even more blameworthy than the messy roommate. Afterall, the largest polluters have significantly profited from their pollution. Further, the money which they are offering through International Offsetting (as well as reparations programs) is a small fraction of the wealth generated through this pollution. If the behavior of the wealthy roommate is objectionable as exploitative, then the behavior of International Offsetting seems troubling to an even greater degree.

FTX, Effective Altruism, and Ends Justifying Means

image of smartphone displaying FTX logo with stock market graphs in background

Until a week ago, Future Exchange (FTX) was one of the largest and most respected cryptocurrency exchanges in the world. Then, in spectacular fashion, it all collapsed.

The collapse didn’t just wipe out the billions of dollars that users had invested in the platform. It also wiped out the fortune and reputation of FTX’s billionaire CEO and philanthropist, Sam Bankman-Fried. And because of Bankman-Fried’s close ties with effective altruism, a particular kind of philanthropy championed prominently by Oxford moral philosopher William MacAskill, the shockwaves of FTX’s collapse have been far reaching.

Effective altruism is a movement with roots in moral philosophy. In 2011 when MacAskill was a graduate student in philosophy at Oxford he co-founded the organization 80,000 Hours. The name is taken from an estimate about the number of working hours a person will have over the course of their career. Its goal is to advise people about how to make the biggest impact in their careers to address the world’s most pressing problems. In practice, the advice is often to earn as much money as possible and then donate that money to causes that are effective at doing good. MacAskill himself describes the movement as follows:

The effective altruism movement consists of a growing global community of people who use reason and evidence to assess how to do as much good as possible, and who take action on this basis.

If you want to do as much good as possible, there are two main things to think about: (1) what distribution of resources makes the biggest difference, and (2) how do we get a lot of resources to distribute? On that second question effective altruists have advised each other and outsiders to pursue careers that will generate significant financial resources. On the first question, effective altruists have advised others to give (and have, themselves, given) to causes such as mosquito nets for areas subject to malaria (because the cost of the nets is so low compared to the life-saving potential), and to minimizing global risk such as pandemic preparedness, AI risk mitigation, and nuclear nonproliferation (because in these cases, the potential upside of lowering risk is so great).

Effective altruism is not an ethical theory per se, but it does have connections to the ethical theory known as utilitarianism. According to utilitarianism the sole way to evaluate actions morally is based on their consequences. For each action you could perform, you consider the total set of consequences for all people, current and present. You are then morally obligated to choose the action that produces the best overall outcome. What makes an outcome best? That is a question about which there is disagreement, but everyone agrees that pain and suffering are bad, and that happiness and pleasure are good. On this (overly) simple view, the action with the best outcome is just the one with the best balance sheet: total happiness minus total pain.

One key feature of utilitarianism is that it doesn’t rule out any kinds of actions unilaterally. Lying, stealing, and even murder could, in certain situations, yield the overall best consequences. In such cases, utilitarianism says that’s what you ought to do. The ends justify the means.

If you apply utilitarianism to questions about philanthropy or about what career you should pursue, you get something that looks a lot like effective altruism. That’s not to say that effective altruism just is utilitarianism. Effective altruism isn’t a single unified theory, so isn’t really in the same category as utilitarianism. But if effective altruists are those who “use reason and evidence to assess how to do as much good as possible, and who take action on this basis,” then it is going to share some features with utilitarianism – in particular, that (in some cases) the ends might justify the means. When an effective altruist advises someone to take a career in finance so that he might make a lot of money that can then be donated to worthwhile causes, this advice is grounded in the idea that working in finance is simply a means to doing good. And for that reason, such a career trajectory is morally justifiable. That doesn’t mean that an effective altruist has to say that stealing is okay if it leads to the best consequences. But it does mean that the effective altruist is engaged in the same style of argument.

Now, in 2011 just as MacAskill was founding the effective altruism movement, he also met Sam Bankman-Fried, then an undergraduate at MIT. According to a New York Times article describing this meeting, Bankman-Fried was interested in utilitarianism and talked with MacAskill about working to promote animal welfare. MacAskill suggested that Bankman-Fried instead pursue a high-earning career and then donate to causes that could do the most good. The suggestion was clearly taken to heart. Bankman-Fried pursued a career in finance, founding the cryptocurrency exchange FTX in 2019, which allows users to buy and sell cryptocurrencies like Bitcoin or Ethereum much like one might buy stocks on the New York Stock Exchange. Up until a few weeks ago, his net worth was valued at around $10.5 billion, which he had promised to give away in the spirit of effective altruism. He had, in fact, already given generously and had set up the FTX Foundation, which promotes and supports various effective altruist projects. One prominent part of the foundation is the FTX Future Fund, which makes grants to nonprofits and individuals who are helping to make positive and long-lasting change in the most effective ways. MacAskill, until his recent resignation, was on the team that decides how to distribute FTX Future Fund grants.

That brings us to the surprising events of the past two weeks. During the week of November 7, floods of FTX users started to withdraw their funds, creating what was essentially a bank run. The details about what caused this are still emerging, but it was precipitated by the revelation that a hedge fund also run by Bankman-Fried, Alameda Research, was closely (too closely?) entangled in FTX’s finances. By November 9, FTX had suspended withdrawals. By November 11, FTX and its affiliates had declared bankruptcy.

During that same week, MacAskill and others resigned from their roles managing the FTX Future Fund. In a public letter they wrote:

We are now unable to perform our work or process grants, and we have fundamental questions about the legitimacy and integrity of the business operations that were funding the FTX Foundation and the Future Fund.

We don’t yet know for sure whether moral or legal norms were violated by Bankman-Fried and others at FTX, but MacAskill seems to have suspicions.

On Twitter, MacAskill responded to the possible bad behavior at FTX as follows:

For years, the EA [Effective Altruism] community has emphasised the importance of integrity, honesty, and the respect of common-sense moral constraints. If customer funds were misused, then Sam did not listen; he must have thought he was above such considerations. A clear-thinking EA should strongly oppose “ends justify the means” reasoning.

This particular response by MacAskill struck some as odd. After all, effective altruists, by MacAskill’s own lights “use reason and evidence to assess how to do as much good as possible, and who take action on this basis.” If reason and evidence suggest that violating common-sense moral constraints will lead to the most possible good, then why shouldn’t an effective altruist take action on that basis? Seen in this light, what was wrong about Bankman-Fried’s actions at FTX is not that he violated common-sense moral constraints (if it is true that he did), but instead that he did so ineptly and that left him without significant resources to donate.

MacAskill hasn’t explained his thinking on this particular case publicly, but there are things that an effective altruist could say in response. One prominent response is that often those who violate common-sense moral constraints “for the greater good” eventually end up getting found out and doing more damage to the cause they were championing. In this way, “ends justify the means” reasoning is typically counterproductive. So, the evidence suggests that violating common-sense moral constraints will not generate as much good as possible. Effective altruists, then, have a case for saying that common-sense moral constraints shouldn’t be violated: it just doesn’t work out.

Is that a compelling response? Perhaps. But notice that this line of thought locates the wrongness of violating common-sense moral constraints not in the violations themselves, but rather in the way that others will perceive such violations. Knowing that, it is not so hard to convince oneself that violating a constraint in a particular case is not really so bad, especially if it looks like one can keep things secret. This suggests that even if the response by the effective altruist above is philosophically compelling, it may be one that it is dangerous to give voice to. In the end, perhaps the best way to be an effective altruist is to not talk about effective altruism.

Public Funds for Private Stadiums: On the Bills’ Future Home

photograph of celebrating crowd during gameday at Bills stadium

Since moving to upstate NY in 2018, I’ve become a pretty keen Buffalo Bills fan. And now $850 million of public money is being invested into a new stadium for them – though the Bills are not the only team to benefit from public funds.

Should we really be using tax dollars for such frivolities as sport? Why should billionaire team owners receive public money? Why should taxpayers fund private sports stadiums when, despite long-held opinion, they do not seem to have the expected economic benefit for the local area?

