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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.

Niti, Nyaya, and Kyle Rittenhouse: One Kind of Justice Is in the Details, but the Other Isn’t

photograph of courthouse columns and sky

On November 19th, roughly two-and-a-half weeks after his trial began, Kyle Rittenhouse was acquitted of all charges levied against him for killing two people; after twenty-seven hours of deliberation across four days, the jury decided that Rittenhouse’s claims to self-defense were justified and thereby legally absolved him of his responsibility for the deaths. While some might have been surprised by the verdict, legal experts generally were not; as The Prindle Post’s own Benjamin Rossi explains, the facts of the case — when set apart from the many, many partisan performances flashing around this trial — led to a relatively plain judgment, given the relevant laws in question: “…certainly in a procedural sense, and at least partially in a substantive sense, the verdict itself was not a miscarriage of justice.”

But, if I can briefly evoke Socrates before Thrasymachus here, what is ‘justice,’ anyway?

To listen to much of the commentary following the wake of the Rittenhouse verdict, ‘justice’ is a matter of careful adherence to the regulations of the justice system, with the understanding that said institution has been carefully crafted in a way that produces just results. This is, I take it, what we mean when we refer to justice in a “procedural sense” — it indicates that the processes and procedures undertaken to render the verdict were proper, so we can therefore be confident that the defendant’s rights and interests were protected throughout the trial. Insofar as those defendant-protecting processes constitute the “due process” owed and doled out fairly to all accused people in the system, then, this view of justice focuses on the arrangement of the institution and the technical application of its mechanisms to determine whether or not justice has been done.

This is markedly different, though, from the broader, perhaps more philosophical (or at least less-technical), sense of ‘justice’ as the realization of a just society or world filled with people who behave and are treated well, all things considered. To be concerned about ‘justice’ as a matter of promoting a flourishing community filled with well-respected individuals is far more complicated than merely maintaining a focus on the operations of particular social institutions (like the legal system), but it is, arguably, what we actually care about at the end of the day.

This distinction between an “arrangement-focused” and a “realization-focused” view of justice plays a key role in the work of philosopher, economist, and Nobel-prize winner Amartya Sen; calling the former niti and the latter nyaya, Sen points out that both of these are key concepts for socio-political theorists to consider, but that the latter should hold a priority. Both niti and nyaya are classical Sanskrit terms for ‘justice,’ but niti focuses primarily on technical applications of “organizational propriety” while nyaya is the more comprehensive concept upon which a “just society” can be recognized; so, in The Idea of Justice, Sen argues that “the roles of institutions, rules and organization, important as they are, have to be assessed in the broader and more inclusive perspective of nyaya, which is inescapably linked with the world that actually emerges, not just the institutions or rules we happen to have.”

Consider, for example, another imaginary case of Brian the 17-year-old who has been forced to regularly steal from his local grocery store to provide food for himself and his younger sister after his parents were hospitalized in a car accident. Knowing that thievery is illegal, we might simply conclude that Brian is a criminal and charge him accordingly; the hunger felt by Brian and his sister is regrettable, but it is well outside the scope of what niti is designed to care about. If you would hesitate to charge Brian with a crime, or even harbor a desire to see that the court system treat him with leniency, given the mitigating circumstances, then this likely stems from your desire to see nyaya (rather than just niti) upheld: we moral agents can recognize the difference between malicious or self-centered embezzlement (of the sort that anti-theft laws are typically designed to prevent) and Brian’s desperate attempt to care for his sister, even though Brian’s actions still violate the letter of the law. In a similar fashion, Sen illustrates the niti-nyaya distinction with a reference to the Holy Roman emperor Ferdinand I who (in)famously declared “Let justice be done, though the world perish”; says Sen, “if indeed the world does perish, there would be nothing much to celebrate in that accomplishment,” no matter how much niti might have been respected along the way.

What, then, of the Rittenhouse verdict?

It seems clear that, in terms of niti, justice might well have been upheld regarding the specific question of the killings for which Rittenhouse was charged. The morality of killing in self-defense is a wrought notion, but the legal precedents regarding its allowability are well-established and, by most accounts, the actual proceedings of the Rittenhouse trial centered almost entirely on these concerns.

But it is not at all clear that the Rittenhouse verdict protects justice in the sense of nyaya — indeed, the problem for many is that it can’t.

According to Rittenhouse, he drove to Kenosha, Wisconsin (from his home about 20 minutes away in Illinois) to serve as a “medic” for people trying to “protect businesses” from protestors after police officer Rusten Sheskey repeatedly shot Jacob Blake in the back a few days earlier. Although misrepresentations of the details have abounded, as Rossi points out, those details matter: although Rittenhouse did cross state lines to get to Kenosha, his rifle was already in Wisconsin waiting for him. Although the relevant regulations are complicated, if the gun was purchased illegally (as it apparently was), the blame falls on the purchaser, not on Rittenhouse; moreover (despite the intention of the law in question probably pertaining to hunting contexts) Rittenhouse was, technically, apparently acting legally by wielding it in public as he did.

Or rather, those details matter for procedural reasons. Although questions of the gun’s legality might not pertain directly to the charges Rittenhouse faced regarding the deaths he caused, we might still wonder why he chose to arm himself heavily and insert himself into the situation in Kenosha in the first place. We could, for example, doubt that the protestors in Kenosha ever posed an actual threat to businesses or anything else (indeed, with the exception of Rittenhouse’s shootings, the Kenosha protests — like most protests — were quite peaceful); it’s not clear why anyone on the streets of Kenosha would have actually needed either rifles or medics in August 2020. That is to say, it seems perfectly reasonable to think that Rittenhouse was breaking no laws by being in Kenosha on August 25th, 2020, and yet he still had no good reason to be in Kenosha.

And, of course, if he hadn’t chosen to go to Kenosha, then Rittenhouse wouldn’t have been in the situation where he feared for his life and was forced to act, according to the jury, in justifiable self-defense. But this focus extends far beyond the niti-based concerns of the legal system to broader questions about how we want society to operate, how we hope people will freely behave, and how we desire for virtuous individuals to flourish and help those around them to flourish likewise. On its own, “traveling to Kenosha” seems morally neutral, but “traveling to Kenosha because I should protect it — possibly even with violence — from the rioters threatening it” is a perspective loaded with serious moral assumptions and judgments that are not clearly virtuous. To criticize Rittenhouse’s actions in this broader sense (beyond simply asking “was he legally allowed to pull the trigger at the moment he chose to do so”) depends on one’s much richer perspective about what constitutes nyaya, or justice fully realized, altogether.

Consider this from a different perspective: the marches over the shooting of Jacob Blake were not protesting niti-related procedural infelicities that merely treated Blake inappropriately: they were outcries about the nyaya-based injustice of yet another black man (Blake) being attacked by a white police officer (Sheskey) and, in this case, left paralyzed (Sheskey faced no charges for shooting Blake). As many have pointed out, if Rittenhouse himself were not white, his trial — to say nothing of his arrest — would likely not have proceeded exactly as it did (nevermind the multiple literal job offers Rittenhouse has received since). So, although the niti-based details of the Rittenhouse trial might not have substantively included race, the nyaya-based context of the broader conversation certainly does: Rittenhouse’s experience is just one more example of the deference shown institutionally to specifically white bodies: a clear violation of nyaya, no matter how much it comports with niti.

In short, it seems clear and uncontroversial that people can commit injustices without technically breaking laws (consider how folks might escape just punishment on some “legal technicality” or other). Sen’s distinction between niti and nyaya can help us to speak more clearly about the dissatisfaction we feel at those times, even if technical procedures are perfectly honored. The problem might well lie in the broader, unjust context altogether.

What Toilet Paper Can Teach Us About Climate Change

photograph of empty toilet paper rolls stacked

One of the stranger parts of the COVID-19 pandemic has been people’s sudden obsession with bathroom sanitation. While there was never any pandemic-related disruption to the supply chain, nor the risk of even the strongest lockdown measures in place preventing people from buying essential groceries, many found themselves overcome by a desperate need to panic-buy vast quantities of toilet paper. Ultimately, this created a self-fulfilling prophecy in which paranoid hoarding led to the very shortage that had been feared. A similar scenario played out earlier this year when a cyberattack on Colonial Pipeline led to gasoline shortages throughout the East Coast. Panic-buying ensued once again, with individuals stockpiling vast quantities of fuel and further exacerbating an already struggling supply line.

Many of us might have the intuition that hoarding of this kind is wrong. But why? There are many ways we might try to determine the moral rightness or wrongness of an action. One of the simplest is to see whether it causes harm to others. But that’s not hugely helpful here. Suppose I hold a one-hour exam information session for my class of sixty students. In order to be fair, each student is given one minute in which to ask any questions they might have. Suppose, then, that one student ignores this guideline, and instead monopolizes a total of two minutes for her queries. It seems wrong of her to do this. But why? It’s not clear that her actions harm her fellow classmates. The extra minute she takes only subtracts slightly more than a second from each of their times – hardly enough to make an appreciable difference.

One way of explaining the wrongness of this student’s action is instead to claim that she is taking more than her fair share. We often find ourselves having to divide a finite resource amongst some group of individuals: time in a meeting, pizza amongst friends, holidays between family members. And in each of these scenarios there is, presumably, a fair way of making that division – one that gives full consideration to the interests of all individuals concerned. Once that allocation has been made, exceeding your fair share is wrong, regardless of whether it results in actual harm to others. This is precisely the kind of approach we might take toward food in a famine and water in a drought – and it explains what’s wrong about taking more than your fair share of toilet paper during a pandemic, too.

