Contemporary Moral Issues : Diversity and Consensus [4th ed.] 9781315509921, 131550992X

Table of contents :
Cover
Half Title
Title
Copyright
Contents
Preface
Introduction: A Pluralistic Approach to Contemporary Moral Issues
An Initial Moral Problems Self-Quiz
PART ONE. MATTERS OF LIFE AND DEATH
1. CLONING AND REPRODUCTIVE TECHNOLOGIES
The Narratives
""Belgian Loopholes Allow Swiss Parents a 'Savior' Baby""
""On the Ethics of Selective Abortion for Disability: Conversations with My Son""
An Introduction to the Moral Issues
The Argument
""What's Wrong with Enhancement?""
Concluding Discussion Questions
For Further Reading
MySearchLab Connections
1. Twilight of the Idols, Selections. 2. Utilitarianism3. Republic
2. ABORTION
The Narrative
""The Two-Minus-One Pregnancy""
An Introduction to the Moral Issues
The Arguments
""Abortion and the Concept of a Person""
""The Wrong of Abortion""
Concluding Discussion Questions
For Further Reading
MySearchLab Connections
1. Meditations on First Philosophy
2. Protagoras
3. Politics
3. EUTHANASIA
The Narratives
""Letting Go""
""Confronting Physician-Assisted Suicide and Euthanasia: My Father's Death""
An Introduction to the Moral Issues
The Argument
""Active and Passive Euthanasia""
Concluding Discussion Questions. For Further ReadingMySearchLab Connections
1. Foundation for the Metaphysics of Morals
2. An Introduction to the Principles of Morality and Legislation
3. Higher & Lower Pleasures
4. PUNISHMENT AND THE DEATH PENALTY
The Narrative
""Crime Victims on the Anvil of Pain""
An Introduction to the Moral Issues
The Arguments
""What Do Murderers Deserve? The Death Penalty in Civilized Societies""
""Against the Death Penalty""
Concluding Discussion Questions
For Further Reading
MySearchLab Connections
1. Principle of Utility
2. On Crimes and Punishments. 3. The Metaphysical Elements of Justice5. WAR, TERRORISM, AND COUNTERTERRORISM
The Narrative
""Soldiers' Moral Wounds""
An Introduction to the Moral Issues
The Arguments
""The Argument about Humanitarian Intervention""
""Torture Can Be Wrong and Still Work""
""Is There a Tortuous Road to Justice?""
""Ethical Issues in Counterterrorism Warfare""
Concluding Discussion Questions
For Further Reading
MySearchLab Connections
1. On Free Choice of the Will
2. Summa Theologica
3. The Analects
PART TWO. MATTERS OF DIVERSITY AND EQUALITY
6. RACE AND ETHNICITY
The Narrative. ""Beyond Mestizaje: The Future of Race in America""An Introduction to the Moral Issues
The Arguments
""Achieving Democratic Equality: Forgiveness, Reconciliation, and Reparations""
""Hate Crimes Laws: Progressive Politics or Balkanization?""
Concluding Discussion Questions
For Further Reading
MySearchLab Connections
1. The Souls of Black Folk
2. Letter from a Birmingham Jail
3. An Introduction to the Principles of Morality and Legislation
7. GENDER
An Introduction to the Moral Issues
The Arguments
""Stopping the Traffic in Women""
""The Second Sexism""

Citation preview

Contemporary Moral Issues

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Fourth Edition

Contemporary Moral Issues Diversity and Consensus

Lawrence M. Hinman University of San Diego

First published 2 013 , 2006, 2000, 1996 by Pearson Education, Inc. Published 2016 by Routledge 2 Park Square, Milton Park, Abingdon, Oxon OX14 4RN 711 Third Avenue, New York, NY 10017, USA Routledge is an imprint of the Taylor & Francis Group, an informa business Copyright © 2013, 2006, 2000, 1996 by Taylor & Francis All rights reserved. No part of this book may be reprinted or reproduced or utilised in any form or by any electronic, mechanical, or other means, now known or hereafter invented, including photocopying and recording, or in any information storage or retrieval system, without permission in writing from the publishers. Notice: Product or corporate names may be trademarks or registered trademarks, and are used only for identification and explanation without intent to infringe.

Credits and acknowledgments borrowed from other sources and reproduced, with permission, in this textbook appear on the appropriate page within text. Many of the designations by manufacturers and seller to distinguish their products are claimed as trademarks. Where those designations appear in this book, and the publisher was aware of a trademark claim, the designations have been printed in initial caps or all caps. Cover Designer: Suzanne Duda ISBN-13: 9780205633609 (pbk) Library of Congress Cataloging-in-Publication Data Hinman, Lawrence M. Contemporary moral issues: diversity and consensus / Lawrence M. Hinman. —4th ed. p. cm. ISBN-13: 978-0-205-63360-9 1. Ethical problems—Textbooks. I. Title. BJ1031.H65 2013 170—dc23 2012017807

Contents

Preface x Introduction: A Pluralistic Approach to Contemporary Moral Issues xiii An Initial Moral Problems Self-Quiz xxii

Part One. Matters of Life And Death

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1. Cloning and Reproductive Technologies 11 The Narratives 12 Katy Duke, “Belgian Loopholes Allow Swiss Parents a ‘Savior’ Baby” 12 Eva Feder Kittay, “On the Ethics of Selective Abortion for Disability: Conversations with My Son” 14

An Introduction to the Moral Issues The Argument 40

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Michael Sandel, “What’s Wrong with Enhancement?” Concluding Discussion Questions For Further Reading

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MySearchLab Connections

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1. Twilight of the Idols, Selections by Friedrich Nietzsche 2. Utilitarianism by John Stuart Mill 46 3. Republic by Plato 46

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2. Abortion 47 The Narrative 48 Ruth Padawer, “The Two-Minus-One Pregnancy”

An Introduction to the Moral Issues The Arguments 71

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Jane English, “Abortion and the Concept of a Person”

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Patrick Lee and Robert P. George, “The Wrong of Abortion” 77 Concluding Discussion Questions For Further Reading

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MySearchLab Connections

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1. Meditations on First Philosophy by René Descartes 91 2. Protagoras by Plato 91 3. Politics by Aristotle 91

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3. Euthanasia 92 The Narratives 93 Atul Gawande, “Letting Go”

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Susan M. Wolf, “Confronting Physician-Assisted Suicide and Euthanasia: My Father’s Death” 108

An Introduction to the Moral Issues The Argument 121

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James Rachels, “Active and Passive Euthanasia” Concluding Discussion Questions For Further Reading

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MySearchLab Connections

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1. Foundation for the Metaphysics of Morals by Immanuel Kant 128 2. An Introduction to the Principles of Morality and Legislation by Jeremy Bentham 128 3. Higher & Lower Pleasures by John Stuart Mill 128 4. Punishment and the Death Penalty The Narrative 130

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Helen Prejean, C.S.J., “Crime Victims on the Anvil of Pain” 130

An Introduction to the Moral Issues The Arguments 151

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David Gelernter, “What Do Murderers Deserve? The Death Penalty in Civilized Societies” 151 Jeffrey H. Reiman, “Against the Death Penalty” Concluding Discussion Questions For Further Reading

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MySearchLab Connections

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1. Principle of Utility by Jeremy Bentham 164 2. On Crimes and Punishments by Cesare Beccaria 164 3. The Metaphysical Elements of Justice by Immanuel Kant 5. War, Terrorism, and Counterterrorism The Narrative 167 Nancy Sherman, “Soldiers’ Moral Wounds”

An Introduction to the Moral Issues The Arguments 195

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Michael Walzer, “The Argument about Humanitarian Intervention” 195 Stephen L. Carter, “Torture Can Be Wrong and Still Work” 203 Alan M. Dershowitz, “Is There a Tortuous Road to Justice?” Martin Cook, “Ethical Issues in Counterterrorism Warfare” Concluding Discussion Questions For Further Reading

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MySearchLab Connections

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1. On Free Choice of the Will by Saint Augustine 211 2. Summa Theologica by Saint Thomas Aquinas 211 3. The Analects by Confucius 212

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Part Two. Matters of Diversity And Equality 6. Race and Ethnicity The Narrative 228

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Gregory Velazco y Trianosky, “Beyond Mestizaje: The Future of Race in America” 228

An Introduction to the Moral Issues The Arguments 250

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Howard McGary, “Achieving Democratic Equality: Forgiveness, Reconciliation, and Reparations” 250 David A. Reidy, “Hate Crimes Laws: Progressive Politics or Balkanization?” 260 Concluding Discussion Questions For Further Reading

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MySearchLab Connections

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1. The Souls of Black Folk by William Edward Burghardt Du Bois (also, W.E.B. Du Bois) 272 2. Letter from a Birmingham Jail by Martin Luther King, Jr. 273 3. An Introduction to the Principles of Morality and Legislation by Jeremy Bentham 273 7. Gender 274 An Introduction to the Moral Issues The Arguments 284

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Kathy Miriam, “Stopping the Traffic in Women” David Benatar, “The Second Sexism”

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Susan Moller Okin, “Is Multiculturalism Bad for Women?” Concluding Discussion Questions For Further Reading

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MySearchLab Connections

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1. How to Make Our Ideas Clear by Charles Sanders Peirce 321 2. Philosophical Investigations by Ludwig Wittgenstein 321 3. Cratylus by Plato 321 4. An Essay on Man by Alexander Pope 322 8. Sexual Orientation 323 The Narrative 324 Hillary Rodham Clinton, “Remarks in Recognition of International Human Rights Day” 324

An Introduction to the Moral Issues The Arguments 340

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Martha Nussbaum, “A Right to Marry? Same-Sex Marriage and Constitutional Law” 340 James Q. Wilson, “Against Homosexual Marriage” Concluding Discussion Questions For Further Reading

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MySearchLab Connections

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1. On Liberty by John Stuart Mill 359 2. Five Ways by Saint Thomas Aquinas 359 3. The Teleological Argument by William Paley

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Part Three. Expanding The Circle 361 9. World Hunger and Poverty 363 An Introduction to the Moral Issues 364 The Arguments 378 Thomas Pögge, “The Moral Demands of Global Justice” Michael Walzer, “Achieving Global and Local Justice” Concluding Discussion Questions For Further Reading

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MySearchLab Connections

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1. Nicomachean Ethics by Aristotle 393 2. Utilitarianism by John Stuart Mill 393 3. Higher & Lower Pleasures by John Stuart Mill 393 4. An Inquiry into the Nature and Causes of the Wealth of Nations by Adam Smith 393 10. Living Together with Animals 395 The Narratives 396 Jonathan Safran Foer, “Eating Animals”

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Peter Singer, “Down on the Factory Farm”

An Introduction to the Moral Issues The Arguments 413

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Tom Regan, “The Case for Animal Rights”

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Carl Cohen, “The Case for the Use of Animals in Biomedical Research” 420 Concluding Discussion Questions For Further Reading

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MySearchLab Connections

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1. Meditations on First Philosophy by René Descartes 429 2. The Metaphysical Elements of Justice by Immanuel Kant 429 3. De Anima by Aristotle 429 11. Environmental Ethics 430 The Narrative 431 N. Scott Momaday, “Native American Attitudes toward the Environment”

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Edward O. Wilson, “Apocalypse Now: A Scientist’s Plea for Christian Environmentalism” 434

An Introduction to the Moral Issues The Arguments 442 Peter S. Wenz, “Just Garbage”

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Ramachandra Guha, “Radical American Environmentalism and Wilderness Preservation: A Third World Critique” 450 Concluding Discussion Questions For Further Reading

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1. Opus Majus by Roger Bacon 461 2. Discourse on Method by René Descartes 461 3. Principle of Utility by Jeremy Bentham 461 12. CyberEthics 462 The Narrative 463 Joseph Menn, “Hackers Live by Own Code”

An Introduction to the Moral Issues The Arguments 475

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Luciano Floridi, “The Ethical Evaluation of WikiLeaks”

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James M. Moor, “Should We Let Computers Get Under Our Skins?” 477 Frances S. Grodzinsky and Herman T. Tavani, “Ethical Reflections on Cyberstalking” 488 Richard A. Spinello, “Ethical Reflections on the Problem of Spam” 495 Concluding Discussion Questions For Further Reading

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MySearchLab Connections

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1. Leviathan by Thomas Hobbes 504 2. De Anima by Aristotle 504 3. Foundation for the Metaphysics of Morals by Immanuel Kant 4. Two Treatises of Government by John Locke 504 Index 505

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Preface

he fourth edition of Contemporary Moral Issues represents a substantial revision from the previous editions. Each chapter’s “Introduction to the Moral Issues” has been substantially revised and in most cases greatly expanded, providing students with a clear roadmap of the major issues and arguments and often also supplying relevant empirical background as well. I hope that students will find these essays inviting and illuminating, allowing them to enter into the ongoing discussion of these issues in our discipline. In this regard, I construe my role as akin to the good host at a dinner party, providing newcomers with gracious introductions to those already present at the party and quick but thoughtful summaries of the discussions that have preceded their arrival. An increasing number of selections are devoted to authors whose voice is distinctive—not just what they say, but how they say it. For example, Jonathan Safran Foer, the author of Everything Is Illuminated (2002) and Extremely Loud and Incredibly Close (2005), talks about eating animals and vegetarianism within the context of family life and Thanksgiving. (Foer’s undergraduate degree, by the way, was in philosophy.) Edward O. Wilson, the founder of sociobiology, writes a letter to a Southern pastor, exploring overlapping concerns about the environment. David Gelernter, a remarkable computer scientist at Yale, writes about the death penalty as one of the targets of the Unabomber. Sr. Helen Prejean writes about these issues from a different perspective but with an equally distinctive voice, talking of ministering to the families of victims as well as those on death row. Voices, each distinctive, each worth attending to, even when we disagree. I want their words as well as their ideas to shine through from the pages, illuminating our experience, revealing to us the clarity of their own visions. There are also distinctive voices of philosophers, all the more moving because they describe the intersection of their considerable intellectual expertise with their own, often deeply challenging real-life experiences. Eva Feder Kittay engages in an exchange of letters with her son Leo about the expressivity of genetic testing for disabilities, always in the light of Sesha, the severely disabled daughter and sister who has so profoundly shaped their lives. Susan M. Wolf, after years of thoughtful and probing philosophical work on end-of-life issues, allows us to see how she struggles with the final weeks of her father’s dying. “Beyond Mestizaje,” Greg Velasco y Trianoski brings a finely textured awareness of race in America together with a philosophical sensitivity that both amplifies and clarifies the voices he discusses, allowing us to see and understand difference in new ways. Again, distinctive voices, irreducible to simple theories. Others included in this collection are particularly skilled in giving voice to the experiences of others. In a piece from The New Yorker, Atul Gawande, one of the most articulate physicians writing today, talks about endof-life issues and the voices of both patients and doctors who are seeking an answer to the question of what it means to die well. In a piece that appeared in the New York Times Magazine, Ruth Padawer helps us to hear the voices of those involved in “reducing” pregnancies from twins to singletons, a type of selective abortion for nonmedical reasons that is on the rise. Nancy Sherman, a professor at Georgetown and the first person to hold the Stockdale Chair in Ethics and Leadership at the United States Naval Academy, writes of the moral wounds suffered by soldiers, wounds that often cut deeper than any physical injury they endured, and she brings to her perfect-pitch attunement of one who has long studied the Stoics, Aristotle, and other ancient philosophers. There are, of course, many other wonderful pieces contained in the following pages as well, including articles by such notable philosophers as Peter Singer, Martha Nussbaum, Michael Walzer, Jeffrey Reiman, Michael Sandel, Thomas Pögge, Stephen Carter, Jane English, James Rachels, Tom Regan, Luciano Floridi, Jim Moor, Susan Moller Okin, and many others. Some nonphilosophers make the list as well, including Hillary Rodham Clinton and Alan Dershowitz.

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This book is user-friendly for students. Critical introductions to each chapter provide a conceptual map of the moral terrain to be covered, whereas a short Overview of Ethical Theories helps to specify some of the common issues that arise in each chapter. Each selection is introduced with prereading questions to focus the students’ attention. Discussion questions at the end of each selection are designed to help students develop their own positions on the issues raised, whereas journal questions—in italics—explore more personal issues raised by the readings. A bibliographic essay at the end of each chapter highlights key works and points the way to valuable resources for students. A guide about critical reading in philosophy and writing philosophical papers on moral issues is now available on Ethics Updates (http://ethics.sandiego.edu/guides). It includes tips on choosing and refining a topic, developing a bibliography, refining arguments, and using counterexamples. I have retained the Moral Problems Self-Quiz at the beginning of this book that surveys your position on a number of issues discussed throughout the book. At the end of each chapter, there is a retest of the relevant questions. Take the initial quiz before you read any of the individual chapters, and then revisit the relevant questions at the end of each chapter. Check your responses against your initial answers and see in what ways—if any—you’ve changed. Finally, the integration with the World Wide Web that was begun with the first edition is even more exten-sive in this third edition. One site now provides support for this book : my own site, Ethics Updates ( http://ethics.sandiego.edu ), continues to provide extensive resources on all the topics covered in this book. These resources are increasingly multimedia and interactive and contain several types of sources. First, continually updated versions of the bibliographic essays in this book will be available online, with references to the latest work in each area. (Earlier versions of the bibliographical essays are also available for reference.) Second, links to numerous Web sites will provide addi-tional resources for the book. For example, the section on abortion contains links to the Web pages of both pro-choice and pro-life groups, and also contains links to the full texts of major court decisions about abortion. Third, there are both PowerPoint presentations and streaming video of some of my lectures and other relevant video material. This book, like Caesar’s Gaul, is divided into three parts. Part One centers around issues of life and death, including in vitro fertilization, abortion, euthanasia, the death penalty, and war. Central to this section is the question of the right to life and the sanctity of human life. Part Two deals explicitly with questions of diversity and equality, including issues of race, ethnicity, gender, and sexual orientation. Here one of the central issues is how we balance the recognition of diversity with the demands for community. Part Three turns to a consideration of the boundaries of the moral domain. Morality may begin at home, but how far from home does it extend? Do our moral obligations extend to the poor and starving of other countries? To animals? To the environment? To the virtual world? These four questions provide the basis for the final four chapters of this book. I wish to thank, first of all, the authors who kindly allowed their work to be reprinted in this book, for their contributions, which form the heart of this work. Moreover, I would like to thank the reviewers for their comments and suggestions for making this a better book; any shortcomings are my own. At Pearson Education, I am especially grateful to Carly Czech, for her patience and support in a project that took longer than either of us anticipated and for Lindsay Bethoney’s careful editorial support; to Marcy Schneidewind for her tireless work on permissions, and Kailash Jadli and his team at Aptara for their tireless work on transforming the manuscript into a book. At the University of San Diego, many of my colleagues and the students in my Social Ethics course provided encouragement, insight, and inspiration. Most of all, I would like to thank my wife, Virginia, for her continued love as well as her support. Without her, this book would not have been written. Finally, I would greatly appreciate comments from readers, both students and professors. Please feel free to write to me either via e-mail ([email protected]) or the old fashioned way to Lawrence M. Hinman, Department of Philosophy, University of San Diego, 5998 Alcalá Park, San Diego, CA 92110-2492. Your comments and suggestions are most welcome. Lawrence M. Hinman

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Introduction A Pluralistic Approach to Contemporary Moral Issues

Understanding Moral Disagreements xiv Moral Absolutism xiv Moral Relativism xiv Moral Pluralism xv A Pluralistic Approach to Moral Theories xvi Morality as Consequences xvi Ethical Egoism xvi Group Consequentialism xvi Utilitarianism xvi Feminist Consequentialism xvii Conclusion: Consequentialism xvii Morality as Act and Intention xvii Conformity to God’s Commands xviii Natural Law xviii Proper Intention xviii Respect for Rights xx Morality as Character xx The Contrast between Act-Oriented Ethics and Character-Oriented Ethics Human Flourishing xxi Virtue Ethics as the Foundation of Other Approaches to Ethics xxi Analyzing Moral Problems xxi

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Understanding Moral Disagreements We agree about many things in the moral life, and this agreement is often reflected in our laws and social customs. It is wrong to simply shoot and kill someone; no one believes adults should be free to assault and molest children; it’s wrong to cheat and lie; spitting in someone’s face is a grave insult; humiliating other people just to feel superior is objectionable. We have a wide web of moral beliefs shared by the vast majority of our society. The issues we will consider in the following chapters do not fall into that category. These are often issues about which people disagree deeply and passionately. Abortion, stem cell research, euthanasia, the death penalty, racism, sexism, homosexuality, welfare, world hunger, animal rights, and environmental issues—all are areas characterized by fundamental disagreements, often intense, sometimes bitter and acrimonious. This situation is made even more perplexing by the fact that in all of these debates, each side has good arguments in support of its position. In other words, these are not debates in which one side is so obviously wrong that only moral blindness or ill will could account for its position. Genuinely good, well-informed and wellintentioned people find themselves on opposing sides of these issues. Thus, we cannot easily dismiss such disagreements by just saying that one side is wrong in some irrational or malevolent way. Ultimately, these are disagreements among intelligent people of good will. It is precisely this fact that makes them so disturbing. Certainly part of moral disagreement can be attributed to ignorance or ill will, but the troubling part is the moral disagreement among informed and benevolent people. What kind of sense can we make of such disagreement? Three possible responses deserve particular attention. Moral Absolutism

The first, and perhaps most common, response to such disagreements is to claim that there is a single, ultimate answer to the questions being posed. This is the answer of the moral absolutists, those who believe there is a single Truth with a capital “T.” Usually, absolutists claim to know what that truth is—and it usually corresponds, not surprisingly, to their own position. Moral absolutists are not confined to a single position. Indeed, absolutism is best understood as much as a way of holding certain beliefs as it is an item of such belief. Religious fundamentalists—whether Christian, Muslim, or some other denomination—are usually absolutists. Some absolutists believe in communism, others believe just as absolutely in free-market economics. Some moral philosophers are absolutists, believing that their moral viewpoint is the only legitimate one. But what characterizes all absolutists is the conviction that their truth is the truth. Moral absolutists may be right, but there are good reasons to be skeptical about their claims. If they are right, how do they explain the persistence of moral disagreement? Certainly there are disagreements and disputes in other areas (including the natural sciences), but in ethics there seems to be persistence to these disputes that we usually do not find in other areas. It is hard to explain this from an absolutist standpoint without saying such disagreement is due to ignorance or ill will. Certainly this is part of the story, but can it account for all moral disagreement? Absolutists are unable to make sense out of the fact that sometimes we have genuine moral disagreements among well-informed and good-intentioned people who are honestly and openly seeking the truth. Moral Relativism

The other common response to such disagreement effectively denies that there is a truth in this area, even with a lower case “t.” Moral relativists maintain that moral disagreements stem from the fact that what is right for one is not necessarily right for another. Morality is like beauty, they claim—purely relative to the beholder. There is no ultimate standard in terms of which perspectives can be judged. No one is wrong; everyone is right within his or her own sphere. Notice that these relativists do more than simply acknowledge the existence of moral disagreement. Just to admit that moral disagreement exists is called descriptive relativism, and this is a comparatively uncontroversial claim. There is plenty of disagreement in the moral realm, just as there is in most other areas of life. However, normative relativists go further. They not only maintain that such disagreement exists; they also say that each is

Introduction: A Pluralistic Approach to Contemporary Moral Issues

right relative to his or her own culture. Incidentally, it is also worth noting that relativists disagree about precisely what morality is relative to. When we refer to moral relativists here, we will be talking about normative relativists, including both cultural moral relativists and moral subjectivists. Although moral relativism often appears appealing at first glance, it proves to be singularly unhelpful in the long run. It provides an explanation of moral disagreement, but it fails to provide a convincing account of how moral agreement could be forged. In the fact of disagreement, what practical advice can relativists offer us? All they can say, it would seem, is that we ought to follow the customs of our society, our culture, our age, or our individual experience. Thus cultural moral relativists tell us, in effect, “When in Rome, do as the Romans do.” Moral subjectivists tell us that we should be true, not to our culture, but to our individual selves. But relativists fail to offer us help in how to resolve disputes when they arise. To say that each is right unto itself is of no help, for the issue is what happens when they come together. Although this might be helpful advice in an age of moral isolationism when each society (or individual) was an island unto itself, it is of little help today. In our contemporary world, the pressing moral question is how we can live together, not how we can live apart. Economies are mutually interdependent; corporations are often multinational; products such as cars are seldom made in a single country. Communications increasingly cut across national borders. Satellite-based telecommunication systems allow international television (MTV is worldwide as are several news networks) and international telephone communications. Millions of individuals around the world dial into the Internet, establishing a virtual community. In such a world, relativism fails to provide guidance for resolving disagreements. All it can tell us is that everyone is right in his or her own world. But the question for the future is how to determine what is right when worlds overlap. Moral Pluralism

