Category Archives: Ethical Issues

Current Events, Ethical Issues, Toleration

Being Pro-Choice

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I’m pro-choice. If a woman wants to have an abortion, I believe it is her choice to do so and no one ought to stand in her way. I oppose abortion laws. Similarly, I believe that if I want to take an antibiotic, it is my choice to do so and no one ought to stand in my way. I oppose prescription laws. And also similarly, if someone wants to inject themselves (or swallow) Ivermectin, it is their choice and no one ought to stand in their way. In each of these cases—and all others—I believe information should be provided so that the individual in question can make an educated decision about the action in question, but I believe that they should be allowed to act on their own decision.

I said that in the cases described *and all others* they should be allowed to act on their decision. That also applies, then, to doctors who do not wish to perform abortions and doctors who do not wish to *administer a patient ivermectin (or any other medicine). They ought to be able to act on their choices just as the patients in question ought to be able to. Yet, at least one judge in Ohio has thought it appropriate to require hospitals (admittedly, not specific doctors) to administer a medication they oppose using for a patient (see this). And, as I assume most readers, know, Texas now has a law in place that makes it much harder for doctors to perform abortions on patients who want it. To be clear: even if both patient and doctor agree that the abortion is the best course of action and are willing participants, the doctor is likely to face legal repercussions if the woman is more than 6 weeks pregnant and any private citizen decides to sue. (See this and this.)

What we have in both these cases is a situation where the freedom of some to live in a world where the actions of others are limited—e.g., to not give a patient a drug they oppose using or to help a woman have an abortion—is thought to outweigh the freedom of those others to live their lives as they see fit. The freedom—really, its just the preferences—legally outweigh those of others. To think this is a deep moral debate strikes me as misguided. Abortion is a rightly contentious issue and, in my view, its moral permissibility can only really be resolved by determining whether or not the fetus has a moral status on par with the mother’s. The people behind the Texas law—and those that would sue medical professionals because of it—do not seem interested in trying to discuss that question at all. They seem simply to want to impose their views on others. Those wanting people to be able to use Ivermectin in Butler County, Ohio, similarly seem simply to want to impose their view—or that of the patient—on medical professionals. In both sorts of cases, we have a pernicious form of moralism at play. (See this and this.)

I assume there will always be doctors unwilling to perform abortions. They should be free to act on their preferences. I assume—and hope—there will also always be doctors willing to perform abortions. They, too, should be able to act on their choices (when they have a patient that so chooses). A patient and a doctor coming to an informed agreement should not be interfered with. The same holds for a doctor willing to *administer a patient Ivermectin when the patient wants such. And a doctor unwilling to administer it. For that matter, the same is true (or so I believe) for a doctor and patient wishing to use a Mercitron on a patient that wants it. (See this). Unfortunately, this is not well accepted.

* 9/5, replaced “inject” or “injection,” fixing as needed to accommodate.

Current Events, Discourse, Ethical Issues, Political Philosophy/Theory, Social Criticism, Toleration

The Paradox of Community

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Conceptually, community is distinct from neighborhood.  A community can be in a neighborhood, but it might instead consist of widespread people who share some commonality (the community of PPE scholars, for example).  A neighborhood, for its part, may merely be a place people live, not knowing those that also live there. 

Take communities to be groups of people bound together by traditions. Traditions are essential to community. They also vary by community. They might be matters of language, religion, commitment to country, behaviors, holidays, heritage, or any number of other things, some requiring more strict abidance by group norms, some requiring less. Traditions necessarily (but, importantly, not always problematically) hold us back, keep us limited—for the simple reason that people are committed to them. When people are committed to one way of doing things, they are resistant to changes to it. A commitment to car culture, for example, makes it less likely that a group would find (or even look for) an alternative means of transportation. (Or accept such if offered. Think of Segways—why aren’t these available for long distance use? or sealed from rain and cold?)

While traditions hold people back, they also provide a foundation for change.  From the security of being able to interact with others in accepted ways, one can develop new ways to do so—and new ways not to do so.  Because they have traditions, communities make it possible to innovate. Innovation, though, can cause the community to change or even disintegrate. Tradition and innovation are symbiotic even while they simultaneously threaten each other.  Call this the paradox of community (it’s at least a significant tension).

The paradox of community—the fact that a community’s traditions make innovation possible while simultaneously trying to prevent innovation (because innovation could bring the end of the tradition)—makes life in community … interesting.

Another fact about communities is that they either grow or die; stasis is illusory. Communities grow as their members change (some join, some exit, some change themselves), innovate, bring about changes to the traditions (adding some, altering others, ending still others). This is why the paradox is so important.

Some within a community can become so committed to a particular tradition(s) of the community that they work to slow the pace of the community’s growth in order to prevent the altering or ending of their favored tradition(s) or the inclusion of others.  They may do this by trying to encourage newcomers to learn and accept the existing traditions of the community or by actively working to create an environment whereby those seeking change are limited. If they succeed too much—preventing any change in the community’s traditions—they attain stagnation rather than stasis.  This is because absence of change in a community (as for an individual person or any animal) brings the end of the community.  It means no new members–and with no new members, it dies as it’s members die.  Change—innovation—is essential to community.

Of course, new people may attempt to join the community. When they do, they would bring their own histories, cultures, beliefs, and ideals. They could (and perhaps should) learn about the community’s ways of doing things. That is consistent with their bringing their own ways of doings (and their histories, cultures, beliefs, and ideals). It is consistent, that is, with change. But if those within the community seek to limit change, they may try instead to indoctrinate the newcomers into the community’s traditions so that they live as those in the community now live, rather than bringing anything different. Indoctrination thus treats newcomers as having nothing of their own to contribute, as if their histories, cultures, beliefs, and ideals have no place in the community. Newcomers would thus not be allowed to bring their ideas and preferences into the community’s traditions–those traditions would not be allowed to change. Such newcomers are, then, likely to exit the community. (Notice that this does not mean they physically move away or drop their official membership–remember, communities are not the same as neighborhoods (or associations)).