For many, the fair share approach may be so obvious as to appear trivial. But it can help inform our approach to far more complicated problems – like 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% would require us to keep our global carbon expenditure below 2900GtCO2. As at the time of writing, only 605GtCO2 remains. Divided equally amongst the 7.9 billion population of earth, this comes out at a lifetime carbon allowance of 76.6 tonnes of CO2 per person — or around 0.9 tonnes per year over an 85-year lifespan.

Of course, it might be the case that a fair share isn’t necessarily an equal share. Another way of dividing up the carbon budget might be to instead require a proportional reduction in carbon emissions by all emitters. Put another way, this requires that everyone’s emissions peak around 2020, drop 50% by 2045, and fall below zero by 2075. The problematic side of this approach is that it allows historically high emitters to continue to emit at a much greater rate than many others around the world. As such, it provides a far more generous carbon budget for those living in a country like the U.S. According to Carbon Brief, a child born in the U.S. in 2017 will – on this approach – have a lifetime carbon budget of 450 tonnes of CO2, or 5.3 tonnes per year over an 85-year lifespan. By contrast, a child born in the same year in Bangladesh will receive only 4 tonnes of CO2, or 0.05 tonnes per year.

Of course, other factors may come into play in determining what a ‘fair share’ of carbon emissions is for each individual. One such factor is need. Suppose, for example, that I live in a part of the country where the only electricity production I have access to is derived from a coal-fired power plant. In such a case, I might necessitate a higher budget than someone who lives in a location with renewable energy options.

But the precise method by which we determine a fair share of carbon emissions is largely academic. This is because – even on the most generous allocation – we are all still horribly over-budget. In 2019 (the most recent year for which data is available), the per capita carbon emissions of a U.S. citizen was around 16 tonnes of CO2. Ultimately, this means that there is a moral imperative on each of us to do all we can to reduce our future emissions in any way possible. Some actions – like recycling and patronizing public transport – may be easy, but other changes (like the one I suggested in a previous article) may require much greater sacrifice. But without these changes, we – like those who hoarded toilet paper and gasoline – will continue to take far more than our fair share, and subsequently treat others unfairly in the process.

Considered Position: On Voluntary Non-Vaccination – Real World Complications

photograph of child among masked crowd

This piece concludes a Considered Position series that examines our evolving moral duty to those choosing to remain unvaccinated. To see the earlier segments, start here (Part II).

In Part I of this series I tried to explain the moral intuition that I have less reason to engage in precautionary social-distancing behavior once those who are unvaccinated are unvaccinated by choice rather than because they could not access the vaccine. This intuition, I argued, is explained by the fact that justice mainly requires us to give people reasonable options for safety and does not require us to make others safe.

In Part II, I looked at what it takes for an option to be reasonable, and we realized that this is often sensitive to the reasons that someone does not want to get a vaccine. If someone’s objection to the vaccine is reasonable, then justice may still require me to adopt precautionary behavior.

In both posts, I idealized the questions at hand. I ignored real life complications, and just tried to identify the abstract principles involved. For that reason, my cases were often unrealistic, involving such absurdities as the unvaccinated engaging in moral blackmail or people taking pills to make themselves allergic to the vaccine.

In this final post, I want to turn to the real world and look at some of the complications which make this a difficult ethical question.

Complication 1: We judge the reasonableness of others in biased ways

We saw in Part II that if the other person has reasonable grounds for refusing the vaccine, then justice still requires me to protect them by social distancing (even if their grounds are mistaken). One challenge, however, is that we tend to be biased in our own assessments of what are reasonable grounds.

Consider, for example, the following two suggested grounds of vaccine hesitancy:

Skepticism 1: Distrust of a Racist Healthcare System

Some Black people in the U.S. are reluctant to get a vaccine due to distrust of the American medical system. While this is sometimes attributed to historical injustices, like the Tuskegee study, it is more plausibly explained by current disparities in health care treatment. (It also, as a whole, might just be overblown; but we will put that aside for now.) The thought might go as follows:

“As Ben Almassi has argued in the context of organ donation, there are good grounds, given persistent racial health inequities, for Black people in the U.S. to distrust that the medical system has their best interest at heart. But if one has good reason to distrust the health system, then one also has good reasons to distrust the recommendations of the health system. This is especially true because we know that drugs and vaccines can sometimes affect different racial groups differently, and we also know that Black people tend to be massively underrepresented in vaccine trials (even when those rates are reported).”

Skepticism 2. Distrust of the Liberal Narrative 

Some conservatives are reluctant to get the vaccine due to distrust in the way that mainstream media portrays medical information. They might say things like:

“Putting aside worries that the COVID threat was overhyped to sink former President Trump’s reelection chances; we have seen a systematic tendency for the media to provide unreliable coverage on how to respond to the vaccine in order to fit its preferred political narrative. First, we see the same caseloads suggest different reactions depending on who is in charge. The week after President Biden was sworn in, long before any change in policy could have altered risk, blue states began opening up and schools began seriously trying to return students to in-person education. That was true, even though the absolute case numbers were still worse than they were in the summer when everyone insisted things needed to be shut down under President Trump.

Then, of course, ‘the Scientists’ consistently lauded Democratic governors like Andrew Cuomo and panned Republican governors like Ron Desantis. And yet, we have consistently found that the media narrative was backwards. Florida, despite an extremely old population, came out of the pandemic pretty well, with a much stronger economy, and with many more kids staying in school. This is not just cherry-picking. Republican states, on average, had fewer deaths and caused significantly less damage to the economy. Then ‘the scientists’ told us to take our kids out of school, but didn’t object to massive unmasked Black lives matter protests. ‘The scientists’ told us not to wear masks, until they needed a social symbol for purposes of public shaming.”

I bring up these two explanations of skepticism, not because I find them equally plausible, but because I don’t find them equally plausible. Intuitively, I find the first reasonable and the second ludicrous. But here is the issue: it’s hard to identify any objective reason the first is more reasonable. Sure, it fits better with my own preferred political narrative; but I think there are decisive objections to both lines of reasoning, and I don’t think the errors in one are in any sense more egregious than the errors in the other.

The danger, then, is that I am more sympathetic to members of what I see as my political in-group. But that differential in sympathy means I’m especially likely to inconsistently apply a standard as squishy as ‘reasonable.’

I don’t have a good solution here, and so just advise extreme caution when you label political allies reasonable or when you label political opponents unreasonable.

Complication 2: Immunization isn’t up to some people

While there are few, if any, groups in the U.S. for whom it would be dangerous to get the vaccine. There is some evidence that immunocompromised patients, while they can safely get the vaccine, do not always produce the required antibodies.

Similarly, there is a group of people in the U.S. who cannot choose to vaccinate: children. This is true in the limited sense that the vaccines are not currently approved for use in children below the age of 16. But it is also true in the sense that, even once the FDA approves the vaccine for children, children cannot choose to be vaccinated without a parent’s permission. Unvaccinated children, then, might not be unvaccinated by any choice of their own.

These are important complications, but I’m not sure that on their own they would show you must socially distance until we reach herd immunity (on the hypothesis that there are a large percentage of vaccine skeptical holdouts). Children are far less susceptible to COVID-19, and only a very small portion of the population are severely immunocompromised. Given these facts, the threat posed to children and the immunocompromised is far smaller than the risk posed by pre-pandemic activities when most people did not have access to the vaccine. Certainly, you should engage in some precautionary measures, especially if you know you are likely to be around someone who is immunocompromised. But it is unclear that those are any different than the ordinary obligations one has during flu season.

Complication 3: Deception and consent

One further complication is that deception tends to undermine voluntariness. For example, if I lie to you about the results of a surgery, then your consent to that surgery does not actually constitute voluntary consent. Similar issues arise about sexual consent.

Or suppose you told your friend that you would pick them up from the airport. But then I, just for the fun of it, lie to you and tell you that your friend’s flight was delayed, that they were not able to reach you, and that they don’t need a ride after all. If you don’t pick your friend up from the airport, then breaking the promise was involuntary. It was involuntary because I am the one who bears responsibility for your failure.

Now, if it is true that deception can undermine voluntariness, then one worry we might have is that there may be a good number of people who refuse the vaccine because they were lied to, and if so, it is those who lied who bear the actual responsibility for the non-vaccination.

One reason this is an important point to notice, is because a lot of people are especially likely to think that those with unreasonable reasons for refusing the vaccine accept those reasons because they are being lied to by their media ecosystem. Thus, many on the left think the vaccine hesitancy on the right is ludicrous, but those same people on the left are also likely to think that Fox News, OAN, or Newsmax, are systematically deceiving their viewers. Similarly, many on the right think that concerns of racism are blown way out of proportion, but those same people on the right are also likely to think that mainstream media organizations — like CNN or The New York Times — are providing systematically distorted information on those very issues.

Indeed, it is not just cases of outright lying that might trigger a shift in responsibility. Not only do I preclude the voluntariness of your action by lying to you, I do the same thing if I tell you something false when I should have known better. If I tell you something false but am really honestly trying to tell you the best I know, then your actions are still voluntary. You made the choice to trust me in good faith. But if I am not acting in good faith myself, then I am the one at fault when you err.

Conclusion

So once vaccines are widely available (such that the unvaccinated are mostly unvaccinated by choice) but before we reach herd immunity (due to widespread vaccine hesitancy) can you return to pre-pandemic behavior?

As we’ve seen, this is a difficult question. However, it seems likely that the right answer is generally yes. For the most part, because it is reasonable to expect people to get the vaccine, it is reasonable to return to behaviors that would be safe were others to be vaccinated. This is true, even without factoring in the fact that the vaccinated are very unlikely to spread COVID. And so, it does seem like justice allows life to return to normal.