Let’s return to our problem: in some moral disputes, there seem to be well-informed and good-intentioned people on opposing sides. Absolutism fails to offer a convincing account of how opposing people could be both well informed and good intentioned. It says there is only one answer, and those who do not see it are either ignorant or ill willed. Relativism fails to offer a convincing account of how people can agree. It says no one is wrong, that each culture (or individual) is right unto itself. However, it offers no help about how to resolve these moral disputes. There is a third possible response here, which I call moral pluralism. Moral pluralists maintain that there are moral truths, but they do not form a body of coherent and consistent truths in the way that one finds in the science or mathematics. Moral truths are real, but partial. Moreover, they are inescapably plural. There are many moral truths, not just one—and they may conflict with one another. Let me borrow an analogy from government. Moral absolutists are analogous to old-fashioned monarchists: there is one leader, and he or she has the absolute truth. Moral relativists are closer to anarchists: each person or group has its own truth. The U.S. government is an interesting example of a tripartite pluralist government. We don’t think that the president, the Congress, or the judiciary alone has an exclusive claim to truth. Each has a partial claim, and each provides a check on the other two. We don’t—at least not always—view conflict among the three branches as a bad thing. Indeed, such a system of overlapping and at times conflicting responsibilities is a way of hedging our bets. If we put all of our hope in only one of the branches of government, we would be putting ourselves at greater risk. If that one branch is wrong, then everything is wrong. However, if there are three (at least partially conflicting) branches of government, then the effects of one branch’s being wrong are far less catastrophic. Moreover, the chance that mistakes will be uncovered earlier is certainly increased when each branch is being scrutinized by the others. We have an analogous situation in the moral domain. As we shall see, there are conflicting theories about goodness and rightness. Such conflict is a good thing. Each theory contains important truths about the moral life and none of them contains the whole truth. Each keeps the others honest, as it were, curbing the excesses of any particular moral absolutism. Yet each claims to have the truth, and refuses the relativist’s injunction to avoid making judgments about others. Judgment—both making judgments and being judged—is crucial to the moral life, just as it is to the political life. We have differing moral perspectives, but we must often inhabit a common world. It is precisely this tension between individual viewpoints and living in a common world that lies at the heart of this book. The diversity of viewpoints is not intended to create a written version of those television news

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shows where people constantly shout at one another. Rather, these selections indicate the range of important and legitimate insights with which we approach the issue in question. The challenge, then, is for us—as individuals, and as a society—to forge a common ground that acknowledges the legitimacy of the conflicting insights but also establishes a minimal area of agreement so that we can live together with our differences. The model this book strives to emulate is not the one-sided monarch who claims to have the absolute truth, nor is it the anarchistic society that contains no basis for consensus. Rather, it is the model of a healthy government in which diversity, disagreement, compromise, and consensus are signs of vitality. A Pluralistic Approach to Moral Theories

Just as in the political realm there are political parties and movements that delineate the main contours of the political debate, so also in philosophy there are moral theories that provide characteristic ways of understanding and resolving particular moral issues. In the readings throughout this book, we see a number of examples of these theories in action. It is helpful to look at some of the main characteristics of each of these theories. Just as Republicans and Democrats, liberals and conservatives, libertarians and socialists all have important—and often conflicting—insights about the political life, each of these theories have valuable insights into the moral life. Yet none of them has the whole story. Let’s look briefly at each of these approaches.

Morality as Consequences What makes an action morally good? For many of us, what counts are consequences. The right action is the one that produces the best consequences. If I give money to Oxfam to help starving people, and if Oxfam saves the lives of starving people and helps them develop a self-sustaining economy, then I have done something good. It is good because it produced good consequences. For this reason, it is the right thing to do. Those who subscribe to this position are called consequentialists. All consequentialists share a common belief that it is consequences that make an action good, but they differ among themselves about precisely which consequences. Ethical Egoism

Some consequentialists, called ethical egoists, maintain that each of us should look only at the consequences that affect us. In their eyes, each person ought to perform those actions that contribute most to his or her own self-interest. Each person is the best judge of his or her own self-interest and each person is responsible for maximizing his or her own self-interest. The political expression of ethical egoism occurs most clearly in libertarianism and the best-known advocate of this position was probably Ayn Rand. Group Consequentialism

Few people care only about themselves. Most of us care, not only about ourselves, but also about some larger group as well. In some cases, this may be our immediate family. In other cases, our country. In other cases, those who share our religious beliefs and practices. Utilitarianism

Once we begin to enlarge the circle of those affected by the consequences of our actions, we move toward a utilitarian position. At its core, utilitarianism believes that we ought to do what produces the greatest overall good consequences for everyone, not just for me. We determine this by examining the various courses of action open to us, calculating the consequences associated with each, and then deciding on the one that produces the greatest overall good consequences for everyone. It is consequentialist and computational. It holds out the promise that moral disputes can be resolved objectively by computing consequences. Part of the attraction of utilitarianism is precisely this claim to objectivity based on a moral calculus. Utilitarians disagree among themselves about what the proper standard of utility is for judging consequences. What are “good” consequences? Are they the ones that produce the most pleasure? The most happiness? The most truth, beauty, and the like? Or simply the consequences that satisfy the most people? Each of

Introduction: A Pluralistic Approach to Contemporary Moral Issues

these standards of utility has its strengths and weaknesses. Pleasure is comparatively easy to measure, but in many people’s eyes it seems to be a rather base standard. Can’t we increase pleasure just by putting electrodes in the proper location in a person’s brain? Presumably we want something more, and better, than that. Happiness seems a more plausible candidate, but the difficulty with happiness is that it is both elusive to define and extremely difficult to measure. This is particularly a problem for utilitarianism because its initial appeal rests in part on its claim to objectivity. Ideals such as truth and beauty are even more difficult to measure. Preference satisfaction is more measurable, but it provides no foundation for distinguishing between morally acceptable preferences and morally objectionable preferences such as racism. The other principal disagreement that has plagued utilitarianism centers on the question of whether we look at the consequences of each individual act—this is called act utilitarianism—or the consequences that would result from everyone following a particular rule—this is called rule utilitarianism. The danger of act utilitarianism is that it may justify some particular acts that most of us would want to condemn, particularly those that sacrifice individual life and liberty for the sake of the whole. The classic problem occurs in regard to punishment. We could imagine a situation in which punishing an innocent person—while concealing his innocence, of course—would have the greatest overall good consequences. If doing so would result in the greatest overall amount of pleasure or happiness, then it would not only be permitted by act utilitarianism, it would be morally required. Similar difficulties arise in regard to an issue such as euthanasia. It is conceivable that overall utility might justify active euthanasia of the elderly and infirm, even involuntary euthanasia, especially of those who leave no one behind to mourn their passing. Yet are there things we cannot do to people, even if utility seems to require it? Many of us would answer such a question affirmatively. Feminist Consequentialism

During the past 20 years, much interesting and valuable work has been done in the area of feminist ethics. It would be misleading to think of feminist approaches to ethics as falling into a single camp, but certainly some feminist moral philosophers have sketched out consequentialist accounts of the moral life in at least two different ways. First, some feminists have argued that morality is a matter of consequences, but that consequences are not best understood or evaluated in the traditional computational model offered by utilitarianism. Instead, they focus primarily on the ways in which particular actions have consequences for relationships and feelings. Negative consequences are those that destroy relationships and that hurt others, especially those that hurt others emotionally. Within this tradition, the morally good course of action is the one that preserves the greatest degree of connectedness among all those affected by it. Carol Gilligan has described this moral voice in her book In a Different Voice. Second, other feminists have accepted a roughly utilitarian account of consequences, but have paid particular attention to—and often given special weight to—the consequences that affect women. Such consequences, they argue, have often been overlooked by traditional utilitarian calculators, supposedly impartial but often insensitive to harming women. Unlike the work of Gilligan and others mentioned in the previous paragraph, feminists in this tradition do not question the dominant utilitarian paradigm, but rather question whether it has in fact been applied impartially. Conclusion: Consequentialism

Despite these disagreements about the precise formulation of utilitarianism, most people would admit that utilitarianism contains important insights into the moral life. Part of the justification for morality, and one of the reasons people accept the burdens of morality, is that it promises to produce a better world than we would have without it. This is undoubtedly part of the picture. But is it the whole picture?

Morality as Act and Intention Critics of utilitarianism point out that, for utilitarianism, no actions are good or bad in themselves. All actions in themselves are morally neutral, and for pure consequentialists no action is intrinsically evil. Yet this seems to contradict the moral intuition of many people, people who believe that some actions are just morally wrong,

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even if they have good results. Killing innocent human beings, torturing people, raping them—these are but a few of the actions that many would want to condemn as wrong in themselves, even if in unusual circumstances they may produce good consequences. How can we tell if some actions are morally good or bad in themselves? Clearly, we must have some standard against which they can be judged. Various standards have been proposed, and most of these again capture important truths about the moral life. Conformity to God’s Commands

In a number of fundamentalist religious traditions, including some branches of Judaism, Christianity, and Islam, what makes an act right is that it is commanded by God and what makes an act wrong is that it is forbidden by God. In these traditions, certain kinds of acts are wrong just because God forbids them. Usually such prohibitions are contained in sacred texts such as the Bible or the Koran. There are two principal difficulties with this approach, one external and one internal. The external problem is that, although this may provide a good reason for believers to act in particular ways, it hardly gives a persuasive case to nonbelievers. The internal difficulty is that it is often difficult, even with the best of intentions, to discern what God’s commands actually are. Sacred texts, for example, contain numerous injunctions, but it is rare that any religious tradition takes all of them seriously. (The Bible tells believers to pick up venomous vipers, but only a handful of Christians engage in this practice.) How do we decide which injunctions to take seriously and which to ignore or interpret metaphorically? Natural Law

There is a long tradition, beginning with Aristotle and gaining great popularity in the Middle Ages, that maintains that acts that are “unnatural” are always evil. The underlying premise of this view is that the natural is good, and therefore what contradicts it is bad. Often, especially in the Middle Ages, this was part of a larger Christian worldview that saw nature as created by God, who then was the ultimate source of its goodness. Yet it has certainly survived in twentieth century moral and legal philosophy quite apart from its theological underpinnings. This appeal to natural law occurs at a number of junctures in our readings, but especially in the discussions of reproductive technologies and those of homosexuality. Natural law arguments lead quite easily into considerations of human nature, again with the implicit claim that human nature is good. Natural law arguments tend to be slippery for two, closely interrelated reasons. First, for natural law arguments to work, one has to provide convincing support for the claim that the “natural” is (the only) good—or at least for its contrapositive, the claim that the “unnatural” is bad. Second, such arguments presuppose that we can clearly differentiate between the natural and the unnatural. Are floods and earthquakes natural? Is disease natural? Either the natural is not always good, or else we have to adopt a very selective notion of natural. Proper Intention

A second way in which acts can be said to be good or bad is that they are done from the proper motivation, with the correct intention. Indeed, intentions are often built into our vocabulary for describing actions. The difference between stabbing a person and performing surgery on that person may well reside primarily in the intention of the agent. Acting for the Sake of Duty. Again, there is no shortage of candidates for morally acceptable intentions. A sense of duty, universalizability, a respect for other persons, sincerity or authenticity, care and compassion—these are but a few of the acceptable moral motivations. Consider, first of all, the motive of duty. Immanuel Kant argued that what gives an action moral worth is that it is done for the sake of duty. In his eyes, the morally admirable person is the one who, despite inclinations to the contrary, does the right thing solely because it is the right thing to do. The person who contributes to charities out of a sense of duty is morally far superior to the person who does the same thing to look good in the eyes of others, despite the fact that the consequences may be the same. Universalizability. How do we know what our duty is? Kant avoided saying duty was simply a matter of “following orders.” Instead, he saw duty as emanating from the nature of reason itself. And because reason is universal,

Introduction: A Pluralistic Approach to Contemporary Moral Issues

duty is also universal. Kant suggested an important test of whether our understanding of duty was rational in any particular instance. We always act, he maintained, with a subjective rule or maxim that guides our decision. Is this maxim one that everyone can accept, or is it one that fails this test of universalizability? Consider cheating. If you cheat on an exam, it’s like lying: you are saying something is your work when it is not. Imagine you cheat on all the exams in a course and finish with an average of 98 percent. The professor then gives you a grade of “D.” You storm into the professor’s office, demanding an explanation. The professor calmly says, “Oh, I lied on the grade sheet.” Your reply would be, “But you can’t lie about my grade!” Kant’s point is that, by cheating, you’ve denied the validity of your own claim. You’ve implicitly said that it is morally all right for people to lie. But of course you don’t believe it’s permissible for your professor to lie—only for you yourself to do so. This, Kant says, fails the test of universalizability. Notice that Kant’s argument isn’t a consequentialist one. He’s not asking what would happen to society if everyone lied. Rather, he’s saying that certain maxims are inconsistent and thus irrational. You cannot approve of your own lying without approving of everyone else’s, and yet the advantage you get depends precisely on other people’s honesty. It is the irrationality of making an exception of our own lying in this way that Kant feels violates the moral law. We have probably all had the experience of acting in a morally sleazy way, of making an exception for ourselves that (at least in retrospect) we know isn’t justified. Kant’s argument captured something valuable about the moral life: the insight that what’s fair for one is fair for all. Yet critics were quick to point out that this can hardly be the entire story. Consequences count, and intentions are notoriously slippery. A given act can be described with many different intentions—to cheat on a test, to try to excel, to try to meet your parents’ expectations, to be the first in the class—and not all of them necessarily fail the test of universalizability. Respect for Other Persons. Kant offered another formulation of his basic moral insight, one that touches a responsive chord in many of us. We should never treat people merely as things, Kant argued. Rather, we should always respect them as autonomous (i.e., self-directing) moral agents. Both capitalism and technology pressure us to treat people merely as things, and many have found Kant’s refusal to do this to be of crucial moral importance. It is easy to find examples at both ends of this spectrum. We use people merely as things when we do not let them make their own decisions and when we harm them for our own benefit without respect for their rights. Consider the now infamous Tuskegee experiment, in which medical researchers tracked the development of syphilis in a group of African American men for over 30 years, never telling them the precise nature of their malady and never treating them—something that would have been both inexpensive and effective. Instead, the researchers let the disease proceed through its ultimately fatal course to observe more closely the details of its progress. These men were used merely as means to the researchers’ ends. Similarly, we have all, hopefully, experienced being treated as ends in ourselves. If I am ill, and my physician gives me the details of my medical condition, outlines the available options for treatment (including nontreatment), and is supportive of whatever choice I finally make in this matter, then I feel as though I have been treated with respect. Atul Gawande’s selection in the chapter on euthanasia offers a good, real-life example of such respect in the doctor–patient relationship. The difficulty with this criterion is that there is a large middle ground where it is unclear if acting in a particular way is really using other people merely as things. Indeed, insofar as our economic system is based on commodification, we can be assured that this will be a common phenomenon in our society. To what extent is respect for persons attainable in a capitalist and technological society? Compassion and Caring. Some philosophers, particularly but not exclusively feminists, have urged the moral importance of acting out of motives of care and compassion. Many of these philosophers have argued that caring about other persons is the heart of the moral life, and that a morality of care leads to a refreshingly new picture of morality as centering on relationships, feelings, and connectedness rather than impartiality, justice, and fairness. The justice-oriented person in a moral dispute will ask what the fair thing to do is, and then proceed to follow that course of action, no matter what effect that has on others. The care-oriented individual, on

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the other hand, will try to find the course of action that best preserves the interests of all involved and that does the least amount of damage to the relationships involved. Many in this tradition have seen the justice orientation as characteristically male, and the care orientation as typically female. (Notice that this is not the same as claiming that these orientations are exclusively male or female.) Critics have argued that such correlations are simplistic and misleading. Both orientations may be present to some degree in almost everyone and particular types of situations may be responsible for bringing one or the other to the fore. Respect for Rights

Kant, as we have just seen, told us that we ought to respect other persons. Yet what specific aspects of other persons ought we to respect? One answer, which has played a major political as well as philosophical role during the past two centuries, has been framed in terms of human rights. The Bill of Rights was the first set of amendments to the U.S. Constitution. At approximately the same time, the French were drafting the Declaration of the Rights of Man and Citizen. Concern for human rights has continued well into the twentieth century and the past 40 years in the United States have been marked by an intense concern with rights—the civil rights movement for racial equality, the equal rights movement for women, the animal rights movement, the gay rights movement, and equal rights for Americans with disabilities. Throughout the selections in this book, we see continual appeals to rights, debates about the extent and even the existence of rights, and attempts to adjudicate conflicts of rights. Rights provide the final criterion to be considered here for evaluating acts. Those acts that violate basic human rights are morally wrong, this tradition suggests. Torture, imprisoning, and executing the innocent; denial of the right to vote; denial of due process—these are all instances of actions that violate human rights. (The fact that an act does not violate basic human rights does not mean that it is morally unobjectionable; there may be other criteria for evaluating it as well as rights.) Human rights, defenders of this tradition maintain, are not subject to nationality, race, religion, class, or any other such limitation. They cannot be set aside for reasons of utility, convenience, or political or financial gain. We possess them simply by virtue of being human beings and they thus exhibit a universality that provides the foundation for a global human community. Criticisms of the rights tradition abound. First, how do we determine which rights we have? Rights theorists often respond that we have a right to those things—such as life, freedom, and property—that are necessary to human existence itself. Yet many claim that such necessities are contextual, not universal. Moreover, they maintain that there is something logically suspicious about proceeding from the claim that “I need something” to the claim that “I have a right to it.” Needs, these critics argue, do not entail rights. Second, critics have asked whether these rights are negative rights (i.e., freedoms from certain kinds of interference) or positive rights (i.e., entitlements). This is one of the issues at the core of the welfare debate currently raging in the United States. Do the poor have any positive rights to welfare, or do they only have rights not to be discriminated against in various ways? Finally, some critics have argued that the current focus on rights has obscured other morally relevant aspects of our lives. Rights establish a moral minimum for the ways in which we interact with others, especially strangers we do not care about. But when we are dealing with those we know and care about, more may be demanded of us morally than just respecting their rights.

Morality as Character It is rare that a philosophy anthology reaches the bestseller lists, and it is even more unusual when that book is a relatively traditional work about character. William Bennett’s The Book of Virtues, however, has done just that. Staying on the bestseller list for week after week, Bennett’s book indicates a resurgence of interest in a longneglected tradition of ethic: Aristotelian virtue theory. The Contrast between Act-Oriented Ethics and Character-Oriented Ethics

This Aristotelian approach to ethic, sometimes called character ethics or virtue ethics, is distinctive. In contrast to the preceding act-oriented approaches, it does not focus on what makes acts right or wrong. Rather, it focuses

Introduction: A Pluralistic Approach to Contemporary Moral Issues

on people and their moral character. Instead of asking, “What should I do?”, those in this tradition ask, “What kind of person should I strive to be?” This gives a very different focus to the moral life. An analogy with public life may again be helpful. Consider the American judiciary system. We develop an elaborate set of rules through legislation and these rules are often articulated in excruciating detail. However, when someone is brought to trial, we do not depend solely on the rules to guarantee justice. Ultimately, we place the fate of accused criminals in the hands of people—a judge and jury. As a country, we bet on both rules and people. A similar situation exists in ethics. We need good rules—and the preceding sections have described some attempts to articulate those rules—but we also need good people to have the wisdom and good will to interpret and apply those rules. Far from being in conflict with each other, act-oriented and character-oriented approaches to ethics complement one another. Human Flourishing

The principal question that character-oriented approaches to ethics asks is the following: What strengths of character (i.e., virtues) promote human flourishing? Correlatively, what weaknesses of character (i.e., vices) impede human flourishing? Virtues are thus those strengths of character that contribute to human flourishing, whereas vices are those weaknesses that get in the way of flourishing. To develop an answer to these questions, the first thing that those in this tradition must do is to articulate a clear notion of human flourishing. Here they depend as much on moral psychology as moral philosophy. Aristotle had a vision of human flourishing, but it was one that was clearly limited to his time—one that excluded women and slaves. In contemporary psychology, we have seen much interesting work describing flourishing in psychological terms—Carl Rogers and Abraham Maslow are two of the better known psychologists who attempt to describe human flourishing. The articulation of a well-founded and convincing vision of human flourishing remains one of the principal challenges of virtue ethics today. Virtue Ethics as the Foundation of Other Approaches to Ethics

We can conclude this section by reflecting once again on the relationship between virtue ethics and act-oriented approaches to ethics. One of the principal problems faced by moral philosophers has been how to understand the continuing disagreement among the various ethical traditions described earlier. It seems implausible to say that one is right and all the rest are wrong, but it also seems impossible to say that they are all right, for they seem to contradict each other. If we adopt a pluralistic approach, we may say that each contains partial truths about the moral life, but none contains the whole truth. But then the question is: How do we know which position should be given precedence in a particular instance? There is no theoretical answer to this question, no meta-theory that integrates all these differing and at times conflicting theories. However, there is a practical answer to this question: We ultimately have to put our trust in the wise person to know when to give priority to one type of moral consideration over another. Indeed, it is precisely this that constitutes moral wisdom.

Analyzing Moral Problems As we turn to consider the various moral problems discussed in this book, each of these theories will help us to understand aspects of the problem that we might not originally have noticed, to see connections among apparently unconnected factors, and to formulate responses that we might not previously have envisioned. Ultimately, our search is a personal one, a search for wisdom. But it is also a social approach, one that seeks to discern how to live a good life with other people, how to live well together in the community. As we consider the series of moral issues that follow in this book, we will be attempting to fulfill both the individual and the communal goals. We will be seeking to find the course of action that is morally right for us as individuals, and we will be developing our own account of how society as a whole ought to respond to these moral challenges.

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Drawing on your current moral beliefs, answer the following questions as honestly as possible. You may feel that these check boxes do not allow you to state your beliefs accurately enough. Please feel free to add notes, qualifications, and so on, in the margins. You will be asked to return to reassess your answers to these questions throughout the semester. To participate in an online version of this self-quiz, and to see how others have responded, visit the Ethics Surveys section of Ethics Updates (http://ethics.sandiego.edu).

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Chapter 1: Cloning and Reproductive Technologies In vitro fertilization is morally wrong. Any procedure that helps infertile couples to have children is good. Embryos frozen and stored in a lab have the same moral status as an embryo in a pregnant woman. Genetic screen of embryos for diseases (PGD) is morally permissible. Screening to determine whether your baby will be male or female should be permitted.

Chapter 2: Abortion The principal moral consideration about abortion is the question of whether the fetus is a person or not. The principal moral consideration about abortion is the question of the rights of the pregnant woman. The only one who should have a voice in making the decision about an abortion is the pregnant woman. Abortion should be legal but morally discouraged. Abortion protesters are justified in breaking the law to prevent abortions.

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Chapter 3: Euthanasia Euthanasia is always morally wrong. Euthanasia should be illegal at least under almost all circumstances. The principal moral consideration about euthanasia is the question of whether the person freely chooses to die or not. Actively killing someone is always morally worse than just letting them die. Sometimes we have a duty to die.

Chapter 4: Punishment and the Death Penalty The purpose of punishment is primarily to pay back the offender. The purpose of punishment is primarily to deter the offender and others from committing future crimes. Capital punishment is always morally wrong. The principal moral consideration about capital punishment is the question of whether it is administered arbitrarily or not. The principal moral consideration about capital punishment is whether it really deters criminals.