I think the key response here is to note that money should not be governments’ only concern. No doubt the Bills are a source of “civic pride.” Sports teams play an important role in many communities. Erin Tarver has argued that fandom can be an important part of a person’s identity. It can bind us together in communities, where thousands of people are cheering for one team – united by nothing more than a shared love for their team. Even fans of perpetual losers benefit (perhaps more so: a recent study suggests that fans of unsuccessful teams are more tightly bonded to one another than fans of more successful clubs. Good news for Bills fans.)

These connections are deep and important to many people. Andrew Edgar goes so far as to argue that these teams are akin to sacred objects for many of us. Kyle Fruh, Alfred Archer, and I have used this to argue that this means that when owners abuse the club, they’re doing something wrong: they’re trashing something of important cultural value.

This puts obligations on owners. For one, this lets us say that when the Bills owners were threatening to relocate the team they were doing something more than simply considering moving their business.

Finding a new home for the Bills would not just mean that some folks lost their jobs, it would mean that the focal point of this fan community was being ripped away. Something sacred was being destroyed.

It also seems to me that this places an obligation on local governments (in this case, New York State and Erie County). No doubt the Bills are very important to Buffalo and the surrounding area. To take a personal observation: if you go outside at 1pm on a Sunday in Rochester – an hour or two away from Buffalo – you won’t see many people. Everyone is watching the Bills.

Now, New York State spends over a hundred million dollars on arts funding every year. This is a good thing, but it seems like snobbery if we are to say that these important cultural things deserve state spending but football does not. (We can haggle over the amount it is fair to spend!)

So, if we should spend government money on cultural objects, we can make a reasonable case for spending money on the Bills stadium because the Bills are an important cultural object. Even if there will be no great economic benefit, New York State is right to invest if it helps preserve something culturally important.

Yet that only speaks to the general principle of using public money to fund private enterprise when it comes to sports stadiums – there are plenty of other reasons why we might object to funding the new Bills stadium.

Here is one objection: there are lurking objections about how much money governments should spend on cultural objects. Part of the point of the recent Just Stop Oil protest that doused (the glass in front of) a van Gogh with paint was to highlight our reactions. People seem to care more about art than they do about people being unable to heat their homes or buy food. No doubt there is something to this, but I think most people would agree governments should spend some money on things that help to enhance our lives, even if there are other pressing concerns.

Still, this investment can seem perverse, especially when, as Shalise Manza Young has pointed out, you look at the conditions poor people need to meet in order to get state assistance. Why should the rich owners of the Bills get state money when people starve and Buffalo, like much of upstate New York, has racially-driven poverty problems?

Now, I do not know how the deal is financed, but one solution here would be to make clear that the money is for the Bills, not for their owners. Or, we can see it as a joint-investment between the state and the owners into Western New York, rather than a payment that will just benefit these owners. Otherwise, critics are right when they say New York is “using public money for private business ventures, especially for the benefit of wealthy owners like the Pegulas.

Sustaining important cultural objects is a worthwhile goal for governments, but lining the pockets of modern-day oil barons is not.

Whether this is a matter of the optics of the Bills stadium deal, or whether the deal simply does benefit the wealthy Pegula family without being too concerned with what should matter – the cultural benefit of the Bills – is an important question, and I don’t have the answers!

Beyond that, we need to look at the investment in terms of a public good outside of sports. One criticism is that by building the new stadium next to the current one in the suburb of Orchard Park (which is nearly 95% White and has a 2020 median income of nearly $90,000) rather than Buffalo (which is less than 50% White and has a 2020 median income of just under $40,000), the state is failing to invest in communities that have been under-invested in for far too long and continuing to perpetuate racial injustices.

We also need to ask whether it helps to create goods, like more walkable communities? Does it help to improve public transit? Well, no, because it’s going to be built outside of the City of Buffalo and will inevitably come with the sprawl of parking lots that accompany NFL stadiums.

There are even sporting criticisms: this stadium will never host a Superbowl, because it doesn’t have a roof – in Buffalo. Even setting aside Superbowl games, there is always the chance for some terrible weather to really disrupt a game – and that isn’t something the Bills should risk, what with Josh Allen leading what is likely to be a long-term force in the NFL.

And that is to say nothing of the potential corruption involved, nor of the fact money is being taken from Native Americans and isn’t being invested back into Native communities. My sense here is that the money was an effort to make sure that the Bills stayed in Buffalo – or, rather, Orchard Park. It is money that should be spent to keep the Bills around, but it is far from clear to me that this money is truly for the people of Buffalo, and this investment seems to fail to achieve a raft of other worthwhile goals that any such ambitious project should aim at.

Torture and Ticking Bombs

photograph of chair against wall in dark room

Philosophers love thought experiments, and few have been as influential in contemporary moral and political philosophy as the ‘ticking bomb’. It was famously employed by Michael Walzer in his seminal treatment of the problem of dirty hands and has been the topic of heated discussion ever since.

Walzer asks us to consider the case of a newly elected politician who is asked to authorize the torture of a captured rebel leader who knows the location of a number of bombs that have been hidden in buildings around the city which, if they detonate, will cause enormous suffering. According to Walzer, in this case, the politician should violate the moral prohibition against torture even though they accept that “torture is wrong, indeed abominable, not just sometimes, but always.” The unfortunate reality is that political leadership sometimes demands morally tragic decision-making and leaders who refuse to authorize torture in these circumstances display a disreputable kind of squeamishness.

The ticking bomb scenario is commonly invoked to justify torturing terrorist suspects and pervades media discussion of this issue (just think of the hit 2000s TV show 24). It has also been appealed to by holders of high office.

For example, when giving evidence to the Intelligence and Security Committee of the UK Parliament, a number of prominent British politicians – including former Prime Ministers Boris Johnson and Theresa May, and cabinet ministers Phillip Hammond and Amber Rudd – invoked ticking bomb scenarios in defense of the possibility of authorizing torture and other forms of cruel and degrading punishment.

However, the suggestion that the ticking bomb scenario justifies the use of torture in emergency situations is hopelessly misguided. The work of Henry Shue is especially informative here. Shue argues that the ticking bomb case suffers from two central flaws: idealization and abstraction. The former involves adding positive features; the latter, eradicating problematic ones. Together they ensure that ticking bomb makes the decision to torture unrealistically straightforward – and tricks us into thinking we can justify the unjustifiable.

Ticking bomb idealizes by supposing: (1) that the authorities have detained the right person; (2) that torturing the detainee will result in the prompt and accurate revelation of the information they desire; (3) that the torture will be a rare one-off. Ticking bomb furthermore involves problematical abstraction because it ignores that (4) the institutionalization of state torture is a necessary, if not sufficient, condition of torture potentially having the beneficial consequences advocates of the pro-torture position promise.

With regard to the first point, ticking bomb assumes the detainee is not merely suspected of having the information the state desires, but that they definitely do. In reality, however, the state will suspect the detainee knows about an attack that may be forthcoming. Uncertainty and probability are, therefore, not minor details.

Torturing somebody because they might know something that might stop a bomb that might exist and that might go off at some point in the future is much less obviously permissible than the scenario Walzer imagines.

The second assumption of the ticking bomb scenario is equally implausible. In reality torture victims typically collapse and pass out pretty quickly, becoming unable to provide information. Furthermore many detainees lie, falsely informing on adversaries to settle feuds. Others say anything they think their tormentor wants to hear in the hope this will make the pain and humiliation stop. The reality is thus that, at best, torture delivers noisy information, if not outright falsehoods. Yet the sheer unreliability of information almost inevitably ensures, in turn, the falsity of the third supposition: that torture will be rare. If state authorities have convinced themselves a serious attack is imminent, and the person they have tortured does not provide the information they desire, they are likely to turn to the next-best suspect and torture them in turn – and so on.

Yet the fourth point is, perhaps, the most important. Shue notes that unless state-torturers are properly trained, they are unlikely to be competent at extracting information from detainees. It follows that any viable regime of state torture is going to necessitate a torture bureaucracy, training and overseeing a vast network of professional torturers. Rather than thinking about torture as an isolated event – as the ticking bomb scenario encourages us to do – we must instead recognize that if torture is to get the results its apologists claim for it, it must take the form of a vast and organized ongoing state practice.