To build community, change must be permitted. This means that all in the community must listen to each other, open to hearing new things that might be incorporated into the web of community activity and the traditions that shape them. This does not mean jettisoning everything previously held dear, but it does mean being open to the possibility of doing so (likely not all at once). Long time members of the community can teach newer members how things were or are done, but that counts no more than what newer members bring to the table. Importantly, those whose ideas are rejected out of hand have no reason to participate in the community. Ignoring this–thinking that all learning here is in one direction–will simply give rise to factions, splintering what was a community, killing it while perhaps giving birth to new, smaller, communities as those factions continue to grow.

So, both tradition and innovation are essential to community. What this means, in part, is that while change is necessary, the pace of change may be too much for some people within a community, at least those committed to one or more of its traditions. Still change can’t be stopped; a successful attempt to stop it, kills the community. The question for those in a community is thus whether their favored tradition(s) and it’s (or their) history are more important than the community itself. To side with a tradition is to side with those no longer present; to side with community is to side with those currently constituting the community—including those who wish to see change.

Of course, those siding with a tradition may take that tradition to have independent value and thus to be worth protecting. They may take this to be a principled defense of preventing change in the community. It is not. The community from which a defended tradition stems, like all communities, must be able to change. (Again, stagnation means death.) Indeed, all surviving communities have what can reasonably be called traditions of change–ways that change takes place. So when defenders of one tradition seek to prevent change, they are pitting one part of the community and its traditions against another and claiming that one of the traditions should be defended at the cost of another—their favored tradition at the cost of the community’s tradition of change. That, though, is just a preference. One cannot just assume that one favored tradition is more valuable than another. After all, those seeking change may rightly claim to be defending a tradition of change within the community.

Putting the last point differently, those seeking change are defending the community as the community currently is and is growing with its current members and their preferences. Those seeking to prevent change, by contrast, are defending only part of the community—some specific tradition(s) they happen to prefer—and, by seeking stagnation, killing the community.

Lest I be thought too critical of defenders of particular traditions, I should note that I do not think there is a good principled reason for either protecting particular traditions or for changing or jettisoning them. In either case, on my view, further considerations are necessary. What we need to determine, on my view, is when interference is justifiably permitted–what principles of interference we ought to accept rather than simply what traditions we happen to prefer. (I discuss some such considerations here and in my 2014.)

Current Events, Economics, Ethical Issues, Social Criticism

Rainbow Capitalism

Suppose you have a beach house and a “friend,” Jane, who invites herself to use it all the time. I put “friend” in quotes because Jane does not actually value you as a friend; she values you only for your beach house. From July to May, Jane is hard to get in touch with. Every time you reach out to her, she comes up with transparent excuses about how busy she is. But during the month of June, Jane eagerly reaches out to you and ingratiates herself to you so that she can enjoy your beach house during her vacation month. When you eventually sell your beach house because of financial troubles, Jane predictably stops associating with you.

If you are anything like me, you will have a low opinion of someone like Jane. By someone like Jane, I mean someone who feigns intimacy with someone or some group of people to advance her own interests, without affording due consideration to the interests of the person or persons with whom she is feigning intimacy. Unfortunately, there are many Janes in the world. But not all Janes are individual people. Sometimes, they are corporations. 

LGBT+ Pride month is coming to a close, and so too are the annual discussions about “rainbow capitalism.” For those who are unfamiliar with the term, rainbow capitalism refers to how corporations pander to the LGBT+ community and its allies, especially during Pride month, by branding their products with Pride symbols such as rainbows. Some believe, for example, Target essentially does to LGBT+ people what Jane does to you in the scenario above: Target ingratiates itself to the LGBT+ community to profit from the sale of limited-edition merchandise, without ever substantively showing concern for LGBT+ people. Others, however, argue that rainbow capitalism, if not wholly good, is “a step in the right direction” because it normalizes LGBT+ representation in public. After all, just 15 years ago we would not have dreamed of the public embracing Pride the way it does today. 

In my view, both and neither of these positions is correct. If Target were doing to LGBT+ people what Jane does to you, then Target would be engaging in problematic rainbow capitalism. But this is not what Target is doing. To see this, let’s return to our example with Jane. Suppose that instead of valuing you for your beach house alone, Jane valued you for many reasons. She values your happiness and flourishing for your own sake among other things. Still, in addition to all of that, she also values being able to go to your beach house. When you sell your beach house, Jane is upset, but supports you and respects your decision. This is closer to what Target does when it engages in rainbow capitalism: Target employs LGBT+ people, has an LGBTQ+ diversity business council, published a Pride manifesto, and took a stand for transgender people when the transgender bathroom controversy was ablaze, in addition to branding merchandise with rainbows for profit during the month of June. To be a rainbow capitalist under these conditions seems to me genuinely benign. 

Now consider a different case. Some corporations have allegedly donated substantial sums of money to anti-LGBT+ organizations. It is not always clear what one means when they say that an organization is anti-LGBT+, though, so let’s stipulate that a hypothetical organization lobbies to abolish the legal recognition of same-sex marriage, and some multinational corporation funnels hundreds of millions of dollars to this organization. Then, during Pride month, the corporation slaps rainbows and “#LoveIsLove” on tees they sell to profit off of the LGBT+ community and its allies. This is clearly problematic, and worthy of criticism. Still, some will insist that the corporation participating in Pride by selling limited-edition merchandise is good on balance because it represents the strides we’ve taken toward including LGBT+ people in our society.