Chapter 5: War, Terrorism, and Counterterrorism It is always morally wrong to strike first in a war. Captured terrorists should be treated like prisoners of war. Sometimes we must go to war to save innocent people from being killed. Terrorists should be hunted down and killed. Torture is always wrong and should be forbidden.

Chapter 6: Race and Ethnicity African Americans are still often discriminated against in employment. Affirmative action helps African Americans and other minorities.

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Racial separatism is wrong. Hate speech should be banned. We should encourage the development of racial and ethnic identity.

Chapter 7: Gender Women’s moral voices are different from men’s. Women are still discriminated against in the workplace. Sexual harassment should be illegal. Affirmative action helps women. Genuine equality for women demands a restructuring of the traditional family.

Chapter 8: Sexual Orientation Gays and lesbians should be allowed to serve openly in the military. Gays and lesbians should not be discriminated against in hiring or housing. Homosexuality is unnatural. Same-sex marriages should be legal. Homosexuality is a matter of personal choice.

Chapter 9: World Hunger and Poverty Only the morally heartless would refuse to help the starving. We should help starving nations until we are all at the same economic level. In the long run, relief aid to starving nations does not help them. Overpopulation is the main cause of world hunger and poverty. The world is gradually becoming a better place.

Chapter 10: Living Together with Animals There’s nothing morally wrong with eating veal. It’s morally permissible to cause animals pain to do medical research that benefits human beings.

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Chapter 11: Environmental Ethics Nature is just a source of resources for us. The government should strictly regulate toxic waste. We should make every effort possible to avoid infringing on the natural environment any more than we already have. We owe future generations a clean and safe environment. We should not impose our environmental concerns on developing nations.

Chapter 12: CyberEthics All spam should be outlawed. Hackers only want to cause trouble. Cyberstalking is not really different from regular stalking. There’s nothing wrong with downloading music from the Internet. We should ban cyborgs.

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PART ONE

Matters of Life and Death The Value of Life 2 The 9/11 Settlement and the Value of a Life 2 Kant on Human Life as Priceless 2 Agency and the Good Will 3 Kant, Respect, and Not Using Persona as a Mere Means 4 The Sanctity of Life and Cardinal Bernardin 5 Innocent Human Life 5 Deontological and Consequentialist Approaches 6 Stem Cell Research: Consequentialism vs. Deontology 6 Consequentialist Considerations about End-of-Life Care 7 Killing and Letting Die 7 The Principle of Double Effect 8 Kant and Consequences 9 The Problem of “Dirty Hands” 9 Conclusion 10

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he Destruction of Human Embryos. Abortion. Euthanasia. Capital Punishment. War. All involve killing, sometimes in huge numbers, sometimes on a

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much smaller scale. When are we justified in killing? When can killing be done in our name? How do we respond when others kill? In the following five chapters, we address these and other questions of life and death. In abortion, cloning, euthanasia, the death penalty, and war, we are faced time after time with decisions in which lives hang in the balance. Before looking at any of these specific issues, it is helpful to look at the general background issue in all these chapters—the question of the value of life—and the tension between deontological and consequentialist moral theories.

The Value of Life In the following remarks, we will examine a range of positions relating to the question of whether we can put a value on human life. The 9/11 Settlement and the Value of a Life

Ken Feinberg knows the value of a human life. In fact, he knows the value of 2,819 lives, the number of people killed in the 9/11 attacks. Feinberg is an attorney who specializes in mediation and dispute resolution, and he was the Special Master of the September 11th Victim Compensation Fund, a program passed by the United States Congress to compensate the families of victims of the 9/11 attacks in exchange for their agreement not to sue the airlines for damages resulting from the 9/11 attacks. The bill was called the Air Transportation Safety and System Stabilization Act (49 USC 40101), and its explicit purpose was to shelter the airlines and their insurance companies from possible bankruptcy if they were sued by the families of victims. A few families refused to accept compensation and forgo law suits, either believing the proffered settlements were too low or wanting to uncover more details about anti-terrorist screening prior to the attacks. Feinberg worked tirelessly (and pro bono, without pay, it is worth noting) for almost three years with the families of victims, trying to negotiate settlements to everyone’s satisfaction. Faced with a difficult and unenviable task of establishing the value of each individual life lost in the attacks, Feinberg developed some general rules based on the potential earning power of each individual who was killed in the attacks, dispensing over $7 billion to victims’ families, with an average compensation of $1.8 million per family. The families of those who were younger and had greater earning power received higher compensations, and the families of older victims with less future potential earning power received proportionately lower compensation. What is a human life worth? Is it worth less as we get older? Is the life of a hedge fund manager worth more than that of a janitor? Many of us want to recoil at the very question, unwilling to place a price tag on human beings. Others may say that we do this all the time, and insurance is just one of the many ways in which this happens. Yet others may point to the 9/11 settlements and deny that the Victims’ Compensation Fund puts a value on human life; instead, it places a value on the loss that the families experience, a loss that has a financial dimension as a part of a much larger picture.

Kant on Human Life as Priceless Immanuel Kant, one of the most influential moral philosophers of modern times, said in his Groundwork of a Metaphysics of Morals that human life is priceless. It is important to understand precisely what Kant means by this claim and why he believes what he does. Then we will turn to the question of whether Kant’s position can be defended in a way that is independent of accepting his overall philosophical position. In saying that human life is priceless, Kant is drawing a contrast between things that have a price and that which has dignity. Kant’s universe is divided (from a moral point of view) into two classes of entities. The first of

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these are things that can properly be bought and sold. A car, a book, a piece of land, an airline ticket—all of these are objects that can be bought and sold. This is what it means to have a price. Some translate Kant’s claim as “to have a market price.” The market price is the amount of money that an object fetches on the open market. Before turning to a discussion of human beings, Kant notes that some objects have a different kind of price. Consider objects to which we have an emotional attachment. For example, a couple may have exchanged wedding rings when they got married. Prior to the ceremony, they purchased the rings from a jeweler, paying the market price. Imagine them twenty-five years later. The rings still have a market price, equivalent to what they would cost on the open market. Yet in addition to this, they have what Kant calls an affective price, that is, they are objects to which we have an emotional attachment. In contrast to the market price, the affective price is specific to the individuals involved. A jeweler will purchase the rings from them at the market price, but no one except the couple has an affective connection to these rings and thus they have an affective price only to the persons involved. That affective price is, however, one that does not easily translate into market price, even for insurance purposes. Let me add a distinction to Kant’s discussion that may be helpful. Lawyers and others draw a distinction between things which are fungible and things which are not. An object that is fungible is one that can be replaced by another object of equal value and nothing is lost. A dollar bill is a perfect example of a fungible object: one dollar bill can be replaced by any other dollar bill, and nothing is lost (or gained, for that matter). We live in a world in which there are many fungible objects, things that can be exchanged one for another without any loss. We might have a bunch of cheap ballpoint pens, each identical to the others. They are fungible. Human beings are not fungible. They cannot be exchanged, one for another. They are not mere objects which have a price. People such as Feinberg may compensate family members for the loss of a loved one, but they are not gaining a replacement. Nothing can replace the deceased person because human beings are not replaceable. This is Kant’s key insight. Human beings are not the kind of thing that can be replaced, exchanged one for the other. They are not fungible. To put a price tag on them is to make a category mistake, to attempt to apply a characteristic that is simply inapplicable. Consider this analogy in order to understand what we mean by a category mistake. Take a painting such as Van Gogh’s “Starry Night.” There are many things we can say about the painting that describe Van Gogh’s use of color, the brush strokes, etc. But we cannot say that the painting is noisy. Why? Certainly not because it is silent; rather, it is because that spectrum of possible predicates—“noisy,” “loud,” “quiet,” “silent,” etc.—does not apply to painting. To try to make them apply, except in a metaphorical sense, is to commit a category mistake. Human beings are “priceless” in the sense that they are outside the spectrum of things to which the language of prices properly applies. Why, according to Kant, are people priceless? Let me try to answer this question in a language less technical than what Kant uses and more accessible to most of us. (My apologies to Kant scholars everywhere.) Human beings, Kant suggests, are the authors of their own lives in a way that no other kind of being is. Actions originate from us in a way that is not true of any other kind of being on earth. (It should be noted that Kant, in keeping with the views of his day in Prussia, did not have a very sophisticated view of animals, their cognitive abilities or their moral status.) For all other kinds of beings, their output can be reduced to their input. The motion of a billiard ball on a pool table is nothing more than the sum of the impacts it receives from other balls and the cue. Nothing comes from the ball itself that is not already input to the ball from external sources. The billiard ball does not originate motion. It is not a source of action. It is not an agent. Human beings, on the other hand, are agents. They are the authors of their own actions, the authors of their own lives, in a way that is not true of other kinds of beings. They cannot be reduced to the sum of the forces that act upon them. They are primordial sources of agency in the world. In ways that we cannot explore here, they are outside the chain of cause and effect that governs the rest of the natural world. Agency and the Good Will

It is precisely this sense of agency that is awe-inspiring to Kant, for it is like nothing else in the universe. It arises out of the network of natural cause and effect as a surd, a radical element that is irreducible to the factors that

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contributed to it. It is uniquely human and almost divine—certainly there is nothing else like it in the natural world. It is closer to God’s creative activity in making the universe than it is to the causally determined motion of billiard balls. It is radically other than the natural world. This agency is not chaotic or formless in Kant’s eyes. In fact, what Kant respects in human beings is not the mere fact that they are the authors of their own lives, but that they can be a particular kind of author: they are capable of writing the story of their own lives in accord with the moral law. They are uniquely capable of giving the moral law to themselves, of both articulating their moral obligations and imposing them on themselves. Thus human beings are not only authors of their own lives, they are also the authors of their own morality. It is important at this juncture to avoid a possible misunderstanding when we see a phrase such as “authors of their own morality.” For many, that might imply some kind of moral relativism, suggesting that each of us can write the laws of morality in the ways that suit us best. Nothing could be further from the truth in Kant’s eyes. We all—and this is the crucially Kantian point—have to write the moral law in the same way. In other words, we have to write the moral law in such a way that it applies equally to all rational beings, to all human beings. Human beings, to use another of Kant’s formulations, are self-legislators, that is, they give the law to themselves. Far from being something external to them, the moral law comes from within. Kant, Respect, and Not Using Persons as a Mere Means

It is precisely this capacity for agency, the ability to give the moral law to oneself and then to follow that law, which both makes human beings unique in the world and which Kant says ought to be the object of our respect and even awe. Just as we might stand in awe of some tremendous natural phenomenon such as Niagara Falls or the beauty of the stars in the desert on a cloudless night (or those depicted in Van Gogh’s “Starry Night”!), so too we stand in awe or reverence toward the human will, of its authorship of actions that sets it apart from everything else on the planet. It is this free will that gives human beings their moral status, which is the foundation of human autonomy. Indeed, the etymology of the word “autonomy” captures perfectly this Kantian insight. “Autonomy” comes from the Greek words for “self ” and “law,” and it refers to the uniquely human ability to give the moral law to oneself. Human beings are not merely free in the negative sense of not being determined by causal forces in the natural world; they are free in a more profound sense, in the sense that they are able to give the moral law to themselves. In other words, they are autonomous. Because human beings possess this unique ability to give the moral law to themselves, we must treat human beings in a unique way, in a way that is different from how we treat everything else in the world. Our treatment of human beings must be appropriate to the kind of beings they are, to the fact that they are authors of their own lives. We cannot treat human beings as mere things, as objects to be manipulated. Thus one version of Kant’s fundamental law of morality: never treat human beings merely as a means, but always also as ends in themselves. Recognize and respect their authorship of their own lives. Kant’s imperative about respect constrains the ways in which we are permitted to treat other persons, and this has important implications for the topics discussed in the following five chapters. Consider, for example, the issue of punishment. Kant is what is generally called a retributivist, that is, he sees punishment as justified primarily as a “paying back” or retribution for the offense committed. We are never, Kant argues, entitled to punish an innocent person in order to make an example of the person to deter others. Punishment may also have a deterrent effect, but it cannot be administered solely on the promise of deterrence. This is in accord with Kant’s general stance: it is morally permissible to use people in part as a means, but never solely as a means. Thus, for example, we might become friends with someone who can also help us in our career, and this is morally permissible for Kant as long as we also independently value the person’s friendship. If, however, we are becoming friends solely in order to advance up the corporate ladder, then this violates Kant’s imperative about not using other persons as a mere means. Kant’s position forbids using other people as a mere means, and this principle has important implications in the area of bioethics. In the United States, the government conducted research for decades on black men in the South who had syphilis, not telling them that they had the disease and doing nothing to cure it. They simply tracked the progression of the disease in order to better understand its development. These experiments— known as the Tuskegee Syphilis Experiment—continued into the early 1970s. They were a clear violation of

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patient autonomy, denying to patients both knowledge about their condition and treatment of it. This Kantian criticism of those experiments also points the way toward what we need to do in such situation, namely, to provide research subjects with the conditions necessary for informed consent. We can treat lab rats and guinea pigs as mere objects (at least according to some people), but it is morally forbidden to treat human beings in the same way because human beings possess autonomy. Despite his deep respect for human beings, Kant did not believe that we could never kill human beings. He supported capital punishment as a just retribution for the taking of a human life. He was not a pacifist and did not oppose war in all of its forms. Thus Kant’s respect for life was deep and unwavering, but it did not lead to an absolute prohibition against taking human life under any circumstances.

The Sanctity of Human Life and Cardinal Bernardin For some, respect for human life yields more radical conclusions, conclusions that require us to change many of our current practices. In its strongest version, which forbids all killing of human beings and in some forms the killing of animals as well, it is often supported by a religious framework. Indeed, when we see references to the sanctity of human life, we can infer that this is a discussion from a religious perspective. One of the more powerful examples of this position was first articulated by Joseph Cardinal Bernardin, the long-time Catholic cardinal of Chicago. Bernardin developed the notion that respect for life was a “seamless garment,” respect for life is a single fabric and it is not possible to extract one portion without all the rest. While a key component of Bernardin’s position was opposition to abortion, it was part of a more general opposition to all forms of killing humans, including capital punishment, war, and active euthanasia. Bernardin’s position was firmly rooted in Catholic social teaching, but it stood out as an extraordinarily strong and powerful statement of that tradition in the contemporary world. Moreover, the deep consistency of the ethic extended itself beyond matters of life and death. In contrast to many public figures who decry abortion but seem uninterested in the welfare of the fetus once it is born, Bernardin presents a consistent ethic of life that shows a deep concern with poverty, especially poverty conjoined with the impact of racism. For Bernardin, this deep respect for life was grounded in a faith in God. To say that each individual has an immortal soul is to talk about the soul as if it were an add-on, something given to an individual along with other items upon entry into this world. There is another way to think about the notion of a soul which may be more illuminating: to say that an individual has a soul is to say that he or she is a child of God, that he or she stands in a relationship with God, a relationship of love and care. It is precisely because of this relationship that individuals are owed respect within this framework and way of life. Here, I think, is the secret of Bernardin’s position: he is not simply saying that it is wrong to kill people. He is saying it is wrong not to love people, first and foremost, and we refrain from killing as a by-product of that love. In fact, even this way of expressing his message distorts it by emphasizing the negative, by beginning with “It is wrong . . .” Here is a more adequate formulation of Bernardin’s position: Love people, and then you won’t abandon them or kill them. It is also worth noting that Bernardin did not have a monopoly on this notion of the sanctity of human life. We find it among other great leaders as well, including Gandhi and Dr. Martin Luther King, Jr. It is first and foremost a message of the fullness of spirit, a fullness from which all else follows. It is also a message of almost all pacifists, those who eschew killing other humans, no matter what the circumstances.

Innocent Human Life In addition to those who maintain that we should never kill human beings under any circumstances, there are many others who espouse a more moderate position, claiming that we should never kill innocent human beings. For many, respect for the lives of others dwindles quickly in the face of threats and danger from those others, and killing in selfdefense seems eminently defensible to many. Thus wars, or at least wars of self-defense, become morally permissible. So, too, for many the lex talionis, the law of an eye for an eye, should make murders liable to a punishment

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proportionate to their own offenses. Killing in the service of self-defense or even in retribution for capital offenses meets the requirements of morality for many. For those who advocate this position, morality is still deontological, rule-oriented, but now the rule has changed from “Never kill human beings” to “Never kill innocent human beings.”

Deontological and consequentialist approaches In the area of life and death decisions, we see most clearly the stark contrast between deontological and consequentialist approaches to the moral life. The deontologist tells us to follow certain moral rules, and the rationale for this is not dependent on the consequences. In our discussion of Bernardin’s position, the strongest version of the deontological position that we have seen so far, the deontologist maintains that we should not kill any human beings at all. In the slightly weaker version that we have just considered, the deontologist tells us that we should refrain from killing any human beings who are not innocent. In Kant’s version of this, the rule is that we must always treat persons as ends in themselves, never merely as a means to an end. Thus all three of these positions claim that we ought to follow the rules of the moral life, but they differ significantly among themselves about what those rules are. In contrast to these two approaches, the consequentialist maintains that matters of life and death, just like other matters, are ultimately to be judged in terms of the consequences alone. Indeed, we often think about matters of life and death in precisely these terms, even if we do not necessarily acknowledge them as such. Take a simple example: speed limits. When the speed limit was reduced to 55 mph nationally during the oil crisis in 1973, we found that traffic fatalities decreased. In 1995, the federal government again allowed individual states to set their own speed limits at 65 mph on rural limited access roads. The result was an overall increase of 3.2 percent in traffic fatalities, with a much higher rate on rural highways. A 2009 study estimates that 12,545 deaths and over 36,000 injuries are related to the higher speed limit during a ten-year period. Would we be willing to reduce speed limits to 55 mph if doing so would save thousands of lives over the next decade? It’s important to note that the lives saved may, at least in some cases, be “innocent” drivers who in fact were observing the lower speed limit. Those who died were not necessarily those who driving the fastest. Despite all this, many Americans would be unwilling to make the trade-off. And what would happen if we could save even more lives by reducing the limit to 50 mph? 45 mph? It is easy to imagine that many would revolt, refusing to drive more slowly. After all, it would cost a lot in terms of time alone, even if it would save in terms of fuel. The point the consequentialist wants to make here ultimately has nothing to do with speed limits in particular. It is simply that we make trade-offs all the time, and often they involve innocent lives. Stem Cell Research: Consequentialism vs. Deontology

Human embryonic stem cell research is one of the areas in which the tension between deontological and consequentialist perspectives is most pronounced. A number of prominent thinkers have criticized human embryonic stem cell research because, in the process of creating the stem cell lines that scientists use in their research and therapy, human embryos are destroyed. Although some progress has been made on devising methods of deriving these pluripotent cells in ways that are not destructive to embryos, the gold standard of human embryonic stem cell research is still found in the lines derived directly from human embryos that are destroyed in the process. Those who oppose such research argue that, just as we are not morally justified in killing newborn babies for the purpose of research, we are not justified in destroying human embryos for research purposes, no matter how many lives might eventually be saved through such research. Thus we seem to have a clear clash between deontological and consequentialist perspectives. The consequentialist, however, has yet another argument to add to the discussion: these embryos, if they are not used for stem cell research, will be destroyed anyway. The embryos to be used for stem cell research as those that remained after they were originally created as part of the fertility treatment. Typically, doctors harvest more eggs (after a regime of hormone therapy) in order to avoid putting the woman through an invasive surgical procedure for each cycle of IVF. If they are not used for stem cell therapy, the remaining embryos are typically destroyed. Thus the consequentialist case becomes stronger, at least on its own (consequentialist) ground. How,

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consequentialists ask, is the world a better place because we have destroyed these eggs instead of using them— with proper consent—for stem cell research that may alleviate great human suffering? This disagreement between deontologists and consequentialists reveals another dimension to such disputes generally. To be sure, this is a dispute between rule-based moralities and consequence-based ones. But it is also a dispute within deontology about the application of the rule. Some maintain that it is perfectly consistent to accept a rule such as never kill innocent human beings and still make use of donated human embryos at the blastocyst stage because those embryos do not yet qualify as human beings. Defenders of this position will point to Thomas Aquinas, one of the foremost theologians of the Catholic Church, and his claim that ensoulment (the infusion of an immortal soul) does not occur in human beings until the point of quickening. Critics of this argument will point out that, although Aquinas was an amazing theologian, he was not a formidable biologist. Indeed, the general principle on which his view about the soul is based, the doctrine of hylomorphism, claims that the bodily matter can only receive the human soul after it has reached a certain level of complexity, a level that occurs around the third month. (The embryos used for stem cell research are around five days old.) Yet, with the advent of DNA, we now know that even at the moment of conception, the genetic blueprint is present for all that will follow. Consequentialist Considerations about End-of-Life Care

One of the areas in which the tension between deontological and consequentialist perspectives emerges most clearly is in end-of-life care. It is easy to imagine, and perhaps some of the readers of this book have seen this themselves in their loved ones’ last weeks of life. Death is near, and it is certain that it will occur within a matter of days. The intervening days, however, promise to be painful at best, excruciating at worst. However, doctors can control this pain, albeit at a cost: the patient can be terminally sedated, which means that the patient will never wake up and will not experience any pain. Moreover, nutrition and hydration can be withdrawn, with the inevitable result that after a few days, the patient will die—painlessly, unaware of what is happening. This is legal in the United States. What is not legal, and what is also considered a violation of the American Medical Association’s code of ethics, is for the physician to administer a lethal dose of some sedative that would immediately end the patient’s life. (It is permissible to administer increasingly strong doses of pain medication, even realizing that this will hasten death; I’ll discuss that later.) To do this is to cross a line that deontologists maintain should never be crossed: a physician should never intentionally kill a patient. I’ve talked personally with many physicians over the years directly about this issue, and it is clear that it is not a mere technicality in their eyes. The prohibition against acting in order to end of the life of a patient is absolute for them, and it is important to understand the way in which this is so. Many feel that they went into medicine to save lives or, failing that, at least to reduce people’s suffering. They did not go into medicine to intentionally end lives, to kill people. This is a core part of their professional identity. They don’t even necessarily object to some other physician doing this, though in some cases they have. What’s crucial is that such an action just cannot be part of their identity as a physician. In effect, they say, “That’s just not who I am as a doc.” This reveals an interesting and sometimes neglected dimension of the deontological position: fundamental rules may be closely tied to professional roles, rather than to our identity as human beings. These professional identities are to some extent malleable and culturally specific, but it is clear that for many people the core rules that are at the center of their professional mission are inviolable. It is not a matter of consequences, it is a matter of who you are. These examples already hint at two general issues that will arise throughout the following chapters, and they are issues about which deontologists and consequentialists differ significantly. The first relates to the distinction between killing and letting die, and the second to what is called the principle of the double effect.

Killing and Letting Die On the surface, the distinction between killing and letting die seems straightforward and unproblematic. One is active, the other passive. In one case, you actually kill someone; in the other, something else—perhaps the disease— kills the person. You simply stop trying to prevent it from happening.

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We see this scenario time after time in intensive care units around the country. Some is critically ill. We fight to save the person’s life, using whatever miracle tools of modern medicine are at hand. At some point, we decide that we cannot win. (Can we ever win?) And at that point, we switch to what is called palliative care, trying to make the patient as comfortable and lucid as possible, as psychologically present to his or her loved ones as is possible within the confines of managing the patient’s pain. We let people die, but we do not kill them. The disease kills them. We just stop fighting the disease. Consequentialists question this distinction both in terms of its conceptual clarity and its moral relevance. They argue, first of all, that the outcome is often the same: the patient is dead, and we let the patient die by no longer fighting the disease. What’s the difference between killing and letting die if the outcome is the same? In fact, what if the outcome is the same (death) but in letting die, we allow the patient to suffer much more than would have been the case if we had practiced active euthanasia? In other words, the outcome is the same, but one path to that outcome involves much more pain than the other. Consequentialists ask: why is that morally preferable? Shouldn’t we choose the path that causes the least pain, all other things being equal? This issue will recur throughout this book in a wide range of different scenarios. In the discussion of world hunger, for example, Peter Singer will ask us what the moral difference is between killing someone and merely letting them die when we could—with little inconvenience or cost to ourselves—save the person’s life. For those of us in highly industrialized countries such as the United States giving up a minor luxury could be the price of saving the lives of an entire family in certain regions of the world. The key issue here will be the moral significance of intentions and whether consequences tell the whole story from a moral point of view.

