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Climate Change and the Defense of Ignorance

photograph of factory air pollution silhouette

Although first uncovered some years ago, a New Zealand newspaper article from 1912 touting the environmental dangers of carbon emissions has again been making the rounds. But why is information like this morally relevant? And what does it mean for the responsibility of particular parties?

Successfully combating the climate crisis will involve huge burdens for certain countries, corporations, and individuals. Some of these burdens will be in the form of mitigation – that is, taking action to do all we can to reduce the effects of climate change. In 2011, nearly all countries agreed to limit the global average temperature rise to no more than 2°C compared to preindustrial levels – the maximum global temperature rise we can tolerate while avoiding the most catastrophic effect of climate changes. According to the Intergovernmental Panel on Climate Change, achieving this with a probability of >66% will require us to keep our global carbon expenditure below 2900GtCO2. As at the time of writing, only 562GtCO2 remains. Note that this is already 2 GtCO2 less than when I wrote another article on climate harms only three weeks ago. In order to ensure we don’t go over budget, certain parties will have to severely reduce their consumption: forgoing the cheap and easily accessible fossil fuels we’ve been exploiting for hundreds of years, and investing heavily in new, cleaner sources of energy.

But there will also be adaptation burdens – that is, costs associated with dealing with the effects of climate change that already exist. Examples of these burdens include building seawalls, fighting floods and fires, and potentially rehoming those who find themselves displaced by extreme weather events and abandoned by their insurance companies.

Usually when a problem creates costs, we look to pass those costs on to the person/s who caused the problem.

Suppose I find a large, deep hole on what I believe to be an empty plot of land adjacent to my property. I then begin to use this hole as a dumping ground for organic waste – grass clippings, tree trimmings, and the like. It seems to be a fortuitous arrangement. I no longer have to pay for the expensive disposal of large amounts of green waste, while at the same time filling in a potential hazard to others. Suppose, however, that a few weeks later I’m approached by an angry neighbor who claims that I’m responsible for going onto their property and filling in their newly dug well. Our intuition would most likely be that if anyone needs to compensate the neighbor for this wrong, it’s me – the one who created the problem. This approach is commonly referred to as the “Polluter Pays Principle.”

In some cases, however, this principle doesn’t apply so well. Suppose that I’m particularly lazy, and instead pay someone to dispose of my green waste in that same hole. In that case it seems less appropriate to place responsibility on the one who is technically doing the polluting (the person I employ). Instead, it still seems apt to make me responsible. Why? Well, even though I’m not the one putting the refuse in the hole, I am the one benefiting from the outcome – disposing of my waste and saving money. This approach is referred to as the “Beneficiary Pays Principle.”

Both of these principles play a huge role in establishing – at the global level – who should take on the mitigation and adaptation burdens required to combat the climate crisis. But they also rely heavily on something we’ve not yet discussed: knowledge.

Consider the application of the Polluter Pays Principle to the well example above. Arguably, we might say that even if I’m responsible for filling the hole, it wouldn’t be right to hold me responsible so long as I had no reasonable idea that it was, in fact, somebody’s well. It seems that I should only be responsible for the actions I take after I’m informed that what I’m doing is wrong. The same is true of the Beneficiary Pays Principle. Suppose that I pay someone to remove the green waste from my property – but have no idea that they are, in fact, dumping it down someone’s well. Once again, this lack of knowledge would seem to make it inappropriate to hold me responsible. Ignorance would be an excuse.

Nineteen-ninety is often held as the watershed hour for the climate crisis. This is when the IPCC issued their first assessment report, and when the world came to officially learn of “climate change” and the existential risk it posed to us.

Countries and corporations often attempt to avoid responsibility for any contribution to the crisis (i.e., carbon emissions) made prior to 1990 – citing ignorance. But it’s a lot more complicated than that.

The Center for International Environmental Law has outlined how Humble Oil (now ExxonMobil) was aware of the impending climate crisis as early as 1957, with the American Petroleum Industry coming into this same information only a year later. By 1968, the U.S. oil industry was receiving warnings from its own scientists about the environmental risks posed by the climate crisis, such that – by the 1980s – these companies were spending millions of dollars to protect their own assets, such as by modifying oil rig designs to account for rising sea levels.