When we think in these terms, a host of further, troubling questions arise, not least, as David Luban stresses, the question of how much trust we should place in agents of the state and their lawyers not to test the limits of whatever laws and conventions politicians adopt to regulate torture.

What we know about institutions and bureaucracies thus cannot be abstracted away from when we consider arguments about the permissibility of authorizing state torture in situations of national emergency. And what we can reliably predict is going to happen is extremely discouraging.

First, it is decidedly unrealistic to think that people who have volunteered to become trained in the art of torture will intuit exactly where to draw the line when considering who should be torture, or what torturous methods are beyond the pale. Professional torturers are precisely the kinds of people we don’t want to give discretionary power over torture to, because they are the people most likely to abuse their power.

Nor is there much reason to think that, if official rules and regulations are in place, they will be studiously obeyed by the sorts of people who apparently want to torture others. On the contrary, as Darius Rejali painstakingly shows in his history of torture, the clear empirical trend is that whatever regulations are in place will simply be exceeded. So even if strict regulations are in place that purport to determine when torture can legally take place (i.e., only in genuine emergencies) and how torture should be carried out (i.e., with as little brutality as possible), assuming that the supervision will in practice be strict and that the chain of command will actually be followed does not comport with everything we know about bureaucratic organizations.

Beyond these basic problems of idealization and abstraction, a growing body of research suggests there is vanishingly little scientific reason to think that torturing to prise valuable information from a reluctant detainee will work in the manner ticking bomb scenario supposes.

Neither technological advances nor science have yet been able to offer general rules for breaking detainees to elicit information. The work of neuroscientist Shane O’Mara explains why this is unsurprising. According to O’Mara, the assumption that torture will work to elicit valuable information in ticking bomb scenarios is a relic of “introspectively derived, and empirically ungrounded psychological and neuro-biological beliefs that are fundamentally and demonstrably untrue.” The pro-torture assumption is that inflicting severe pain is a causally efficacious way of getting detainees to reveal what they know. On the contrary, there is ample evidence to suppose that the infliction of severe pain, and the attendant fear and stress that comes with it, has the opposite effect. ‘Ticking bomb’ asks us to consider what we can do to stop a bomb exploding in the immediate future. Yet, according to O’Mara, it is probable “on the basis of what we know about the neurophysiology of pain, that there is no technique for inducing pain that is sufficiently severe so as to cause a well- conditioned and well- prepared individual to rapidly want to reveal information without being able to resist for sufficiently long before the brain and body go into a pain- induced shock or dissociative state.”

Even if we leave aside the issues of idealization and abstraction, this body of scientific research has profound implications for the suggestion that ticking bomb inexorably reveals that authorizing torture is sometimes the right thing to do, all-things-considered. The abstract philosophical point that Walzer’s paper on dirty hands tries to deliver is that in grave emergency situations political leaders should authorize actions which would violate serious moral prohibitions if doing so will stop a moral disaster from occurring. As a philosophical conclusion, this, however, says literally nothing about which actions should be taken to achieve that end in the real world. The ticking bomb scenario assumes that torture is one of those actions but, when we consider the empirical literature, that claim appears unsustainable.So even if one accepts that emergency situations, like the one Walzer describes, reveal limitations of rigid forms of deontological ethics, it is just fallacious to suppose the dirty hands thesis delivers a pro-torture conclusion as regards real-world policy.

That political leaders should sometimes dirty their hands may well be true, but it does not follow that the ticking bomb example inexorably leads us to conclude that authorizing torture is sometimes the right thing for political leaders to do.

On the contrary, we have overwhelming reason to think that torturing can never be justified once we realize what a state authorizing torture will in truth be committing itself to allowing and enabling.

One can put this point more polemically: the ticking bomb scenario isn’t really about torture, philosophers just think it is. In the ticking bomb example, torture is a placeholder for “immoral but effective action.” When we, in the classroom or in our writing, continue to employ the ticking bomb example to interrogate the ethics of torture we imply that torture is effective. But the available empirical evidence suggests otherwise. By itself, this would simply be an intellectual failing. Yet the ticking bomb scenario has seeped out into popular consciousness. For this reason, it serves to give a spurious legitimation to state-torture. Academics and philosophers who go on using this thought experiment in such an irresponsible way, are at least in part responsible for a wider political culture in which torture is seen as legitimate by political actors and wider populations. It is therefore not simply an intellectual failing to go on in this way, but also a moral one.

Z-Library and Digital Piracy

Z-library held millions of digital books and articles, all downloadable for free. In early November, multiple domain names used by Z-library were seized by the United States Government. The details of the story are still developing, although one likely contributing factor was the popularity of the Zlibrary channel on TikTok.

This is merely the latest bout in an ongoing political (and ethical) tug-of-war between freedom of information and intellectual property rights. Or, put more bluntly, between pirates and copyright holders.

Is digital piracy the same as theft? Are artists and scientists harmed? What tangible benefits does open information deliver?

Few would dispute that stealing is wrong. If someone takes a book from a bookstore, someone is deprived of that good. Moreover, the bookstore loses out on any profit associated with that good, as that book can no longer be sold to another customer. Finally, the means of stealing, such as breaking and entering and the threat of violence, can incur yet further harms to the victim.

But digital piracy does not fit this formula. If someone downloads an online version of a book without authorization, no author or bookstore has lost a copy. What exactly is being stolen? At most, if the person who pirated the book would have bought it instead, we can say that people/businesses have lost potential income. Presumably, many pirated books (and songs, and games, and movies) are acquired only because they are free. A person mildly curious about Colleen Hoover’s Reminders of Him might pirate the book, even if they would not spend money on it at a bookstore. In cases like these, there is no lost profit because the curious person would not have purchased the book had no pirated version been available.

In some cases, piracy is not only economically harmless but arguably laudable. Consider a physician in a developing economy who uses a resource like Z-library to access crucial medical information they would not otherwise be able to afford. In such cases, there is both no economic harm and an important social benefit. Furthermore, because of the nature of digital piracy, no one else is losing out on these goods.

But defensible cases of digital piracy do not automatically justify the practice. Even if digital piracy is not quite the same as stealing, it can still be ethically problematic.

Plausibly, stealing from a bookstore is bad not just because of the physical loss of property, but because of the harms associated with loss of profit. Under this account, the ethically problematic action is pirating media you would have bought instead. There may be similar harmful opportunity costs associated with pirating instead of, say, frequenting a local library. Not all loss of profit is equal though. A struggling artist and a giant publishing company are going to be harmed by lost sales differently.

So far, we have focused on whether it is wrong for an individual to pirate digital media. However, we can shift the perspective and instead consider pirating at a larger scale. The overall economic effect of pirating on industries is surprisingly complex. What portion of pirated goods would people have bought? How much does pirating actually reduce profits? Can it raise awareness of a product and paradoxically increase sales? Can it hurt in some areas (e.g., album sales) while helping in others (e.g., attendance at live shows)? Can it save people money which they then invest back in the same industry? Can it spur innovation to stay ahead of pirating? What is the human impact of reduced profits? The effects and harms (when present) of digital piracy will look different between industries, companies, stores, and even individuals.

However, there are presumably some instances where pirating is so easy and pervasive that it represents a substantial threat to certain industries and those that work in them. In these cases, a government may sensibly take action to deter pirating, such as seizing domain names to preserve a well-regulated economy, even if it has no intention of going after individual people for digital piracy.

Determining the point at which pirating represents such a significant threat may be contentious. It can also be challenging to parse whether what is being protected are scientists, artists, writers, and musicians, or merely a specific business model.

For example, scientists have long expressed frustration with the astoundingly profitable business of scientific publishing, which generally pays neither authors nor reviewers. (The academic publishing situation has become more complex since the rise of open access.)

Beyond considerations of how much harm piracy causes, what about ethical arguments supporting piracy? Might it be defensible as a social good? One function that shadow libraries such as Z-library serve is to remove art and science from the control of gatekeepers like publishing companies. For many people – whether due to personal resources or location – songs, books, movies, and science would simply be unavailable without digital piracy. Academic pirating sites such as sci-hub are widely used in countries where universities can’t afford expensive journals.