The Principle of Double Effect The other issue that recurs continually in the discussion of matters of life and death is what has been called the principle of the double effect. It’s most easily illustrated through the following example. A pregnant woman is diagnosed with an aggressive case of cervical cancer. If her doctors want to get rid of the cancer, they have to remove it surgically and then probably follow this up with either radiation therapy or chemotherapy. The surgery will inevitably also destroy the life of the fetus. Thus the termination of the pregnancy is a foreseeable but unintended result of the surgery. If you believe that abortion is morally wrong, is it permissible to perform the surgery? The standard answer to this question in traditional Catholic theology is that the surgery would be morally permissible because it was not being done in order to effect an abortion. It was being done in order to remove the cancerous growth. The termination of the pregnancy is a foreseeable but unintended consequence of the surgery. There is no other way to achieve the goal of removing the cancerous growth, and that goal is appropriately weighty: without the surgery, the woman will die. This is not some trivial bit of unnecessary cosmetic surgery, but a life-saving operation. Finally, it is important to note that the good effect—the removal of the tumor—does not occur as the result of the bad effect (the abortion). In other words, the elimination of the cancer is not the result of the abortion. Rather, the causal chain runs in the other direction. An example such as this will cause consequentialists to pull their hair out. How, they ask sometimes in exasperation, does it make any difference what is intended? The fetus is just as dead either way. The principle of double effect, they argue, may make people feel better, but it has no moral significance. This same principle recurs in other contexts as well. In some end-of-life scenarios, physicians often administer increasingly strong doses of morphine to control pain, knowing that one of the inevitable but unintended effects of the increased dosage will be to shorten the patient’s life. Military commanders often order attacks on enemy command centers, knowing that inevitably some civilians will die as “collateral damage.” What these and other cases highlight is a central moral question that divides consequentialists from deontologists: what is the moral significance of intentions? For deontologists, the correct moral intention is crucial; for consequentialists, it is of little or no significance.

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Kant and Consequences In the preceding discussion of the cancer surgery that resulted in the termination of a pregnancy, we noted that one of the conditions necessary to the principle of double effect is that the good consequence not be the direct result of the bad consequence. Instead, the causal chain has to go in the other direction, and our direct action has to be aimed at the good consequence (in that example, removing the cancerous tumor). What difference does it make, since the outcome is the same in either scenario? Immanuel Kant, perhaps the greatest deontological thinker of all time, makes an interesting suggestion in this regard. Imagine a case of lying to protect someone from harm. Let’s say that the Gestapo is hunting down Jews who are hiding in your attic. They come to your door, looking for Jews to arrest and deport to the camps, where they will probably die. You say, “There are no Jews here. I saw them fleeing down the street.” The Gestapo follows your lead, going down the street and by chance finding some other Jews who were trying to elude capture. Kant’s claim is that, by virtue of our lying, we bear a responsibility for the fate of the captured Jews that would not fall on our shoulders if we had not lied. Once we begin to participate in an evil chain of events, we become implicated in a way that would not have occurred if we had done the right thing. If we had not lied to the Gestapo and they found the Jews hiding in our attic, we would not be morally responsible for what happens to them—the Gestapo would. It’s as though, in Kant’s world, there are two causal chains, one a chain of goodness and the other a chain of evil. Once we cross over from goodness to evil, we are implicated in the entire set of events issuing from our choice, even if we do not directly choose them. Consequentialist critics of Kant’s position denounce him for his aspirations to moral purity and they criticize him as sanctimonious, pretending to a moral purity that is purchased at the price of the suffering of others. If Kant were genuinely concerned with the welfare of the Jews being hunted by the Nazis, he would do everything in his power—including lying—to protect them from injustice and death. Instead, his critics argue, he keeps his hands clean by letting others die so that he can live a life without moral compromise.

The Problem of “Dirty Hands” The discussion of this issue takes us to the core of a central problem in the moral life: to what extent should we comprise our own moral convictions, our personal moral integrity, for the sake of a greater good? Consider the problem that national leaders often confront: to what extent should they cooperate with a corrupt foreign power in the hope that eventually this will lead to a better world? If they refrain from such cooperation and innocent people die as a result, is the responsibility for those deaths at least partially upon their shoulders? Or, if they cooperate and some die anyway, are they now complicit? Although the discussion of this issue stretches at least all the way back to Machiavelli, the contemporary moral and political philosopher who has brought it most sharply into focus is Michael Walzer, whose work on just war theory and humanitarian intervention we will examine in the chapter on the ethics of warfare. Are we ever justified in doing something immoral in order to prevent a much greater moral catastrophe? Walzer returned to this problem over a course of decades, increasingly raising the threshold for what might justify this suspension of ordinary morality. In his earlier work, it seemed that the kind of “supreme emergency” that could trigger such a situation could involve saving the lives of a few hundred troops—not a trivial matter at all, but modest compared to his later position, which allows justification only when it is necessary to save an entire people from extermination or a country from falling. We will see this issue recur in the chapter on the morality of war, especially in the discussion of torture. Is torture ever justified? It is certainly a case of getting your hands dirty. In Walzer’s earlier work, it might be justified to thwart a major enemy attack; in his later work, it would be justified only if it prevented the destruction of a nation or the elimination of a whole people. Thus torture in the cause of the prevention of genocide would presumably pass the test, whereas torture to prevent a small attack on innocent civilians would not.

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The British military campaigns of World War II offer helpful examples of this problem. The British bombing campaigns against Germany, for example, often involved the bombing of civilian populations. The firebombing of Dresden, which involved over eight hundred Lancaster bombers, devastated the civilian population at a time when the war was, for all practical purposes, already won. Are such actions morally justifiable? In such circumstances, is there a compelling necessity to dirty one’s hand by bombing civilian centers and killing tens of thousands of civilians? A more complex situation presented itself earlier in the war. In November, 1940, the British learned through their intelligence sources of a planned German massive aid raid on Coventry, scheduled to occur on the evening of the fourteenth. The British had broken the German code, the Enigma code that the noted mathematician Alan Turing broke. (Turing was later hounded to his death for his homosexuality by the British government.) Churchill supposedly learned of the impeding raid on the afternoon of the fourteenth. The question was whether to warn the local population and to prepare to repulse the German attack. If the Germans saw that their attack was not a surprise, then they would realize that the British had cracked their code—and the usefulness of having done so would be destroyed for the British. Thus Churchill, or those around him, did not warn the residents of Coventy. The choice that Churchill and his advisors faced was a tragic one that would leave innocent blood— innocent British blood—on their hands either way. We like to believe that all situations have some possible solution that does not involve doing something that is morally bad, but it may be the case that, at least in some instances, it is impossible to act with clean hands.

Conclusion As you work through the following five chapters, you will continually be asked to weigh the value of human life against other values, including safety, medical progress, the alleviation of suffering, the protection of the innocent, and the constraints of justice. As you develop your position on this issue, look for issues of consistency and inconsistency in your thinking about the value of life across a range of different issues.

1 Cloning and Reproductive Technologies The Narratives 12 Katy Duke, “Belgian Loophole Allows Swiss Parents a ‘Savior’ Baby” 12 Eva Feder Kittay with Leo Kittay, “On the Expressivity and Ethics of Selective Abortion for Disability: Conversations with My Son” 14 An Introduction to the Moral Issues 32 The Historical Context 32 In Vitro Fertilization (IVF) 33 The Moral Status of the Early, Unimplanted Embryo 34 Access to IVF 35 Conflicting Claims: The Embryos of Divorcing Couples 35 Conservative Objections to IVF 36 Religiously Based Critiques of Assisted Reproduction 36 Anti-Technology Critiques of Assisted Reproduction 36 Remaining Moral Issues 36 Genetic Screening and Manipulation 37 From Abortion to Genetic Screening and Manipulation 37 The Line between Cure and Enhancement 38 Individual Choices and Social Policy 38 Stem Cell Research and Regenerative Medicine 38 To Clone or Not to Clone? 39 The Argument 40 Michael J. Sandel, “What’s Wrong with Enhancement?” 40 Concluding Discussion Questions 43 For Further Reading 43 11

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The Narratives Katy Duke

“Belgian Loophole Allows Swiss Parents a ‘Savior’ Baby” In this article, published in the British medical journal The Lancet in 2006, the author describes how a Swiss couple travelled to Belgium to get the tests necessary for selecting an embryo that could provide their sick six-year-old son with life-saving umbilical cord blood stem cells. In Switzerland, such pre-implantation diagnosis is illegal, but it is permitted in Belgium. As You Read, Consider This: 1. What role does pre-implantation genetic diagnosis (PGD) play in the creation of “savior babies?” 2. Why would this technique not be useful for the creation of “savior babies” to help friends? 3. This case describes a savior baby, conceived to save the life of a six-year-old sibling. How would it affect your moral assessment of the situation if the baby was conceived in order to save the mother’s life? The father’s life?

A

successful bone-marrow transplant involving a baby born to save the life of a sick sibling has sparked a heated debate on medical ethics in Switzerland. Swiss 1-year-old Elodie H, not fully named for legal reasons, was born from an embryo selected from a group by pre-implantation genetic diagnosis (PGD) as a compatible donor for her big brother Noah. 6-year-old Noah suffers from chronic granulomatous disease, which compromises the immune system, cutting life expectancy in half. Parents Beatrice and Yves H from Geneva decided to use PGD to conceive what has been dubbed a “savior sibling,” whose stem-cell-rich umbilical cord blood could save Noah’s life after all attempts to find a matching bone marrow donor have failed. Karen Sermon, from the Centre for Medical Genetics in Brussels, where the procedure was eventually done, says Noah’s parents had to come to Belgium to save their son because PGD is currently banned in Switzerland. She explains: “In Belgium there is nothing written down saying it is legal but the current law on embryo research which bans a number of procedures—such as reproductive cloning—does not ban PGD, so therefore we are allowed to perform the procedure.” The current blurred legal situation in Belgium is mirrored in several countries across Europe where PGD legislation is still being written, so the procedure is often neither officially sanctioned nor illegal. Only Denmark, Spain, France, Norway, and Sweden have specific laws allowing PGD, though it is not illegal in Belgium, Finland, Greece, the Netherlands, and the UK. It is banned in Switzerland, Germany, Austria, Italy, and Ireland. In Germany, which is considered to have restrictive research laws, a debate over whether or not PGD is already banned under the 1991 Embryo Protection Law is underway. However, despite a lack of consensus on the legal status, it is not currently practiced. This lack of legal clarity in Europe is partly because PGD is a comparatively new science. It was originally developed to prevent the transmission of serious genetic disorders by screening embryos during in vitro fertilization (IVF). Newer uses of PGD include detection of mutations for susceptibility to cancer and for late-onset disorders such as Alzheimer’s disease. It can also be used to check for histocompatibility to create a baby who is not only clear of a disease affecting an older sibling but is also a viable match as a donor.

Katy Duke, “Belgian loophole allows Swiss parents a “savior” baby,” The Lancet www.thelancet.com Vol 368 July 29, 2006. Copyright © 2006 The Lancet. Reprinted by permission of Elsevier Ltd.

Due to the novelty and technical difficulty of the procedure, Elodie is only the 12th baby in the world to be successfully conceived for the purposes of saving the life of a sibling. However, because of Noah’s age and Elodie’s small size at birth there was not enough blood in Elodie’s umbilical cord to provide the stem cells needed so the siblings underwent a bone-marrow transplant. Sermon says PGD is normally refused for couples where the ill child is already too old to be treated with cord blood cells, to save the savior sibling the pain of undergoing a surgical intervention. “We expected that cord blood cells alone could save Noah,” she says, “but at Elodie’s birth too few stem cells were found in the umbilical cord blood. But I would also like to stress that bone marrow transplants between existing siblings is also common practice.” Elodie’s bone-marrow transplant was successfully completed in Zurich Children’s Hospital earlier this year. Reinhard Seger, who did the operation, says Noah’s immune system is gradually building up and only the number of his T lymphocytes is still insufficient. For the past 2 months, Noah has been able to live at home without the need for total isolation and the continuous antibiotic treatments he used to need. But opponents of the procedure say despite the obvious benefits, creating a baby so that it can undergo invasive surgery that is of no help to it individually is unethical. In the UK, the Human Fertilsation and Embryology Authority (HFEA), the regulatory body that grants licenses for any potential use of PGD, says imposing risks without benefits in exchange is not permitted. It has a set of stringent criteria that must be met before it will grant a license for a savior sibling to be born. Joyce Harper, from the European Society of Human Reproduction and Embryology, says getting a PGD license in the UK is complicated, but the laws are considerably more liberal than most other countries. She says: “Britain is highly regulated but at least it is possible to do PGD. In some countries the use is very limited. I feel that PGD should only be used to prevent disease—and in a way this is still preventing disease. I do not understand countries where an abortion of a normal fetus is legal, but the use of PGD to prevent a sick child is illegal.” In Noah and Elodie’s home country of Switzerland, abortion was legalized in 2002 and recently hospitals, living rooms, and government buildings have turned into debating rooms discussing whether the same should happen for PGD. The media has devoted so much time to the topic the young pair are now recognizable faces across the country. Christoph Rehmann-Sutter from the Swiss National Advisory Commission on Biomedical Ethics says he believes the Swiss ban is morally correct, despite the emotive argument for Elodie’s birth. “With their presentation of Elodie and Noah, the media have given a face to the abstract concept of PGD. One can identify with the suffering of the boy and pain of the parents and through that one can understand how such a plan must appear morally justifiable.” Looking at it from such a perspective it is obvious that it is impossible for parents to say no to such a chance and it is also clear that they will love the ‘savior child’ for herself and accept Elodie completely as a daughter and a full member of the family. “But next to this individual perspective there is also a societal perspective—one cannot base laws on one happy result.” Rehmann-Sutter believes PGD is necessary to screen for serious genetic diseases and is preferable to lateterm abortion after a disease is uncovered by amniocentesis. But, he says, he worries that using it for cases like Noah’s opens up a Pandora’s box for the future. “We must consider the development of a moral pressure on parents. Do we want a society where one feels impelled for therapeutic purposes to have a new child every time? “And if PGD is used to benefit anyone other than the embryo itself, it will be difficult to draw the line at cases like Elodie and Noah. Why should the child only help a sibling? Why not the mother, the father, a close family friend? Why only with bone marrow? Why not a piece of the liver? A kidney? How much is the new life expected to give up?” Many other opponents to the procedure cite worries of a slippery slope, a quiet slide into positive eugenics, where parents choose babies with certain physical or character traits based on analysis of embryonic genes. But Mohammed Taranissi, the Director of the Assisted Reproduction and Gynaecology Centre, a prominent clinic that uses PGD to create savior siblings in the UK, thinks the “slippery slope” worry is illogical and that the old arguments against savior siblings are losing ground as people learn the medical facts behind the procedure. Taranissi says: “Once you explain the truth of what is happening most people accept it, as most objections are based on a misunderstanding of the facts. These are not ‘designer babies’—we cannot manipulate them to

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have certain characteristics like choose their hair color, it’s simply not technically possible and won’t be in our lifetime, if ever. And that’s not even slightly what we are trying to do here. This uses normal and fully accepted IVF procedures to help young children with medical conditions.” “And the idea that it’s a slippery slope and soon babies could be born to help sick parents or family or friends is illogical as the procedure only works when treating a young child. Basically there are only enough stem cells in cord blood to treat a certain size of child—which is why we are always pressuring the HFEA to speed up their evaluation procedure as often an entire year can be wasted in preparation. During this time, the sick child keeps growing and there is less of a chance to help him or her.” He adds: “It is ethically better to create a so-called ‘savior sibling’ than to use an existing sibling. This way all the necessary materials can be taken from the umbilical cord—something that is going to be thrown away anyway and avoids intrusive bone-marrow transplants that are the only option when a donor sibling is identified after birth. “In the end the only argument is if your child was sick, would you do it? And I think we all know the answer to that.” Panel: Criteria for the award of “savior sibling” licenses in the UK: • • • • • • •

The condition of the affected child must be serious or life threatening. The embryos themselves must be at risk from the condition by which the existing child is affected. All other possibilities of treatment and sources of tissue for the affected child should have been explored. The technique should not be available where the intended recipient is a parent. Only cord blood should be taken. Appropriate counseling is a requirement. Families are encouraged to participate in follow-up studies, and clinics are required to report the treatment cycles and outcomes. • Embryos may not be genetically modified to provide a tissue match.

Journal/Discussion Questions 1. The article seems to presume that everyone would make the same choice as this Swiss couple. Do you think this is true? Would you make this same choice? 2. When confronted with legal restrictions on possible medical treatments and procedures, it is increasingly common for people to go to other countries to obtain such procedures. This practice, sometimes called “medical tourism,” allows them to circumvent their own country’s laws. Should such practices be allowed? If not, in what way could they be restricted?

Eva Feder Kittay with Leo Kittay

On the Expressivity and Ethics Selective Abortion for Disability: Conversations with My Son1 About the Authors: Eva Feder Kittay is a philosopher of language, who has written extensively about metaphor and meaning. The context of the present dialogue emerges in the course of the writing, but suffice it to say that this is a dialogue between Professor Kittay and her son, Leo, who graduated from Princeton with a degree in philosophy. Sesha Kittay is Professor Kittay’s daughter and Leo Kittay’s sister.

Copyright 2000 by Georgetown University Press. Eva Feder Kittay and Leo Kittay, “On the Expressivity and Ethics of Selective Abortion for Disability: Conversations with My Son.” From Prenatal Testing and Disability Rights, Erik Parens and Adrienne Asch, Editors, pp. 165–195. Reprinted with permission. www.press.georgetown.edu.

About the Article: In this article, Professor Kittay and her son Leo discuss some of the profound ethical issues that surround children with disabilities. This article was occasioned by Professor Kittay’s invitation to participate in a conference on the use of selective abortions in the context of prenatal testing. Professor Kittay speaks of Sesha as a mother, and Leo does so as a brother. Both address the range of questions arising out of their family experience as philosophers, as family members, and as sensitive, thoughtful human beings. Although this is primarily a discussion focused on the issue of disability, it sheds much light on larger questions about the meaning of abortion within the context of individual lives, especially the context of lives and families. It also contains an illuminating discussion of what such choices “mean” in a social context—a topic that Professor Kittay refers to as the expressivity of such choices. As You Read, Consider This: 1. Kittay is concerned here with the “expressivity” of the choice of selective abortion for disability, that is, she is concerned with examining the messages such an act conveys to others, including family members. Is there a difference between what she feels such an act would express and what her son feels it would express? Discuss. 2. In one of his letters, Leo comments that the family seems to be more like a club than a family. Explain what he means by this. Why is this significant in regard to children with disabilities? Is it significant for those without disabilities? Discuss.

M

y daughter, Sesha, now twenty-seven years old, lives at home with us. It is sometimes easiest to describe her in the negative, what she is not and does not do, for these are the well-defined capacities: she doesn’t talk, she walks only with assistance, she is not fully toilet trained, she can’t feed herself, and so on. But what she is is so much more. She is a beautiful young woman with a winning smile, an affectionate nature, and a love for music, water, food, and the joys of physical affection. I had never before written of her or our relationship and had not used my knowledge of living with a disabled person directly in the service of my professional writing. I was about to undertake the first of such writings when I was invited by The Hastings Center to participate in a project on prenatal testing for genetic disability. I had wanted my first forays into writing philosophically about my daughter to be about her and what her life means and has meant to me. I had to be persuaded to join the project, for it meant that instead I would have to reflect on the hypothetical of her nonexistence, and worse still, of the hypothetical of having had to choose whether or not she was to come into the world. During the course of the project, I was asked to consider whether selective abortion for disability “sends a message” that devalues the life of the disabled. When some initial discussions on the question revealed differences between me and my twenty-one-year-old son, Leo, who has an undergraduate degree in philosophy, I chose to write a chapter by conducting a dialogue with my son. We carried on our conversation through e-mail over a period of a few months while my son was working at a ski resort. This article records our dialogue. From My Diary2

I want to get some thoughts on paper before the intensity of this, the first of the four Hastings meetings, evaporates. Reflecting now on one participant’s memory of when her pediatrician told her that he didn’t know if her underweight baby would be all right, and her recalling this as the most terrible moment in her life, I thought what I would answer had someone asked me, “was the moment you learned that Sesha was retarded the most terrible moment in your life.” I would have answered, “No.” The most terrible moment in my life was when I thought Sesha would die. The next most terrible moment was when my mother insisted (or tried to insist) that Sesha be institutionalized and that I give her up. I was asked if my mother has changed her attitude toward Sesha, I said, “Yes,” and said that had happened because she initially thought that keeping Sesha would ruin my life. She’s seen that it hasn’t ruined my life.

10/22.

10/23. Wednesday morning I awoke feeling sore internally, somewhat nauseated, somewhat as if I were recovering from a physical torture. Tuesday evening, as I tried to cram the articles on psychological experiments on metaphors and idioms into my head for the upcoming class I teach, a dam burst and the floodgates came

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undone. I sobbed deep, deep sobs from the interior of my soul. I cried, I cried for Sesha. I felt the hurt for her impairments, for the profound limits of the life she could experience, for the multiple aspects of life she could never know or even know that she couldn’t know. I wept for Sesha—not for me, not for Jeffrey [my husband], not for Leo, but for her, her sweetness, her limitation, and the pain of knowing what a small aspect of human life she could inhabit. She, my daughter—the child I had brought into the world and the child I had raised and worked to nourish and protect. It is a hurt that doesn’t dare to be felt, almost all the time, and it is a hurt that cannot be felt in her sunny presence. But it is there and at moments like post-Hastings it floods in. Now what is this mysterious pain? Mysterious because who is hurt? I don’t think Sesha is aware of her limitation. It is not like the sorrow for another’s pain, because pain is felt by its bearer. So do I cry for myself and my expectations of the child I wanted to raise? That is not what those sobs were about—I know. In debriefing Jeffrey and Leo on Tuesday, I spoke of the question posed at the conference: Whether aborting after learning that the fetus is impaired sends the message that a disabled life is not valuable. I asked Leo: If I had aborted a fetus based on disability, would it have sent the same message to him as would the message he’d receive if we had institutionalized Sesha. He said, “No.” It wouldn’t have sent the same message, but he did think that the message of an abortion would have been that the disabled shouldn’t exist. I asked him, “Even in the face of Sesha and our life with her?” He answered that it still would, although it wouldn’t be as strong as the message would be if I had aborted an impaired fetus in the circumstance that Sesha was not part of our life. This surprised both me and Jeffrey. But it is information I must take seriously. Dear Leo/Dear Mom EFK’s Letter #1 Dearest Leo, I’ve been asked to address the question of expressivity of a woman’s decision to abort a fetus that has been diagnosed with a disability following amniocentesis or other prenatal testing. The question of expressivity is the question of whether such a decision signals the devaluation of the life of a person with disabilities. I thought I would send you excerpts of the letter I sent to Erik Parens when he first invited me to participate in The Hastings Center project. Tell me what you think. Much love, Mom Dear Dr. Parens: I have a severely retarded daughter who also has cerebral palsy. As much as I value my daughter—she together with my well son, constitute the single greatest joy in my life—I do not agree with the negative appraisal of prenatal testing that you say has been articulated by some members of the disability community.3 I believe that our society does not provide the conditions that make raising and caring for a severely handicapped child, while otherwise living a full and fulfilling life, possible for most parents, and I am skeptical about the possibilities of any society reaching such an ideal state in the foreseeable future. To undertake to care for a child with severe disabilities has been a difficult and painful course, and yet to abandon such a child to the care of strangers was and continues to be, for both me and my husband, unthinkable. We have garnered tremendous joy and learned more than one can imagine from our daughter, and yet the decision to have a child with such severe and multiple handicaps is not one I could easily endorse. I think it is terribly cruel to burden a couple with the responsibility for a severely handicapped child when prenatal testing can determine in advance the condition of the fetus. Furthermore, as a feminist, I must underscore that the responsibilities normally fall to the mother, as fathers not uncommonly abandon the family with the advent of a severely disabled child, and in most instances the mother provides the daily care.