Social inclusion, of course, has value. Still, social inclusion for the right reasons has even greater value. It may be valuable for the awkward friend to be invited to an important party, even if the only reason he is invited is because he is friends with people cooler than he, who are also invited. But it would be of undoubtedly greater value to the awkward friend to be invited to that party because the party host likes him and wants him there. In my view, criticisms of rainbow capitalism are legitimate when they are aimed at getting corporations to treat LGBT+ people with dignity year-round, rather than showing indifference or hostility to the community until it benefits them enough to hypocritically proclaim their commitment to equality. This does not necessarily mean that we should boycott businesses that are transparently performative in allying themselves with the LGBT+ community, or that we should demand they stop selling flamboyant paraphernalia during Pride month. But it does mean that we can (and should!), in some way, hold corporations to account for failing to live up to an ideal of inclusion for the right reasons.

Thanks to Andrew J. Cohen for feedback on an earlier draft of this post.

By the way, Radical Classical Liberals turns 1 tomorrow! Honored to be a part of it. 

   

Current Events, Economics, Ethical Issues

Recycling and Waste

I’ve met many people committed to recycling. I recycle. My recycling is based on my opposition to waste, which I take to be a “process wherein something useful becomes less useful and that produces less benefit than is lost” or “the result of such a process” (see my 2010, 256). I recycle, that is, to reduce lost value. If something can be made useful (again) without causing other loss, great. Recycling, though, does not necessarily reduce loss. Unfortunately, many act as if recycling is always and necessarily a worthy act. This post is meant to promote a more reasonable view, one attentive to costs and benefits.

Say you have a bicycle you no longer use and decide it shouldn’t take up your space anymore. You advertise it for sale for $50. You get multiple requests to see it, schedule them, and the first person to look at it buys it. Great. It’s out of your space. Why were you able to charge $50 for the bicycle? Because someone else had a use for it that was worth at least that $50 to them.

Now say you have an old beat-up tricycle taking up space. You advertise it for sale for $20. You get one request to see it, schedule that, but the visitor declines to buy it. Why were you unable to charge $20 for the tricycle? Because no one had a use for it that was worth at least that $20 to them. (Indeed, you probably would have taken less, but no one thought it worth any amount.)

Now let’s say that instead of a bicycle, it was a large bag of used metal cans. And instead of a tricycle, it was a large box of used batteries (or styrofoam or…). You get an offer for the former but not the latter. Why? Because the former can be used by a recycler in a way that profits them while the latter cannot. Someone looking at the batteries, might say “I’ll take them off your hands, but it will cost you $10.” What does that suggest? It suggests that it is possible to make use of the batteries—via recycling or otherwise—but not in a cost-effective way. It suggests, in fact, that making use of the batteries would cost $10.

What does it mean that it would cost $10 to recycle the batteries? That they would need to pay for something else—perhaps labor to take them apart, energy to melt (parts of) the batteries, chemicals to neutralize those in the batteries, or other such goods and services. Notice that using those things not only costs money, but may also negatively impact the environment. Perhaps the generation of energy used contributes to greenhouse gas emissions. Perhaps the chemicals used are bad for the environment or perhaps their use results in a byproduct that is. The labor, of course, could have been used in other ways—perhaps on work meant to reduce greenhouse gas emissions!* In short, that you must pay to recycle the batteries suggests that doing so may not be the best thing to do.

Lest anyone think I am secretly anti-recycling, I am not. I simply think we should be attentive to the costs and benefits. If the overall benefits of recycling something are higher than the costs, on my view, we should recycle it. I even admit that one of the possible benefits of recycling is the emotional satisfaction one gets from contributing to improving (or at least not damaging) the environment—but, of course, if that emotional satisfaction is due only to falsely believing one is helping, one should improve one’s beliefs. There are, after all, alternatives to recycling. Reuse is obviously better, for example. Reducing use is also often better (though, again, one ought to be reasonable: plastic bags, for example, make life far easier, so not using them at all, as some propose, seems costly). And, for better or worse, some things should probably just be put in a landfill.

Added: At the end of the day, it’s simply not clear to me why anyone would assume any particular industrial process would necessarily be good for the environment—and recycling is an industrial process.

*I am not an expert about recycling. If it turns out that there are cost effective ways to recycle batteries (or styrofoam or …), I would retract the objection to doing so. I take it that if there were, we would not have to pay more for doing so than for putting them in a landfill.

Thanks to Connor Kianpour for suggestions on an earlier draft of this post.

Current Events, Ethical Issues, Law & Legal Philosophy, Political Philosophy/Theory, Social Criticism, Toleration

Against Busybody Moves to Limit Liberty

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I grew up in a fairly densely populated but suburban area, primarily with single family homes and duplexes. Each home had a yard, perhaps 30 feet by 75, mostly fenced in. We knew all of our neighbors on the block—say a dozen homes on each side—and a few on surrounding blocks. Many moved there from more crowded, mostly urban areas. Some people had vegetable gardens in their back yards, most did not. (Almost) no one had farm animals. I am not sure if there were any laws prohibiting such. A neighbor on the next block over (but only 4 houses away from us), had chickens in their yard. Chickens! For some, this was scandalous. The idea that someone might keep live chickens in their yard in our neighborhood was just appalling to them. And they did their best to rid the neighborhood of this apparently appalling pox on mankind. I no longer recall if they succeeded—I don’t think they did, but I may be wrong.