And then there’s that little New Zealand article from 1912. In fact, this is predated by an even earlier warning, with Swedish scientist Svante Arrhenius publishing a paper in 1896 predicting a global increase in temperature as a result of increasing carbon emissions. All of this means that while ignorance might sometimes be an excuse when attributing responsibility, no such ignorance can be claimed by those who have created – and continue to contribute to – the global climate crisis.

Juvenile Justice: Charging Minors as Adults

close-up photograph of youth in handcuffs

Children should be treated differently from adults by the criminal justice system. They should be treated more leniently, and this includes how they are treated by the police, judged by the courts, and – most obviously – the punishments they are given.

I take it that most people believe this, at least to some extent. Nobody thinks that a five-year-old who steals a Mars bar deserves the same punishment as an adult. But when a child commits a heinous crime, we are often far too quick to abandon our commitment to treating kids fairly.

Just last week, another school shooting saw four children die in Michigan. The shooter, a fifteen-year-old boy, has been charged as an adult. Even though rates of children being charged as adults are falling, estimates say that 50,000 children a year are still charged as adults. Recently, in upstate New York, Eric Smith was released after 27 years in prison. Smith was charged in the juvenile courts, yet while headlines mentioned that he was a child killer, they failed to mention that he, too, was a child. If kids should be treated more leniently, then the reactions in these cases by the prosecutor and press are flawed.

One might think that sometimes crimes are so heinous that kids deserve to be tried as adults. Perhaps some crimes are so egregious that they deserve the strictest possible punishment, and perhaps the state needs to communicate that some crimes are hideous, or perhaps some crimes suggest someone is beyond rehabilitation. But I also suspect that, often, calls to punish kids as adults are based on a mistake: that because the act is heinous, it deserves the severest punishment. And I think we should push back against this. Let me try to explain, by exploring why we should be lenient to kids in the first place.

The obvious starting point is that the criminal justice system is part of the state, and the state treats kids differently from adults all the time. Thirteen-year-olds can’t drive, seventeen-year-olds can’t smoke, twenty-year-olds can’t drink (though, absurdly, they can give their lives for their country). And why are kids treated differently by the state in all these other domains? The obvious answer is: kids are less mature; they can’t be trusted to make informed decisions about the risks involved in smoking, drinking, and driving. They aren’t quite as able to see why what they are doing is wrong and they possess less self-control.

If kids are less mature – as they so often are – then shouldn’t they be treated more leniently for their crimes? If we think that, roughly, how much you should be blamed should match how responsible you were for the bad thing that you did, and if we think that kids are less mature and thus less responsible, the answer seems to be obvious: yes, of course kids should be treated more leniently.

We can nuance this argument further. One point worth discussing is that our brains do not mature until we are 25, so this might even suggest we should be lenient to people who are traditionally classed as adults. But we might want to allow for a cut-off, here: we might think that, although they are not fully mature, 23-year-olds have a suitable enough knowledge to be treated like adults. When is a kid mature enough to be punished as an adult? That’s a point for debate, and it might also be true that some kids should be punished more like adults than like kids. But I take it for granted here that if we have a distinction between punishing as a juvenile and punishing as an adult, we can roughly sort offenders into one of two camps.

It’s also worth noting that this argument does not – as is briefly discussed here – claim that kids do not know right from wrong. That would be absurd: kids clearly do sometimes know they are doing wrong. Yet kids might know something is wrong but not fully appreciate the wrongness, they might not quite grasp why it is wrong. And kids might know something is wrong but be less able to resist it than adults.

But what about if a kid is as mature as an adult? Gideon Yaffe thinks that we should start from the supposition that kids should be treated more leniently, yet the above argument fails since it allows for some kids not to be treated more leniently. For instance, if a kid is morally mature, according to this argument they should be punished just the same. (Yaffe’s answer is interesting: kids can’t vote, and he thinks criminal responsibility tracks how much say we have over the law. But that is too much to go into here.)

I don’t think I buy Yaffe’s argument. It seems plausible to me that if a particular kid is fully mature, then perhaps they should be punished like an adult. Though there is an argument that it might be too hard to discern if a kid is mature enough, and we should just always treat kids as though they are not mature enough for full criminal punishment. (And it is also worth noting that such a consideration does not apply to the cases we are discussing. The Michigan shooter was plausibly suffering from mental disorders, as was Eric Smith – so his lawyer argued. So charging either of those as adults seems flawed, especially when mental disorders also tend to require more lenient punishments.)