On the other hand, prenatal testing does not eliminate the tragedy of a child who is severely impaired, for I can also envision the agony of making a decision either to abort or not to abort. Rather, the testing shifts the tragic moment and the decisions to be made. But if the decision is made to go to term, even in the face of the impairment, at least there is a conscious choice, made with the possibility of a truly informed understanding of what such a decision requires of the future parents. Moreover, the availability of the technology to avert some of the consequences of genetic disabilities does not absolve the society at large of mitigating the difficulties of raising and caring for disabled persons. In any case, such is the line that I would take based on my own personal reflections. Sincerely, Eva Kittay Leo’s Letter #1 Mom, If we are to take the position that giving birth to a retarded child should be a choice in years to come, that is to say, that all parents will have their fetuses tested, and that the only fetuses to reach full gestation will be those whose parents have expressly chosen to raise them, then we must also be sure that some other changes are made. To begin with, it must be made public that raising a retarded child is equally, albeit differently, fulfilling than raising a normal child. If it ever feels more fulfilling, Mom, it is probably because we just expect it to be less so. Without such increased exposure to those different joys, sheer ignorance will cause the retarded population to become extinct. Anyone with the option would decide to abort a disabled fetus because they would not be able to imagine that the incredible burdens of raising a retarded child could be outweighed by the joys. Why is this bad? Actually this is a hard argument to make. Social Darwinists might say that this is fine. This is a sort of “preemptive” survival of the fittest argument. However, a survival of the fittest argument is applied to fetuses or children only with difficulty. All babies are weak, and they tax parents and society. It might seem that we would all do better for ourselves in a world without the dependent young, but we all know such a world would be short-lived, if not absurd. Even Social Darwinists must take into account the dependents. They could argue that eventually “normal” children will grow big and strong. But, while many disabled children do not become strong and independent, some “normal” children do not either. This leads me to my next point. The argument you’re making draws a major line between normal and retarded children, based on the difficulty of bringing them up. But beware the slippery slope, Mom. Are not all children a burden? If, someday, we could determine that a fetus will develop into a hyperactive child, or into one with recurring ear infections, will these children’s births also have to be expressly willed? Children are a burden. But it is incredibly important to keep making them and tolerating them. No, Mom? No human child is fit for survival without the help of elders. To start drawing the line about how much help they should need is extremely problematic. Some groups of children will start vanishing. And we do not even want a Single species of animal to disappear. They are all intrinsically valuable. How do we show others how wonderful it can be to raise a retarded child, and how important and valuable her existence is? It is difficult! Especially if fewer retarded persons are being born. What kind of message does aborting the retarded send to would-be siblings? I can only guess at this, Mom, because Sesha was born. But here are two different messages I could conceive of receiving: 1. The love my parents have for me is a condition of my being mentally and physically sound, not just of being a child of theirs. Rephrasing this: The only reason my parents want me is that I’m relatively smart and fit. 2. My parents chose me and therefore must really care about me. Again rephrasing: My parents wouldn’t just love any child they might have, they love me because I possess the desirable properties or characteristics that make me who I am.

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What I am trying to say is that the family starts to seem more like a club, and less like a family. In a club the members are selected based on one characteristic or another. This leads one to believe that if, for some reason, that characteristic is no longer attributable to the individual, or if anyone in the club comes to believe that this characteristic never applied, the membership in the group and the “love” that results can vanish. If a fraternity guy stops playing football well, he might be afraid he would not be wanted in the fraternity anymore. He was aware, after all, that his ability to play football allowed him entry into the club. If a child believes his membership in the family is contingent on not being retarded or otherwise disabled, he might at first value his place in it more highly because it was earned. (This goes hand in hand with the belief that those who are retarded or disabled are worth less. I think immediately of children who use the word “retard” on those they wish to insult and how this insult always seems to be underscored by the desire of the one doing the insulting to differentiate him- or herself from those who are retarded.) But the positive feeling that love has been earned can subside, and the child might instead feel a constant pressure to prove himself to be worthy of his place in the family. He will not view his family’s love for him as unconditional love. I hope these thoughts are helpful. Love, Leo EFK’s Letter #2 Dearest Leo, You raise many points, each of which is crucial and each of which I want to explore. My assignment was to consider the expressivity of prenatal testing with respect to disabilities generally, but you speak primarily of retardation. I will move from the one case to the next with some fluidity, although I will try to address the larger perspective of disability. Parenthetically, let me say that in reading your letter, I realized why I have tended to speak of Sesha as “handicapped” rather than “disabled,” a designation for which I was called to task at the first meeting of The Hastings Center project on prenatal testing. Sesha’s disabilities are so severe that in speaking of my child as disabled I think that I will be failing to communicate the particular condition that is Sesha’s. That is, to speak of her as disabled puts her in the same category with persons with relatively mild disabilities, disabilities that do not prevent them from leading very independent and productive lives. By whatever our standards for independence and productivity, Sesha doesn’t now and never will meet those. I feel more comfortable speaking of Sesha as “seriously disabled,” although someone like Stephen Hawking is, by any standards, seriously disabled, and again by any standards is productive, though not independent. I recognize, of course, that “independence” too is a slippery notion because in some very important respects no one is independent. The Americans with Disabilities Act speaks of a disability as “a physical or mental impairment that substantially limits one or more of the major life activities.” Disability activists speak of handicaps as the consequence of a disability, where environment limits an individual with a given disability.4 Many of these handicaps can be overcome with social interventions and modifications of the environment. It takes a social and political will to structure the environment so that it responds to the needs of those who are disabled. But Sesha’s condition is such that most of her disabilities remain handicaps even with environmental modifications. In Sesha’s case handicap and disability are nearly coincident. I think the distinction is nonetheless a very important one and speaks to the importance of how we express ourselves with respect to disability. I want to make it clear at the outset, that nothing I have to say is meant to deny the importance of how we speak with respect to the disabled. I think that Michael Berube is correct when he speaks of how representations of the disabled figure in their treatment and life prospects.5 Let me now summarize what I think are your main points. I will then address them.

First, you speak of the need to expose people to the joys and fulfillment of raising a child who is retarded (or severely disabled). Second, you address the possibility that with advances in prenatal testing all cases of retardation (and other serious disabilities) will be eliminated. You then ask us to consider what would be lost if we no longer had persons with mental retardation. Third, you point to the problem of arguing from the difficulties and burdens imposed in raising a seriously disabled child, and the slippery-slope problems connected to such a position. Finally, you address the message that the sibling gets if the family chooses to abort a fetus diagnosed with a disability. I will start with the second point, the speculation that with advances in prenatal testing all cases of retardation (and other serious disabilities) will be eliminated. Most cases of retardation are not genetically based. Most cases of retardation result from something going wrong during the pregnancy itself or immediately after birth. This was probably the case with Sesha. Such cases could not be picked up in prenatal testing, which depends on examining genetic material. Even if all retardation or other disability were picked up prenatally, there would still be problems that occur during birth and immediately after birth. Then, of course, there is disease and trauma that leave children (and adults) disabled (and sometimes mentally retarded)— some of the children in in Sesha’s early intervention program, for example, were casualties of car accidents or gunshot wounds. However, certain populations, such as those with Down syndrome and spina bifida, are likely to be diminished by selective abortion following prenatal testing. Among fetuses diagnosed with Down syndrome upon results from amniocentesis, it has been said that 90 percent are aborted.6 However, that figure has to be looked at more carefully. Prenatal testing, although increasingly available, is not available to large numbers of women—and even when it is available, not all women avail themselves of it. So when we get the 90 percent figure, we get the percentage of women who have taken the test, often having already concluded that they would abort if the results are that the child has a severe disability. The literature indicates that the reasons for aborting—whether or not they are well informed—are various and complicated. But we can discuss that later. My point now is only that I do not believe we will ever see a world without persons with disability, without serious disability, without mental retardation, or even without persons with Down syndrome or spina bifida—although there may well be fewer of the latter individuals, and we can certainly talk about the extent to which this would be undesirable. Now you go on to ask what would be lost if it became the case that populations of significantly retarded persons and others with serious disabilities would be eliminated or significantly diminished through selective abortion. Let us confine this question to the case we know well, mental retardation. And qualify that case to include not all mental retardation, just all mental retardation that occurred before or even at the moment of birth. Well, I agree that the world would be a poorer place without persons with Down syndrome or other sources of retardation, without people like Jamie Berube, or Sesha.7 Our household has been immeasurably enriched by Sesha. People like Jamie, Sesha, or Abbie [our neighbor’s little girl], force us to think much more profoundly about what it is to be human, what our obligations are to others, why we have these obligations, what the source of human joy and human sorrow is. I haven’t begun to plumb the depths of these questions with respect to Sesha, but they are my measure of the truth, and the value, of all philosophical theories. If they cannot include Sesha in their universe, they are at best incomplete, at worst faulty. And that is not because Sesha is so different from us, or even because she is so much like us, but that at the very core, we are so much like her.8 We understand so much more about who we are and what moves us, when we see what moves Sesha. I understand so much more of what it is to be a parent and love a child like you, when I know what it is to love Sesha. (But, of course, there are also limits to that. If I kissed you as much as I kissed Sesha, you would have been gone from this house much sooner!) And yes, Berube is right. Sesha’s value, like Jamie’s value, is not in what they teach us. They are of value in and of themselves, in the same way that you are of value in and of yourself. Perhaps the world is always dimin-

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ished when that which has value in and of itself, intrinsic value, is lost to the world. Perhaps Wittgenstein was wrong when he wrote, “The world is the totality of facts.”9 Perhaps he ought to have said, “The world is the totality of intrinsic value.” Because our world—our lived world—does not consist of facts, but of our understanding of facts and the value those facts have in our life. Now, if I choose to abort a fetus that would grow into a child with disabilities, have I diminished the world? That is a painfully difficult question. Yet I cannot see that it is necessarily a very different question from the question: “If I abort have I diminished the world?” For to abort any fetus will be to abort a being that would have intrinsic value in this world. Perhaps I deviate from some feminists in thinking that a decision to abort is itself a difficult one; often, psychologically painful and ethically problematic (not necessarily wrong, but not easily right.) Yet I do not deviate from the feminist position in believing that the moral choice must be the woman’s to make. I remain convinced that the same must be said, though perhaps with more poignancy (and you will be right to ask why), when the phrase “with disability” is inserted. Let me end this letter for now. Perhaps you want to reply before I move on to the other points. Hope the skiing continues to be wonderful. All my love, Mom Leo’s Letter #2 In response, Mom: I think that your summary doesn’t highlight my point that it is only through exposure to actual retarded people that anyone can really appreciate how much they contribute to our lives, at least with the most severely “disabled.” (Here I don’t include Stephen Hawking because we can measure at least some of his value on the same scale that we measure the abled.) Not all disabled people are wonderful, though, and we would not want to put together an argument that is based on that premise. (Berube makes this point, his most memorable in my opinion. The story of My Left Foot also contains wonderful examples of this, when the disabled protagonist is often less than charming.) We could argue that severely disabled persons are pivotal to our world because they too add to it. Yet evil people, boring people, everyone adds to a culture in some way, and probably in some positive way to boot. No one tries to suggest that we attempt to abort these groups. You are right though, Mom, when you say we will never have the choice, or at least not in the conceivable future, of whether or not to allow disabled people to exist. So I don’t know if this is an interesting line of argument at all. Two possibilities might result if there were fewer retarded persons. The first is that fewer people will know what joys can come from being around someone like Sesha. More ignorance, and this is never a good thing. But here is another way of looking at it: a smaller population of this minority would be less threatening socially, politically, and economically (like the single African American child in an all-white school, or the sole Jewish family in a town of Christians). Sometimes it is easier for a minority to prosper under these conditions But I tend to buy the first result more readily. The second feels too artificial and, in circumstances like these, the danger of stereotyping remains substantial. You point out that I would want to consider why you say that aborting a disabled child is more poignant. I think it is because it feels, for a moment, to be an easier question than that of aborting a normal child. We fear that it will not get the same weight as the other question; that our system of values weighs the death, or (sorry) the lack of life, of one as less meaningful than the other. I think the way we will have to argue this point is to equate the value of the disabled with that of the normal. Maybe this is obvious to you, but it is not to me. Just as you are arguing that there is no difference between aborting a normal fetus and aborting a fetus with a disability, so we have to say that Sesha is not special—she is equal. Yes, she takes more money, more time, more patience maybe, but these needs should only be an adjustment in the mental figuring of the would-be parents. This is and must be separate from any appraisal of the child’s worth. Love, Leo

EFK Letter #3 Dearest Leo, I want to respond to the point that people need exposure to disabled persons if they are to understand that the value of disabled people is, as you say, equal to the value of those not impaired. But I want to start by addressing the equally serious matter of the slippery slope argument. You write that the argument I’m making draws a major line between normal and retarded (and other seriously disabled) children, “in the sense of them being difficult to raise.” And while you acknowledge that this may be the case, you argue that we have to watch out for slippery slope arguments that would have us ask if, whenever detectable, other conditions which make a child more difficult to raise would make such conditions eligible for selective abortion as well. So if a child has a condition which would, for example, lead to recurring ear infections, that would be a condition for which parents may choose to abort. And you ask, “Are not all children a burden?” A slippery slope problem is always hard. One doesn’t even need to move into science fiction to face some of these dilemmas, since, although most genetic disorders detectable by prenatal testing today are potentially severely disabling, the tests cannot tell us how severe these disorders will be. In the language of genetics, test results cannot tell us the degree of expressivity of the genetic anomaly. Some conditions, such as Turner’s syndrome, can result in a life that is little different from the life of persons without this disorder, except that the individual cannot bear a child. Then again, women are already free to abort a fetus irrespective of any manifestations of disability. Some disability rights activists, who consider themselves to be feminists and pro-choice, argue against selective abortion on the grounds that there is an important distinction to be made between “aborting any fetus” and “aborting this fetus.” That is, they maintain it is one thing to determine that you do not want to have a child, or to have a child at this time, or even with this man (that is, abortion simpliciter), and another to say that you do not want to have this particular child because it manifests such and such a trait (that is to say, selective abortion).10 Perhaps this is the argument you would like to endorse? Well then, here is my question. Why do women choose not to have a child? Or not to have a child at a particular time? Or not to have the child of a particular man? Well, for many reasons. But whatever the reasons (unless the decision is that they do it for ideological reasons, for example, “I do not believe it is right to increase the population of an already overcrowded world, but I will adopt and raise a child already born” or “I will not raise cannon fodder for a war state,” or “I think this is too evil a world into which to bring new life”), the reason to abort involves some decision not to assume the burden , yes, burden of raising a child, now or under the current conditions of the woman’s life. For yes, my dearest son, children are a burden. Children, however, even in terrible times, under terrible conditions, are also a source of the deepest joy and satisfaction imaginable. Even under slavery, many women had their babies and raised them in spite of the near certainty that these children would be slaves, as abject as they themselves. Harriet Jacobs was a young slave woman who wrote of an old slave woman who chided her for shedding tears over her children: “Good old soul! She had gone through the world childless . . . No sweet little voices had called her mother; she had never pressed her own infants to her heart, with the feeling that even in fetters there was something to live for.”11 We can add that even where a child is as profoundly disabled as Sesha, there is so much to treasure. Does my assertion that “I think it is terribly cruel to burden a couple...with the responsibility for a severely disabled child when prenatal testing can determine in advance the condition of the fetus” belie the value of a child like Sesha, a child who requires very extensive resources, material and emotional, to survive and thrive, whose care is so burdensome, even as it has such special rewards? Children are a burden, but we each engage in

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numerous decisions about when and how to assume the burden, responsibility, and privilege of raising a child. We choose a mate or defer or decide against marriage (or cohabitation); we engage in or avoid sexual intercourse; we refuse or use contraception; we choose whether or not to take the pregnancy to term, when abortion is a choice; we commit to raising the child, or have family members raise the child temporarily or permanently, or give it up for adoption, and so forth. Women have been thwarted in making such choices at various points along the way. As in all matters, we make choices but circumstances foil us and we are faced with unanticipated consequences of our actions or the actions of others. At each fork in the road, we have to decide. And when the matter is the care of a child, well or sick, able-bodied or disabled, we have to think if and how we can assume that burden and if the sacrifices required, at this time in our life, under these life circumstances, and given our current estimate of what our capacities are, what resources we can muster (remember how Berube quotes Janet declaring to him, “We can do this”), and what this child will require to survive and thrive. Rayna Rapp, an anthropologist studying women who have refused amniocentesis or who sought (or submitted to) it, and then based on a fetal diagnosis decided to abort, writes of the different decisions women make.12 They are based on the women’s perceptions and understandings, both of their circumstances and of the kind and extent of the disability. The choices are enormously complex. An unmarried woman in her late thirties, whose pregnancy is “an accident” but who is delighted to be pregnant, chooses not to have amniocentesis because she knows that she will not have another opportunity to have a child. She knows she can welcome the child, whether or not there is a disability, as long as she has the support of the church she once left, the Seventh Day Adventists. Another woman, in her forties and with two sons and a daughter, chooses to abort a fetus diagnosed with Down syndrome because she is concerned about having a child with a disability at her advanced age. She fears that she will not live long enough to care for the child as the child ages. She is further concerned that such a major and unending responsibility will fall to her daughter alone. Another family, which includes a cousin with Down syndrome, in learning that the child will have a disability that may result in the child’s being “slow,” but outwardly normal in physique, decides to bring the pregnancy to term. They would have aborted if the child had Down syndrome because they were witness to the exertions on the part of their family in caring for the physical aspect of the disability of their cousin. Many of these decisions are inflected by experience of race and the history of racial oppression. One African American family, whose fetus was diagnosed with Down syndrome, was told of farm communities where adults with Down are cared for and where they can participate in farm work. The father’s response was, “Sounds too much like slavery to me.” They decided to abort. Many urban white families, in contrast, find the thought of a rural life for their Down syndrome children a comforting notion. So yes, all children are a burden, and maybe you are quite right to say that to argue for the permissibility of abortion when the fetus is diagnosed with a severe disability on the grounds that a disabled child presents greater burdens is untenable, since the question of where we draw the line is an inevitable and unavoidable one. Perhaps the best rejoinder (if there is one) is to say that because having a child, any child, is a great burden and a great responsibility, our obligation as a society and as prospective parents is to go into that great adventure with our eyes open and with as much forethought as we can muster about whether we can assume that burden in a responsible way. Because a disabled child poses special burdens and responsibilities, a mother and a family must know that it is a challenge that they are prepared and willing to meet, when, that is, foreknowledge of an impairment is an option. In fact, judging from the accounts that Rayna Rapp has accumulated, it is just such thinking that does, in fact, predominate. These thoughts and these facts have a great bearing on the question of the expressivity of selective abortion, which I would like to sort out in a future letter. But for now, I want to mention two things.

First, the stigmatization of the disabled. Doesn’t that play a big part in the decision making of families and in their thinking of what they can and cannot handle (and so, argue those opposed to selective abortion, permitting such abortions only reinforces the very stigmatization that is a causal factor in the decision). If so, the question you raise, whether stigmatization increases or decreases with a greater or lesser population of the disabled, is pertinent. Second, a very important part of the decision-making around testing and abortion has to do with the resources that the society itself makes available. For many women, the idea of raising a child with disabilities is weighed against her own ambitions, the ambitions she has for her other children, the prospects for her disabled child when she can no longer care for her. Perhaps it is more appropriate to question how the larger society values or devalues the disabled life-by looking at the resources it withholds or devotes to children with disabilities and their families-than to impute a disregard for the value of the life of disabled persons to the pregnant woman who tests for and aborts a fetus with impairments. I want to talk more about this social dimension later. Must go now. Call us tonight, and let us know if you are going to remain in Taos. Much love as always, Mom EFK’s Letter #4 Dearest Leo, I am now going to try to respond to the first point, which you have been pressing throughout: The need to expose people to the joys and fulfillment of raising a child who is retarded (or severely disabled). And you want to add, rightly, that not all who are disabled are wonderful nor that anyone who is disabled needs to be wonderful or sweet or whatever positive attribute we want to put in, in order to be valued. Again, I have no argument. I also have no argument with the need to expose all of us to more persons who are disabled, whatever the disability. That educating ourselves and others about differences in abilities, in the rewards of raising a severely disabled child, is crucial if women are to make a well-informed and genuine choice. Perhaps it is especially important to become aware of those who are severely cognitively impaired, and of their presence as being crucial to enriching all of our lives. Increasing such awareness is vitally important if we want those who have had no intimate contact with disability to open their hearts and devote resources to improving the lives of the disabled and their families. I think few things are as difficult for humans to face as disabilities they themselves do not have; few “differences”— not race, not gender, not sexuality—are as threatening to a person’s notion of self. Most characteristics that put us in a relatively privileged position are ones that it is difficult for us to imaginatively transmute. A man won’t turn into the devalued woman; the white into the devalued black; the Christian into the devalued Jew. But the able-bodied can in fact turn into the devalued disabled at the next turn in the road. You would think therefore that prejudice against the disabled would be contained, confined, because, after all, at any time “I” could turn into “them.” But, instead, such a possibility only increases the prejudice, the avoidance, and the stigma. I don’t know how to get past this, except to show people our love for Sesha, to recognize the difficulty others have with Sesha and simply, by our example, help them past this. But does this mean I have gotten past all my prejudices concerning the disabled? No. The first thing is to recognize them, know where they come from, and then relate to the person and not the disability, except as you can be of service or learn from the person who has had to engage in struggles you yourself have not faced. I think that all the kids in your high school who watched your friend’s sister participate in high school performances and athletics will have more understanding about what it means to have the Down syndrome that marked her as “different.” They will not automatically respond to a pregnancy with, “If there’s Down, we’ll abort.” But I also am sure that among special education teachers, who have a deeper knowledge of what retardation and severe disability mean, there

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will be those who decide that, while they value everyone of their students, they themselves cannot take on the challenge and responsibility of raising a child with a severe disability. In fact, among the women in one of Rapp’s studies, there were two women who were special education teachers who chose to abort. Rayna Rapp cites another woman, on the other hand, who upon receiving the diagnosis visited a group home for the mentally retarded and chose to bring the pregnancy to term. Knowledge is crucial. I agree. And the time to get informed is not just when you are facing the decision. We need to be active in integrating persons with disabilities into every aspect of life, to seeing that our society devotes the resources that can facilitate such integration and facilitate the lives of disabled persons and their families. Only when this is the case will people have the exposure to children such as Sesha and Jamie Berube that will permit prospective parents to truly understand what is involved in raising a child with severe impairments. However, when that is the case, raising a child like Sesha will also be different. Raising a child with developmental delays and deficits today is so very different than it was when Sesha was born. What was available to Jamie was not available, or only becoming so, when Sesha was born. “Early intervention” was an entirely new concept then. New York City sidewalks didn’t have a cut in their curbs that made using a wheelchair so much less cumbersome—an improvement that helps not only the disabled but also every parent who has an infant or toddler in a carriage and every shopper with a shopping cart. Still, we live in a society without guaranteed health care for every child, much less every adult. How would Janet and Michael Berube have paid for Jamie’s care if they didn’t have generous insurance plans through their employment? During Sesha’s recent back operation, her surgeon alone cost $25,000, paid for through the generous health care plan my job provides. One professor I know who has a severely disabled child has an ongoing battle with his university because they set a one million-dollar limit on her medical insurance, and in the time he has been employed there (their daughter is now an adult), they have already exceeded the limit! So our society has done little to provide for even as basic a need as health care for the disabled. While this is also a difficulty for families with unimpaired children, for families with a disabled child, where medical emergencies are so much more frequent, having to consider cost can be devastating. The story that Berube tells of Jamie’s early years is about par for the course—for some it’s better, for some it’s worse. Then there is the question of the daily care of the severely disabled. There are now some respite programs that provide care for a disabled child so that a parent may have some time away from her disabled child, but these are woefully inadequate, as are the facilities for the severely retarded once they “age out” of the mandated school programs. If we want to speak of acts that are expressive of the devaluation of the life of the disabled, then to direct our attention to selective abortion is to direct us away from acts that are most egregiously expressive of this devaluation. The devaluation of the disabled life is expressed over and over again in the failure of our society to provide adequately for the disabled and their families. A woman who decides that she must make what is an excruciatingly difficult choice to abort (see Rapp’s account of her own decision) may not be expressing that devaluation except in a secondary sense. She acts thus because she is faced with Hobson’s choice—this or not at all: To raise a child with disabilities with only minimal social support (this) or to abort (not this child at all). It is an act motivated in part, at least, by the difficulties created in a society that fails to accord full humanity and citizenship to the severely disabled. This isn’t to say that in a utopian society not a single fetus will be aborted because of disability. Society can make available certain material resources, but individual emotional resources will vary from family to family. Perhaps some people shouldn’t be parents at all, and some shouldn’t be parents to disabled children, at least when that situation can be foreseen. Some parents cannot love unconditionally. I have heard parents say that their love for a child was diminished because the child wasn’t as smart as they wanted their child to be. How sad for that child, I think. How much more devastating for a child not to get the love and the special love that she needs to sustain the illnesses, the pain, the loneliness that so often accompany a disability.