However, we have also learned an important moral lesson about what it takes to justly live together in a society. For justice to allow us to return to pre-pandemic activities, it does not just require the vaccine to be widely available. It also depends on other people being able to voluntarily refuse the vaccine. And as it turns out, there are complicated ways in which we can undermine the voluntariness of other’s actions. When we are not fastidious about what we tell others, we risk undermining their own capacity to make voluntary choices. If I thoughtlessly spread misinformation or repeat something as fact that I am only pretty sure of, then I undermine one of the fundamental building blocks of our system of justice.

My own testimonial irresponsibility undermines the voluntariness of those who believe me in good faith. And systems of justice largely depend on the mutual voluntariness of everyone’s choices. This is one reason why lying and bullshitting are such profound moral wrongs. It is not just that others end up with some wrong beliefs (we all have a bunch of misguided convictions), but that other people are rendered, in a sense, passive in relation to your choices. By breaking down even a small portion of the reciprocal norms of justice, you don’t just lie to another but partially bring the whole system of justice down on top of you.

Considered Position: On Voluntary Non-Vaccination – Types of Reasons

photograph of masked and unmasked people in a crowd

This piece is part of a Considered Position series that examines our evolving moral duty to those choosing to remain unvaccinated. To see the earlier segments, start here.

Hopefully pretty soon, my state, Florida, will reach the point that anyone who wants to be vaccinated can be vaccinated. In Part I of this series, I argued that once we reach that point, I have fewer reasons of justice to engage in aggressive social distancing. After all, everyone has the option to get the vaccine and so protect themselves from whatever risks I impose by my everyday activities.

In that argument, however, I ignored an important variable in our assessment of justice: why are people not getting vaccinated? This is important because different reasons give rise to different duties on my end.

To see this, let’s start with a particularly extreme contrast of cases:

Coordinated Moral Blackmail: Suppose that herd immunity requires that 80% of the population get vaccinated. But while 60% of the population are excited to return to normal and immediately get vaccinated, the other 40% coordinate together and refuse to get vaccinated until their demands are met. The 40% realize that the other 60% don’t want to put anyone’s health at risk, and so they refuse to receive the free vaccine unless the other 60% agree to collectively pay each person in the 40% camp three hundred dollars. By engaging in ordinary, non-social distancing activities, the 60% will put some people at risk. However, the only people who will be put at risk are those who voluntarily refuse to get vaccinated as a tool of moral blackmail.

Widespread Deadly Allergy: Suppose that herd immunity requires that 80% of the population get vaccinated. Let us also suppose that one of the weird things about this vaccine is that it produces a severe, possibly fatal, allergic reaction in people with peanut allergies. But while 60% of the population have no allergies and so get the vaccine, the other 40% all have severe peanut allergies and so forgo vaccination until a safer vaccine is approved. By engaging in ordinary, non-social distancing activities, the 60% will put some people at risk. However, the only people who will be put at risk are those who voluntarily refuse to get vaccinated because the vaccination is not worth the risk of anaphylaxis.

I presume that you share my intuitions about these two cases. In the first case, the 60% have no reasons of justice to forgo returning to pre-pandemic life. But in the second case, the 60% still have reasons to social distance. Indeed, I would think that the 60% in the second case have duties pretty similar to the duties we would have if the vaccine were only available to 60% of the population.

Normally, if someone voluntarily chooses to forgo the vaccination that changes my duty of justice. However, it only makes a difference to duties of justice if we can reasonably expect the person to get the vaccine.

It is unreasonable to expect someone to take a very risky vaccine, just as it would be unreasonable to expect a family to bankrupt themselves to buy the vaccine. But such pragmatic concerns are not the only relevant ones. For instance, if it is unethical to get the vaccine, say because it was produced by slave labor, then again if the majority of the population refuse the slave made vaccine, justice requires me to continue to maintain pandemic precautions.

If it would be a mistake to get the vaccine, then I am still bound by the same norms of justice to engage in precautionary behaviors. If people truly believe that they should not get the vaccine, then I can’t reasonably expect them to vaccinate.

But what if instead people falsely believe there is a problem with vaccines? Well, in that case things become more complicated. There are two kinds of error that could explain why one thinks a right action is wrong, both of which are described by Elizabeth Anscombe. First, one might be wrong about the ‘facts on the ground,’ the circumstantial descriptions of what is going on — for instance, one might think the vaccine is less safe than it is, or one might falsely think it is produced by slaves. Second, one might be wrong about the moral implications of those ‘facts on the ground.’ For instance, one might know the risk is tiny, but have the false principle that one cannot be expected to undergo even the smallest possible risk for the public good. Following a convention that I use in my own work, let’s call the first an error about circumstantial facts and the second an error of classificatory facts.

Error 1: Mistakes about Circumstance

The COVID vaccines are not, on the whole, very risky. The consensus judgment of the medical community is that the vaccines, like most vaccines, are safe and effective. But even if the vaccines are safe, some people might believe them to be unsafe. And this raises a question of whether such honest beliefs change my own reasons of justice.

Widespread Error of Belief: Suppose that herd immunity requires that 80% of the population get vaccinated. But while 60% of the population get the vaccine, truly believing that vaccines are safe and effective, 40% of the population mistakenly believe that the vaccine is dangerous. By engaging in ordinary, non-social distancing activities, the 60% will put some people at risk. However, the only people who will be put at risk are those who voluntarily refuse to get vaccinated as a result of mistaken beliefs.

In this case, does justice require me to forgo pre-pandemic activities? To answer this question, we need to know more information. In particular, we need to know why people have the false belief.

Suppose that preliminary scientific studies, incorrectly, suggest that the vaccine is unsafe for pregnant women. This information is widely announced and the majority of scientists and doctors accept the result. As it turns out, however, the conclusion is the result of a subtle mathematical error that no one has yet noticed.

If the best scientific evidence suggests that pregnant women should not get the vaccine, then it is clearly unreasonable for you to expect pregnant women to get the vaccine. It does not matter that the studies are wrong, because you cannot expect the average person to realize that the studies are wrong. If this is right, then at least some of the time false beliefs about matters of circumstance (such as the safety of belief), really do make it unreasonable for me to expect you to be vaccinated.

But not all mistaken factual beliefs work that way. Now imagine someone who is profoundly lazy and just assumes vaccines are unsafe. Because they are lazy and do not care about public health, they never bother to do any research to check whether their assumption is right.

We can accept that the person really thinks that the vaccines are unsafe. And we can further accept that the person cannot, by a voluntary act of will, get herself to believe the vaccines are unsafe (for instance, you cannot, at this very moment, choose to believe there is an elephant behind you even if I offered you five hundred dollars to form the belief).

So suppose our imagined interlocutor says: “I’m not getting a vaccine because I really believe they are unsafe; ultimately I don’t choose what I believe, so you can’t blame me for not getting vaccinated.” Is this right? Does the fact that we cannot choose our own beliefs mean we cannot be blamed for our false beliefs?

Elizabeth Anscombe, in her article “On Being in Good Faith,” argues this line of thought is mistaken. While good faith belief can make one’s behavior reasonable. A good faith belief, in the sense that excuses behavior, requires more than you really believing the thing you say you believe:

“Consider a rash and uncharitable judgement which led one to slander someone gravely. One does not – usually at least—say to oneself ‘Now I will judge rashly’ or ‘I am determined, rash as it is, to judge that so-and-so’- one simply judges rashly. What does ‘in good faith’ mean? If it means that one has not got one’s tongue in one’s cheek, is not consciously lying or hypocritical, then good faith is not enough to exonerate. If it is enough to exonerate, then the slander uttered under the influence of a rash and passionate conviction is not a statement made in good faith. . . . Thus good faith or sincerity are either not much good as a defence, or not so easily assured as we might think at first. . . . ‘He ought to have realised…’, ‘He ought to have thought of…’, ‘He had no business to suppose that…’, ‘He ought to have found out…’, are phrases that bear witness to the fact that a man’s beliefs do not suffice to justify him so long as he acts accordingly.”

What Anscombe is arguing is that one can be responsible for false beliefs if we could have expected you to know the truth. If the reason you have a false belief is because the entire scientific community is mistaken, we can’t expect you to know any better. But if the reason you have a false belief is because you are too lazy to do research, then of course we can blame you for your error.

If I accidentally kill a child because I didn’t know they had a deadly carrot allergy, then I’m usually not responsible for that death. However, if the only reason I don’t know about the allergy is because I skipped our camp’s health and safety meeting, then I am at least somewhat responsible. I can’t object that ‘I didn’t know,’ because I should have known.

The same principle applies to vaccines. If you have a false belief that might make your non-vaccination reasonable, but it only does so if we could not have expected you to know better.

Error 2: Mistakes about Classification

What about cases of moral ignorance? That is, someone knows all the ‘facts on the ground,’ but she mistakenly thinks that those facts mean she should not take the vaccine.

Some philosophers think moral ignorance is unique, that while circumstantial ignorance can excuse, moral ignorance never can. Other philosophers disagree. (I discussed that debate at length in a previous Prindle Post.)

In this context, however, it seems that moral ignorance is probably not unique. That is because we want justice to allow for at least some moral pluralism. If there are no reasonable, though false, moral principles; then the project of democratic pluralism is in serious danger. If we want to live together in society with at least some level of deep moral disagreement; then we should acknowledge the reasonability of people acting on at least some moral principles we think are wrong.

Now, in our society we don’t have widespread reasonable moral ignorance preventing us from reaching herd immunity. But there are at least some real-life cases where it is reasonable to wrongly refuse a vaccine on moral grounds. A good example is those who don’t want to take a vaccine that was created via use of aborted fetal tissue. This seems to me to be to be too morally fastidious, but the reasoning is not unreasonable, and I do not think we can expect people to never make that error.