Yet even if there is an exception so that mature kids are punished like adults, there is no principled exception to say that kids who do awful things should be punished like adults.

But, the retort goes, what they did was so heinous they must be punished as strongly as possible. This rests on a mistake. Our argument does not turn around what was done but who did it. In one of the greatest pieces of modern moral philosophy, P.F. Strawson made this point. If you tread on my toe, the pain is the same, but the level of blame I give you will differ depending on whether you accidentally trod on me or whether you did it maliciously.

We can grant that a murder is heinous, whilst still holding that children who perpetrate these acts are owed separate consideration. The thing they did was heinous, but their doing it was less heinous than if an adult had done it. To charge kids as adults requires more than just pointing to the fact that what they have done is awful. It requires showing that they deserve to be punished like adults, despite the prevailing assumption that they are less mature, and so a lesser punishment is appropriate.

Liability and Luck

photograph of lone firefighter standing before small wildfire blaze

In the unlikely event that you have not yet experienced your daily dose of despair concerning the fate of humanity, then I’d highly encourage you to read Elizabeth Weil’s ProPublica piece “They Know How to Prevent Megafires. Why Won’t Anybody Listen?” The article makes two basic points. 1) Extensive controlled burns would be an effective precautionary strategy that would prevent recurring megafires. 2) There are political and financial incentives which trap us into a reactionary rather than precautionary fire strategies.

There are clearly lots of perverse incentives at play, but one part of the article was especially interesting:

“How did we get here? Culture, greed, liability laws and good intentions gone awry. There are just so many reasons not to pick up the drip torch and start a prescribed burn even though it’s the safe, smart thing to do. . . . Burn bosses in California can more easily be held liable than their peers in some other states if the wind comes up and their burn goes awry. At the same time, California burn bosses typically suffer no consequences for deciding not to light. No promotion will be missed, no red flags rise. ‘There’s always extra political risk to a fire going bad,’ Beasley said. ‘So whenever anything comes up, people say, OK, that’s it. We’re gonna put all the fires out.'”

It is risky to engage in controlled burns. Things can go wrong, and when they do go wrong it could be pretty bad, someone could lose their home, maybe even lose their life. Of course, it is far riskier, in one sense, to not engage in controlled burns. So why, then, our incentives set up the way they are?

At least two different explanations are likely at play.

Explanation 1: Action vs Inaction. First, in general, we are more responsible for actions than for inactions. The priest who ‘passed by the other side’ of a man left for dead did something terrible, but did not do something as terrible as the thieves who beat the man up in the first place. As a society we jail murders, we don’t jail the charitably apathetic, even if the apathetic are failing to save lives they could save.

And indeed, this point does have an appropriate corollary when talking about fire suppression. I am not responsible for houses burning in California — this is true even though last spring I could have bought a plane ticket, flown to California, and started burning stuff. Had I done so, likely things would have gone terribly wrong, and in that case I really would have been responsible for whatever property I had destroyed. This seems appropriate, it could be catastrophic if my incentives were structured such that I was punished for not starting vigilante fires.

Elizabeth Anscombe gives us a similar example. If the on-duty pilot and I are both asleep in our cabins, then we are doing the very same thing when our ship hits an iceberg. Yet it was the pilot, and not I, who sunk the ship. Indeed, had I, a random passenger, had tried to navigate the ship we would have absolutely held me responsible when something goes wrong.

So, what is the principle here? Is it that amateurs are specially responsible for actions? No, because we can also identify cases where we indemnify amateurs for their actions. Perhaps the best example here is good Samaritan laws. These laws protect untrained people, like myself, if we make a mistake when trying to render emergency first aid.

What is really going on is that we don’t want passengers trying to navigate ships. Nor do we want aspiring philosophers attempting unsupervised controlled burns in California. But we do want pilots to navigate ships, and we do want burn bosses attempting controlled burns. As such, we should construct incentives which encourage that, and protect people from culpability even if things occasionally go wrong.