To be honest, back then I didn’t think much about those chickens—or those adults seeking to get them out of the neighborhood. Lately, I find myself thinking a lot about such people and the immense variety of things they would prohibit. Of course, some things should be banned—involuntary slavery, for example. Unfortunately, though, the list of things for which there are advocates of prohibition is extremely lengthy. That list includes:

large sodas; alcohol; cigarettes; marijuana, cocaine, other currently illicit drugs; certain books and magazines; curse words and profanity; hateful speech; guns; chickens, pigs, and rabbits (in suburban or urban areas); tall grass; parking on an unpaved space, even on one’s own property; crossing the street against the light, even when no cars anywhere around; non-standard building structures; non-standard colors for homes; homes built less than 30 feet apart; homosexuality; non-monogamous intimate relationships; intimate relationships with more than 2 partners; picking up prescription medications for one’s spouse; working for a wage below some minimum (perhaps a legally enforced minimum, perhaps someone’s idea of a “liveable wage”); grants from corporate donors; and far more.

As noted, some things should be prohibited. Involuntary slavery, murder, and rape are obvious examples. None of the items on the list above are like those three. All three necessarily make use of unconsented-to force against another. (In language I use elsewhere, all necessarily involve the wrongful setting back of one or more person’s interests by another.) None of the other things I’ve named above do that. And yet, there people have proposed banning each. The arguments for banning them usually involve one or more of four rationales. There are, of course, sophisticated arguments for and against each of these; here I just point out a simple problem with each. The four rationales and a simple objection to each are:

(1) The items in question or their uses are bad for the user, reducing their level of well-being. BUT: It’s interesting that those making these claims—for example, that accepting a job for less than a “liveable” or legally minimum wage is bad for you and you thus shouldn’t be allowed to accept it–don’t seem to consider the possibility that they themselves likely do things that might be bad for them. For example, proponents of such bans might work long hours, drink too much alcohol, care too much about the prevailing zeitgeist, etc. Perhaps those things should be banned. More time with family, relaxing, communing with nature, etc, is likely better for you than working long hours after all. It’s not clear why it’s less reasonable to ban comparatively long hours than it is to ban comparatively low wages. Some people, after all, may be quite happy being productive at some task without making alot of money. Proponents of bans for paternalist based reasons seem generally incapable of imagining that other people might think something they like is bad for them. (I am not denying that there are objective standards of what is good or bad for someone; I am denying such claims justify limiting liberty, whether they are objective or not.)

(2) The items in question or their uses are somehow offensive to others. BUT: Again, it’s interesting that those making these claims—for example, that pornography is offensive and should thus be banned–don’t seem to consider the possibility that others might find something they like or do offensive. Indeed, some of us might find the attempt to ban pornography offensive. It’s not clear why it’s less reasonable to think banning pornography is offensive than permitting it. A ban, after all, might make people mistakenly think there is something wrong with nudity or sexuality, essential aspects of being a human person. Proponents of bans for offense based reasons seem generally incapable of imagining that other people might find something they like offensive. (Again, I am not denying that there are objective standards of offensiveness; I am denying such claims justify limiting liberty, whether they are objective or not.)

(3) Banning the items or their use is good for others not using them (even if the items or their use do not offend or harm those others). Robby’s carrying a gun puts others at risk; Jill’s doing meth in the house next door might lower their property value. BUT: It’s not clear how much risk is usually present in these sorts of cases or why someone else’s benefit justifies interference with Robby or Jill. Of course, if the risk of gun carrying is sufficiently high, banning it would really be about protecting others from harm, not merely benefitting them–and that, I agree, would be a good reason to prohibit something. But while reducing the risk of a harm is a benefit, the claim here is only about benefiting someone, not reducing the risk of a harm. If I gift you $1000, I benefit you, but not gifting you the $1000 is not harming you. Banning meth in my neighborhood may well benefit me in terms of raising my property values—something I am very happy to see happen. But does my preference for increased property values justify interfering with Jill’s use of meth? Would it justify punishing Sally for keeping her yard messy? Banning Sheila’s use of an old, falling apart car? All of those things—visible meth use, messy yards, and junker cars— would reduce property values in a neighborhood. And again, proponents of interference with some to benefit others don’t seem to recognize that there are lots of ways to interfere with them–the proponents of interference--to help others. Perhaps they could be forced to teach at a local school, pay higher taxes, clean up messy yards, help out at addiction clinics, fix up cars. (And again, I am not denying that there are objective standards of benefit; I am denying such claims justify limiting liberty, whether they are objective or not.)

(4) The items in question (or their uses) are themselves immoral. (I’ve written about this here before; e.g., see this, this, and this.) BUT: Arguments for such immorality are usually not forthcoming and of course, proponents of these claims of immorality never consider the possibility that their interference with the way other people choose to live their lives is itself immoral. It’s precisely, of course, the sort of problem solved in Loving v Virginia and Obergefell v. Hodges. Thankfully, we no longer abide by the wishes of those who would ban interracial or same sex marriage. The busybodies that wanted to interfere with such were defeated. If only we could defeat the rest of the busybodies wishing to interfere in the lives of their neighbors. Again, proponents of bans for morality based reasons seem generally incapable of imagining that other people might find something they like immoral. While some think a marriage of 3 or more people is immoral, others think that heteronormative marriage is immoral. While some think cocaine and meth use are immoral, some think alcohol use is immoral. Some of us think banning any of these is immoral. (And again, I am not denying that there are objective standards of morality; I am denying such claims are usually accompanied with good arguments about such, or that they would justify limiting liberty, whether they are objective or not.)

As suggested, I think the only good reason to ban something is that it is itself harmful or used to cause harm. But it’s not enough merely to assert that something (guns, alcohol, what have you) causes harm. We need—and often don’t get—clear evidence of the harms discussed and why/how they are necessarily connected to the items for which a ban is sought.

So why are attempts to prohibit things so frequent (and too often successful)? It seems clear enough that the proponents of bans that get attention are simply good at working other people into a frenzy to join their crusade, whether the crusade be for good or bad (though it’s always claimed to be for good). Such people, it seems to me, rather enjoy imposing their desires on others–either because they are not satisfied with the degree of control they have over their own life (perhaps it is not enough) or because they are not satisfied with having control only over their own life (perhaps its too much!). It is a desire for power over others rather than a desire for power to live ones life as one wishes that seems to drive these people. We might do well to figure out how to decrease the occurrence of such a desire. (Even if not prohibiting it!)