People who come into our house say Sesha is lucky to have parents who love her so much. And our standard response is that we are lucky to have Sesha whom we can love so much. But, in truth, they are right. As lovable as Sesha is, not every family may have allowed themselves to find out how wonderful she is. It’s hard to imagine since she touches your soul so, but I just know it’s true. To be able to love her so, to find it hard to imagine that anyone couldn’t love her so, is to be touched by a bit of grace, and it has been our good fortune to be granted that grace. But what would her life be like if she didn’t have people to love her as we do? That, my dear, is the most painful thought—the thought of what happens to her when we are no longer around. No, these are things no one has any right to tell a family—no one has a right to say to a family: You must take this on and if you don’t you are immoral, you don’t value a life that is disabled. Finally, I am ready to address some of your concerns as a sibling about the expressivity of the act of abortion in the case of disability. I’ll write this tonight and tomorrow and e-mail you tomorrow night. Love, Mom EFK’s Letter #5 Dearest Leo, You ask, “What kind of message does aborting the retarded send to would-be siblings?” And you say that there are two possibilities to consider. The first is a negative message, that parental love is conditioned on “soundness” and accomplishment, or as you put it: “The love my parents have for me is a condition of my being mentally and physically sound, not just of being a child of theirs.” And you provide an alternative formulation of this idea, that “the only reason my parents want me is that I’m relatively smart and fit.” I see your alternative formulation as one that has to do not with the infant when born (a time when we cannot assess intelligence or athletic ability, but only good health and absence of anomalies) but has rather to do with the child’s realization of the potential that good health and soundness make available. The other possible message seems at first more positive, but contains a hidden explosive that can shatter a child’s sense of well-being. This is a very disturbing message that we need to explore. You suggest that the message received might go something like this: “My parents chose me and therefore must really care about me.” Or, “My parents wouldn’t just love any child they might have, they love me because I possess the desirable properties or characteristics that make me who I am.” But this seemingly positive message becomes just another statement of a conditioned love. For then, as you say, “the family starts to seem more like a club, and less like a family,” in which the members are selected based on some desirable features. But if a person starts to fall short of the desirable characteristics, she knows that she is no longer welcome in the club. In a family, this would lead a child to feel “that if I don’t toe the line and exhibit the desirable characteristics, I’ll no longer be valued.” You continue: “If a child believes his membership in the family is contingent on not being retarded or otherwise disabled, he might at first value his place in it more highly because it was earned. . . . But the positive feeling that love has been earned can subside, and the child might instead feel a constant pressure to prove himself to be worthy of his place in the family. He will not view his family’s love for him as unconditional love.” We need to address these two possibilities separately. First, however, we need to think a bit about what it means to send a message. You are asking about the kind of message the act of selective abortion based on disability sends to the sibling. Opponents of this sort of selective abortion ask, “What kind of message does it send to society about the value of the life of persons with disabilities?” Many opponents of selective abortion (see, for example, Saxton13, 14, 15, 16) claim that something is communicated in the decision to abort selectively for disability that we say we want a child, but we

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do not want this child. They ask us to consider the claim that aborting that life sends the message that a disabled life is not one worth living; very much the way feminists have claimed that selective abortion for gender, which is generally a choice against having a girl, is a statement devaluing the life of females. They ask us furthermore to consider the impact of this sort of message on those who are female, in the one instance, and disabled, in the other instance. In focusing on the message that the sibling receives, your point is more specific, yet some of the considerations are the same. Some others, I’ll try to show, are different. The first thing we have to consider is whether the act of selective abortion is a “saying!” Is it an act of communication at all? What are we committing ourselves to when we claim that it is? Can we base an ethical evaluation of the act of selective abortion on the claim that the message sent is a devaluation of the life of those possessing the properties that determined the choice to abort? . . . If selective abortion is an act of communication in which the message arrives in a degraded form, then I fail to see how it can provide grounds for any ethical judgments or moral (much less legal) prescriptions. First, in the case of selective abortion, we identify the addresser as the woman who decides to abort the fetus and the addressee as society in general (alternatively, the disabled community). Now, it is not clear that a contact is ever established between addressee and addresser. A woman rarely says: “Listen up, world. I am having an abortion based on a diagnosis of fetal abnormality and I am about to tell you why I choose to abort a fetus with such an abnormality.” (There are, of course, exceptions.17) When we learn that someone had such an abortion we may not be in a position to query that decision, and the woman may not be in a position to query the addressee about the correctness of the message “received.” Second, there is no established code by which to decipher the “meaning” of such an act. That is, there is no established code or convention or practice to which both addressee and addresser can appeal when determining the meaning of that act. When I tell you, “It is raining,” you (if you speak English) know how to understand that statement, and I know that you know. There is a common code that allows us to communicate a statement such as that. But such codes are not always available. If, given the conventions of foot apparel, I wear one green sock and one blue sock, you don’t know how to interpret that action. Perhaps I dressed before dawn in the dim light and failed to discern the colors of my socks. Perhaps I lacked a clean pair of matching socks. Perhaps I was engaging in a flight of fancy. Or costumed myself for a play. Or dressed according to a pre-established code, thereby signaling to a comrade the start of a revolution. The failure to discern a univocal—or indeed any—meaning of the act of selective abortion partakes of the ambiguity of all those actions which fail to be situated in practices that have an agreed upon meaning. (The same may be said about abortion itself, an act whose meaning remains contested.) I may already spend my life caring for persons with disabilities. I may have decided to adopt a retarded child once I have health insurance. I may feel that I can take on the care of a healthy child now, but a disabled child only at a later time in my life. Or I may think that even a limp makes life not worth living. There is no established code by which you can interpret my action and so understand what my abortion means to me, nor by which I can discern what my action might mean to you. Third, we have to consider the extent to which the context influences the act of communication. If I am in a drought-stricken area, the statement “It’s started to rain” carries an emotional charge very different from one carried by the same utterance in a flood-torn area. Context will affect the cognitive meaning or emotive charge of an utterance. The newspaper headline announcing the crash of Hemingway’s plane, when the writer was assumed dead, ran: “Hemingway Lost in Africa.” When it was learned that he was still alive but missing, the headline remained, but with a different meaning.18 The less developed the code, the more ambiguity the code itself permits, the more the context will determine meaning. Because codes concerning acts of abortion and selective abortion are so underdeveloped and so contested, context is virtually, though not

entirely, determinative. In the case of selective abortion, the context includes both the particulars of the individual lives affected by the decision and the larger social setting in which the decision is made. Most contestations over this new technology and the decisions people make with it are struggles over how to understand and determine the context that, in turn, contributes to the meaning of the act. For many in the disability community, the context is one in which disability is stigmatized and persons with disabilities are devalued. That context, they argue, inevitably means that we interpret the act of selective abortion as another sign of the devaluation of a disabled life. That is to say, they believe society in general (the addressee) interprets the “utterance” of selective abortion in the context of the stigmatization of disability and that the message sent is that a child with disabilities will not be welcomed into a family. Therefore, they argue that the act of communication that results is that the disabled life is not worth living. In response, we have to ask, “If we alter the context, is it the same message or not?” If we utter, “It’s raining,” to folks in a sodden Seattle and make them more miserable, is it the utterance (and what that utterance refers to, the fact that it is raining) or the context in which it is uttered that is the source of the misery? If we issue the same utterance to drought-stricken East Africa, are we uttering a message that makes people miserable? No. If we are concerned with the devaluation of the life of the disabled (and that is something we should each be concerned about, regardless of whether we ourselves are disabled or have a disabled family member or if disability has never personally touched our lives), then we need to fix on, and fix, the context, not the utterance. Still, you might argue, to abort fetuses with disabilities is itself to further devalue the disabled. But that can’t be the reply, because that is exactly what is at issue. What I will grant is that it is reasonable to infer that if many persons choose to abort fetuses with a particular characteristic, it is fair to make a hypothesis that those characteristics are devalued. But that is again, at best, a conclusion hypothesized about the causal factors that lead to the abortion and not a message that is sent out by the abortion. Only further questioning of actual motives can establish whether this woman aborted because she devalues disabled life. But even so, we should not confuse a message sent with a causal determinant of an action. Now you may want to respond, “Look, Mom, it is only through exposure to actual retarded people that anyone can really appreciate how much they contribute.” With selective abortion, “fewer people will know what joys can come from being around someone like Sesha. More ignorance, and this is never a good thing.” But if we could fix those conditions in utero, if we could have Sesha without the retardation, would we balk, even for one moment? And maybe, probably, Sesha wouldn’t have the incredible sweetness she now has, a sweetness that is perhaps, in part, the result of her not encountering conditions that most of us encounter— an innocence of intentional evil, of senseless nastiness and stupidity that humans are capable of, of corrosive ambition, of frustrated dreams, of biting competition, and so on. What of it? Would we hesitate one moment to exchange her for a Sesha with all her mental faculties intact. Although every day I lay eyes on her, Sesha melts my heart with the purity of her joy, her laughter, I would not hesitate. Truly, I wouldn’t hesitate. Sesha’s condition isn’t just a difference, only it is that too. Sesha’s condition is an impairment. If I can contemplate a Sesha without her impairments, or another child in her place, does this mean that I think that a disabled life is not worth living—that Sesha’s life is not worth living? Absolutely not. My life is worth living. Nonetheless there are conditions, ones that those I love would have rejoiced in, under which I would not have been born. Had my mother left Poland before the war and been spared the horrors of Auschwitz, I would not have been born. Does this mean that I cannot wish with all my heart that she had married the man from Toronto who had betrothed her and sent her the papers to leave Poland before the war? The fact that she didn’t, of course, says nothing about the value she placed on my life. She could know nothing of what that life would have been like. But if she had had a crystal ball, and had foreseen it all—yet

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had no idea of what awaited her if she went off with the beau from Toronto—foreseen both surviving Auschwitz and me and would still have chosen Toronto, could I blame her? Could I say she devalued my life— could I blame her for not choosing this child? But these are fantasies, and she could never know. We can know no more of the life we do not conceive or the life we choose to abort. Would I have aborted Sesha if I had known of her condition? I don’t know. It might depend on the level of attachment I felt at the time I learned that the fetus had some problem. If it was already my child in my heart and mind, I may not have. I may have thought just as I did once Sesha was born—our own version of Janet Lyon’s “We can handle this.”19 But maybe that is not what I would have said. Maybe I would have investigated further, learned something of the lives of the retarded. Our decision (because both Dad and I would make this decision) may well have depended on where our investigation led us: to a home like the Berubes’ or to a day treatment program like the one Sesha is currently in? These considerations reinforce some of the powerful points Berube makes with respect to the representation of the disabled. But it is also a confirmation of what I have wanted to underscore—namely the importance of the commitment of the society in general to the disabled. So maybe we would have decided that there is joy enough for us here, and that we can make a good life for ourselves and our child. Maybe, and it is hard to think of it, I would have aborted. And we would never know Sesha. And that loss seems unimaginable. But I may have given birth to another child, whose nonexistence would seem equally unfathomable, and I would have wondered about the child I aborted. I would have stopped every time I saw a mentally retarded child or adult and wondered, with tears in my eyes. Just as now, with tears in my eyes, I think about the young woman of twenty-seven who might be a graduate student like my wonderful graduate students, or be thinking about marriage, or be out on the ski slopes with you. In each case there is a loss. It is a human tragedy. No one can judge the choices of another in these cases based on what is at best a degraded form of communication. No one can make a moral evaluation based on this incomplete communicative situation. There is no singular utterance enunciated through a clear channel in an accepted code, in a nonambiguous context. It is a moral wrong to utter the word “nigger” in speaking of or to a person of African descent. It is a moral wrong to produce degrading and demeaning portrayals of women as sex toys for men. It is a moral wrong to reduce services for the disabled poor (doubly wrong). All these send vile messages that some people do not possess the value that others possess. But to selectively abort because the fetus I carry is likely to develop into a child with profound disabilities does not send any clear and unambiguous message. And the morality of that choice must be weighed in the conscience of the woman who makes that choice. She alone can know just what her act meant and if it was carried out as a consequence of moral sloth and uncaring, or through a responsible choice. Now, at last, we get to your point about the message that the sibling receives. First, let’s consider this situation of communication with the six factors that Jakobson delineates. The situation here is quite different than that of an undefined audience, “society in general.” Why? First, because in this case one can establish that channels of communication are open, and second, because one can adopt a code by which to interpret this utterance. Furthermore, we can delimit the context, or at least specify the relevant contextual features. Put more simply, one can discuss the matter through an exchange, not unlike the exchange you and I are now having. I wonder, however, if such exchanges do take place. Were I an empirical scientist, I would like to conduct a study in which to ask this question. But I think it is a parental duty to explain to one’s child why one makes, or why one has made, such a decision. Otherwise, all sorts of misinterpreted, unintended, or garbled messages are an inevitable outcome. Let’s take the first scenario you envision. The sibling assumes that the parent’s love for him is conditioned on his sound mind and body and is concerned that if anything should happen to him that would cause him to be disabled, the parent would want to discard him, as, once before, she had aborted his disabled unborn

sibling. The first distinction I would want to put into place is the distinction between a born child, and the commitment a parent has to a child that has been born, and an unborn fetus. I believe that the concern you raise is a concern a child might raise in the case of any abortion. If the reason for the abortion is “I can’t afford another one,” a child may wonder, “What if we have less money than we have now? Will my parents want to be rid of me, too?” If the reason is, “I have my hands full with the children I have now,” the child may wonder, “If I’m more trouble than I am now, will my parents want to be rid of me, too?” I think you see how it can go. Remember, without discussion, with only the act of the abortion itself, we have not a true act of communication but a very degraded one. Once we have the distinction between the commitment to the born child and the tentative commitment to the unborn fetus, we are able to develop other features of the code and the context. We can make the case that the decision to abort was in significant measure a question of the parent’s commitment to children already born, or to the other children the parents were likely to have. If there is a decision to bring the fetus to term, there is also considerable parental input that is demanded. A child may view any sibling as a rival, but a sibling that requires the additional attention a disabled child does may raise the level of resentment and jealousy. It is the job of the parent to open the channels of communication, to explain the decision (or the fate, as the case may be), and to integrate the normal and disabled siblings into one cohesive, caring family. Too often we think that the message is obvious. We needn’t check with our addressee if the intended message has been received. Your dad and I thought that it was obvious that our love for Sesha would give you the clear message that we love our children, unconditionally, irrespective of achievement. You might have gotten the unconditional part, but I’m not so sure about the “irrespective of achievement” part. Instead, you thought the message was that you had to compensate for the fact that Sesha would never have accomplishments, as those are normally tallied. Because we presumed the message was clear, we never made the effort to be certain that it was being received. (How dangerous to make moral judgments based on such bad communication channels.) I recall how as a four-year-old you mistook our affectionate responses to Sesha as a sign that we loved you less. We had to explain to you that Sesha understands only kisses and hugs—it is our sole means of communicating with her—whereas we could play and talk with you. Again, how careful we have to be in explaining our messages. Now let’s move to the second case: the sibling who first bathes in the love garnered for his particular characteristics and then comes to fear that such love is too unstable—that the family based on such love is more like a club than like a family. Here too one can invoke the distinction between commitment to the unborn and commitment to the born. But here I think the important point is that a family must not be like a club, whose membership is based on a set of desirable features. That is not how a family nurtures. We need a place where love is unconditional, where our mistakes are forgiven, where our imperfections are accepted and even cherished. We need such a place if we are to be emotionally whole. If the “message” that selective abortion for disability sends is that a disabled child is of less value, then it cuts into the sanctity of such a space and is corrosive. So here we have to be very clear. But once again, clarity comes from how we treat those with disabilities and not with a family’s (and especially a woman’s) decision to bring a fetus, any fetus, or this fetus to term. If we treat persons with disabilities with care and respect; if we attend to need when we see it and listen to the voices of those who wish to speak; if we treat all persons as moral equals, irrespective of ability or accomplishment; and if a household reflects this in all that it undertakes, then no child should think that it is valued merely for having certain desirable traits. If a child comes into a household where these values predominate, then the child comes into a home that welcomes her for the person she is, not for the traits that she bears. And if the message isn’t getting through, then it’s time to clear the channels of noise. I love both you and Sesha with all my heart. Mom.

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Leo’s Letter #3 Mom, Yes, the lines of communication must be open. And this is incredibly difficult. As open and honest as our family is, only in my twenty-first year have you and Dad and I discussed at any length many of the more painful, difficult aspects of having Sesha in the family. I have not even allowed a healthy dialogue to take place in my own head about Sesha until recently. Tremendous issues of anger and guilt have been lurking within me regarding Sesha, and coming to grips with them has been a big part of my post-college soul searching. You said that the act of aborting a disabled fetus will convey a harmful message of conditional love to the sibling unless the following condition is met: “If we treat persons with disability with care and respect; if we attend to need when we see it and listen to the voices of those who wish to speak; if we treat all persons as moral equals, irrespective of ability or accomplishment; and if a household respects this in all that it undertakes, then no child should think that it is valued only for having certain desirable traits.” There is only one problem, Mom. No child is consistently under the impression that the above condition is the case. In fact, no person for that matter thinks that his or her family is always treating him or her in such a way all the time. Even a family as wondeful as ours, n’est-ce pas? This passage does help me answer one thought that has been plaguing me throughout our discussions. Even though you did not abort Sesha, I remember experiencing every feeling that we have discussed a would-be sibling goes through as a result of a selective abortion. Just because you had Sesha and raised both of us honestly, better than I can imagine, I still managed to feel quite frequently and strongly throughout childhood, and even during many of my most formative moments, that Dad’s and your love for me is a condition of my physical and mental abilities. Without these, I often felt, on some level, that I would not command your love and respect. But when you break down the manner in which these messages get communicated in the case of an abortion, it helps me to see how this message could have been communicated so counterintuitively in the case of the elected birth, Sesha. It was in those moments in my upbringing when I felt treated as more than equal, when I got more attention than Sesha, or alternatively when I did not feel treated with the same care and respect as Sesha, that my young mind sometimes interpreted this nonequal treatment in terms of the inequalities and not the equalities. I thought I must be getting more attention than her because I can do more, or that I was getting less because she needed more. I think to some extent this phenomenon exists between all siblings, even between a child and a parent’s career, between a child and the other spouse, whenever a parent’s energies have to be distributed fairly. Anytime a child feels his status change, he is constantly searching for the cause of the change. Only a completely open line of communication continually sending a message of equally high value to all can truly do away with a mixed message. So, yes, Mom, I think you have hit on the secret of how not to send the wrong message to one’s children when one decides to abort. I think it also happens to be a secret of parenting in general. This leads me to my final thought. Let me say I do fear that allowing abortion based on prenatal screening will result in many abortions that are decided more quickly and based on less information than is ideal. Some women will even elect to have an abortion because they think less of disabled people, or because they want their children to be perfect. But, and this is my thought, parents make lousy decisions all the time. Some spend their money irresponsibly, some raise their kids to think they’re worthless, others raise their kids to think they’re worth more than everyone else, some beat their children. While sometimes I think it would be great to make laws that put a stop to such behavior, I know that in general that would not be a good idea. To insist that parents have children they are not thrilled about doesn’t strike me as the best way to give children a great start in life. After all, the great burden of deciding whether or not to abort the child is small compared to the burden of raising the child. And if someone is not going to handle the decision responsibly, I would hate to see how they would handle the child. Might they become thrilled before the nine months are up? Might having the child shatter their prejudice against the disabled? Yes, but it also could take longer. And what messages would be sent out meanwhile? Love, Leo

Notes 1. This chapter was prepared for The Hastings Center project, “Prenatal Genetic Testing for Genetic Disability,” funded by the National Center for Human Genome Research of the National Institutes of Health, grant 1-R01- HG116801A2. It is a revised version of a chapter in Norms and Values: Essays on the Work if Virginia Held, ed. Joram G. Haber and Mark S. Half ton (Lanham, Md.: Rowman and Littlefield, 1998). 2. These diary entries were written prior to the correspondence that follows them. 3. Erik Parens, personal correspondence to Eva Feder Kittay, Briarcliff Manor, N.Y., May 21, 1996. 4. Adrienne Asch, “Reproductive Technology and Disability” in Reproductive Laws for the 1990’s, ed. Sherill Cohen and Nadine Taub (Clifton, N.J.: Humana Press, 1988), pp. 69–124. 5. Michael Berube, Life as We Know It (New York: Pantheon Books, 1996). 6. Berube, Life as We Know It, p. 76. 7. Berube, Life as We Know It. 8. See Elizabeth Spelman, Inessential Woman: Problems of Exclusion in Feminist Thought (New York: Beacon Press, 1988), who speaks of the practice of saying about some people who are viewed as Other “but they are just like us” as “boomerang perception,” one in which we only can see the other as “just like us,” and never see ourselves as “just like them.” 9. Ludwig Wittgenstein , Tractatus Logico-Philosophicus (London: Routledge & Kegan Paul, 1921). 10. Marsha Saxton, “Why Members of the Disability Community Oppose Prenatal Screening and Selective Abortion,” in this volume; and Adrienne Asch and Gail Geller, “Feminism, Bioethics, and Genetics,” in Feminism and Bioethics: Beyond Reproduction, ed. Susan Wolf (New York: Oxford University Press, 1996), pp. 318–50. 11. Harriet Jacobs, “Incidents in the Life of a Slave Girl: Written By Herself,” in The Classic Slave Narratives, ed. Henry Louis Gates (1861; reprint, New York: Penguin, 1987), pp. 333–513, at p. 427. 12. Rayna Rapp, “The Ethics of Choice: After My Amniocentesis, Mike and I Faced the Toughest Decision of Our Lives,” Ms. Magazine April (1984): 97–100; “The Power of ‘Positive’ Diagnosis: Medical and Maternal Discourses in Amniocentesis,” in Childbirth in America: Anthropological Perspectives, ed. Karen Michaelson (South Hadley, Mass.: Bergin & Garvey, 1988), pp. 103–16; “Women’s Responses to Prenatal Diagnosis: A Sociocultural Perspective on Diversity,” in Women and Prenatal Testing: Facing the Challenges of Genetic Technology, ed. Karen H. Rothenberg and Elizabeth J. Thomson (Columbus: Ohio State University Press, 1994), pp. 219–33; “Refusing Prenatal Diagnosis: The Uneven Meanings of Bioscience in a Multicultural World,” in Science, Technology & Human Values 23 (1998): 45–71; and “Risky Business: Genetic Counseling in a Shifting World,” in Articulating Hidden Histories, ed. Rayna Rapp and Jane Schneider (Berkeley: University of California Press, 1995), pp. 173–89. 13. Marsha Saxton, “Disability Rights and Selective Abortion,” in Abortion Wars: A Half Century of Struggle, 1950-2000, ed. Rickie Solinger (Berkeley: University of California Press, 1997), pp. 374–95. [Authors Note: Citations to notes 14–16 fall within the omitted portion of this text.] 17. Rapp, “The Ethics of Choice.” 18. Donald Davidson, “What Metaphors Mean,” in Inquiries into Truth and lnterpretation, ed. Donald Davidson (Oxford: Oxford University Press, 1984); and Eva F. Kittay, Metaphor: Its Cognitive Force and Linguistic Structure (Oxford: Oxford University Press, 1987). 19. Berube, Life as We Know It.