Explanation 2: Causal Links. Second, we trace responsibility through causality. Because you caused a house to burn down you are, at least partially, responsible for that damage. The problem is, it is almost always easier to trace causality to actions than to inactions. We can identify exactly which active burning causes damage. We can easily say, “the first you started on February 14th destroyed these two house.” It’s much harder to say “the not burning that you didn’t do on February 14th was what allowed the fire to get out of hand.”

And indeed, I think probably we can’t really hold people responsible for any particular failure to burn. We can hold people responsible for how much controlled burning they can do in general, but we can’t trace causal paths to hold them responsible for any particular bad result of inaction. Indeed, it would be unfair to do so, no burn boss can’t foresee when a particular failure to burn will destroy a house (in the way they can sometimes foresee when burning in a particular area might destroy a house). This creates a problem though. Because we can’t hold people fully responsible for their inaction, that means we must hold people disproportionately responsible for actions, thus perversely incentivizing inaction.

This also parallels our interpersonal lives. For example, we generally want people willing to think for themselves. But we are also far more likely to condemn people for reaching terrible views they came up with themselves than for failing to recognize what is wrong with the conventional view. This can create perverse incentives, however. It might really be true that we are justly responsible for coming to terrible conclusions, but because it is so hard to hold people responsible for the majority view it might be important to forgive even egregious mistakes to keep incentives favoring original thought.

So here is the general point. Assessing responsibility is far more complicated than just establishing whether someone played a causal role. Sometimes holding people responsible for things they really should not have done can create perversely disincentivize people from taking risks we want them willing to take. The fires in California give one clear example of this, but the point generalizes to our lives as well.

When Are Leaders Culpable?

photograph of pyramid of wooden cubes indicating people on yellow background

When are leaders, especially politicians, morally culpable for the deaths their decisions and actions cause? This is a hard question of course because culpability comes in degrees. For example, Sally is culpable for murder if she knowingly kills someone without moral reason (e.g., self-defense); however, Sam is less culpable than Sally if he knowingly sells someone a defective automotive part which results in a fatal car accident. By the same token, the culpability of leadership comes in degrees too. This issue made especially salient recently when Kristen Urquiza, at the Democratic National Convention, shared how she lost her father due to coronavirus complications, arguing her father likely wouldn’t have died had he ignored President Trump’s downplaying of the threat. This isn’t an isolated problem. President Trump misled Americans about the impact of the pandemic, with disastrous results, in an attempt to revive his reelection prospects. We may wonder then about the blame leaders deserve for the death they cause.

There is an obvious way leaders, and politicians in particular, are directly culpable for the deaths of their citizens: starting an unjust conflict, like a war, without accurately assessing the long-run consequences. Leaders look blameworthy here because of the incentive structure at play: soldiers on a battlefield often face perverse incentives, like the prospect of prison, if they don’t carry out an order. This of course isn’t to deny that soldiers share some blame for following orders they know are wrong. However, leaders share in this responsibility given the position of power they hold, especially if they order something they know is unjust.

For example, we should be reticent to accept a proposed war is legitimate given the historical record: throughout history, especially recently, wars are often justified with moral language. Perhaps a group living in the targeted nation or region is claimed to have wronged us somehow; perhaps our invasion would help set things right; perhaps we would be justified using force to get back what was wrongly taken from us. If these kinds of justifications for war sound familiar, it is because they are. It is too easy to use flimsy moral appeals to justify things we would otherwise think morally wrong. We are susceptible to this sort of thing as individuals; so it wouldn’t be surprising if politicians and governments routinely abuse their trust to leverage baseless moral justifications to convince their citizens and constituents that the proposed war would be morally permissible.

Things are less clear when morally weighing an order from a leader or politician not intended to cause harm, but with foreseeable negative consequences. Some ethicists appeal here to what is known as the doctrine of double effect: an order or action is morally acceptable, even if it has bad and foreseen consequences, if they are the by-product of a morally good, intended action. For the sake of argument: even if abortion is morally bad, on this doctrine a doctor may still abort a fetus if the intention is to save the pregnant mother’s life: the intended, morally good outcome (saving the mother’s life) can’t occur without the bad, unintended outcome (aborting the fetus). Whether the doctrine of double effect exonerates leaders and politicians for ordering a war, even a just war, with very bad foreseen consequences is controversial.