Current Events, Discourse, Ethical Issues, Free Speech, Misc Academic Issues, Social Criticism, Toleration

Congressional SnowFlakes

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I wasn’t going to write anything about this as it seemed too obvious to comment on, but I haven’t seen others do so—and it is worth noticing.

There has been, and continues to be, talk about college students and people on the left as “snow flakes” and weak/soft/thin-skinned, too easily hurt by speakers on campus. The extent to which college students take offense at comments may (or not) be greater than it was in the past. Last week, though, we saw Republican Congresspeople doing the same thing. See this.

Liz Cheney has been telling the truth about the 2020 election and (some of) the lies coming from Donald Trump and his sycophants. She has not, so far as I have seen, been particularly rude about it. She has simply pointed out that some people seem intent on enabling and spreading Trump’s lies. The response includes claims of being offended and “hurt.” (TN Rep. Chuck Fleishmann: “It hurt me very much.” A lobbyist: “what she’s said was offensive to me, and many others.”)

It is not unusual on college campuses to hear claims that speech can harm so badly that we should not only be concerned, but also set policies to prevent such. Speech codes were/are meant to prevent harm. This is the sort of concept creep—where we talk of things previously thought non-harmful as harmful—that I worried about in my Toleration and Freedom from Harm and that Frank Furedi worried about in his On Tolerance.

Furedi’s concern was with acceptance of a “transformation of distress into a condition of emotional injury” (106) that would be used to justify interference meant to silence discussions that might somehow endanger those offended (or those they pretend to protect). A standard response is that such people are too weak to hear (or have others hear) anything that might offend them, cause them to doubt themselves, or that simply might not put them in the best light. Cheney is clearly not putting most of those in her party in the best light and offending some to the point of “hurt.” One wonders if her detractors will try to pass some sort of congressional speech code.

Current Events, Ethical Issues, Social Criticism

Collective vs. Individual Risk Assessment: An Illustration

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This is a guest post by John Hasnas (Georgetown University)

I move between two worlds. I work at Georgetown University in Washington, DC and I live in the Lake Barcroft community in Northern Virginia. The former is governed by the collective risk assessment made by the government of the District of Columbia and the University. The latter is largely governed by the individual risk assessments made by the residents. The former is a sad, lonely, and oppressive place. The latter is a cheerful, friendly, happy place.

This semester I have been teaching a hybrid class at the Georgetown Law Center. Entering the building in the hours before class is like stepping into the twilight zone episode, “Where Is Everybody?” in which Earl Holliman wanders through a totally deserted city. The class is held, not in a classroom, but in a large auditorium, which in pre-pandemic times seated 328 people. Now a maximum of 35 out of the 105 enrolled students sit in their own 42 square foot bubbles. The students, all of whom have tested negative for the coronavirus, are required to wear masks at all times and are not permitted to eat or drink in the building. During the 10 minute break in the 2 hour class, they must stand on little blue circles on the floor separated by 6 feet when they talk to each other. The law school encourages students and staff who observe violations of these rules to report the offenders who may then be barred from campus. Some of my students were reported for taking their masks off to eat or drink during the break and for standing too close to each other. I have been fully vaccinated since March 13, but I must teach wearing a mask.

The Lake Barcroft community surrounds a lake that has several artificially created beaches. Sunday was a beautiful, warm, sunny day in Northern Virginia. I decided to take a kayak out onto the lake for relaxation and little exercise. When I got to the beach it was filled with people. Families were playing together. Kids were wading and paddling around on kayaks and paddle boards. Several groups of friends, both teenagers and adults, were socializing together or playing frisbee or spike ball. There was laughter. And nary a mask in sight.

On the other hand, on my way to the beach, I passed individuals and couples who were out for a walk by themselves, some wearing masks, some not. Some of these crossed the street to make sure they did not come too close to me. Everyone nodded or waved hello as we passed.

I am fairly certain that my students and I would behave differently if we were free to make our own risk assessments. I believe that several of my students who are aware that everyone in the room has tested negative for Covid would sit closer together, socialize more in the break, and perhaps not wear masks. I certainly would not wear a mask when teaching. Having been both vaccinated and tested negative, I do not believe I am at risk myself or pose a significant risk to the students, the nearest of whom are several yards away from me. Of course, some of the students who come to class might not be comfortable with such conduct, and may decide to stop attending in person and join the rest of the class who are taking the course online. The two groups would be the analog of the people happily congregating at the beach and those walking alone along the street.

When we are free to make risk assessments for ourselves, we consider not only the danger to be avoided, but also the cost of what we must give up to avoid it. When risk assessments are made collectively, all that is considered is what will most effectively reduce the danger. There is no way to consider the varied personal cost felt by each individual and no incentive to do so. This is a rather mundane observation. But as I move between my classroom at Georgetown and the beach at Lake Barcroft, I feel its profound effect on the happiness of those in each camp.

Current Events, Ethical Issues, Law & Legal Philosophy, Political Philosophy/Theory, Social Criticism

Moralism and Busybodies: From Community to Police State

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In previous posts (for example, here), I have discussed what seems to me an extremely worrisome form of legal moralism wherein people essentially invoke “community” as a moral good in order to instantiate what they want regardless of what others in their supposed communities prefer.  Put differently, they think interference with your activities is warranted simply to maintain or promote the existence of a community they value, whether or not you or anyone else values the sort of community they do.  They might want a neighborhood community where all of the houses are painted the same color or that have the same flowers in front, for examples.  Should you want a different color paint or different type of flower, it’s too bad for you.  These are examples you might hear of in a Homeowners or Condo Association, and are fairly insignificant.  Indeed, in an HOA or a COA, where the rules are in the legal documents, I’d suggest there is no problem at all—because living in an HOA or a COA entails voluntary agreement to the terms of those documents.