For those that believe knowledge should be widely available, this is a clear benefit of piracy and the raison d’être of sites such as a sci-hub, which boldly declares “access to information is a human right.” The view is not, in fact, so radical. The Universal Declaration of Human Rights states, “Everyone has the right to freedom of opinion and expression; this right includes freedom to hold opinions without interference and to seek, receive and impart information and ideas through any media and regardless of frontiers.”

Deciding what, precisely, this right demands is more contentious. Just as one can’t yell “fire” in a crowded theater, one’s liberties have to be balanced against others’ rights and tailored to circumstance.

The knowledge that one can demand is constrained by consideration of what it takes to produce it. Sometimes information is construed to mean primarily government information, as opposed to all information. So, how much information should we have access to? Does a cost interfere with a right to information? How do barriers, like cost, interact with inequality? Should this right apply to art and fiction or just information? Do business owners, artists, musicians, and writers have competing rights?

Z-library began largely as a collection of academic books and articles but ultimately grew to include all kinds of texts. While not every specific instance of piracy is ethical or harmless, on-balance the effect of making science, books, music, and movies widely available might be considered worth it. Again, the details matter and an overall evaluation depends on what is being pirated, how, and by whom. Perhaps releasing publicly funded scientific research from private gatekeepers makes sense – something which has since become U.S. policy – whereas pirating novels does not.

Finally, digital piracy can potentially be defended as a form of civil disobedience (or uncivil disobedience) against industries, laws, and policies that are believed to be unjust. Civil disobedience is a complex topic all on its own, and our evaluation of piracy as civil disobedience will undoubtedly turn on both general ethical thoughts on civil disobedience and the legitimacy of the aims of those fighting for freedom of information. However, at a minimum, civil disobedience must involve some measure of intent. Not wanting to pay for the fourth season of Westworld, while perhaps signaling dissatisfaction with the current business setup (or Westworld), is hardly a deliberate political act of disobedience meant to challenge current injustices.

Notably though, for activists with sincere aspirations of creating a world in which anyone (with internet), no matter their country or resources, can have access to the world’s incredible wealth of information, piracy is a means not a goal. Even for those opposed to digital piracy, as a political action it invites us to consider how else artists, writers, and musicians could be supported, scientific findings disseminated, and cultural goods shared.

On Canada’s Oath of Allegiance

photograph of Queen Elizabeth on dollar bill

When does it become immoral to swear allegiance to something or someone? Is it wrong to swear allegiance if you don’t really mean it? What if it isn’t clear what you are swearing allegiance to? Is it up to you to investigate and understand what you are doing, or is the party asking for allegiance obligated to explain? What if you live in a monarchy? Is it better to swear allegiance to that monarch or are you only obligated to have allegiance to the nation that they reign over? What’s the difference?

In recent weeks, Canada has witnessed a rash of complaints about the fact that Canadians must swear allegiance to King Charles III if they wish to become a citizen or to take high office. Is it wrong to make such a demand?

Over the years there’s been a steady increase in the number of folks immigrating to Canada who complete the process only to find that they must swear allegiance to the Crown. Prospective citizens must profess “true allegiance” and “be faithful” to the monarch of Canada, their heirs, and successors. Similarly, when politicians are elected to provincial legislatures or to Canada’s national parliament, they must similarly swear that they will be faithful and bear “true allegiance” to the Canadian monarch. With the death of Queen Elizabeth, that oath now refers to King Charles III, and it has become a topic of controversy amongst Quebec politicians, many of whom now say that they refuse to make such an oath, despite the process being constitutionally mandated.

While there were grumblings about the oath following the Queen’s death, the debate has become more prominent following an election in Quebec. The separatists Party Quebecois lost seats, but when members were to be sworn in, their leader announced that he didn’t want to take the oath of office. The Speaker of the National Assembly has now ruled that members who do not take the oath cannot sit in the assembly. The PQ had hoped that a simple motion would be sufficient for a change in the oath, however, section 128 of the Constitution Act of Canada requires that every member of a provincial assembly swear an oath to the monarch before they shall take their seats. Any change will thus require a constitutional amendment.

The PQ Leader has argued that he should be able to take an oath to the Quebec people, but that it is “embarrassing and humiliating” to swear allegiance to the Crown. He argued that “It is a conflict of interest that your first act, your first meaningful gesture is to take an oath toward the population that elected you and simultaneously take an oath to the Crown of a foreign country?” In 2015, when Israeli math professor Dror Bar-Natan applied to become a Canadian citizen, he challenged the required oath of allegiance in court, arguing that the monarchy is a symbol of inequality and that the oath was “repulsive” and that he felt “somewhat humiliated” having to take the oath. After taking the oath, he publicly disavowed it and pledged his “true” loyalty to the people of Canada. The issue caught federal attention this week when the Bloc Quebecois tabled a motion calling on Canada to abandon the monarchy which it labeled “racist” and “colonialist.” When the motion failed to pass Canada’s House of Commons, the BQ Leader said it demonstrated that federal politicians “prefer to support the King rather than the people.”

Of course, the obvious question is why Canadians swear an oath to the Crown in the first place. Canadian media covering this story consistently fails to explain why this is a requirement to begin with. English media will frequently muse about how the monarchy is symbolic anyways, “antiquated but harmless,” and not worth getting upset about.  Unfortunately, this all misses a larger point. The Canadian monarchy is modeled after the British monarchy and thus the monarch has a dual role. They both exist as a person, but they are also considered to be the living personification of the state. In other words, King Charles is Canada, and so by swearing an oath to King Charles, you are swearing an oath to the Canadian state.

Why does this tradition exist? According to Canadian constitutional expert Eugene Forsey, in the Canadian monarchical system the Crown is “the symbolic embodiment of the people—not a particular group or interest or party, but the people, the whole people.” His daughter Helen adds, “the essence of the monarchy was its impartial representation of the common interests of the citizenry…the Crown [is] a permanent and impartial entity in our democratic system, transcending the temporary and the partisan.” Former Ontario Premier Mike Harris described the oath as “fundamental to the administration of the law in this country. It signifies that, here in Canada, justice is done—not in the same of the Prime Minister, or the Mayor, or the Police Chief…but by the people, in the name of the Queen.”

The intuition behind this is not dissimilar to the reason Americans must swear an oath to the constitution rather than merely to the country. Canada’s constitution is both written and unwritten, yet both oaths represent commitments not only to a nation or a people in a temporal sense, but to the rule of law and an established constitutional order that rises above disagreements about day-to-day politics. Just as, for example, the impeachment fulfills an important constitutional check on abusive elected power, the Crown acts as a constitutional check on an elected Prime Minister who no longer has the support of Parliament. These are safeguards built to protect democracy beyond a check beyond the political arguments themselves.

This brings us back to the debate about whether citizens or politicians should have to swear an oath to a “foreign King.” In fact, bizarrely, the PQ have pointed out that courts have said that it is not an oath to the monarch themselves but to the Canadian state. It is obviously not merely a personal oath, nor merely a symbolic one, to Charles that is at stake. If the oath to the monarch is an oath to the state – and the state’s legally determined means of recognizing an oath of allegiance to it is through the monarch – then what does an insincere gesture mean?

There is a big difference between accepting the established constitutional order and working within it to change it and not accepting the established constitutional order, you cannot have it both ways. The courts have said that citizens who have taken the oath have the right to espouse anti-monarchist views and to publicly disavow the message, but nevertheless confusion over the nature of constitutional system risks sending mixed messages.

Perhaps former Quebec Premier Bernard Landry had the most mature way of handling the situation. During his swearing-in he added “for the duration of the present constitutional order, which will hopefully change one day in a democratic fashion.” Politicians should not be able to pledge allegiance only to those parts of the country they like. Publicly proclaiming that you don’t take the oath to the state seriously – or that you don’t understand what the oath means – demonstrates a lack of commitment to the democratic order. You may wish to change the particular details, but loyalty to the system, the state, the people, isn’t something you can take or leave.