What about indirect culpability of leaders and politicians? Things are dicier here. However, we can still call to mind cases that may help us think through indirect culpability. An obvious and recent case is that of managing the coronavirus in the United States: the current United States President, Donald Trump, downplayed the threat of the coronavirus and gave poor advice to U.S. citizens. This is not of course to say that the current U.S. president intended for people to die of coronavirus; but it does illustrate he could well have indirectly contributed to citizens deaths by downplaying the virus, and playing up ‘cures’ that ultimately failed.

We should pause here to reflect on why the current U.S. President — or any leader similarly situated — looks indirectly culpable for such deaths, even if he isn’t nearly as culpable, say, when starting an unjust war. There is an obvious source of indirect culpability here: abusing the trust placed in them by his followers and constituents. If Harry knows his constituents trust him (whether this is poor judgment on their part or not), he bears indirect culpability for what happens to them if he knowingly gives them bad advice, and they act on it, especially if they wouldn’t have acted that way had they not trusted him. This would be wrong, just as it would be wrong for a physician to knowingly give dangerous medical advice to her patients, especially knowing they only took her advice because they trusted her good intentions and competence.

This is because, broadly speaking, when there is trust, there is vulnerability. When I trust that someone is competent and has my best interests at heart, I place myself in a vulnerable position that can be exploited by those with bad intent. The point generalizes to the ethics of leadership: a leader may be in a position to exploit their followers because of the trust placed in them by their followers, even though such trust is only placed in them on the condition that the leader has their best interests at heart. And if the leader used the trust to knowingly put their followers in harms’ way for their own end, they bear some responsibility for that bad outcome, even if it was unintended.

Moral Luck and the Judgment of Officials

photograph of empty tennis court and judge's chair

Novak Djokovic was defaulted from the US Open last week for violating the Abuse of Balls rule. During the first set of his quarterfinal match with Pablo Busta, he struck a ball to the back of the court without looking. This resulted in the ball hitting a line judge. The referee, Soeren Friemel, after consulting with other officials, made a ruling to bypass the Point Penalty Schedule and issue an immediate default. In other words, Djokovic lost the match, left the tournament, forfeited all of his winnings in the tournament, and is subject to further fines. In the aftermath of this incident, many of the TV commentators discussed issues of the severity of the injury to the judge, that the ruling was correct, and the bad luck of Djokovic. The bad luck was in reference to the fact that just as Djokovic was striking the ball, the line judge straightened up from her bent over position which put her head in the direct path of the ball.

As I watched the events unfold and before the ruling was made, I immediately began to think about the fact that the referee’s judgment was going to hinge on the problem of moral luck. This problem was initially discussed by Bernard Williams and Thomas Nagel in a two-part article in 1976. Dana Nelkin describes the problem as one that “occurs when an agent can be correctly treated as an object of moral judgment despite the fact that a significant aspect of what she is assessed for depends on factors beyond her control.”  In other words, judgments of moral approval or disapproval, including the imposition of sanctions, can depend upon accidents or choices by third parties. The problem can be exemplified by considering two teenagers drag racing. Both of them are using poor judgment as well as speeding. The car on the right is clearly pulling ahead of the car on the left (due, let’s say, to crummy spark plugs in the left car) when an animal darts out into the street from the left. Neither teen attempts to avoid hitting the animals because neither sees the animal. As luck would have it, even though the animal darts into the road from the left, the car on the left misses the animal but the car on the right strikes it. Is it really the case that the driver on the left is morally innocent compared to the driver on the right? Had it not been for the crummy spark plugs the driver on the left would have struck the animal; had it not been for the presence of the animal the accident would not have occurred at all.

What seems to be at issue here, Nelkin explains, is the acceptability of two ideas, one called the Control Principle and the other a corollary of that principle.

Control Principle (CP): We are morally assessable only to the extent that what we are assessed for depends on factors under our control.

CP-Corollary: Two people ought not to be morally assessed differently if the only other differences between them are due to factors beyond their control.

At first, these ideas seem to be intuitively acceptable. To accept them means that luck should play no role in moral assessment. But notice that they imply that in our stipulated example of drag racing that the driver on the left seems to be just as culpable as the driver on the right for hitting the animal — either both are culpable or neither is culpable. After all, the only difference between the two drivers are factors beyond the control of either driver and both were in control of the decision to drag race. So, what is to be questioned? Should the judgment that the two drivers have different levels of culpability be jettisoned or should CP and its corollary be abandoned?