Conclusion

The reason that people refuse the vaccine matters. If they are right to refuse it, then one is just as responsible to take precautionary actions as one was before the vaccine became available. If they are wrong to refuse, then the question becomes whether or not it is reasonable to expect them to take the right action. If their incorrect refusal is explained by a reasonable form of circumstantial or moral ignorance, then justice continues to make the same demands.

Continue to Part III – “Real World Complications”

Considered Position: On Voluntary Non-Vaccination – The Difference Voluntariness Makes

photograph of people walking and biking in masks

This piece begins a Considered Position series that examines our evolving moral duty to those choosing to remain unvaccinated.

My state, Florida, recently opened up COVID vaccinations to everyone. This does not quite mean that anyone who wants to be vaccinated can be vaccinated. There are still a limited number of vaccines available, so not everyone who wants to get vaccinated has been able to schedule an appointment. But we are getting close to the point where those who remain unvaccinated are unvaccinated by choice.

This raises a question: does the fact that the vulnerable choose to remain vulnerable make a moral difference to what precautions I should observe? I have the strong intuition that this does make a moral difference; it intuitively seems that imposing risks on the unvaccinated is not as bad when the unvaccinated are unvaccinated by choice. (The evidence increasingly suggests that the vaccinated cannot really spread COVID-19, and if that is confirmed it will render much of this practical discussion moot. However, the underlying philosophical questions are important and worth investigating.)

But is my intuition that I can be less cautious correct? 

In this, and two subsequent posts, I will try to answer that question. Each post will be dedicated to one part of an answer.

  • Part I: What principle underlies the intuition that the voluntariness of non-vaccination makes a difference to my own actions? And is that principle a true moral principle?
  • Part II: Does it matter why others are choosing not to be vaccinated? Are there differences, for example, in how careful I should be around someone who avoids vaccination because they think COVID-19 is overblown or around a pregnant mother concerned about the lack of trial data in pregnant women?
  • Part III: How do the complexities of real life complicate the moral calculation? What are the implications of the fact that children cannot get the vaccine without a parent’s permission? And is someone’s choice really voluntary if that person was lied to about the safety of vaccines?

In this first post, I want to investigate what principle might underlie my intuition that I have fewer obligations of caution to those who are voluntarily unvaccinated. To identify the principle at work, it will be useful to start with a simple argument that voluntariness should not make any difference. The thought goes as follows:

  1. During the pandemic, I avoid certain behaviors — such as licking doorknobs — to avoid spreading illness and death.
  2. If someone forgoes vaccination, the reason they forwent vaccination makes no difference to their susceptibility to illness and death.
  3. So, people being unvaccinated by choice makes no difference to my reason to avoid certain behaviors.

Let us call this the ‘simple utilitarian perspective.’ The simple utilitarian thinks that because voluntarily refusing a vaccine conveys no immunological protection, the fact people voluntarily forgo the vaccine makes no difference to my moral calculation. If you are in a community where 40% of people are unvaccinated by choice and I am in a community where 40% of people are unvaccinated because of a limited supply of vaccines, then the simple utilitarian says we are in a morally equivalent position.

The Utilitarian Explanation of the Difference

I call this the ‘simple utilitarian perspective’ because there is a perfectly good utilitarian argument against this reasoning. It is true that it makes no difference to my own risk whether I cannot get a vaccine or whether I choose to not get a vaccine; in either case I am unvaccinated. However, that does not mean that if you compare a random person who could not get the vaccine to a random person who chose to not get the vaccine, that the average risk is the same. Assuming people are at least somewhat rational, people at higher risk are more likely to choose to be vaccinated.

Even if utilitarians only ultimately care about happiness, they still will place some value on freedom. When people are free to make their own choices, they can make choices that are best for themselves. The elderly are at greater risk than the young are. As such the elderly are more likely to choose to vaccinate. Similarly, those who are very healthy — and without any risk factors for COVID-19 — are more likely to forgo vaccination because their risks of contracting it are smaller.

All this means that it’s probably safer to resume licking doorknobs once everyone had the choice to get the vaccine because those at highest risk will also be vaccinated at the highest rates.

Going Beyond the Utilitarian Answer  — This might partly explain my intuition, but it cannot be the whole story. This is because my intuition persists, even when I know the utilitarian explanation does not apply; for example, even if I know that the person is forgoing a vaccine for a reason unrelated to personal risk — like because ‘vaccines don’t fit with their personal style’ — I still intuitively feel I have less reason to be cautious.

Distributed Responsibility 

Part of the intuition is explained, I think, by the fact that people who are unvaccinated by choice will share some of the responsibility when they get sick.

If the only way to prevent people from getting sick is if I stop licking doorknobs, then by licking doorknobs I take on complete responsibility for their illnesses. However, if there are two ways to prevent people getting sick — I stop licking doorknobs or they get vaccinated — then at worst I am only partially responsible. They share in responsibility by declining the vaccine.

If we imagine other more ordinary behaviors, like frequent grocery shopping rather than doorknob licking, then the other person actually bears most of the responsibility for getting sick. It seems more reasonable to ask them to get vaccinated than to ask me to stay indefinitely in lockdown; the more reasonable the choice you reject, the more responsible you are for the consequences of that rejection.  (This, then, is why you might feel I am mostly responsible if I really were licking doorknobs; licking doorknobs was not a reasonable thing to be doing in the first place.)

This idea, that the choices of others can mitigate our own responsibility is prominent in both ethics and law. I like how Christine Korsgaard presents the idea in her discussion of our responsibility for the consequences of lying:

“In a Kantian theory our responsibility has definite boundaries: each person as a first cause exerts some influence on what happens, and it is your part that is up to you. If you make a straightforward appeal to the reason of another person, your responsibility ends there and the other’s responsibility begins. But the liar tries to take the consequences out of the hands of others; he, and not they, will determine what form their contribution to destiny will take. By refusing to share with others the determination of events, the liar takes the world into his own hands, and makes the events his own.”

Going Beyond the Distributed Responsibility Answer — But if this is the explanation of the intuition, then we have a problem. There is something morally vicious about someone who is solely concerned with avoiding responsibility. The virtuous reason to take precautions is not to avoid responsibility for someone’s death, it is to save people’s lives.

To see this, let’s look at an example from my own life (an example I still look back on with shame).

Years ago, an acquaintance of mine expressed an intent to commit suicide. I became deeply distressed, was unsure how to proceed, and grew paralyzed by indecision. So, I reached out to two mentors of mine, both of whom had experience working with suicidal people.

Reaching out was the correct thing to do; I did not know how best to offer help. The problem was the reason I reached out for help. Ultimately, it was not so that I could better support this acquaintance. Rather, I was racked by anxiety about messing up and becoming responsible for the person’s death. I reached out to these mentors because I knew that it would be irresponsible to not follow their advice. Deep down, I wanted to reach out because that way, even if the person did kill herself, at least I would not be blameworthy.

Why think this is morally perverse? Most simply because my own guilt was not the important good at stake in the choice. The thing that mattered was my acquaintance getting the help she needed; decreasing my own culpability if things went badly was not anywhere near as important! (For a more detailed discussion of the way in which a concern for our own responsibility distorts our moral reasoning, see Elizabeth Anscombe’s article “On Being in Good Faith.”)

Reasons of Justice

Even though we should not be strongly motivated by a concern to avoid responsibility; there is a close connection between what we should do and what we would be responsible for not doing. So, this difference in how responsible I would be if someone gets sick might not explain why I have weaker reasons to take precautions, but it is evidence that my reasons are weaker.

But if I do have weaker reasons, then that must mean that my reasons to take precautions are not quite so simple as I have reasons to keep people from getting sick. And this is the key to unlocking the puzzle. While I do have reasons to lower the risk that other people get sick, I have especially important reasons of justice to give people control over their own risk.

Before the vaccine is widely available, if I go around engaging in ordinary risky activities, I impose risks on others that they cannot reasonably avoid. They have no control over whether what I do poses a risk to them. As such, it is reasonable to expect me to forgo certain activities for the sake of maintaining some minimal freedom for others.

After the vaccine is widely available, however, the risks I impose on others are risks that can be reasonably avoided. Others have control over how large a risk my frequent grocery shopping imposes on them. People have the option of safety. Whether they take that option makes some difference to my reasons for infrequent grocery shopping; but it is a less stringent reason than my reasons of justice to avoid imposing unavoidable risks.

Justice is that virtue which enables us to live our own life in community with others; as such, it is the virtue that sets boundaries on what I can choose, where those boundaries mutually accommodate the choices of others. We can drive faster now that every car comes equipped with seatbelts. Why? Not because everyone always uses their seatbelts, but because everyone having access to seatbelts ensures that everyone has a free option that allows them to maintain their previous level of safety even as I start driving faster on highways.

Justice is focused on whether people have choices of health, and not whether people are healthy. For example, justice requires that we provide those who are starving with food, but it does not require us to force feed someone who refuses to eat. Were this not true, then justice could actually harm our ability to live our own life in concert with others by giving rise to certain kinds of moral blackmail. Suppose I have no objection to being vaccinated and a high personal risk tolerance. As such, I insist that unless you pay me one hundred dollars I will not go and get a vaccine. If your duties of justice meant that as long as I forgo the vaccine, you cannot return to pre-pandemic activities, then I would be able to hold your actions hostage by means of your duty of justice.