To Slay Affirmative Action, Justice Alito Discovers Racial Skepticism

photograph of Harvard's campus gates closed

There was a fascinating moment last Monday in the oral argument for Student for Fair Admissions v. University of North Carolina. During his colloquy with Ryan Park, the North Carolina solicitor general representing UNC, Justice Samuel Alito raised the hypothetical case of an Afghan applicant who is not admitted because, having indicated that he is Asian on his application, he doesn’t receive the “plus factor” the university gives to African Americans or Hispanics as part of its affirmative action program. “What,” the Justice asked, “is the justification for lumping together students whose families came from China with someone — with students whose families came from Afghanistan? What do they have in common?” Pressing his point, Justice Alito asked Park what exactly UNC learns about a student from the “mere checking of a box.” “Why — why do you give a student the opportunity to say one thing about me [sic], I’m Hispanic, I’m African American, I’m Asian? What does that in itself tell you [about the student]?”

The discussion was pregnant with irony. The Court’s six conservative justices seem poised to strike down policies premised on the rejection of a philosophy of race known as racial naturalism — the discredited view that racial categories pick out heritable, biological features which are shared by all and only members of a given race and explain behavioral, characterological, and cultural predispositions in individual persons and groups. This conception of race underpinned centuries of trans-Atlantic slavery and racial apartheid in the United States and elsewhere. Yet Justice Alito’s line of questioning suggested that at least ostensibly, one motivation for his opposition to these policies is a line of thought diametrically opposed to racial naturalism — racial skepticism.

According to racial skeptics, because racial naturalism is false, there is nothing in the world that answers to our racial terms. Put another way, for racial skeptics, either terms like ‘Black,’ ‘White,’ and ‘Asian’ refer to races as that notion is understood by racial naturalists, or they refer to nothing at all.

Because races don’t exist, those terms have no referents, much as the terms ‘witch,’ ‘ghost,’ or ‘Zeus’ do not refer to anything real in the world. When Justice Alito suggested that the checkbox categories on college applications are arbitrary and tell us nothing about an individual, he was implicitly invoking this skeptical line on race. If racial terms do not refer because races do not exist, then describing an individual using a racial term says nothing informative about them; it’s akin to describing someone as a witch or a warlock. If that’s so, then the choice to describe a person using one racial term rather than another must be arbitrary.

Before delving more deeply into the philosophy of race, it may be instructive to flesh out the legal context of Alito’s remarks. The seminal case in the Supreme Court’s affirmative action jurisprudence is Regents of the University of California v. Bakke, where the Court held that while the university’s racial quota system for medical school admissions violated the Fourteenth Amendment’s Equal Protection Clause, schools can still use race as one factor in admissions decisions. But in subsequent rulings, the Court narrowed this holding in two key ways. First, it declared that all so-called “benign” racial classifications are subject to strict scrutiny analysis, where the government must prove that the classification is narrowly tailored to further a compelling government interest. The “narrow tailoring” requirement means that a school has to prove to the court that no viable race-neutral alternative exists that would further its compelling interest. Second, the Court held that racial preferences may not be used to remedy general societal discrimination.

This leaves only obtaining the educational benefits of a diverse student body as a constitutionally acceptable goal for racial classifications in higher education.

Thus, in the most recent challenge to affirmative action at UNC and the companion case against Harvard, the schools have been forced to argue that relying upon self-reported racial characterizations to give certain applicants a slight leg up over others is the only way to achieve the particular educational benefits that flow from a diverse student body. In that context, Alito’s argument that racial terms fail to pick out anything real about applicants has bite. It suggests both that “diversity” is better defined in non-racial terms and that racial classifications are not a particularly effective means to achieve whatever educational benefits diversity entails.

But racial naturalism and racial skepticism are not the only views available in the philosophy of race. One influential alternative is racial constructivism.

According to this view, while biological races do not exist, various social, political, and economic practices have brought about the widespread grouping of individuals into certain categories. Our racial terms refer to these groupings. Furthermore, because this racial labeling has concrete effects on an individual’s well-being and access to opportunities and resources, a person’s racial category often says something meaningful about that person’s experiences. But racial identity is not simply a matter of society imposing a label on a passive subject. In the context of a society in which racial labeling remains strongly predictive of certain life outcomes, a person’s racial self-ascription can indicate that she possesses a perspective quite different from that of people of other races.

Accordingly, a racial constructivist might reply to Justice Alito’s question that while categorizing applicants into races does not provide the kind of information racial naturalists thought it did, it is also not a vacuous exercise. An applicant’s self-ascription as, say, Black tells us that she likely possesses a perspective informed by the experience of being labeled Black — a label that has a particular significance in American society. Having that kind of perspective represented on campus carries obvious benefits for a university or college’s intellectual culture.

Although racial ascriptions may be meaningful in ways relevant to the mission of higher education, there is a plausible argument that other sorts of categorizations, which perhaps have the added constitutional benefit of being formally “race-neutral,” are more meaningful still.

In oral argument for the case against Harvard, Justices Gorsuch and Kavanaugh asked the plaintiffs’ counsel, Cameron Norris, whether a plus-factor for descendants of slaves would be constitutional. Norris said that he doubted it because this classification would not be race-neutral. This is debatable: While it is possibly true that almost all people who count themselves descendants of slaves in the United States are Black, it is far from the case that all Blacks in the United States are descendants of slaves. Although the exchange between Norris and the Justices was inconclusive, it raises the possibility of more targeted forms of affirmative action based on classifications that are potentially better proxies for the differences in perspective that a university or college may want to facilitate through its admissions policy.

Justice Alito’s discovery of racial skepticism was a clever rhetorical gambit, pressing the denial of racial naturalism into the service of striking down policies that are themselves premised on the denial of racial naturalism and that seek to ameliorate the malign effects of that philosophy. Unfortunately, in their ignorance of an alternative conception of race — racial constructivism — counsel for Harvard and UNC may have hamstrung their defense of those policies. Nevertheless, there is some reason to hope that even in the absence of formally race-based preferences in admissions, universities can still give some degree of consideration to the unique experiences of racial minorities in this country.

Is the Open Road Really That Open?

photograph of motorcycle group riding as sun sets

Each November, hundreds of thousands of bikers descend upon the Gulf Coast city of Galveston for Texas’s Lone Star Rally. They’re drawn not only by the city’s picturesque sandy beaches, New Orleans-style houses, and open highways but also by the numerous bike-centric attractions, music gigs, and general revelry accompanying the rally.

The scale of the event, compared to Galveston’s size, is remarkable. The city’s average population (of whom I am one) is roughly 53,000. But, in 2021, over 400,000 bikers attended the four-day event – nearly eight bikers for each resident. And they make their presence felt with road closures galore, traffic accidents aplenty, and the noise of motorbikes reaching deafening levels. Needless to say, for the first weekend of November, the bikers dominate the city, with many residents hunkering down at home or leaving for the weekend.

Alongside hard-hitting cowboys, rugged gold prospectors, and hardworking farmers, the image of a rebellious biker barrelling along America’s seemingly unending highways holds a prominent place within the nation’s cultural mythos.

They represent freedom in a multitude of forms, be that in their mode of transport (free from the confines of a car), their ability to travel (free to explore America’s highways), or their refusal to conform to societal expectations (free to do what they want, when they want). While such freedoms may or may not be accurate, it is hard to contest that, on a symbolic level, the biker is free in a way that others are not.

But, whether this is true in a philosophically political and legal sense is questionable.

Popular fiction often portrays bikers as rebels, rejecting everyday living’s confines and carving out their own path free from political or wider societal influence. Two recent examples are Sons of Anarchy and (maybe surprisingly) Bob’s Burgers. However, in real life, bikers must play by many of the same rules as the rest of us or face the consequences. When on the road, they must obey the laws governing motor travel, like someone driving a car, RV, or big rig. Similarly, they have to pay taxes to help maintain the very roads on which they ride. They must avoid motor collisions like anyone else (if not more so). Beyond the confines of riding the bike, they, much like you or I, are slaves to their body’s demands; they have to eat, sleep, drink, seek shelter when cold, heal when hurt, and go to the bathroom when nature calls. In the broadest possible sense, bikers are either as free or confined as anyone else. Being a biker doesn’t relieve you from biological or social existence’s material facts and constraints.