This hypothetical case is analogous to the situation with Djokovic. A few points before the offending event, Djokovic much more angrily and with much more force slammed a ball into a side wall of the court. None was injured. He was not warned, given a point penalty, or given a game penalty.  But, given the rule, the earlier event was just as much of a violation of the rule as the latter event. It is worth seeing the rule in its entirety:

ARTICLE III: PLAYER ON-SITE OFFENSES

  1. ABUSE OF BALLS Players shall not violently, dangerously or with anger hit, kick or throw a tennis ball within the precincts of the tournament site except in the reasonable pursuit of a point during a match (including warm-up). Violation of this Section shall subject a player to fine up to $20,000 for each violation. In addition, if such violation occurs during a match (including the warmup) the player shall be penalised in accordance with the Point Penalty Schedule hereinafter set forth. For the purposes of this Rule, abuse of balls is defined as intentionally hitting a ball out of the enclosure of the court, hitting a ball dangerously or recklessly within the court or hitting a ball with negligent disregard of the consequences.

What should be noticed is that the mere act of hitting a ball “violently, dangerously or with anger,” regardless of whether anyone is injured, is sufficient to violate the rule. So, the earlier act by Djokovic was sufficient for Friemel to issue a warning in accordance with the Point Penalty Schedule. Nowhere in the code does it specify that Friemel may skip directly to default based on the poor luck of the ball hitting and injuring someone, though, as with all officials in sports, part of his job is to use judgment to make decisions.  But, it seems as if part of that decision to not issue a warning for the earlier outburst and to default Djokovic for the latter outburst included a rejection of the control principle and its corollary. Otherwise it seems as if the only difference between the two events was the placement of the line judge and the fact that just as Djokovic hit the ball she stood up in a way that placed her head in the direct path of the ball. Both of these elements were beyond the control of Djokovic. So, if CP is operative, then Djokovic seems to be equally culpable and equally deserving of being defaulted for the earlier outburst as for the one that resulted in the injury to the line judge. By abandoning CP, while Djokovic clearly violated the rule earlier, he did not need to be sanctioned because luckily the outcome was different.

But now comes the twist. It looks like other officials at the match bear some responsibility for the line judge’s injury.

What do we say about the Friemel’s non-application of the rule earlier in the match?  Furthermore, what do we say about the officials at the Western & Southern Open just a few days before who did not default Aljaz Bedene for hitting a camera operator in a similar situation? Here we have an almost identical set of facts, but the injury sustained by the camera operator did not require immediate medical attention, unlike the line judge injured by Djokovic. The rules do not make an explicit allowance for the severity of the injury to factor into the judgment of the officials, but in these three cases, the severity of the injury was considered. The different decisions make sense if we abandon the control principle because those different outcomes, that were due in part to factors beyond the control of the players, seem to allow for different judgments.

Now, all we have to do is accept that luck plays a role when making moral judgments. This implies that you can be morally culpable for things beyond your control. Friemel and the other tennis officials seem to be committed to this idea. But now that we know that consequences matter, it appears that Friemel and other officials should also be culpable in the injury of the US Open line judge. After all, if we let consequences matter, then we have to confront the suggestion that acts of omission resulting in bad outcomes are open to moral censure. By not giving Bedene a harsher penalty a few days before, and not even issuing a warning a few minutes before in the Djokovic – Busta match, the officials perform acts of omission. These acts of omission appear to support a claim that Djokovic could vent his frustration in violation of the Abuse of Balls rule without fear of serious sanction. The officials are thus, oddly, morally implicated in Djokovic’s transgression. They seem to be responsible for creating a situation in which Djokovic could behave this way. The resulting injury involves actions beyond their control (the line judge standing up and Djokovic hitting the ball). But by abandoning the CP and its corollary, they nevertheless appear to share in the responsibility of injury.

These observations — to accept or reject the CP as well as the implications of doing so — apply beyond sports. In any social arena, officials who are entrusted with making judgments may have more responsibility for the outcomes of their silence than they want to recognize.