Justice, of course, is not the only virtue. I also have duties of charity. And indeed, one of the things that makes charity so demanding is precisely that it opens us up to this kind of moral blackmail. To love another person requires caring about even their self-made misery. Charity is not ultimately about living your own life; it demands instead that you live, at least in part, for others. This is why charity is such a high and holy virtue; and in turn why even if everyone who forgoes a vaccination does so for entirely voluntary reasons, that does not end all duties of precaution.

Conclusion

Of course, in real life things are a little more complicated. For example, some people are forgoing the vaccine for trivial reasons while others seem to have reasonable concerns. Does my duty of justice change depending on why others are not being vaccinated? That will be the topic of Part II.

Continue to Part II – “Types of Reasons”

Under Discussion: Law and Order, Human Nature, and Substantive Justice

black-and-white photograph of lady justice

This piece is part of an Under Discussion series. To read more about this week’s topic and see more pieces from this series visit Under Discussion: Law and Order.

For many, the end of this week marks the passage of a six-month period of American history characterized by throbbing dystopian existential dread. The pandemic has been the score to a dark production that, when the spotlight was hot, turned out to be a series of character studies that no one asked for nor were particularly interested in watching. With hundreds of thousands dead and millions more left with lives permanently affected by the virus, the richest among us have become much richer not just during the pandemic, but because of it, and many who were thriving at the start of this year now find themselves evicted from their homes with nowhere to go. What’s more, police brutality and systemic injustice have packed our streets with protesters demanding meaningful change. Looting and rioting have occurred, which has motivated the federal government to respond with force not just against people violating the law, but against reporters and peaceful protestors as well. Against this backdrop of chaos, the President of the United States clenches his fist and calls for “law and order.”

In Plato’s Republic, Glaucon, one of the characters in the dialogue, provides a justification for the existence of laws that paints a grim picture of human nature. He argues that being unjust is in everyone’s interest, presumably because doing so allows a person to satisfy all of their desires. However, in a world populated by other individuals possessed of strength and skill, no single individual can get away with being unjust all of the time. This is why laws are necessary. Glaucon says, “When men have both done and suffered injustice and have experience of both, not being able to avoid the one and obtain the other, they think that they had better agree among themselves to have neither; hence there arise laws and mutual covenants; and that which is ordained by law is termed by them lawful and just.” If Glaucon is right, we are all, at our core, interested in promoting our self-interest, and we relinquish our ability to do so only so that we won’t be harmed by others attempting to do the same. Without the strict enforcement of the laws, we will inevitably descend into division and outright battle with one another — it’s in our very nature to do so.

If this is the right way of viewing things, then the state is justified in acting forcefully to protect us from ourselves and from each other. The government is the only entity preventing us from tearing one another apart for our own selfish reasons. When people call for law and order, they are calling for governmental intervention against perceived danger at the hands of people who they view as scarcely more civilized than beasts. One important corollary of this kind of view of law and order is that executing the law, whatever that law might be, is just.

There are a number of serious problems with this theory regarding the relationship between law and justice. First, some laws are morally and rationally indefensible. In these cases, the cry for “law and order!” is a cry to violate rights or to bring about a worse rather than a better state of affairs. For example, when slaves that escaped from captivity were returned and punished when captured, technically demands for “law and order” were being satisfied. This example highlights the need for a more substantive account of justice according to which just laws are not just agreements between self-interested persons, but instead are designed to promote some objective good or to prevent some objective harm.

Second, this kind of demand for “law and order” doesn’t do anything to ensure fairness in practice. This is because the entities that people are inclined to describe as “beastly” and “threatening” are determined by prejudices and tribalism. Calls for “law and order” tend to be demands to prevent or punish certain kinds of crimes committed by certain categories of people — usually poor people and members of minority populations. People don’t want to see vagrancy, public intoxication, and petty crimes on their streets, but they don’t make much of a fuss about corporations violating environmental regulations in ways that endanger the health of members of nearby communities and create unsafe living conditions for future generations. People want crimes against property to be punished but aren’t up in arms about the losses people experience due to insider trading and other kinds of white-collar crime. People want populations that they view as “scary” out of their neighborhoods, but they aren’t concerned about whether individuals and institutions doing significantly more harm end up getting away with it. Corporations and men in suits don’t tend to frighten people.

People who demand “law and order” often want proportional retributive justice for the members of the groups that they find threatening. The more power, wealth, and privilege a person has, the less likely they are to be punished severely. For example, consider Felicity Huffman, a rich actress who committed fraud to get her daughter into a good college. She was sentenced to 14 days in prison. For rich people who can afford good representation, the criminal system is a revolving door — they are out before they even have time to process the fact that they were in. Privileged populations almost never face society’s most serious punishments. As Supreme Court Justice Ruth Bader Ginsburg famously said, “People who are well represented at trial do not get the death penalty.” Good representation is expensive.

At the end of the day, if “law and order” is just a social construction that people agree to protect their own interests, then the entities with the most power in society will see to it that the laws end up protecting their interests first and foremost. After all, we don’t all actually consent to the laws. Many citizens are politically disenfranchised because of their life circumstances. Representatives rarely end up actually speaking for these people.

The picture of human nature according to which we are each self-interested individuals protecting ourselves from harms caused by other self-interested individuals is psychologically impoverished. We are beings that can and do care about others. We are capable of empathy and altruism. Our criminal justice system could be a real justice system, where that term means something more than shallow retributivism. To protect the well-being and basic dignity of all people, the call should not be for “law and order!”, but for “Justice!”, which is rarely the same thing.

Life-Life Tradeoffs in the Midst of a Pandemic

photograph of patients' feet standing in line waiting to get tested for COVID

Deciding who gets to live and who gets to die is an emotionally strenuous task, especially for those who are responsible for saving lives. Doctors in pandemic-stricken countries have been making decisions of great ethical significance, faced with the scarcity of ventilators, protective equipment, space in intensive medical care, and medical personnel. Ethical guidelines have been issued, in most of the suffering countries, to facilitate decision-making and the provision of effective treatment, with the most prominent principle being “to increase overall benefits” and “maximize life expectancy.” But are these guidelines as uncontroversial as they initially appear to be?

You walk by a pond and you see a child drowning. You can easily save the child without incurring significant moral sacrifices. Are you obligated to save the child at no great cost to yourself? Utilitarians argue that we would be blameworthy if we failed to prevent suffering at no great cost to ourselves. Now, suppose, that you decide to act upon the utilitarian moral premise and rescue the child. As you prepare to undertake this life-rescuing task, you realize the presence of two drowning children on the other side of the pond. You can save them both – still at no cost to yourself – but you cannot save all three. What is the right thing to do? Two lives count more than one, thus you ought to save the maximum number of people possible. It seems evident that doctors who are faced with similar decisions ought to maximize the number of lives to be saved. What could be wrong with such an ethical prescription?

Does the ‘lonely’ child have reasonable grounds to complain? The answer is yes. If the child happened to be on the other side of the pond, she would have a considerably greater chance of survival. Also, if, as a matter of unfortunate coincidence, the universe conspired and brought closer to her two extra children in need of rescue, she would have an even greater chance of survival – given that three lives count more than two. But, that seems to be entirely unfair. Whether one has a right to be rescued should not be determined by morally arbitrary factors such as one’s location and the number of victims in one’s physical proximity. Rather, one deserves to be rescued simply on the grounds of being a person with inherent moral status. Things beyond your control, and which you are not responsible for, should not affect the status of your moral entitlements. As a result, every child in the pond should have an equal chance of rescue. If we cannot save all of them, we should flip a coin to decide the one(s) that can be affordably saved. By the same logic, if doctors owe their patients equal respect and consideration, they should assign each one of them, regardless of morally arbitrary factors (such as age, gender, race, social status), an equal chance to receive sufficient medical care.

What about life expectancy? A doctor is faced with a choice of prolonging a patient’s life by 20 years and prolonging another patient’s life by 2 months. For many, maximizing life expectancy seems to be the primary moral factor to take into account. But, what if there is a conflict between maximizing lives and maximizing life? Suppose that we can either save a patient with a life expectancy of 20 years or save 20 patients with a life expectancy of 3 months each. Maximizing life expectancy entails saving the former, since 20 years of life count more than 5 years of life, while maximizing lives entails saving the latter. It could be argued that the role of medicine is not merely to prolong life but to enhance its quality; this would explain why we may be inclined to save the person with the longest life expectancy. A life span of 3 months is not an adequate amount of time to make plans and engage in valuable projects, and is also accompanied by a constant fear of death. Does that entail that we should maximize the quality of life as well? Faced with a choice between providing a ventilator to a patient who is expected to recover and lead a healthy and fulfilling life and providing a ventilator to a patient who has an intellectual disability, what should the doctor do? If the role of medicine is merely to maximize life quality, the doctor ought to give the ventilator to the first patient. However, as US disability groups have argued, such a decision would constitute a “deadly form of discrimination,” given that it deprives the disabled of their right to equal respect and consideration.

All in all, reigning over life and death is not as enviable as we might have thought.

Pandemic Sacrifices: It Matters Who Dies and Why

photograph of small liferaft at sea

Political leaders, faux medical experts, and pundits are advocating for a stop to isolation policies despite the real loss of life that would result from doing so.

They are weighing the impact that isolation is having on the economy. The longer we isolate, the more businesses will suffer, and the more corporations will not be able to benefit from the labor that previously was performed. Further, we are facing a catastrophic rise in unemployment—22 million due to the pandemic. Instead of looking towards social benefits and supporting those most affected from losing their jobs and health, these leaders are suggesting ending isolation and further exposing the workforce in the name of an economy that, experts warn, will just need to be shut down again—next time with further dead, made up of those apparently expendable and worth sacrificing for the economy.