So, why do bikers always talk about the freedom they feel when they ride? Why do they equate their preferred mode of transport with unparalleled liberty? According to Robert M. Pirsig, author of Zen and the Art of Motorcycle Maintenance (one of the best-selling philosophy books of all time), the answer comes from the fact that freedom is not understood in the absolute but in the relative:

On a cycle the frame is gone. You’re completely in contact with it all. You’re in the scene, not just watching it anymore, and the sense of presence is overwhelming. That concrete whizzing by five inches below your foot is the real thing, the same stuff you walk on, it’s right there, so blurred you can’t focus on it, yet you can put your foot down and touch it anytime, and the whole thing, the whole experience, is never removed from immediate consciousness.

Riding a motorbike and participating in the biker lifestyle doesn’t inherently provide you with a level of freedom unobtainable to everyone else. Instead, it puts everything else into perspective and offers the feeling of freedom that makes the rest of life appear confined. Riding a bike helps put life’s worries – bills, relationships, deadlines, fights, and the rest – to one side. It barricades these things out of one’s conscious mind, leaving the rider at the moment where the bike and the act of riding it eclipses everything else.

Whatsmore, this is more than a mere perspective on motorbike riding’s merits. A 2021 study investigating how biking affected sensory perception revealed that

riding increases focus, heightens the brain’s passive monitoring of changes in the sensory environment, and alters HPA axis response. More generally, our findings suggest that selective attention and sensory monitoring seem to be separable neural processes.

In other words, riding a bike has a neurological impact associated with a heightened focus on the here and now. Biking isn’t simply a symbol of freedom. It is instead an act that increases the perception of the latter by relegating those things that consume and dominate our mental efforts to the background.

Somewhat paradoxically, then, riding a bike provides a sense of freedom not by removing tensions and constraints but by establishing them. Biking doesn’t relieve the external pressures placed on us by the non-biking world. Instead, it generates a feeling of liberty by making internal boundaries; by creating a border in which one’s frame of focus is reduced and outside which life’s worries fall away. People who feel free when riding a bike aren’t necessarily freer than everyone else. They simply have an activity that provides a feeling of freedom by drawing them away from those other things that might concern them.

So, next time you see a biker espousing how their bike provides them with freedom, don’t forget that the unabashed sense of freedom they describe might be simply the establishment of internal barriers.

The Case of Adnan Syed: Media Spectacle and Juvenile Justice

news cameras on courthouse steps

In 2014, the first season of the hit podcast Serial aired. It told the story of the murder of Hae Min Lee and the subsequent trial and conviction of her one-time boyfriend, Adnan Syed. Each episode explored evidence for and against Syed’s guilt, and, by the end of the season, both host and listeners were left with lingering doubts. Eight years later, on September 19th, 2022, Syed’s sentence was vacated, and he was released from prison after serving 23 years.

The case against Syed in 1999 was based primarily on two forms of evidence: the eyewitness testimony of Jay Wilds and cell phone tower evidence that purportedly supported Wilds’s description of the events of the crime.

Though the specific details changed from one telling to the next, Wilds’s basic story was that Syed strangled Lee to death in her own car in the parking lot of a Best Buy and then called Wilds for help with disposal of her body. The two allegedly worked together to bury Hae in a shallow grave in a nearby park. A cell phone expert in the original trial testified that the locations that Syed’s cell phone pinged that day corroborated Wilds’s basic account of the events that took place on the day of the murder, including pinging in the location where Hae’s body was later found.

Sara Koenig, the journalist who hosted and did much of the research and investigation for the show, was drawn to the case because of some of the clear holes in both the initial investigation and the trial. Among the most noteworthy of these was an eyewitness, Asia McClain, who claimed to have interacted with Adnan at length at the local library at precisely the time the state alleged that he was committing the crime. Though Syed’s lawyer, Christina Gutierrez, was aware of the alibi witness, she never contacted McClain and the jury never heard about the alibi. Gutierrez was disbarred for unprofessional conduct in a different case shortly thereafter.

The only evidence the state gathered to corroborate the eyewitness testimony offered by Wilds was the cell-phone evidence. Even at the time, that evidence suggested an elaborate and improbable route through the city on the afternoon of the murder. During their investigation, Koenig and her team found disclaimers from the cell phone company at the time which explicitly said that it could not confirm the veracity of reported locations associated with incoming calls. And yet pings associated with incoming calls were used to corroborate eyewitness testimony and to ultimately convict Syed. During both the bail hearings and the trial, the state engaged in racial stereotyping about violent and passionate Middle Eastern men to suggest that Syed killed Hae because he couldn’t endure having his “honor besmirched” when she broke up with him.

In light of the reporting in the podcast, many listeners concluded that the state did not meet its burden of proof in the case. Syed may or may not be guilty, but the evidence presented against him should not have led to a conviction.

Serial was one of the first massively successful podcasts; in many ways it defined the genre. And this resulted in tremendous media attention on the case.

Despite all of this attention, it was a new law passed in the state of Maryland that finally led to the reexamination of the facts of the case — the Juvenile Restoration Act. Among other provisions protecting youth, the act provides some potential relief for offenders who committed crimes while still juveniles. If an offender who committed the crime for which they were convicted was under the age of 18 at the time, they can ask the court to reduce their sentence and possibly even let them out.

Syed’s case qualified, and this initiated a sentencing review which required the state’s attorney to look at the case with fresh eyes. When she did so, the attorney found a handful of shocking things, including handwritten notes in the prosecutor’s files suggesting an alternate suspect in the case. This information was never shared with Syed’s attorney. Since the Syed conviction, Bill Ritz, one of the main detectives responsible for interrogating Jay Wilds, has been investigated for coaching eyewitnesses.

The totality of the evidence — the constantly changing eyewitness testimony, the erroneous cell-phone evidence testimony at trial, the existence of other viable suspects — suggested that the state could no longer justifiably hold Syed in prison any longer.

This does not mean that Syed is innocent, only that the case against him was hopelessly flawed at many stages.

This case introduces a cluster of questions about justice and the role of emerging technology in the criminal justice system. Perhaps most noteworthy is the question posed by the Juvenile Restoration Act that necessitated the reassessment of Syed’s case. At the heart of this issue are questions about what it is to act autonomously and the kinds of mitigating factors that might diminish a person’s culpability. We tend to think of children as moral patients rather than moral agents — moral agents are thought to be able to think clearly about alternatives and to effectively weigh their reasons for action given their interests and the interests of those about whom they care. They are capable of considering consequences carefully and of choosing to act in the interest of what they take to be the good. Moral patients, on the other hand, are sentient beings who are not capable of engaging in this kind of reflection for one reason or another.

It is clear that infant children cannot act autonomously; they are moral patients. It is less obvious where the cutoff point is for older children.

When we speak about teenagers outside of the context of their criminal culpability, we are quick to acknowledge that the changes young people go through at this age can make them almost unrecognizable to their loved ones at times. Hormones, intense emotional reactions, and mental health struggles that are common among people this age cause people to act in ways that might be less autonomous than we would expect from a moral agent. People this age can also often be easily manipulated by charismatic figures who seem to have all the answers. These kinds of considerations led to the ruling that Lee Boyd Malvo – 17 years old when he participated in the spree killings known as the D.C Sniper Murders – must be resentenced in Maryland.

The case also poses the related question of whether juveniles should be sentenced to life in prison without parole when their conviction was secured on the basis of circumstantial evidence. Such convictions are always less than ideal because they could be miscarriages of justice, but the harm done when the offender is a juvenile is particularly acute because it potentially prevents them from engaging in all of the life and character-building that is critical to late adolescence and early adulthood. The Juvenile Restoration Act recognizes the complexities of cases involving minors and, going forward, bans all sentences of life without parole for juveniles in Maryland.