These sorts of rules, though, might exist in neighborhoods lacking such an agreement.  Sometimes neighbors simply pressure each other to not use some paint colors, for example, in order to prevent reductions in property values.  While annoying, even these aren’t the sorts of problems I really worry about—perhaps because the claims involved aren’t—and aren’t meant to be—moral claims.  When the same dynamics involve moral claims, the intensity of demands and thus disagreements are often worse.

The general problem is what we euphemistically call “busy bodies.”*  These are people who think they should not only pay attention to your life, but also think they should tell you what to do.  Often, such people mean well.  They are simply trying to help.  Some busybodies cross a line, however, by not merely offering advise but demanding your compliance.  They might demand you not paint your house a certain way, for example, explaining that it will hurt property values and then adding that if you did it anyway, you would be failing in your obligations to your neighbors (see this for a related amusing story).  In what such obligations are grounded, though, they don’t say. 

This is still a minor issue—it’s just painting your house.  But busybodies might also come and tell you how to discipline your child—and again, while this can be done in a friendly “here’s some advice, take it or leave it” way, it can also be done as a demand based in some unstated moral view.  They might insist, for example, that your child not be allowed to play in the woods, be left alone, climb a wall, or ride a specific type of bike.  They might say “if you do allow those things, you are a bad parent; good parents don’t behave that way.”  (Of course, about some things they may well be right.)

Make no mistake, some people have no problem interfering with the lives of others; some are naturally interventionist. They think they know how other people should live. They think they know how you and I should live. And, very importantly, they believe the government should make us do what they think we should do and disallow us doing what they think we should not.  Here’s where we get the biggest problems—problems that arise from further steps along a path to authoritarianism.  From encouraging people to maintain their homes for simple practical reasons or offering (even undesired) parenting advise, to claiming we have duties to follow such advice, to seeking governmental power to force compliance, we have a spectrum of activities that are worrisome. 

To make the point clear, consider that some people believe smoking tobacco cigarettes—perhaps especially menthol flavored—is not only bad for you, but also (perhaps for that reason) immoral.  And that some people (President Biden) are perfectly happy to use government power to enforce your compliance—all for your own good.  The U.S. FDA’s stance on this is clear:

“Banning menthol—the last allowable flavor—in cigarettes and banning all flavors in cigars will help save lives … With these actions, the FDA will help … address health disparities experienced by communities of color, low-income populations, and LGBTQ+ individuals, all of whom are far more likely to use these tobacco products,” said Acting FDA Commissioner J. Woodcock, M.D.

Should any of us, including people in communities of color, low-income populations, or amongst LGBTQ+ individuals, think the benefits of smoking outweigh the costs for us, its too bad for us.  The busybodies are perfectly willing to use their power to bully the rest of us.  Such people do not mind sending police to arrest you should you try to sell single cigarettes, sell any without a license you’ve paid them for, or even for smoking one in your own home.  They will also not mind putting you in prison for failing to comply—or killing you on a street corner. (See this, if the story does not sound familiar.)

We should not think, though, that this is just about government.  Busybodies are often willing to use any sort of organization to make others comply with their desires. They are more than willing to vote to limit your ability to do what you want, of course.  But they are also quite willing to work to impose such restrictions in the workplace or neighborhood. They have no compunction against encouraging the boss to set policies that limit your ability to do what you want. They don’t mind petitioning a business to stop performing a service you enjoy or to stop selling a product you like.  They certainly don’t mind having the government make activities you enjoy illegal or limited.  What they seek is a society they like, regardless of what you or anyone else likes.  If some people must be imprisoned or killed for the cause, they seem to think that is simply a cost of attaining a good community or society. 

*See Antony Davies and James Harrigan’s Cooperation and Coercion: How Busybodies Became Busybullies and What that Means for Economics and Politics for more on the general problem.

Current Events, Ethical Issues, immigration, Law & Legal Philosophy, Toleration

Personal Responsibility, Moralism, and The American Right

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Consider the idea that individuals ought to try to be self-reliant, willing and able to take responsibility for themselves and their loved ones.  This used to be thought of as a reason to oppose state assistance (welfare, food stamps, etc.), and so a reason to oppose “liberals” of the sort in the US Democratic party.  Those liberals, the story goes, pushed the view that the government was there to ensure your well-being, enabling you to reject personal responsibility. 

Notice, though, that a central tenet of the new American right—common to former President Trump’s followers and many of those who rejected him—is a hostility toward and skepticism of immigrants. Those with this skeptical stance seem to believe immigrants are somehow likely to be criminals, simply too different from us to be allowed to join our society, likely to try to replace Christianity as the main religion, or likely to take “our” jobs.

This anti-immigrant stance, it seems to me, is quite opposed to an ideal of self-reliance. Instead of relying on themselves for their well-being, these opponents of immigration allow themselves to be upset about immigrants and happily rely on the federal government to keep out foreigners—as a way of (supposedly) protecting their (or what they see as “our”) well-being, which it seems, is too fragile to deal with immigrants.

While protection from genuine (harmful) criminal activity is always a reasonable concern, there is little reason to believe immigrants are more likely to engage in such behavior than are than non-immigrants. (See this and this, for some discussion.) But leave that aside; it’s clearly not the only concern and its not an invocation of a nanny state (nor of moralism).

Many of those who oppose immigrants seem to think they are simply too different from “us” or are likely to be committed to a religion that would compete with Christianity in some problematic way. They think that their (or “our”) way of life must be protected; they may think our Christian (or, they might say, “Judeo-Christian”) values must be protected.