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Reproductive Choices An Introduction to the Moral Issues

The Historical Context 32 In Vitro Fertilization (IVF) 33 The Moral Status of the Early, Unimplanted Embryo 34 Access to IVF 35 Conflicting Claims: The Embryos of Divorcing Couples 35 Conservative Objections to IVF 36 Religiously Based Critiques of Assisted Reproduction 36 Anti-Technology Critiques of Assisted Reproduction 36 Remaining Moral Issues 36 Genetic Screening and Manipulation 37 From Abortion to Genetic Screening and Manipulation 37 The Line between Cure and Enhancement 38 Individual Choices and Social Policy 38 Stem Cell Research and Regenerative Medicine 38 To Clone or Not to Clone? 39

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his chapter is devoted to a set of issues that is genuinely new in human history, ethical issues that arise as a result of advances in medical science and technology. Many of the moral problems we face today—such as war, euthanasia, punishment, hunger, and discrimination—have been perennial issues for humanity. In the past few decades, however, we have been faced with a new range of moral problems relating to cloning and various advances in reproductive screening and technology.

The Historical Context

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The past two decades of scientific advances have now turned fiction into fact. This new era officially began in 1953 with the discovery of the structure of DNA by Watson and Crick at Cambridge University. It was analogous to the discovery of the Rosetta Stone in Egypt in 1799—we found the language, but we didn’t yet know how to read and translate it. For DNA, that task would take approximately fifty years. The second step occurred in 1978, again in England, with the first successful “test-tube” baby, Louise Joy Brown. For the first time in human history, a human embryo—a fertilized egg—existed outside the human body, a process we call in vitro fertilization (IVF). This would open the door for a wide range of new moral issues, most of which centered around the moral

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status of this human embryo that was not in a womb. The third major step occurred as we gradually came to decode the human genome, a project substantially completed by both the government-sponsored Human Genome Project and the private initiative headed by Craig Venter. Once we were able to decode the genetic structure of a particular organism, including a human being, we were then faced with the task of understanding what these individual genes did, what role they play in human health. Currently, we are in this stage, looking for correlations between specific genetic markers and particular diseases and disorders. There is plenty of work yet to be done, but scientists have already found some important correlations between genetic markers and specific kinds of cancer, dwarfism, and other conditions. This scientific advance is now being conjoined with developments in IVF that allow doctors to screen embryos for certain diseases before they are implanted, allowing couples to implant only embryos that do not contain the dangerous gene. In late 2011, scientists had discovered increasingly effective noninvasive genetic tests (some using just a pin prick on the fingertip) to determine very early in a pregnancy whether the baby carries particular genes that may be harmful. What had been science fiction a few decades ago is now routine science. There is yet another chapter in this story that does not relate directly to conception but depends on IVF, and that is stem cell research. Cells derived from human embryos are pluripotent, that is, they can become almost anything in the body. They offer great promise of cures for some of our most heartbreaking of diseases and disorders, including spinal cord injuries, amyotrophic lateral sclerosis (ALS), Alzheimer’s, and many others. Moreover, they offer the promise of being able to grow replacement organs and tissue matched to particular patients, replacing damaged heart valves, kidneys, heart muscle, and the like. Taken together, these developments constitute the promise of regenerative medicine, much of which depends on the use of human embryonic stem cells (hESC). The principal moral challenge here has been that these cells can only be obtained by destroying a human embryo, typically an embryo that would otherwise be discarded after fertility treatment. The final crucial development in this process occurred when we began to clone animals, using many of the techniques developed originally for IVF. Indeed, some critics of stem cell therapy have argued that the techniques for deriving stem cell lines essentially involve cloning, although for therapeutic rather than reproductive purposes. Dolly the Sheep was successfully cloned in 1996, and scientists have become increasingly sophisticated in their ability to create clones of mammals. No one has yet successfully cloned a human being, as far as we know. Thus we see that the crucial scientific and technological breakthrough occurs when, for the first time in human history, sperm and egg can be brought together to create an embryo outside the human body. The second breakthrough occurs when we can screen those embryos before they are implanted, thereby preventing the transmission of genetically identifiable diseases and disorders. The third breakthrough occurs when these embryos are used to a new purpose: creating new body parts and repairing old ones. These developments pose increasingly difficult and complex moral choices, choices that we never had to face before. The fourth and final breakthrough occurs when we are able to reproduce genetically identical copies of a living being through cloning. Each of these developments gives rise to a set of ethical issues. First, to what extent do we involve ourselves in the conscious manipulation of the reproductive process at all? When, if ever, should we use IVF? Second, when—again, if ever—should we screen human embryos? To eliminate potentially deadly diseases? To avoid disadvantages later in life? To enhance the abilities of one’s offspring? Third, to what extent—if any—should we attempt to extend and enhance human life through regenerative medicine, particularly through the use of human embryonic stem cells? Finally, should we ever clone human beings, whether as part of a therapeutic process or for the purpose of human reproduction? Let’s look at each of these in more detail.

In Vitro Fertilization (IVF) Although we will look at the details of IVF shortly, it is helpful to begin with a broader overview. During the last hundred years, we have seen a growing separation between sexual intercourse and conception. The development of oral contraceptives (“The Pill”), first approved in the early 1960s in the United States, represents a crucial

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stage in this process. For the first time, it was possible, fairly safely and fairly cheaply, for couples to have sexual intercourse without becoming pregnant. So, from the side of sexual activity, sex becomes divorced from procreation. The next stage of that separation occurred with the development of IVF, for now it became possible to have children without having sex. Thus, from the reproductive side, the link between sex and reproduction is also broken. What we see in the twenty-first century is an ever-increasing separation of sex from reproduction. Although artificial wombs still remain mainly the stuff of science fiction, researchers at Cornell and in Tokyo have made significant progress in developing an artificial uterus for use with animals. The perfection and use of such a technology would complete the separation between sex and reproduction. Current estimates suggest that about one in six American couples who want to have a child experience significant medical barriers to fertility. For such couples, once the nature of the medical problem(s) has been diagnosed, there are often initial therapeutic techniques, such as hormone therapy or surgery, that can enable the couple to have children without further medical assistance. However, this is not possible for all. For some couples, it is still impossible to conceive. In those cases, it is necessary to turn to more radical means. If conception cannot take place in the woman, then the next step is to try to bring about conception externally—in a glass laboratory dish, in vitro. The man’s sperm and the woman’s egg are combined in a glass dish (in vitro just means “in glass” in Latin) in a way that allows the sperm to fertilize the egg, producing the embryo. This creates a double separation. First, the act of creating a human life is separated from sexual intercourse. Second, and even more important, the embryo itself is separate (if only for a short period of time) from the mother. The creation of human life outside of a woman’s uterus raises a multitude of ethical issues what are unprecedented. Typically, because harvesting eggs is an invasive procedure, women usually undergo a hormone therapy regime that results in superovulation, that is, the production of many more eggs than usual in a single cycle. Then these eggs are harvested through a surgical procedure. The justification for this approach is that it minimizes the number of times a woman has to undergo the surgical procedure to harvest eggs. Once the eggs are harvested, several things can happen: • The eggs can be immediately fertilized and implanted. Typically, this only occurs in cases where there is no superovulation. In Italy, this is the only type of IVF that is legally permitted. • The eggs can be frozen and saved for later use. Currently, scientists have had less success freezing unfertilized eggs than freezing fertilized eggs (embryos). • The eggs can be fertilized and then frozen for later use. • The fertilized eggs (embryos) can be screened for various genetic disorders. Embryos that show genetic disorders can be either discarded or used for stem cell research, while those without genetic disorders can be frozen for later use. • Embryos can then be stored indefinitely (for years in some cases), and then thawed and • implanted in the original couple to produce a pregnancy; • implanted in a surrogate woman to carry the baby to term when the mother is unable to do so; or • donated to stem cell research. One of the most contentious issues has been the moral status of these fertilized eggs, these embryos, that have not yet been implanted. Typically, these range from a day or two old to fourteen days. These embryos are not yet implanted, so there is no possibility that they will, without positive intervention on our part, grow into full-fledged human beings. Yet the embryo does have the full genetic code. It is roughly spherical in shape and largely hollow inside, looking more like an European soccer ball than anything else. It is not until the emergence of the primitive streak (about day 14–16), that the pre-embryo begins to elongate and starts to look more like an American football. This is the beginning of the emergence of the axis that will eventually be the head to foot axis of the human being, and it is the first step toward laying down the central nervous system. The Moral Status of the Early, Unimplanted Embryo

We discuss many of the arguments about the moral status of the fetus in the introduction to the chapter on abortion. Typically, in this introduction I will use the term “early embryo” to refer to the embryo that is less than

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two weeks old. Traditional medical textbooks refer to a “pre-embryo.” By using the term “early embryo,” I am explicitly avoiding making any judgments at this point on its moral status. At least two points are relevant here to the moral status of the early embryo. First, at this stage, the preembryo is microscopic, smaller than the period at the end of this sentence. Often, it is implanted or frozen when it has reached eight cells. There is nothing visually resembling a human being, although the pre-embryo certainly contains the coded genetic information for a full human being. Second, in contrast to its situation when it is in utero, the pre-embryo in a petri dish (or a freezer) will not develop into a human being unless someone takes positive steps to implant it. This is very different from the situation of a natural pregnancy, where someone has to intervene to prevent the embryo or fetus from developing. Of course, the positive steps necessary when the pre-embryo is ex utero are only necessary because the woman’s eggs have been artificially removed and fertilized. This is morally significant because, until the embryo is implanted in the woman’s uterus, it is not yet fully on a trajectory toward personhood. At this point, it is still simply stuck in the petri dish or test tube. One of the principal moral issues here is that it is standard procedure during IVF to harvest a number of eggs, to fertilize them outside of the uterus, and then to implant the embryo(s) most likely to thrive. What happens to the remaining embryos? In some instances, they may be frozen to be used later by the couple if this attempt is unsuccessful or if they want additional children. Otherwise they are usually destroyed. In some cases, they may be donated to research centers for stem cell research. In some cases, they may be donated to other infertile couples, for whom they offer the possibility of bearing children. Some people are opposed to IVF primarily because it produces early embryos that are then discarded. Currently there are about 400,000 frozen embryos in the United States. Most are being retained for future attempts at pregnancy. In some countries it is illegal to harvest more eggs than can be fertilized and implanted in a single cycle. Access to IVF

Unusual cases often find their way into the newspaper headlines, and unusual cases involving in vitro fertilization are no exception. In 1995 in Italy, a woman in her early sixties gave birth to a healthy baby boy, with the help of donor eggs and her husband’s sperm. She decided to try IVF after the death of their seventeen-year-old son and after they were told that they were too old to adopt. Such a case inevitably raises questions. Should there be age limits on couples seeking IVF? Moreover, should there be any restrictions about motivation? In the Italian case, the woman gave her new baby the same name as her deceased son. In another case in 1995, a black woman in Italy with a husband of mixed race obtained IVF using the eggs of a white woman. One of the reasons she gave was her belief that a light-skinned child would have an easier time in life than a dark-skinned one, given the existence of racism. Again, questions about motivation immediately arise, as do questions about who has the right to make these decisions, but it is certainly a matter of debate whether the government, professional organizations, individual clinics, or the individuals themselves are the best ones to regulate motivational matters. What interest, if any, does the state have in regulating such IVF? In some countries, IVF is virtually forbidden. In the United States, the IVF industry is almost completely unregulated except for the limitations that reproductive specialists impose on themselves through their professional organizations. Moreover, there are few reporting requirements that would allow us to know precisely how often the various procedures are actually used. In many other countries such as the UK, the government permits but tracks and regulates the use of IVF. Conflicting Claims: The Embryos of Divorcing Couples

One of the more perplexing issues arising out of the fact that embryos can—at least temporarily—exist outside the mother’s womb is that couples, when in the process of divorcing, make competing claims for custody of the embryos. Usually, such embryos are frozen and this allows such battles to be protracted. Several issues are intertwined here. The first of these issues is the moral status of the early, unimplanted embryo, which we have already considered. If the early embryo has the moral status of a person, then it has a right to life. If one member of the couple wants

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the embryos destroyed, this would not be morally permissible if they have a right to life. If, on the other hand, they do not yet have this moral status, then destroying embryos would be morally permissible. Second, what kind of rights and responsibilities do the genetic parents have toward the embryo as parents? Is it a relationship of ownership? Of parenthood? In the case of one divorcing couple, the woman wanted possession of the embryos to have them implanted in herself and to bring them to term. The divorcing husband did not want to be the (genetic) father, with its accompanying responsibilities, when he and his wife were getting a divorce. Does the wife have the right to go ahead and have the embryos implanted? Does the husband have the right to have the embryos destroyed because he no longer wants to be their father? What role should the courts play in settling such disputes? This type of case also illustrates another issue relating to the larger picture under discussion here. Not only are sex and reproduction becoming separated, but parenting is becoming somewhat more separated from reproduction. This was always true to some extent in regard to adoption, but insofar as couples can now have others do much of the reproductive work for them (donor sperm, donor eggs, surrogate carrying the baby to term), the parents gradually become less involved with the process of reproduction itself. Again, this is a trend we are merely describing, neither endorsing nor condemning. Conservative Objections to IVF

Some critics of the current rise in IVF recognize that it may be effective in achieving its goal of allowing otherwise childless couples to have children, but that it ought not to be used anyway. Several motives come into play in such criticisms.

Religiously Based Critiques of Assisted Reproduction Many religious traditions are profoundly opposed to the development of reproductive technologies. At its deepest level, just as we will see in our discussion of abortion, this view questions the technological society’s presumption that we can control our destiny. Instead, it believes that our fates are ultimately in divine hands, and that intrusive technological procedures are hubris, the overstepping the proper boundaries of human control. Humans lack, in their eyes, both the technological competence and—more importantly—the wisdom to use these technologies appropriately. Moreover, such technologies run counter to God’s plan as manifest in the natural order of things. The second principal concern within religious traditions is that reproductive technologies almost always involve manipulating and destroying some embryos. Embryos, many religious thinkers maintain, are persons and thus are not the proper objects of manipulation; it is immoral in their eyes to destroy such embryos. Because IVF almost always involves such destruction of embryos, many religious thinkers believe it should be condemned. Some more moderate religious critics find IVF permissible in itself, but oppose the harvesting of more eggs than can be immediately implanted.

Anti-Technology Critiques of Assisted Reproduction Not all critics of assisted reproduction are motivated solely by religious concerns. Many are concerned with the way in which technology distorts the reproductive process. Ideally—and almost everyone would admit that the actual case often falls short of the ideal—conception is part of a larger process, one with both human and natural elements. Technological intervention breaks both the natural and the human cycle. Ideally, human intercourse is motivated by love and is open to the possibility that this love will result in children.

Remaining Moral Issues Many issues obviously remain to be resolved in this area. Who does the screening? What standards are legitimate in such screening? What interest does the state have in regulating this process? Here the distinction between morality and legality may also come into play. Some critics of IVF express deep moral reservations but are also deeply mistrustful of the ability of government to regulate such complex moral terrain.

Chapter 1. Cloning and Reproductive Technologies

Genetic Screening and Manipulation As we have seen, two areas of development have recently combined to open possibilities that were previously thought to be only in the realm of science fiction. First, the Human Genome Project and other research projects are mapping the human genome and gradually determining the functions of many human genes. This increasingly detailed map of the human genome and its functions is one of the most significant scientific advances of the past hundred years. Second, scientists are gradually learning how to manipulate some of these genes. This science of gene manipulation is still in its infancy, but it holds the promise of radically transforming human nature as well as eradicating many genetically based diseases and disorders. Since the initial completion of the project, progress has steadily increased. From Abortion to Genetic Screening and Manipulation

The moral terrain opened up by advances in genetic manipulation is still largely uncharted. One of the first things we notice is that, with the advent of genetic screening and manipulation, abortion is no longer the only option when tests reveal an unwanted condition in the embryo or fetus. This makes the situation morally much more complex, because it is no longer a question—as it was in the case of abortion—of depriving the fetus of a future through terminating it. Now we see three options:

1. Abortion, which destroys the embryo or fetus 2. Genetic selection, which discards some embryos and implants a selected few, thereby preserving the future of a few embryos and not allowing others to be implanted and develop 3. Genetic manipulation, which changes the genetic make-up of the embryo or fetus, thereby altering but not destroying its future The abortion option has been available for a long time, although until recent decades not as a safe option. The genetic selection option is growing daily as scientists identify the functions of more and more genes. The genetic manipulation option is still in its infancy, but as scientists become increasingly skilling at changing genetic makeup, this option will appear to offer many of the benefits of genetic selection without its liabilities. Some alternative futures are clearly preferable to others, especially when we are dealing with disease. A child facing a future of Tay–Sachs disease, multiple sclerosis, or other debilitating and eventually lethal ailments clearly has a bleaker future than a child who does not face that. There seems to be little moral problem here. However, other cases are much more difficult. What do we say about dwarfism? Genetically based deafness? Obesity? Eye color? Skin color? Sex? Sexual orientation? If it is possible to do so, do parents have the right to choose and modify whatever characteristics they desire for their child? Consider the following example. It is already possible to test to determine whether a fetus has the gene for achondroplasia, a form of dwarfism which results from the mutation of a single gene (FGFR3). If the fetus has that gene from both parents—a double dominant—then it can be expected to live only a few days after birth. If it has the gene just from one side, then it will be a dwarf. If it does not have the gene from either side, its height will be normal. It is important to note that dwarfism is not a medical illness and that, although they encounter medical problems with back pain and the like, dwarfs are not necessarily at medical risk. Genetic testing alone can provide parents with information about whether the gene has been passed down in its lethal form (resulting in early death of the newborn) or if the newborn will eventually be of regular height or be a dwarf. Parents have few options currently: either carry the pregnancy to term or abort the fetus. We could imagine several ways in which this could play out. Both parents are regular height, and they decide to abort the fetus because it will be a dwarf. Conversely and more contentiously, we could imagine parents who were both dwarfs and would choose to abort the fetus if it is going to be regular height. If this can be tested for through PGD, these options could apply not to abortion but to selecting the preferred embryo(s) for implantation. Is there any moral objection to parents with genetic disorders such as dwarfism or profound deafness choosing through PGD to have children like themselves?

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The Line between Cure and Enhancement

One way to answer the questions in the preceding paragraphs is to draw a line between treating disease and enhancing human beings. At first glance, this seems like an easy line to draw. After all, a condition such as spina bifida (literally, “split spine” in Latin, a condition in which the backbone and spinal canal do not close before birth) is clearly something that no one wants their child to have. On the other hand, if it were possible to select for greater athletic ability or something like that, this would be clearly on the enhancement side of the line. Much in the middle, however, is more contentious. What, for example, are we to make of the use of human growth hormone (hGH) to enhance the height of normal children? In Canada in 2010, collegiate football players began to test positive by hGH. Where exactly we draw the line between cure and enhancement promises to remain a matter of controversy. Individual Choices and Social Policy

Once we begin to raise questions about the limits of individual choice in these matters, we also have to distinguish between the moral issues surrounding the individual decision and those that arise if large numbers of people make the same decision. This is not a major issue for most persons in regard to acondroplegia, which is a relatively rare condition (it affects one in every 20,000 to 30,000 births) and does not directly impact social policy. However, if couples screen for this gene and eliminate it, this may drastically reduce the size of the community of dwarfs. Consider two other areas that are more perplexing. First, if it becomes possible genetically to manipulate the sex of an embryo, this could have a far-reaching impact on society. If more couples have a preference for a male child than for a female, and if an increasing number of couples have only one child, then such selection can seriously upset the balance of males and females in society. Several Asian societies provide a clear example of this. We do not know what consequences this may have, but a number of undesirable scenarios—especially undesirable for women—have been sketched out. Many of these involve women, because of their scarcity, being turned into breeding machines in a male-dominated society. If only a handful of parents were to engage in genetic sex selection for their developing embryos, then it may be unnecessary or unwise to legislate such practices. If, however, large numbers of parents do so, and if in doing so they affect the balance of males and females in our society, then there may be harmful effects of the practice as a whole and reasons for intervening. Second, imagine if it eventually becomes possible to determine sexual orientation. Some researchers feel that they are on the trail of a gene for “homosexuality.” Whether this will actually occur remains an open question, and to many it seems improbable that such a complex thing can be reduced to a single genetic marker. Nonetheless, it is certainly possible. Moreover, it is possible that, if such a genetic marker is found, it may become possible to change it. Several factors might discourage couples from having homosexual children, if the choice were up to them. First, the vast majority of couples having children are not homosexual. Second, in our society there is a significant amount of anti-homosexual sentiment. Some parents may be against having homosexual children; others may simply feel that a child will have an easier time in our society if he or she is not homosexual. It is not unimaginable that, given genetic manipulation, the percentage of persons who are homosexual might decrease. This raises profound and disturbing moral questions both for individuals and for policy makers.

Stem Cell Research and Regenerative Medicine The moral status of the early, unimplanted embryos is a crucial issue for the debate over stem cell research in the United States. In 1996, the United States passed the Dickey–Wicker Amendment, prohibiting federal funding for research that involves the destruction of human embryos. In 2001, President Bush banned federal funding for any research using stem cell lines derived after August 9, 2001, since the development of stem cell lines involves the destruction of human embryos. Notice that this did not ban stem cell research; it simply restricted the federal funding for such research. When President Obama came into office, he reversed that policy and opened the door for the possibility of federal dollars being used to finance stem cell research. This has been challenged in the courts, and promises to remain a contentious issue in the coming years. The promise of hESC research is tremendous, although only time will tell whether scientists are capable of realizing this promise. Human embryonic stem cells have the potential to grow into almost any cells in the body.

Chapter 1. Cloning and Reproductive Technologies

They offer the possibility of repairing the damage of spinal cord injuries, ALS, and many other devastating disorders and diseases for which we currently lack cures. Eventually, they offer the possibility of growing replacement body parts—heart valves, kidneys, etc.—which would eliminate two of the most vexing problems with transplant surgery: the lack of a sufficient number of organs to be transplanted and the body’s rejection of organs from a foreign donor. If organs could be grown with the recipient’s own DNA, both these problems would be eliminated simultaneously. No wonder that many research centers for stem cell therapy are called centers for regenerative medicine. The ethical challenges posed by stem cell research were complex. Although the development of new stem cell lines (groups of cells that will continue to reproduce indefinitely) involved the destruction of human embryos, these were typically embryos that would otherwise have been discarded and destroyed. They were not created for this purpose, but were no longer wanted by couples who had concluded their infertility treatment. Moreover, this was not a simple conflict between pro-life and pro-science forces. Stem cell research, if successful, held great moral promise for the alleviation of terrible human suffering that we otherwise could not eliminate. Those who saw this conflict in purely consequentialist terms thought the medical and moral promise of stem cell research made the choice an easy one. Either way, the stem cells would be destroyed; if used in stem cell research, their destruction would help alleviate human suffering. Even those who saw this choice in a deontological perspective were at times divided. Some saw the destruction of human embryos as equivalent to murder, but many others questioned whether the embryo in its first few days of development counted as a human being with all the attendant protections that are typically accorded to human beings. Interestingly, the scientific community responded to this challenge in part by looking for ways to obtain the benefits of human embryonic stem cells without actually destroying embryos. A number of scientific techniques were developed, the most recent of which involve the stepping back of adult cells to the earlier stage of pluripotency in which they are able to differentiate into virtually any organ in the body. These cells are called induced pluripotent stem cells (iPSC). It is an interesting example of scientists seeking a scientific resolution to a moral issue. It remains to be seen how successful these efforts will be, both scientifically and politically. In the coming years, you will see whether the promise of stem cell research and regenerative medicine will bear fruit. Contemporary science and medicine and technology are presenting us with awesome new challenges, possibilities that even a couple of decades ago would be the stuff of science fiction. Geron and Dr. Hans Kierstead at UC Irvine started human trials in 2011 to try to cure spinal cord injuries, something Dr. Kierstead has pioneered but they were halted within a year. Dr. Anthony Atala, a researcher at Wake Forest, is using stem cell research not only to grow replacement organs for the human body, but to actually fabricate them on a printer that sprays on human cells and gradually builds up a human kidney, one layer of cells after another. Sequenom will probably be marketing noninvasive blood tests to detect fetal abnormalities such as Down syndrome as early as the twelfth week of pregnancy. Moreover, the speed at which scientific progress is taking place is, in certain respects, breathtaking. It took about ten years, a huge international team of world-class scientists and labs, and about three billion dollars to sequence the first genome. By the time you are reading this, it will probably cost about $1000, take less than a day, and be preformed by a technician.