Serial transformed Syed’s case into a cultural phenomenon. Internet sleuths all over the world assessed the evidence and discussed their findings with one another. This podcast marks a shift toward crowd-sourcing detective work.

Since it came out in 2014, countless other podcasts have made true crime cases their focus. The hosts of these podcasts often do not have the background in reputable journalism that Sara Koenig has — many hosts are just armchair sleuths pontificating about cases with a beer and a microphone in their garage. Some armchair sleuthing, such as the work done by civilians explored in the Netflix documentary special Don’t F**k With Cats, leads to progress in a case. Perhaps even more often, however, idle speculation and rumor mills end up unfairly maligning people and ruining their lives.

The media influences also raise issues of fairness.

How many convicted people like Adnan are out there who were convicted on the basis of unreliable witness testimony whose cases didn’t get made into popular podcasts?

It can be a good thing for a convicted person when the case against them is viewed with a critical eye. But most convicted people do not get this chance since the appellate process typically focuses on procedural fairness and not on factual innocence.

Finally, a highly public case like this leads to even more pain for the victim’s families. Syed was convicted in 1999. Going through that process was difficult enough for families and now countless people are questioning whether the courts got the conviction wrong. Though this sort of scrutiny can be useful to achieve justice, relitigating a case, either literally or figuratively, can leave a family feeling like the very worst moments of their lives will never end. The state prosecutes criminals using taxpayer money and these stories become part of our culture and our collective identity. As such, there is a sense in which these stories belong not just to individuals but to communities. There is also a sense in which they don’t — individuals and their families are the parties who actually experienced the pain and devastation caused by a crime. Even if the wrong person was convicted, sensitivity to the victims remains important.

Streaming services for podcasts, movies, and television have led to a proliferation of true crime entertainment. Though one of the goals may be justice, it would be disingenuous to suggest that they do not use tragic crimes to entertain viewers. At the very least, the proliferation of the phenomenon should motivate discussion about the role that true crime storytelling plays in our culture.

Justice versus Care in ‘Tales of the Jedi’

image of star wars hyperspace star blur

The recently released Tales of the Jedi fills in gaps to the narratives of both Count Dooku and Ahsoka Tano.  This may seem odd at first.  The two characters, as far as we know, never met and their two storylines do not intersect in these six animated entries into the canon.  But taken as a whole, these episodes provide a comparison and contrast along two different themes. The first, surface-level, theme is how these two Jedi react to their experiences of institutional corruption. Both of them leave the Jedi Order. But there the similarities end. Dooku joins Darth Sidious and leads the Separatists against the Republic during the Clone Wars. Ahsoka attempts to live a simple life in hiding during the rise of the Empire, but eventually returns to action under the guise of Fulcrum, a messenger for the Rebel Alliance in the years before the Battle of Yavin.

It is the second theme, however, which is more philosophically interesting. This theme is the contrasting moral outlooks of Dooku and Ahsoka. Dooku falls into the category of someone who views morality through the lens of justice while Ahsoka arguably adopts a care perspective when making her choices.

To understand this second theme requires understanding the work of Carol Gilligan, a psychologist, and how it has influenced the development of Care Ethics. Many textbooks used in an introduction to ethics course include a chapter on feminism and care ethics. Sometimes this discussion falls under discussions of ethics and gender. Care ethics is often contrasted with traditional theories in the sense that traditional theories assume (a) that a moral theory requires that judgments are impartial and universal and (b) that morality works to regulate the behavior of interacting strangers. Care ethics is said to reject both assumptions. First, moral judgments are focused on the personal and particular. Second, that morality includes strengthening relationships between persons who know each other well.

So, what does a justice-oriented moral outlook entail?  According to Carol Gilligan’s work, initially collected in her book In a Different Voice, one feature is that those who adopt the justice view see morality as a system to regulate the behavior of strangers.

Each person is a separate, distinct, independent individual and everyone is a threat to each other’s individuality. Threats, of course, imply violence. As Lawrence Hinman points out, traditional moral theories which adopt this justice outlook “can be used to justify violence.” Dooku’s stories illustrate this point.

According to the audiobook Dooku, Jedi Lost, he was abandoned by his family and sent to live with the Jedi Order because his father believed his son was a freak, an “other,” an outsider. In other words, Dooku’s life begins not with family, but with isolation and abandonment reinforcing this ethic of strangers.

This isolation and separateness is reinforced in Tales of Jedi, where the first two stories involve Dooku arriving on distant unnamed planets to resolve criminal activities. Each time, Dooku arrives as an outsider, separate and isolated from those with whom he interacts, including the other Jedi who accompany him. In the episode entitled “Justice,” we never learn the names of the villages living in destitution due to the policies of their absent representative, heightening the sense of impersonal interactions and isolation. In such a climate of separateness and desperation, everyone is interested in forcing a just resolution. To restore a sense of justice, the villagers resort to violence by kidnapping Senator Dagonet’s son. Dooku, when he arrives, makes his intentions clear by threatening violence when he puts his lightsaber on the table in the local tavern. Senator Dagonet similarly prepares for and uses violence by bringing soldiers with him to resolve the situation.

Moral problems, in other words, are resolved through enforcing, perhaps violently, the rights of individuals.

Similar events happen in the second Dooku story “Choices” — citizens react violently to a corrupted senator. This corruption, from the point of view of justice, means that truth, peace, and a order are threatened. But these are all impersonal values, values that do not refer to the lives of individual people, but refer to structural features of the political and social world. When Dooku laments in “The Sith Lord” that his service to Darth Sidious involves a betrayal of everyone he knows, Sidious replies, “you have been loyal to a greater cause” which suggests again the impersonal nature of a justice-oriented outlook.  Furthermore, such betrayals are the price of individual freedom, the central personal value of the justice outlook. Not only has Dooku been instrumental in creating the Clone Army, hiding its origin, but he played a role in the death of his former Padawn, Qui-Gon Jinn, and is forced to kill Master Yaddle who has discovered Dooku’s betrayal. In other words, in pursuit of justice and other impersonal values, many of those close to us suffer harm.

Ahsoka Tano’s narrative in many ways is the complete opposite of Dooku’s. Instead of remaining aloof and even breaking bonds, Ahsoka’s story is about how bonds are created, strengthened, and rebuilt. Her eventual return to her calling as a protector thereby exemplifies the care outlook.

Care, as developed by Gilligan and many subsequent writers, begins with a view that individuals are defined by their relatedness and interdependence, not isolation.  It notes that most of our interactions, including moral ones, involve people with whom we are familiar — friends and family.

Emotion and dialogue, not reason and violence, are the key to resolving moral conflict.

Ahsoka’s story begins not with abandonment, but with love and community in the episode “Life and Death.” The episode begins with Ahsoka’s birth, her father Na-kil, announcing to the whole village “She’s here!” and Ahsoka receiving her name from her mother Pav-ti in front of the matriarch Gantika and other women of the village. The whole opening scene, in other words, is about welcoming one into a community and immediately building bonds by sharing names and witnessing important events communally.  It then moves forward a year when Pav-ti takes Ahsoka on a kybuck hunt. It is made clear by Pav-ti that this is important because the custom of the hunt connects Ahsoka with her culture and her ancestors, provides food for the whole village, and thus reaffirms the care-oriented outlook of connectedness. The events of the hunt lead Gantika to realize that Ahsoka is a Jedi and thus must leave her community of birth for a different community.  This represents not a loss for the village, but a point of pride and thus a joyful, not a fearful, entry of Ahsoka into the wider galaxy.

Even though as a Jedi during the Clone Wars Ahsoka must constantly be involved in violent events, the episode “Practice Makes Perfect” is about personal relationships and growth. Instead of peace and order, it is about self-sufficiency, individual safety and avoidance of suffering.  Anakin creates a skill test for Ahsoka, not against droids, but against Captain Rex and his squad. This grueling test, that it takes Ahsoka months to pass, involves Ahsoka defending herself against attacks from the clones. Anakin describes his motivation as follows:

I want this to be difficult. This is about life and death. And as your Master, I’m responsible for you. The best way I can protect you is to teach you how to protect yourself. And if you can hold off Rex and the boys, you’ll be ready for anything on a battlefield.