These calculations stand in for rhetorical frameworks for moral analysis. We do have approaches for dealing with massive losses when they are the result of, say, natural disasters. These can be blunt instruments that weigh the impact of saving each individual human life against the resources that could otherwise be spent on the good of “society.”

Imagine you were on a lifeboat in a stormy sea. There is no way for everyone to survive, and the experts estimate that a certain percentage must be sacrificed for the survival of the majority. What is the ethical method for making this decision?

The stipulations here force us into “consequentialist” thinking—we would like to maximize the number of people alive at the end of the hellish scenario. However, most would find the “pure” consequentialist reasoning abhorrent. In other words, maximizing the number of people alive at the end is not where our ethical duties end. When stuck on a lifeboat and in a position where 20% of those on board will die, there is a moral difference in this 20% being determined randomly or at the will of a corrupt captain. (Or as a result of the previous decisions of the corrupt captain.)

Our current situation is, and isn’t, parallel to the lifeboat analogy. There isn’t an inevitable number of people that must be sacrificed. There isn’t a storm forcing us to weigh human life against a “greater good”—in this case, the economy. We could, in fact, stay on our boat and take the measures that experts are suggesting at avoiding the sacrifice the leaders are saying are “necessary.”

However, when there is inevitable harm, the procedure for allocating that harm matters morally. Say we do face a scenario where there is a percentage of human lives that will be lost given the pandemic, and a need to end isolation for the greater good of the economy. COVID-19 is the great equalizer we must endure, and while we will lose some, our country/lifeboat will endure.

It’s important to note that even with that stipulation, the metaphor breaks down. That isn’t even the position we are in, either. The actions of the leadership of our lifeboat continue to ensure that the amount of harm increases, and becomes more unavoidable, more inevitable. By defunding the WHO and pandemic response teams, but counteracting state efforts and absolving the federal government from its responsibility for action, the situation continues to be made worse.

Further, they’re able to do this by invoking the notion that it is just like the inevitability of a natural disaster while asking people to unequally bear the burdens of the harm. They’re banking on the support from those they don’t think will accrue the harm. As in the lifeboat analogy, the ones who survive will likely be grateful. But the decision-making for who will be sacrificed is not morally neutral.

Treating these losses as distant and abstract statistics is a strategy. There is force in calling the impact of the coronavirus the great equalizer, as celebrities and politicians alike have claimed. It evokes the frameworks of natural disasters or warfare where there is a limit to what we can do to intervene—lives will “just be lost.” Trump’s message has shifted from denial and buck-passing to attempts to frame casualties under 100,000 as a victory.

This is not an equalizer and is structurally and reliably affecting some groups of people more than others. Black Americans are dying at a much higher rate than non-Black Americans—33%, while only making up 14% of the areas analyzed. Thirty percent of COVID-19 patients are black despite representing only 13% of the population (the different data is the result of varying availability of data). These stark differences become more dire in some cities: In Wisconsin, for example, African Americans represent 6 percent of the population, but nearly 40 percent of COVID-19 fatalities.

Other over-represented vulnerable populations include those living in care facilities, such as disabled people and the elderly, and the incarcerated. Meanwhile, the rich are much safer than others.

This makes a moral difference. Just like on a lifeboat, the captain is not absolved of making every attempt to avoid circumstances where sacrifices must be made, and is responsible for ensuring that just burden-sharing is in place. Sacrifices cannot be justified for false reasons—saving the economy isn’t even a true reason in the sense that sacrificing people may not actually achieve the intended aim.

Anyone suggesting sacrificing 2-3% of the population needs to name family members and loved ones they are willing to sacrifice. They then need to indicate a further segment of their loved ones to live with the effects of a serious illness and extended ICU stay. Because if this is an inevitable sacrifice we all must make, treat it as the great equalizer they claim it is. This will affect us all.

Some Hospitals Sue Their Delinquent Patients. Should They?

photograph of coin jar spilling out on top of medical bills

Despite the passing of the Patient Protection and Affordable Care Act — i.e., Obamacare — in 2010, health care reform remains a contentious political issue. Costly procedures and huge medical bills still pose insurmountable financial burdens for many Americans — even those who are insured; thus, the appetite to ameliorate the pain remains. As reported in a recent CNBC article, a recent study concluded that 66.5% of all bankruptcies were related to medical issues. Whatever the positive effects of health insurance reform have been, it has not provided full protection for people from the threat of financial ruin because of unpaid medical bills.

Are there policies that healthcare systems and hospitals have instituted that may be exacerbating this problem? Indeed. Some hospitals will sue their patients for these unpaid medical bills, thus subjecting some patients to the additional expenses and stresses of navigating the legal system. Now, not all hospitals do this, and some hospitals sue their patients much more than others. A recent NPR article covered a study published in The Journal of the American Medical Association (JAMA) that showed that 36% of hospitals in Virginia sued patients and garnished wages in 2017. What’s more, just 5 hospitals accounted for more than half of the lawsuits, and all but one of these hospitals were non-profit institutions. As such, it is important to recognize this as a choice made by certain hospitals, rather than a widely accepted and unavoidable practice. In fact, hospitals have other choices to make regarding unpaid debts. These debts could be passed to collection agencies or written off as “bad debt.”

Hospitals, of course, face financial pressures of their own, and suing and garnishing to recoup unpaid medical debt is one strategy for easing these pressures. Hospitals defend the practice as both legal and transparent. Detractors claim that the practice violates the ethos of hospitals, understood as institutions that exist for the community benefit. We can approach the underlying divide in this debate in terms of whether healthcare is morally special. If health care is not special — if it is a normal consumer good just like other consumer goods — then it is fitting and proper to treat trade in healthcare goods as subject to contract law, where the courts play a vital role in ensuring fairness in economic relations. On the other hand, if health care is morally special — if it is not just like other consumer goods because it has some essential connection to the concerns of justice — then different rules governing economic conflicts in the exchange of health care goods ought to apply.

Presume that we are treat healthcare like any other good. By receiving healthcare services, customers implicitly agree to pay for them. By refusing to pay, they have broken this implicit contract. The courts exist as a transparent, politically legitimate, and unbiased enforcer of these contracts, ensuring that what debts have legally and properly been incurred do get paid. If service providers are not given the public assurance that they will be paid for the services they provide, then they would have to take on the extra risk of either losing out on payments or the extra burden of trying to collect on their own. Hospitals, thus, have a legal right to sue their patients, and it is fitting that they do.

If healthcare is a different kind of good — if healthcare is considered somehow special — then the above standard analysis of why service providers ought to have a right to sue no longer applies so neatly. Two observations can be made to suggest healthcare ought to be treated as special. First, healthcare exists to protect, maintain, and enhance a person’s health. Though through most of human history, our abilities to significantly affect the course of diseases had been limited, technological and social advances of the 20th and 21st century have produced a healthcare system that indeed can prolong the length and enhance the quality of lives. Having a life, of course, is a precondition of living a good life. Sickness and premature death limit the opportunities of living a life according to one’s life-plan. If justice entails the principal that society ought to foster equal opportunity, then healthcare has special moral significance because of its connection to health and, therefore, life opportunities. This is the basic argument made by Norman Daniels in his 1985 book Just Health Care.

Healthcare’s special status may also be rooted in vulnerability. The instinctive value we place on protecting our own health and well-being makes us vulnerable to exploitation when our health is threatened. The standard model outlined above presumes that the consumer will act rationally and take into consideration things like price and need when purchasing a product. And yet for the need of prolonging one’s own life and health, there is often no price we wouldn’t accept. This is not to say that reforms to the healthcare system that would force hospitals to be more transparent about price wouldn’t be a welcome change. Rather, I doubt that this change alone would significantly protect patients’ vulnerability to exploitation on this matter.

Considering these observations, one may argue, healthcare should be given a special status, and standard norms of contract law ought not to define the rights and responsibilities of providers in attempting to collect on medical debts. If we follow this line of argument, we are still stuck with the obvious rejoinder that providers deserve to be compensated for their vital labor. We should not expect them to work for free. I think this quite quickly pushes us down the path of envisioning publicly funded schemes to finance health care, whether that be a single-payer model or some other mixed system. If healthcare’s moral importance undercuts the private rights of economic actors in the healthcare market, then public obligations ought to step in to ensure a scheme that distributes care to those in need and adequately compensates the caregivers central to the system.

Climate Justice: Whose Responsibility?

photograph of power plant smoke stacks

Now that the effects of global heating are happening and ecological collapse has begun, we are confronted with a set of urgent questions about justice and moral responsibility in responding to our climate emergency. Climate heating is of course a global problem – and one that is already disproportionately affecting the world’s poorest and most disadvantaged people. It is also a problem caused by people in rich countries continuing the unfettered consumption of resources and the failure of our governments to create policies and laws to curb this consumption, to safeguard the environment, and to transition to green economies through the decades of warnings leading up to this crisis.

The moral question of whether we must act is surely answered in the affirmative, and yet a set of questions remain about how to understand that imperative in relation to the issues surrounding disproportionate greenhouse gas outputs of developed, industrialized countries compared to the minuscule contribution of many smaller or less industrialized countries, who are often those experiencing the worst effects.

This is important because the way we understand our responsibilities has the potential to influence how solutions are pitched to the public and how policy might be implemented. Some of the arguments traditionally used to ground the moral duty of people in affluent countries giving money to the poor of the Global South are transferable, with little adjustment, to the area of climate policy.

Firstly, it is a common feature of normative moral systems that ethical ‘rules,’ ‘duties,’ or, more broadly, ethical actions are universalizable. That is, what is right for one person is right for all, and that when a rule prescribes that we act in a certain way towards one person, that is also a general rule, that we act in that way with respect to all persons.