Finally, these opponents of immigration may think immigrants will take their jobs (or the jobs of other compatriots)—and thus want the government to keep out immigrants as a way of protecting “American jobs” (and salaries), and thus, their well-being and that of their fellow “real” Americans. Such people seem to fear they cannot compete with immigrants in the picture—either for the jobs they currently have but fear immigrants will take, or for other jobs they might apply for.

My point here is that those on the right adopting an anti-immigrant stance seem happy to rely on the federal government to guarantee or at least promote their welfare. They worry about the erosion of “the American way” and want the federal government to assist them in fending off that erosion. This is not being self-reliant. Self-reliance in this picture would be to think something like “well, things change; I will change along with them as needed.”

One possible response to what I’ve said would be something: “Look, one happy side-effect of keeping out immigrants is (we think) that we do better, but that isn’t why we want them kept out (or ‘limited to legal immigration’—but when the laws are made more and more constraining, there is no real difference). We don’t want them kept out to protect us as individuals, but to protect (as you said) the American way and Christian values. So it’s not about rejecting personal responsibility at all.”

If the response works, it shows that the criticism of rejecting self-reliance and welcoming the nanny state (that the right has traditionally criticized) is not a fair criticism of the anti-immigrant right. It would, though, leave the anti-immigrant right wholeheartedly endorsing a moralism of the sort that I have discussed in previous posts (for example, here). It leaves them committed to a goal of getting other people to do, believe, or live as they want, without any concern for those others as individuals or the rights they supposedly believe we all have. The goal is just to impose their preferred way of life on others. The desire some of us might have to marry or hire someone from another country is simply deemed unworthy.

In a nutshell, the anti-immigrant stance by those on the right commits them to either preferring a particular sort of nanny state that protects them from cultural changes, challenges to their religious beliefs, and competition for jobs OR its a disturbing moralism that demands legal assistance to protect the “moral fabric of society” where that “fabric” is really just their preferred way of life without those cultural changes, challenges to their religious beliefs, and increased competition for jobs. Stated that way, the two options seem not very different. The moralism is, after all, an insistence that the their desired way of life be imposed because they like it and the way of life it provides them–so the nanny state ought to protect it. It might be pitched in terms of what is good for society overall rather than what is good for some group of individuals, but that pitch is exceedingly weak. None of this should be acceptable to those advocating personal responsibility, self-reliance, and individualism.

*Note: Thanks to A.I. Cohen and J.P. Messina for comments on a draft of this post.

For more on immigration, see Bryan Caplan’s book and, very soon, Chandran Kukathas’s. (RCL earns commissions if you buy from these links; commissions support this site; we make no profit from them.)

Ethical Issues

The goal of corporations should not be maximizing profit for shareholders

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Back in 2019, the Business Roundtable, a nonprofit whose membership comprises most of the US’s top CEOs, issued a statement endorsing the view that the purpose of the business corporation is to deliver value to all stakeholders, not just to advance the interests of shareholders. The World Economic Forum, best known for hosting an annual winter meeting in Davos, Switzerland for bigwigs from business, international politics, and journalism, has also declared its allegiance to the stakeholder approach to corporate governance. Some advocates have celebrated these announcements as a shift toward a more enlightened form of capitalism.

Classical liberals and defenders of free markets are suspicious of stakeholder capitalism–rightly so, in my view. The relationship between a corporation’s management (i.e., its officers and directors) and its shareholders differs in important respects from the relationship between a corporation’s management and its non-shareholder stakeholders. Notably, management has a fiduciary duty to run the firm according to the interests of its shareholders that does not apply to non-shareholder stakeholders. Stakeholder approaches to corporate governance deny this, or at least neglect it.

But market-sympathizing skeptics of stakeholder theory go too far when they insist that the only proper goal for a corporation’s management is to maximize profit for shareholders. In his recent Wall Street Journal op-ed criticizing stakeholder capitalism, Alexander Salter writes that profits “are an elegant and parsimonious way of promoting efficiency within a business as well as society as large.” I agree with that. But Salter continues: “Stakeholder capitalism ruptures this process. When other goals compete with the mandate to maximize returns, the feedback loop created by profits gets weaker.”

It is one thing to claim that the profit motive is an important component of a proper understanding of business corporations, or that management of a corporation owes a fiduciary duty to shareholders. An adequate understanding of corporate purpose clearly needs to account for these facts. However, it is quite another thing to say that corporate purpose boils down to a mandate to maximize returns for shareholders. This is not a defensible claim, and defenders of market institutions and the profit motive should stop making it.

Consider the following cases, which are stylized simplifications of real life situations:

  1. The e-cigarette company Juul can either (a) maximize profit by maximizing its appeal to potential young smokers, developing flavors and social media marketing strategies that appeal to adolescents and young adults (who, if addicted to nicotine at a young age, are likely to remain customers of nicotine products for the rest of their lives), or (b) settle for less profit by eschewing the younger demographic, and actively seeking market share only among older cigarette smokers for whom e-cigarettes function mainly as a replacement for smoking combustible tobacco.
  2. River Blindness is a disease caused by a parasitic worm that results in severe discomfort and, eventually, blindness. The drug company Merck has discovered a new drug, Mectizan, that prevents River Blindness. However, Merck knows it will not be profitable to bring Mectizan to market–River Blindness is only common in economically less-developed countries in the tropics, and those who suffer from River Blindness are too poor to pay a price for treatment drugs such that it would be profitable for Merck to produce them. Merck can either (a) maximize profit by not devoting any further resources to developing and producing Mectizan, or (b) settle for less profit by devoting some of its resources to developing, producing, and distributing Mectizan.

It seems to me that there is a strong argument to be made that the right choice in both of these cases is (b), the non-profit maximizing choice. At least, that’s my intuition. Intuitions about cases like these seem to provide reason to doubt that we can reduce business ethics to shareholder value maximization. If I am right, it is not just that there are moral and legal restrictions on what firms can do in pursuit of profit maximization—which I take to be obvious—but that the very idea of profit maximization is misguided way to understand what the purpose of corporations should be. 