In other words, the motivation is born of a personal relationship, an interconnection.  Its purpose is not to save the galaxy through structural peace and order, but to help Ahsoka develop so that she can be safe through her own actions.  In a blink-and-you-miss-it moment, the test starts with Ahsoka using only one lightsaber. By the end of the episode she has matured in her development of the defensive Form 5 to use the two-saber Shien variant. In other words, Ahsoka has been helped by Anakin in her development into the self-sufficient Jedi we all know and love. One who, with Rex’s help, is able to survive Order 66 in a battle with a squadron of clones.

But Ahsoka did not stay a Jedi. Despite being cleared of the bombing by fellow Jedi Barris Offee in the season five of the Clone Wars, Ahsoka left due to what she felt was a violation of the relational values of trust and loyalty. She, however, maintains those values even in exile. Despite the personal danger, she attends Padme’s funeral on Naboo in the Episode “Resolve.” It is here that Bail Organa gives her a commlink to contact him if needed. In his last lines of dialogue, spoken to troopers but meant for her, he reminds her that she can’t stay isolated: “It’s easy to get lost with all that has happened. Still, we have a duty. Don’t we? An obligation to uphold, when we’re able … And if you should ever need anything, please contact me.”

But it is years before this call of obligation is heeded. Hiding out as an itinerant farm worker named Ashla, Ahsoka reveals her identity by using the force to save another worker, an unnamed girl, from injury.

Again, the theme of personal protection and concern for the well-being of other individuals is dominant in Ahsoka’ care-oriented outlook.

This reveal leads another worker to contact the Empire of Ahsoka’s existence, bringing an Inquisitor to the community to hunt her down. The result is the death of all the other farmers except the girl, her brother (the betrayer), and their father. In witnessing how her mere existence puts the lives of others in danger, Ahsoka decides to reconnect with Bail Organa.  First, she wants to help the remaining farmers to safety. But also, because she realizes she can no longer remain isolated.  She realizes that morality requires her to form new, meaningful relationships, or at least rekindle old ones. Thus, Ahsoka joins the budding Rebel Alliance.

Tales of the Jedi lays out concrete versions of these different approaches to morality.  It expresses the justice-oriented approach through a disconnected, impersonal, male villain. This outlook leads to many negative consequences including a galactic war, all of which suggest the episodes are an argument against a justice-oriented moral outlook.  But it doesn’t merely say something is wrong with this approach.  It offers an alternative.  Through the story of a female, non-human hero, whose life is defined by her connections to others and concerns for the embodied suffering of those others, we get an argument for the care-oriented approach to morality.

​​You’re So Privileged, I Bet You Think This Article Is About You

photograph of high school students taking exam

Back in 2014, I remember coming across the Buzzfeed quiz “How Privileged are You?” and answering each question, line by line, to see what my privilege score would be. I remember feeling uncomfortable about the quiz then, but only now do I have the tools to articulate why.

It wasn’t that I was relatively privileged with a well-to-do upbringing and white skin. It wasn’t even necessarily the oppression Olympics, though I did at the time wonder how I compared to others.

The problem was that a numerical score that adds up different experiences doesn’t actually track how privilege and oppression work.

Unfortunately, these kinds of numerical privilege tests have stuck around and periodically re-circulate when conversations about privilege re-enter mainstream discussion. You may have also encountered or participated in a privilege walk, which asks participants to stand in a line and take a step forward or backward in response to each statement instead of tallying a numerical score – those who move to the back are less privileged; those who move forward are more privileged.

What kinds of statements are included on these tests?

  •     “I am white.”
  •     “A stranger has never asked to touch my hair, or asked if it is real.”
  •     “I never had to ‘come out.’”
  •     “I have never been denied an opportunity because of my gender.”
  •     “I don’t have any student loans.”
  •     “My parents are still married.”
  •     “I have never been shamed for my body type.”

There are a number of other statements that target different identities and experiences. Most fall into broad categories like white experiences, class-relative experiences, Black experiences, trans experiences, non-Christian experiences, etc. These are all good experiences to be aware of.

But privilege doesn’t function in this piecemeal, additive way. Kimberlé Crenshaw’s term intersectionality points out that, for example, Black women’s oppression isn’t the combination of the oppression of Black men and the oppression of white women. Black women are a distinct social class with distinct experiences.

The combination of different axes of oppression is not reducible to the sum of its parts.

Our social categories that shape how we view and treat ourselves and others tend to be more specific than we sometimes think. We respond very differently to an attractive white trans woman than to a fat brown Hispanic trans man. Both are trans; both have very different experiences.

A second issue is that some of the items on these tests seem to relate to how well your life has gone rather than how much your life has been impacted by structural inequalities. Take the statement “my parents are still married.” While divorce is more common in some social groups than others due to structural features, it is not uncommon for highly privileged people to have divorced parents.

If we want to preserve the political function of privilege, it needs to remain a concept that tracks experiences with various structural advantages or disadvantages. The immensely privileged can still have terrible lives through bad luck. Those who lack privilege can live quite good lives as well.

Structural inequalities and interpersonal bigotry can and do make life harder in specific ways for marginalized people, and privilege (or lack thereof) does influence how your life goes for you. But lacking privilege is not the same as having a life full of hardship.

A third issue is that it’s unclear what to do with your score. People often compare themselves with others along axes of privilege in ways that are unhelpful. Sometimes this is done in self-aggrandizing and misleading ways to gain clout on social media (though most often, privileged users will bandy about the one marginalized person that agrees with them just to win a debate). Perhaps more often, people who score as more privileged might feel as if their problems don’t matter or don’t matter as much as those who score as less privileged. Sometimes this is right – when the problems are relatively trivial – but other times this isn’t true.

While we will need to make triage decisions at the level of which political projects to take up and which features of structural oppression are most pressing, comparison at the level of individuals can cause a number of problems. Trauma is still valid even if someone else has it worse.

An aggregate number also does not provide any actionable political guidance.

Scoring individualizes privilege instead of looking at the underlying social structures.

It can promote a kind of navel-gazing about our own experiences instead of group conversations about the problems that specifically affect us and what we can do about them. The way out of oppressive structures is not by finding the most marginalized person and placing the burden of liberation on them; it’s by working together.

Fourth, when we have conversations about privilege, there are a number of reactions that the privileged have when their relative structural advantage is pointed out: “Why are you trying to make me feel guilty?” “My life hasn’t been easy.” “I’ve experienced [insert unrelated hardship], so I know what oppression is like.” “But we’ve overcome [insert kind of oppression].” “I’ve never heard of that, so it can’t be real.” “The real problem is [insert unrelated issue].” “Well, [other marginalized group] also oppresses [marginalized group under discussion], so any oppression I participate in shouldn’t be called out.”

These various kinds of denial, outrage, and misdirection are often used by the privileged to recenter themselves in conversations. That tendency will not be affected by the kind of icebreaker you use to talk about privilege, whether it be the Buzzfeed quiz or a privilege walk.

However, some of these responses are (willful or otherwise) misunderstandings of what privilege is. It’s not personal virtue. It’s not how your life has gone on the whole. It’s a particular set of experiences that arise when people in well-specified social groups interact with social and structural advantages or disadvantages.

Privilege tests can sometimes feed into these misconceptions about privilege by obscuring intersectionality, making it sound as if privilege = how well your life has gone, and encouraging unhelpful comparisons. For these and other reasons, some people have already moved away from the privilege quiz/privilege walk model.

I don’t think that getting rid of privilege tests will solve the problems we have in discussing oppression. But we don’t need to aggravate these problems with a teaching resource that could be easily replaced with better materials. Conversations about privilege will always be hard, because people who are privileged do not directly experience what it’s like to live under structural oppression, and people who are oppressed often internalize oppressive narratives.

I hope that we can all replace these petty blame games and denials of privilege with solidarity and community. The fight isn’t between the privileged and the marginalized; it’s between the people who support systems of oppression and the people who want to dismantle them.

If you’re privileged, use that privilege to help.