In a globalized world, we often assume the moral community extends to all people. This ‘cosmopolitan’ argument maintains that the sphere of moral concern is global, that no individual falls outside of it. This means that where moral duties or requirements can be shown to exist, they would also extend to include people in different socioeconomic and geographical situations from our own.

Since the 1980’s Australian philosopher Peter Singer has been advocating for what he calls the expanded moral circle, using this basic idea to challenge some of our behaviors. In particular, Singer argues for the alleviation of poverty by those with the means to do so. Using his now famous drowning child example, Singer has argued that if we have a moral duty to save a drowning child who we might otherwise pass by, without sacrificing something of comparable moral value, then we have an equal duty to save a child dying from poverty-induced disease and malnutrition halfway across the world. The only difference is proximity and that, argues Singer, constitutes a logistical, not a moral, difference.

This is the expanding circle of moral concern that our moral duty to alleviate suffering is as strong for children in far away places as it is for our own children or the children next door. On Singer’s view, it would be immoral to spend our disposable income on expensive clothes, toys, or games that we do not need when there are children elsewhere dying in poverty.

Singer’s argument is a version of the argument from humanity, which says that, no matter our relationship to that suffering, whether or not we in some way caused it, our moral duty to alleviate it inheres in the fact that we are able to help. That, without sacrificing something of comparable moral worth, we can send aid to the world’s poor means we have a duty to do so. This humanitarian argument has broad application: our moral duty exists regardless of the cause of the suffering.

There is a different kind of argument a duty of justice according to which we have a moral duty to help others in need only where, and to the extent that, our actions have caused their suffering. This is an argument from responsibility; the exploitation of the Global South has enriched those in the Global North, and the moral imperative for those in rich countries to alleviate poverty is derived from causal responsibility we have a moral duty to provide redress in the form of reparations as a matter of justice.

This argument is narrower in scope. One only has a moral duty, here, according to the extent to which one has been responsible (directly or indirectly? knowingly or unknowingly?) for the suffering of others in far-flung places. But, on the other hand, this argument does embed the need to change our behavior in a way that the humanitarian argument does not.

It should be clear how this is directly transferable to the climate crisis. From a justice perspective, rich, industrialized nations have been burning fossil fuels to power their citizens’ lifestyles at such a rate that the whole global climate system is now tipping out of control. Those least responsible and least able to cope with the effects are already being disproportionately impacted. Therefore rich countries have a moral duty to alleviate the suffering of those in poor countries. (From a humanitarian perspective, rich countries have the capacity to alleviate the causes and provide aid, therefore the moral onus exists because the capacity exists.)

Whether we recognize a duty based in justice because of “polluter pays” kinds of arguments or on humanitarian grounds we owe reparations on the basis of being most able to help could make a significant difference when we start talking about managing aid and paying reparations to those affected by the climate crisis. It might, for instance, be possible to argue, along the lines of a duty from justice, for diminished responsibility based on the argument that no country meant to cause global heating and that those who have are not, or not entirely, culpable. This can be countered by reminding ourselves that there have been enough warnings, and claims about intentions are at best moot, and at worst false. What’s important to note is that these justice arguments rely upon the extent to which responsibility is admitted or can be established.

On the other hand, it might be at least as important to ask which is more likely to persuade people into action. Though for both these questions the best answer would surely be a combination of both, it is worth pursuing the implications of each a little further.

The question of which argument will be most persuasive might just seem like a pragmatic question, not necessarily a moral one. But it could easily be made to work as a moral argument, framed in terms of the moral imperative to get people to act, and act fast.

For example, Philosopher Holly Lawford-Smith argues that there are reasons to believe that people are more likely to be motivated to act by the justice argument. The humanitarian argument tracks a correlation between the existence of suffering and a moral duty to alleviate it. Everywhere there is suffering, there is also a duty to minimize it. But one might object that this is too morally demanding, and that some may not be willing to accept it. Lawford-Smith suggests this argument relates to people’s intuitions about moral omissions versus moral acts. Research shows that people are inclined to think of omissions as morally less serious than actions in scenarios where an action and an omission have the same outcome. (For example, people tend to think that killing someone through an act is morally worse than letting a person die because of an omission.)

On the other hand, according to the justice argument, the moral duty derives from culpability. The way people act and benefit from unjust institutions makes them culpable for creating the suffering in the first place. Lawford-Smith argues that people are more motivated to act if they feel that some behavior of theirs has caused the suffering. As such, she suggests that it may be more efficacious to argue from justice than from humanity to make a case to the public for why they are duty-bound to act (lobby, agitate, strike, vote, or whatever) on the climate emergency, and for appropriate aid and reparation schemes to achieve global climate justice. If the ultimate moral outcome here is, in fact, urgent action, then the moral and the pragmatic line up, and we must get on with the business of explaining to governments and citizens of rich, industrialized countries why they are, and will be, the cause of massive untold global suffering.

One final observation: at this crucial time, the need to motivate a critical mass of the world’s citizens to rise up and push for change is dire. This is the proverbial eleventh hour. If people cannot be motivated by the moral arguments for humanity or for justice, they may be motivated by arguments from self-interest which are of course not moral arguments at all. In that case, one might point out this is already no longer a crisis affecting just other people in other places. If the climate emergency has not affected you yet, it soon will. If it does not affect you, it will affect your children. Moral arguments should work, because we are a moral, altruistic, and cooperative species, by and large. But if they don’t, let’s hope that existential self-interest ones will. Sadly, though, if only these kinds of reasons will persuade people to act, those people on the planet who are not in a position to cope with the crisis, will find neither humanity nor justice.

Should We Celebrate the Death of an Enemy?

photograph of unmarked headstone in cemetery

David Koch, one of the infamously influential and wealthy Koch Brothers, died on August 23, 2019. He and his brother, Charles, used the wealth and influence built through Koch Industries to fund Americans for Prosperity. This organization championed fiscally conservative causes like cutting taxes, defunding certain welfare programs, and deregulating industries. It also advocated for socially conservative causes like restricting abortion, impeding the expansion of LGBTQ rights, and funding programs that deny the scientific consensus on climate change. They achieved significant success in their aims through the influence of so-called “dark money” – funding spent by non-profits groups in support of political causes, the sources of which do not have to be disclosed in official reporting.

His death was met with celebration by some, notably talk show host Bill Maher. He said, “I’m glad [Koch]’s dead, and I hope the end was painful.” Maher’s remarks drew criticism from right-wing commentator Sean Hannity, who responded, “The guy you’re talking about and his wife donated $1.3 billion to charity. Until you do that, just keep your big mouth shut.” A tweet by philosopher Rachael McKinnon, on the other hand, argued for the moral permissibility of sentiments in a similar vein to Maher’s. Specifically she argued that it is morally permissible to be happy when a person who has caused extensive harm dies of natural causes. (McKinnon did not address the permissibility of hoping that an evil person should suffer, however.) Are sentiments like Maher’s morally permissible, or is it wrong to celebrate the death of those who are responsible for extensive harm, destruction, or death?

This is not a new question, and is one which has been in the news within recent memory. In 2011, when Osama bin Laden was killed by United States military forces in Pakistan, there was cheering and celebration on the streets in parts of the United States. This reaction set off a series of articles asking the question: were those celebrations morally appropriate? National Public Radio (NPR) news had quotes and interviews from both philosophers (Christine Korsgaard) and members of religious communities (Arsalan Iftikhar and Shmuel Herzfeld) weighing in generally on the side of a negative answer. They argued that celebration is not a morally acceptable response to anyone’s death—not even when the person who died was in large part responsible for actions and institutions which have caused a great deal of harm, destruction, and death.

However, they did indicate that some positive attitude short of celebration may be appropriate. Iftikhar and Herzfeld agreed that relief and gratitude were appropriate attitudes in response to the death of Osama bin Laden. This is in-line with McKinnon’s assertion in her tweet. It can be morally permissible to have some sort of positive attitude about the (impending) death of an enemy. But Korsgaard warned that there is a danger of conflating satisfaction at the defeat of an enemy with slaking a thirst for retribution: “If we have any feeling of victory or triumph in the case, it should be because we have succeeded in disabling him — not because he is dead.”

Retribution is a prominent concept in the discussion of justice. The idea that justice can be achieved through the application of appropriate punishment is called retributivism. It is embodied by statements like, “The punishment should fit the crime.” Those who do wrong deserve to have punishment inflicted on them, and it is good for wrongdoers to get what they deserve. This view can provide a basis for the idea that it is morally appropriate to have and express positive sentiments about a person suffering, provided that their suffering was proportional to their wrongdoing and was the specific result of punishment for that wrongdoing. It is only the context of punishment which makes suffering, an otherwise universally bad thing with negative moral value, a good thing with positive moral value.

Here is where at least Maher’s sentiments fall short of moral propriety. Koch died of natural causes, which cannot be considered punishment without endorsing very specific notions of something like divine justice or karma. Further, returning to Korsgaard’s quote above, there is no sense in which Koch’s death will impede the harm caused by the organizations Koch Industries funds—that is, David Koch was not in anyway “defeated”. All that is left to say about the view is that it approves of something which shouldn’t be approved of—the suffering of another person. McKinnon doesn’t go as far approving of another person’s suffering. Her view about Koch’s death is more along the lines of what Iftikhar and Herzfeld said about bin Laden’s death. When a person who has caused a great deal of harm, destruction, or death dies, feeling some measure of relief is acceptable.