Of course, when we’re trying to adopt well-justified ethical beliefs, intuitions are more like the first words than last words, and further reflection may prove our intuitions wrong. So let me briefly consider, and respond to, a few objections.

 A defender of shareholder value maximization might argue that cases like the Juul scenario can be addressed by adding constraints to the imperative to maximize profit. People who say corporations should maximize shareholder value don’t think corporations can employ just any means at their disposal for the sake of profits: Milton Friedman , for example, in his famous essay in defense of the profit motive, mentions rules “embodied in the law and those embodied in ethical custom” as legitimate constraints on profit-seeing. The US and many other countries already have laws in place prohibiting marketing and selling nicotine products to youth. Those who advocate shareholder value maximization defend pursuing profits within the rules of the game established by the law. So they arguably have the resources to justify choice (b) in the Juul case.

There are a couple of issues with this response. First, it seems to rely on an unduly optimistic picture of laws and law-making processes in the real world. We can’t depend on flawed political systems to establish definitively what kinds of business conduct are beyond the ethical pale—in a world in which some laws are unjust, it’s naive and dangerous to rely too heavily on the law as a minimal baseline for morality. Second, even if there are laws prohibiting marketing and selling tobacco products to individuals under the ages of 18 or 21, that doesn’t mean that it is straightforwardly permissible to attempt to maximize returns by figuring out the most effective ways to get 19 or 22 year-olds addicted to your product. It may be permissible to sell addictive nicotine products to young adults of a certain age—I think it is, at some point—but that doesn’t mean that the right way to approach such transactions is to try to literally maximize the profit they generate. Of course, defenders of shareholder value maximization could follow Friedman and appeal to ethical custom, in addition to the law, as a legitimate source of ethical constraint on profit maximization. But then there’s some serious work to do in specifying the content of these ethical customs. And, of course, the resulting view is going to be pretty different from what most people are likely to understand when somebody says that the only proper purpose of corporations is to maximize profits.

Unlike the Juul case, case 2 involving Merck doesn’t just implicate constraints on how profit may be pursued. Justifying non-profit maximizing choice (b) in the Merck case would seem to require endorsing Merck’s pursuit of a goal other than profit maximization, rather than just endorsing a constraint on how Merck may permissibly pursue profit.

Defenders of shareholder value maximization might say that, while producing Mectizan seems like a nice thing for Merck to do, it’s not the proper function of a shareholder-oriented corporation like Merck to be diverting some of its resources from profitable employments expected to produce returns for shareholders to charitable employments that are not.

I’ve already said that I agree that an adequate normative account of organizations like Merck requires recognizing a fiduciary duty on the part of management to run the organization in a way that’s broadly in the interests of shareholders—we should not expect companies like Merck to mainly pursue charitable initiatives. But what reason do we have for thinking that it is never even permissible for companies like Merck to devote corporate resources to good charitable causes, as a commitment to shareholder value maximization would appear to imply?

Some people think that the answer is found in the law: corporations are under a legal obligation to maximize shareholder value. But that’s not true. Neither state corporate law, nor typical corporate charters, impose a legal duty on corporate managers to maximize returns for shareholders. In fact, corporate law contains a well-established doctrine called the business judgment rule, which holds that courts will not second-guess decisions made by a corporation’s board of directors, even when those decisions predictably reduce profit or share value (as long as the board makes reasonable efforts to become informed and avoids personal conflicts of interest).

Some people think that shareholder value maximization is required because corporations are owned by shareholders. But the legal ownership rights shareholders have over corporations are highly attenuated: (1) they are residual claimants (i.e., if the corporation is wound down, they are entitled to whatever, if anything, is left over after it has met all of its contractual obligations), and (2) they have the right to elect and remove directors. Even these rights are extremely limited: for example, in practice, the costs of mounting a proxy battle for corporate board seats are insurmountable for dispersed shareholders. So it does not appear that shareholders’ ownership of the corporation, such as it is, can justify shareholder value maximization in a way that avoids begging the question.

It may well be permissible to establish and run a corporation that adopts shareholder value maximization as its single goal (provided that the corporation also adopts appropriate constraints on how that goal will be pursued). But defenders of shareholder value maximization argue for something stronger: that it is impermissible for corporations to adopt goals other than maximizing shareholder value. But why should we think that? What is wrong with people voluntarily coming together to participate in a corporate entity that adopts the goal of seeking profit along with other goals (e.g., for Merck, improving “the health and wellness of people and animals worldwide”). It seems, well, illiberal to insist that the only goal that corporations may adopt is maximizing shareholder value. Says who? On what authority?

To return to the point from Salter’s op-ed, it may well be the case that agency costs make it difficult to effectively monitor and control the management of firms that adopt multiple goals, rather than the single goal of maximizing profit. But it’s an empirical question whether some business organizations are able to successfully overcome this impediment to effectively serving their goals. The point about agency costs, though important, does not allow us to dismiss the possibility of an efficient and effective corporation that pursues goals other than just profit a priori.

Critics of stakeholder models of corporate governance are right to highlight how stakeholder views fail to account for the importance of the profit motive in market contexts, or for the special fiduciary duty that corporate management owes to shareholders. But we can recognize these truths without adopting the extreme and untenable position that the only thing corporations should be doing is maximizing the value they deliver to their shareholders.

I would like to dedicate this post to Waheed Hussain, who died recently at a tragically young age. Waheed was a philosopher at the University of Toronto. His writings about business ethics, including an article referenced in the post above, have taught me a lot over the years.

I would also like to thank Andrew J. Cohen for his feedback on an earlier draft of this post.