Excessive or Necessary? Prosecutorial Discretion in Pursuing Legal Charges

photograph of courtroom

District Attorneys (DAs) in the United States get to decide which cases their offices will pursue. For the most part, there is nothing beyond pressure from voters and other public offices to provide any external impetus to a DA’s decision regarding whether to take an accused person to trial. The results of prosecutorial discretion throughout US history are decidedly mixed. Throughout the Civil Rights movement (1954-68), prosecutors in the American South routinely refused to prosecute white offenders for racist violence and discrimination against Black people. Within the last decade in the American Southwest there have been threats and attacks against Latino immigrants which have gone unprosecuted, or in which the prosecutor has not requested incarceration for the defendant.

Recently, prosecutors in many jurisdictions have announced their intention not to bring charges against recreational marijuana users, or people violating strict heartbeat-style abortion laws in states like Georgia. These prosecutors deem the relevant laws unjust, either for the disparate impact on non-white citizens or their excessive infringement of sexual autonomy. From all these examples it is clear that prosecutorial discretion can be used both to circumvent just and unjust laws alike. 

But not all legal professionals agree that DAs do, or should, have such wide latitude. In Virginia, Arlington County’s Commonwealth Attorney Theo Stamos has claimed that she has no choice but to prosecute marijuana possession so long as the law remains unchanged. Also in Virginia, that state’s Supreme Court judges have ruled against Norfolk’s Commonwealth Attorney Greg Underwood in his claim that he has complete latitude regarding whether to prosecute crimes in his jurisdiction.

The discussion of prosecutorial discretion touches on the philosophical debate between generalism and particularism. Broadly, this debate is a question about whether (moral) decisions ought to be made on the basis of general principles, or rather particular situations. Professor Jonathan Dancy is one of the most prominent champions of the particularist viewpoint. A given feature of an action—that it’s a lie, for instance—may some times count against doing it but may also sometimes count in favor of doing it. You shouldn’t lie under oath, but you should lie when playing poker. On this basis, particularists argue that there can be no general moral principle to the effect of “do not lie.” The same reasoning is meant to apply to any other potential moral principle. 

Generalists, on the other hand, claim that moral decision-making proceeds by applying general rules to specific situations. Hence, given that there is a moral principle to the effect of “do not lie,” you should neither lie under oath nor when playing poker. The moral philosophy of Immanuel Kant is paradigmatically generalist, as seen in his Categorical Imperative: “Act as if the maxim of your action were to become through your will a universal law.”

Paul Woodruff brings the generalist-particularism debate to the topic of justice and the law in his book The Ajax Dilemma. In the chapter on justice, he notes that thinkers as august as John Stuart Mill and Aristotle have abandoned an abstract, principled notion of justice for a pragmatic, particularist one. He contrasts this account to those of a more abstract and generalist type due to thinkers like Plato and John Rawls. Especially concerning Rawls, Woodruff cautions against equating justice with fairness. Justice is everyone getting their due treatment, whereas fairness is everyone getting the same treatment. While these may sound the same at first blush, Woodruff contends they are in fact worlds apart. Justice and giving people their due requires careful thought and judgment concerning particulars; whereas fairness and giving everyone the same treatment only requires rote execution of rules. 

Attorneys like Theo Stamos have a more generalist approach, one that is plausibly interpreted as treating justice like fairness. The law is the law, and every person must receive exactly the same treatment under the law. An approach like this sees the exercise of discretion as unfair because it means different people are treated differently. On the other hand, attorneys like Greg Underwood have a more particularist approach, one that is plausibly interpreted as treating justice as giving people their due. Here the exercise of discretion allows the peculiarities of a given case or jurisdiction to enter the decision-making process. If the enforcement of a law disproportionately affects the non-white community, discretion allows an attorney to effectively neutralize that law. If there are mitigating circumstances in a particular case, discretion allows the attorney to seek a lesser sentence or drop charges entirely. 

Allowing people to exercise judgment and discretion always creates the potential for malfeasance, dereliction, and oppression. However, it is also what creates the potential for mercy, compassion, and resistance. The solution to the possible pitfalls of prosecutorial discretion is not to limit a DA’s ability to exercise judgment, but rather to carefully scrutinize candidates for the office and elect individuals of experience and integrity.

Vaccination Abstention and the Principle of Autonomy

image of 1960's polio vaccine poster with Wellbee Cartoon

The suppression or eradication of many serious diseases in vaccinated populations has been one of the great public health successes of the twentieth century. There have always been those who resist or refuse vaccination for a variety of religious, political, or health reasons. Though there can be some risk of negative reactions to vaccines in certain individuals, vaccination is very safe for the general population.  Continue reading “Vaccination Abstention and the Principle of Autonomy”

Should the United States Supreme Court Be Abolished?

Photograph of the US Supreme Court framed by shrubbery

The Supreme Court is back at the forefront of political debate given the recent string of contentious decisions affecting key parts of the President’s political agenda (the Travel Ban), the culture wars (Masterpiece Cakeshop), and the labor movement (Janus). Even more, the recent announcement of Justice Kennedy’s retirement means that the Supreme Court’s ideological balance is likely to sway further to the right — and it may stay that way for some time, given the justices’ lifetime appointments. This makes landmark decisions such as Roe V. Wade vulnerable to being overturned. The time seems ripe for reflection on the moral and political justification for having a Supreme Court with its ultimate power of judicial review. Is this institution so undemocratic that it ought to be abolished in favor of majoritarian procedures for deciding the thorniest social issues of the day? Continue reading “Should the United States Supreme Court Be Abolished?”

Should the NFL’s Players Have to Pay to Protest?

Photo of San Francisco 49ers players kneeling during the National Anthem.

This May, the NFL announced a new policy—any team with a member who kneels during the National Anthem will have to pay a fine. The policy was decided by a vote of the team owners.  Union representatives for the players were not aware of the decision until it was announced. This new policy is a change in tone from the attitudes the league expressed last year and is a further development in an ongoing controversy sparked by players’ decision to protest by taking a knee during the National Anthem.  In August 2016, Colin Kaepernick made headlines for kneeling during the anthem in protest of violence perpetrated by police officers against people of color. Kaepernick no longer plays for the 49ers or any NFL team.  Amnesty International recently honored him with the 2017 Ambassador of Conscience Award.

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California Debates Parole for a Member of the Manson Family

On the night of August 9, 1969, several young people crept into the Los Angeles home of Leno and Rosemary LaBianca.  At the behest of cult leader Charles Manson, they stabbed the couple to death. Cult member Leslie Van Houten stabbed Rosemary LaBianca fourteen times. The group wrote messages on the wall in the victims’ blood. After she played her part in the murder, Van Houten took a shower, put on one of Rosemary LaBianca’s dresses, and ate some food from the refrigerator.

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Trusting Women and Epistemic Justice

An anonymous woman holding up a sign that says #MeToo

Over the past three months, public figures have been exposed as serial sexual harassers and perpetrators of sexual assault. Survivors of harassment and assault have raised new awareness of toxic masculinity and its effects in a short period of time.

However, as time goes on, supporters of the movement have been voicing rising concerns that something is bound to go awry. There is an undercurrent of worry that an untrustworthy individual will make an errant claim and thereby provide fodder for skeptics and bring the momentum of the movement to a halt. In response to this, it may seem like more vetting or investigation of the claims is the way forward. On the other hand, wouldn’t it be unfortunate to erode trust and belief in women’s stories in hopes of keeping the very momentum in service of hearing women’s voices?

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Does America Believe in Rehabilitation for the Incarcerated?

A low-angle photo of barbed wire at a prison.

Michelle Jones wasn’t the only applicant to be rejected from Harvard University this year. However, hers is in many ways a special case. While she was initially accepted by the history department of Harvard’s Graduate School of Arts and Sciences, her acceptance was ultimately overturned by Harvard’s administration. This move was in connection to the most interesting part of her case: Ms. Jones was only released in August of this year from the Indiana Women’s Prison after serving 20 years of a 50-year sentence for homicide. Although the legal system considered her sentence to be served in full, Harvard University—an elite academic institution—considered her past conviction as grounds for rejection. What does this say about the notion of reform and rehabilitation in the United States?

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In Canada, Apologizing for Forced Adoption

A school photo from a Canadian residential school.

For decades in the 20th century, the US, Canada, and Australia took thousands of indigenous children from their families and either put them in residential schools or found non-indigenous adoptive parents for them. These practices ended in the 1970s, but only now are governments in Canada and Australia trying to make amends. Former Australian Prime Minister Julia Gillard apologized in 2013, while the government of Manitoba apologized for forced adoptions in 2015.  At the beginning of this month, the Canadian government agreed to pay reparations to victims of the “Sixties Scoop”—the forced adoption of indigenous children in the 1960s and 70s. 750 million Canadian dollars will be paid out in legal settlements.  

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Taking Stock of Solitary Confinement’s Mental Toll

In prisons throughout the United States, a total of somewhere around 80,000 prisoners are isolated from human contact for 22 to 24 hours a day. These prisoners are kept in very small cells—spaces of roughly 80 square feet.  In the cell is a bed, a toilet, and very little else.  Prisoners in solitary are fed three meals a day and are often allowed outside every day for an hour, with no contact with other prisoners.  The practice, commonly known as “solitary confinement” has come to be known by a number of euphemisms, including “restrictive housing” and “segregation.”

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Drug Addiction: Criminal Behavior or Public Health Crisis?

It is painfully obvious that the United States is in the midst of an epidemic of opioid abuse. According to the US Department of Health and Human Services (DHHS), more people died from drug overdoses in 2014 than any other recorded year, and the majority of those overdose deaths involved opioids. DHHS and the Centers for Disease Control (CDC) claim that an increase in the prescription of pain medication is a primary driver of the opioid epidemic. According to the CDC, the amount of prescription opioids sold in the US has nearly quadrupled since 1999. However, Americans do not report higher levels of pain than they did in 1999.

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