To Clone or Not to Clone? The question of human cloning looms over the entire discussion of these issues, but in certain ways, it actually appears to be of secondary importance. In thinking about these scientific advances, it is helpful to ask about where the money is coming from. There are, I think, powerful market forces that will move us toward what are called “designer babies.” (This is not to endorse those forces, simply to describe them.) There do not seem to be comparable financial motives at work to promote human reproductive cloning. One can imagine certain fairly rare cases in which this might appear to be an appealing option, but generally all but the most committed of narcissists will probably be more drawn to the traditional model of cocreation. Thus we see ourselves facing an exciting but troubling future, a moral terrain that has never been explored before, one whose shores lie beyond our field of vision.

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READING

The Argument Michael J. Sandel

What’s Wrong with Enhancement? About the Author: Michael Sandel is a contemporary American political philosopher and a Professor of Government at Harvard University, where he has taught for over two decades. His course entitled “Justice” is one of the most popular courses at Harvard, and the video of this course is available for free online under the title, “Justice? What’s the Right Thing to Do?” He is a gifted teacher, and in these lectures and discussions he does a superb job of blending ethical theory and real-life examples in a way that is unusually captivating. His course is also available in traditional book format. About the Article: In this reading, Sandel turns to a discussion of the ethics of enhancement. He is interested in exploring why we are uneasy at efforts toward enhancement, and he attempts to push through some of the standard answers (such as safety or fairness) to something more basic and more pervasive. Attempts at enhancement, he maintains, are instances of hubris, the arrogant pride of the Greek tragic hero who attempts to control that which cannot be controlled. He sees the drive toward enhancement as an inevitable outgrowth of modern natural science, and contrasts this framework with one in which we appreciate the gifted character of life and the natural world, the ways in which it lies beyond our human control. As You Read, Consider This: 1. Before he presents his own position, Sandel describes and either rejects or sets aside a number of answers to the question of what is wrong with enhancement. What positions does he discuss and then reject? 2. What is Sandel’s own position in regard to enhancement? Why does he think it is wrong? How does his objection tie in with his general views on science?

W

e have considered a number of practices that aim at enhancement—athletes’ use of performance-enhancing drugs and genetic interventions; parents’ use of sperm-sorting or pre-implantation genetic diagnosis to choose the sex of their children; cosmetic psychopharmacology; the search for techniques to improve memory or extend the human lifespan. Each of these practices gives rise to a certain unease that we have struggled to articulate. As we grope to explain what makes at least some of these practices objectionable, we often find ourselves reaching for familiar terms of moral argument. The most familiar is the safety objection: Using steroids to gain an edge in sports, or Ritalin to do better on the SAT, or cloning techniques to produce a designer child, or botox injections to cure a furrowed brow, are troubling because they seek improvements at the cost of incurring medical risk. The safety argument is the least controversial and least interesting objection. It leaves open the question whether these practices are troubling in themselves. Beyond safety, we sometimes couch our objections in familiar arguments about means: Objections in the name of fairness and non-discrimination are one instance of this reflex; objections in the name of respecting the human embryo are another. Confronted with the chilling ratios of excess boys to girls in China, some worry about the gender discrimination the ratios reflect, and others worry about the discarded female embryos. These objections are weighty and legitimate. But they are not the only reasons that sex selection and other forms of genetic engineering are morally troubling. Some sex selection and much genetic engineering do not involve killing embryos, and many instances of enhancement involve no unfairness or discrimination.

Michael Sandel, “What’s Wrong with Enhancement?” Source: http://bioethics.gov/background/sandelpaper.html. Copyright © Michael J. Sandel. Used with permission.

I would like to explore the intuition that enhancement and genetic engineering are objectionable for reasons that go beyond safety, fairness, and embryos. Consider baseball: Imagine that steroids, or some other performanceenhancing drug were safe and available to all players who wished to use them, so that none had an unfair advantage. What, if anything, would be wrong with using them? Or suppose that a version of Prozac was found to pose no long-term health risks, and was cheap enough to be accessible even to those of modest means. Would our worries about the non-therapeutic use of mood-brightening drugs be wholly assuaged? Or imagine that sperm-sorting technologies were perfected to the point where parents could choose the sex of their children without killing any embryos. And imagine that such technologies were employed in a society that did not favor boys over girls, and that wound up with a balanced sex ratio. Would sex selection under those conditions be unobjectionable? What about selecting for height, eye color, and other physical characteristics? In each of these cases, it seems to me, something morally troubling persists. The trouble resides not only in the means but in the ends being aimed at. It is commonly said that enhancement, cloning, and genetic engineering pose a threat to human dignity, or point us toward a posthuman existence. But we still need to know how these practices diminish our humanity. What aspects of human freedom or human flourishing do they threaten? One aspect of our humanity that might be threatened by enhancement and genetic engineering is our capacity to act freely, for ourselves, by our own efforts, and to consider ourselves responsible—worthy of praise or blame—for the things we do and for the way we are. It is one thing to hit 70 home runs as the result of disciplined training and effort, and something else, something less, to hit them with the help of steroids or genetically enhanced muscles. Of course the role of effort and enhancement will be a matter of degree. But as the role of the enhancement increases, our admiration for the achievement fades. Or rather, our admiration for the achievement shifts from the player to his pharmacist. This suggests that our moral response to enhancement is a response to the diminished agency of the person whose achievement is enhanced. The more the athlete relies on drugs or genetic fixes, the less his performance represents his achievement. At the extreme, we might imagine a robotic, bionic athlete who, thanks to implanted computer chips that perfect the angle and timing of his swing, hits every pitch in the strike zone for a home run. The bionic athlete would not be an agent at all; “his” achievements would be those of his inventor. According to this account, enhancement threatens our humanity by eroding human agency. Its ultimate expression is a wholly mechanistic understanding of human action at odds with human freedom and moral responsibility. Though there is much to be said for this account, I do not think that the main problem with enhancement and genetic engineering is that they undermine effort and erode human agency. The deeper danger is that they represent a kind of hyper-agency, a Promethean aspiration to remake nature, including human nature, to serve our purposes and satisfy our desires. The problem is not the drift to mechanism but the drive to mastery. And what the drive to mastery misses and may even destroy is an appreciation of the gifted character of human powers and achievements. To acknowledge the giftedness of life is to recognize that our talents and powers are not wholly our own doing, nor even fully ours, despite the efforts we expend to develop and to exercise them. It is also to recognize that not everything in the world is open to any use we may desire or devise. An appreciation of the giftedness of life constrains the Promethean project and conduces to a certain humility. It is, in part, a religious sensibility. But its resonance reaches beyond religion. It is difficult to account for what we admire about human activity and achievement without drawing upon some version of this idea. Consider two types of athletic achievement untainted by pharmacological or genetic enhancement: We admire players like Pete Rose, who are not blessed with great natural gifts but who manage, through effort and striving, grit and determination, to excel in their sport. But we also admire players like Joe DiMaggio whose excellence consists in the grace and effortlessness with which they display their natural gifts. Now suppose we learn that both players took performance-enhancing drugs. Whose turn to drugs do we find more deeply disillusioning? Which aspect of the athletic ideal—effort or gift—is more deeply offended? Some might say effort; the problem with the drug is that it provides a short-cut, a way to excel without effort and striving. But effort and striving are not the point of sports; excellence is. The attempt to “improve” athletic performance by pharmacological means is the ultimate expression of the ethic of willfulness, effort, and striving. The ethic of willfulness and the biotechnological powers it now enlists are both arrayed against the claims of giftedness.

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READING

Chapter 1. Cloning and Reproductive Technologies

READING

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The moral problem with enhancement lies less in the perfection it seeks than in the human disposition it expresses and promotes. It might best be described as the hubris objection. Unlike accounts that emphasize the loss of human powers and the erosion of human agency, the hubris objection can explain our moral hesitation to embrace certain genetic alterations of animals. Chickens like to roam, but most egg-laying hens are confined, frustrated, in small battery cages. Suppose we could alter the gene that makes chickens want to run free. The chickens, now content to be confined, would suffer less frustration, and egg production would improve. Or suppose we found a way to dumb down cows to eliminate the fear they experience on their way to the slaughter chute. Or to engineer pigs without hooves, snouts, and tails. Is there anything troubling about altering animals in these ways? Let’s assume that by reducing their capacities for our convenience we do not increase the animals’ suffering, and may even relieve it. If these animal enhancements give us pause, it cannot be for reasons connected to the erosion of human agency. To the contrary, the genetic improvement of animals represents the ultimate human dominion. If such alterations are troubling, the reason must draw on the idea that life (even animal life) is a gift not subject without limit to our mastery or dominion. When we discussed reproductive cloning, Bill May described what parents lose or override when they seek to specify the physical traits of their children. He spoke of “the openness to the unbidden.” This resonant phrase points to a quality of character and heart closely akin to what I have been calling an appreciation of life as gift. It helps us understand the deepest moral objection to the use of embryo selection and other techniques that parents might employ to create designer children. The problem is not that the parents usurp the autonomy of the child they design. (It is not as if the child could otherwise choose her gender, height, and eye color for herself.) The problem lies in the hubris of the designing parents, in their drive to master the mystery of birth. Even if this disposition does not make parents tyrants to their children, it disfigures the relation of parent and child, and deprives the parent of the humility and enlarged human sympathies that an “openness to the unbidden” can cultivate. Bill elaborated this insight with a distinction between two aspects of parental love: accepting love and transforming love. Accepting love affirms the being of the child, whereas transforming love seeks the well-being of the child. He observed that, these days, ambitious parents are prone to get carried away with transforming lovepromoting and demanding all manner of accomplishments from their children, seeking perfection. “Sometimes,” he said, “we act like the ancient Gnostics who despised the given world, who wrote off the very birth of the world as a catastrophe.” He drew a parallel between parental love and modern science, which engages us in beholding the world, studying and savoring it, and also in molding the world, transforming and perfecting it. Bill’s distinction between molding and beholding corresponds to the contrast I have drawn between the project of mastery and the sense of gift. I want to suggest that what is troubling about enhancement is that it represents the triumph in our time of willfulness over giftedness, of dominion over reverence, of molding over beholding. If something like this is true, then the philosophical stakes in the debate over enhancement and genetic engineering are higher than we are accustomed to think. Sorting out the ethics of enhancement will force us to reopen questions that have been largely ignored since the 17th century, when the mechanist picture of nature came to prominence in moral and political philosophy. From the start, the project of mastery and the mechanist picture have gone hand in hand. The discovery that nature was not a meaningful order but a morally inert arena for the exercise of human will gave powerful impetus to the project of mastery, and to a vision of human freedom unfettered by the given. We may now have to choose between shaking off our unease with enhancement and finding a way beyond mechanism to the re-enchantment of nature.

Journal/Discussion Questions 1. Where does the word hubris come from? What does it mean? Give some examples of hubris in the contemporary world. 2. Enhancement might save some of our children from terrible diseases. How would Sandel reply to the argument that enhancement may often be something good? Indeed, it might be more than permissible; it might be the morally obligatory thing for us to do. 3. Sandel calls for a “re-enchantment of nature.” What does he mean by that? Give an example.

Chapter 1. Cloning and Reproductive Technologies

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Concluding Discussion Questions Where Do You Stand Now?

Instructions

Strongly Agree

Agree

Undecided

Disagree

Strongly Disagree

You have already answered the following questions in your moral problems self-quiz at the beginning of this book. Now that you have studied the material in this section, take a moment to answer the same questions again. You can also do this on-line at http://ethics.sandiego.edu/surveys.

1. ❑ 2. ❑ 3. ❑

❑ ❑ ❑

❑ ❑ ❑

❑ ❑ ❑

❑ ❑ ❑

4. ❑ 5. ❑

❑ ❑

❑ ❑

❑ ❑

❑ ❑

Chapter 1: Cloning and Reproductive Technologies In vitro fertilization is morally wrong. Any procedure that helps infertile couples to have children is good. Embryos frozen and stored in a lab have the same moral status as an embryo in a pregnant woman. Genetic screen of embryos for diseases (PGD) is morally permissible. Screening to determine whether your baby will be male or female should be permitted.

Compare your answers to this self-quiz with the answers to the initial self-quiz. How, if at all, have your answers changed? How have the reasons for your answers changed?

Journal/Discussion Questions ✍ If you were going to have a baby, to what extent would you want to select its characteristics in advance? Which characteristics, if any, would you not want to consciously select? Physical characteristics? Physical and mental capabilities? Personality traits? Sex? Sexual orientation? 1. In light of the readings in this chapter, what new issues about reproductive technologies were most

interesting to you? Which ones do you think will be most difficult for us as a society to resolve? 2. Should there be any limits on couples who wish to use artificial means to have children? Should there be any limits on individuals who wish to do so? 3. Should society regulate the practice of surrogacy? In what ways? How should it deal with surrogate mothers who change their minds?

For Further Reading Web Resources For up to date resources on the issues in this chapter, see first the Bioethics and Reproductive Technologies page of Ethics Updates: • http://ethics.sandiego.edu/applied/bioethics/

It contains numerous resources relating to reproductive technologies and cloning, including PowerPoint presentations of class lectures, articles, court decisions, and reports of the reports of the various presidential bioethics commissions. There are also

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links to a number of free, online videos, some of which feature authors in this book. Other major Web sites:

• Journal of Medicine and Philosophy • Journal of Law. Medicine and Philosophy • Journal of Medical Humanities

• Bioethics.net, maintained by the American Journal of Bioethics. Excellent resources that appear to be carefully screened • Bioethics.gov, the official Web site of the Presidential Commission for the Study of Bioethical Issues. Excellent set of resources. In recent years, each American President has created a bioethics commission to advise on bioethics issues. For a list of past commissions and links to their online materials, see:

In addition, important ethics articles often appear in leading medical journals, especially:

• http://bioethics.gov/cms/former-commissions The Commission under President Bush (2000– 2008) issued a number of valuable reports, which are available free online at: • http://bioethics.georgetown.edu/pcbe/reports/ index.html • NIH’s “Bioethics Resources on the Web” contains an up-to-date list of bioethics Web sites based on specific topics: http://bioethics.od.nih.gov/ • Bioethics.com, an excellent set of up-to-date resources maintained by Owen Griffiths • BioEdge.org, edited by Michael Cook, keeps track of many interesting developments in medicine and science that have an ethical edge to them • BioethicsInstitute.org, The Berman Institute of Bioethics at The Johns Hopkins University, contains several excellent resources, including “Bioethics in the News” and “Research News.” • ELSI: Ethical, Legal and Social Issues in the Human Genome Project at http://www.ornl.gov/sci/ techresources/Human_Genome/elsi/elsi.shtml • International Bioethics Web sites are listed by region at http://www.mfe.govt.nz/issues/organisms/bioethics/international-links.html.

Journals Among the most important journals in this area, see: • Hastings Center Report, superb quality and highly readable; if you read only one bioethics source, this should be the one. • The American Journal of Bioethics • Kennedy Institute of Ethics Journal • Ethics and Medicine • Journal of Medical Ethics • Cambridge Quarterly of Healthcare Ethics

• JAMA, The Journal of the American Medical Association • New England Journal of Medicine • The Lancet, the leading British medical journal and scientific journals, especially: • Science • Nature and its various subsidiary journals such as Nature Neuroscience • Annals of Internal Medicine • PLoS, the Public Library of Science

Encyclopedias, Handbooks, and Review Articles • Stanford Encyclopedia of Philosophy, edited by Edward Zalta (http://plato.stanford.edu) is a superb, peer-reviewed resource. • Internet Encyclopedia of Philosophy, edited by James Feiser and Bradley Dowden (http://www.iep.utm. edu/) contains some valuable resources. • A Companion to Genethics, edited by Justine Burley and John Harris (Oxford: Blackwell, 2004). • The Oxford Handbook of Bioethics, edited by Bonnie Steinbock (New York: Oxford University Press, 2009). • A Companion to Bioethics, edited by Helga Kuhse and Peter Singer, 2nd edition (Oxford: Blackwell, 2011). • A Companion to Applied Ethics, edited by R. G. Frey and Christopher Heath Wellman (Oxford: Blackwell, 2005). • The Oxford Handbook of Practical Ethics, edited by Hugh LaFollette (New York: Oxford University Press, 2005). • The Blackwell Guide to Medical Ethics, edited by Rosamond Rhodes, Leslie P. Francis, and Anita Silvers (Oxford: Blackwell, 2006). • International Encyclopedia of Ethics, edited by Hugh LaFollette (Oxford: Blackwell, 2012). • The Oxford Handbook of Practical Ethics, edited by Hugh LaFollette (New York: Oxford University Press, 2003), esp. Robert Wachbroit and David Wasserman, “Reproductive Technology,” pp. 136–160. • The Cambridge Companion to Christian Ethics, edited by Robin Gill, 2nd edition (Cambridge: Cambridge University Press, 2012).

Chapter 1. Cloning and Reproductive Technologies

• The Blackwell Companion to Christian Ethics, edited by Stanley Hauerwas and Samuel Wells (Oxford: Blackwell, 2006). • The Blackwell Companion to Religious Ethics, edited by William Schweiker, (Oxford: Blackwell, 2004). • Jewish and Catholic Bioethics, edited by Aaron L Mackler (Washington, DC: Georgetown University Press, 2003). • Encyclopedia of Ethics, edited by Lawrence C. Becker and Charlotte B. Becker (New York: Garland, 1992); see Helen Bequaert Holmes, “Reproductive Technologies,” Vol. II, pp. 1083–1089.

Anthologies and Books There are a number of excellent works available in the area of ethics and reproductive technologies. Among notable recent works are Bonnie Steinbock, Life Before Birth: The Moral and Legal Status of Embryos and Fetuses, 2nd edition (New York: Oxford, 2011); Michael J. Sandel, The Case against Perfection: Ethics in the Age of Genetic Engineering (Cambridge, MA: Belknap Press of Harvard University Press, 2009); Francis Fukuyama, Our Posthuman Future: Consequences of the Biotechnology Revolution (New York: Picador Press, 2003); Ronald M. Green, Babies by Design: The Ethics of Genetic Choice (New Haven: Yale University Press, 2008); Jane Maienschein, Whose View of Life?: Embryos, Cloning, and Stem Cells (Cambridge: Harvard University Press, 2005); Celia Deane-Drummond, Genetics and Christian Ethics (Cambridge: Cambridge University Press, 2005); The Double-Edged Helix: Social Implications of Genetics in a Diverse Society, edited by J. S. Alper, et al. (Baltimore: John Hopkins University Press, 2002); Jürgen Habermas, The Future of Human Nature (Cambridge: Polity Press, 2003); Jonathan Glover, Choosing Children: Genes, Disability, and Design (Oxford: Clarendon Press, 2006); Lori B. Andrews, Future Perfect: Confronting Decisions about Genetics (New York: Columbia University Press, 2001); Walter Glannon, Biomedical Ethics (Oxford: Oxford University Press, 2005); Ethical Issues in the New Genetics: Are Genes Us?, edited by Brenda Almost and Michael Parker (Aldershot: Ashgate Publishing, 2003); Legal and Ethical Issues in Human Reproduction, edited by Bonnie Steinbock (Dartmouth: Ashgate, 2002); Genes, Women, and Equality, edited by Mary Mahowald (Oxford: Oxford University Press, 2000). Gregory Stock’s Redesigning Humans: Choosing Our Genes,

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Changing Our Future (New York: Houghton Mifflin Company, 2003) offers a strong defense of the possibilities of genetic engineering; Leon Kass’s Beyond Therapy: Biotechnology and the Pursuit of Happiness (New York: HarperCollins, 2003) sees a quite different future than the one that Stock envisions. The anthology edited by Allen Buchanan, Dan. W. Brock, Norman Daniels, Daniel Wikler, From Chance to Choice: Genetics and Justice (Cambridge: Cambridge University Press, 2000) helped to define the field for the the decade following its publication. For a sympathatic consideration of the various sides in the current American debate about assisted reproduction, see John H. Evans, Contested Reproduction: Genetic Technologies, Religion, and Public Debate (Chicago: University of Chicago Press, 2010). For background to this field, see one of the most influential texts in this field is Tom L. Beauchamp and James F. Childress, Principles of Biomedical Ethics, 6th edition (New York: Oxford University Press, 2008) and their companion anthology, Contemporary Issues in Bioethics, edited by Tom L. Beauchamp, LeRoy Walters, and Les L. Johnston, 7th edition (Belmont, CA: Wadsworth, 2007)). For an lively selection of both philosophical and non-philosophical authors, see Genetic Engineering: Opposing Viewpoints, edited by James D. Torr (San Diego: Greenhaven Press, 2009) and Taking Sides: Clashing View on Controversial Bioethical Issues, edited by Carol Levine, 10th edition (Guilford, CT: Dushkin, 2003).

Cloning In regard to cloning, see Gina Kolata, Clone: The Road to Dolly, and the Path Ahead (New York: HarperCollins, 2011); the excellent anthology by Glenn McGee, The Human Cloning Debate, 3rd edition (Albany, CA: Berkeley Hills Books, 2002); Clones and Clones: Facts and Fantasies About Human Cloning, edited by Martha C. Nussbaum and Cass R. Sunstein (New York: W.W. Norton & Company, 1999); Gregory E. Pence, Who’s Afraid of Human Cloning? (Lanham, MD: Rowman & Littlefield Publishing (via NBN, January 1, 1998); Ethical Issues in Human Cloning: Cross-Disciplinary Perspectives, edited by Michael C. Brannigan (Seven Bridges Press, 2000); The Human Embryonic Stem Cell Debate: Science, Ethics, and Public Policy (Basic Bioethics Series), edited by Suzanne Holland, Karen Lebacqz, and Laurie Zoloth (Boston: MIT Press, 2001); Leon R. Kass and James Q. Wilson, The Ethics of Human Cloning

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(Washington, DC: AEI Press, 1998); Ronald ColeTurner, Human Cloning: Religious Responses (Westminster John Knox Press, 1997); Cloning: For and Against, edited by M. L. Rantala and Arthur J. Milgram (Chicago: Open Court, 1999); Flesh of My Flesh: The Ethics of Cloning Humans: A Reader, edited by Gregory E. Pence (Totowa, NJ: Rowman & Littlefield, 1998). In addition, see The Cloning Sourcebook, edited by Arlene Judith Klotzko (New York: Oxford University Press, 2003); Cloning and the Future of Human Embryo Research, edited by Paul Lauritzen (New York: Oxford University Press, 2001).

Movies There are a number of interesting and thoughtful movies dealing with issues of reproductive technologies and genetics. These include • • • •

Gattaca My Sister’s Keeper Children of Men Never Let Me Go

For a discussion of ethical issues in these and other movies, visit “Ethics @ the Movies,” http://ethics. sandiego.edu/movies/.

MySearchLab Connections Sources OnLine READ AND REVIEW Study and Review: Chapter 1 The text explores moral issues surrounding the topic of reproductive rights. These readings further explore that theme. 1. Twilight of the Idols, Selections by Friedrich Nietzsche Friederich Nietzsche, nineteeth century German philosopher, philologist, and aesthetician, tended to write in epigrams, parables, and aphorisms instead of systematic progression such as the work of Aristotle or Kant. He is noted for his famous epigram that “God is dead.” In a real sense, Nietzsche must be read as searching for that something which can replace the loss of God in our lives and at the same time give meaning to our lives. 2. Utilitarianism by John Stuart Mill Mill was concerned with developing a criterion for right and wrong action and policy. He reasoned that humans were goal oriented. They acted and developed action plans with an end or goal in mind. So, he reasoned that there must be some foundation for value judgments in this human tendency to aspire to and pursue positive outcomes. He proposed that proper human actions and policies could be distinguished from improper ones based on what today may be called a cost benefit analysis. An action or policy was proper if, when implemented by each individual in the community, would result in the greatest good for the greatest number of individuals and institutions in society as a whole. His ethical theory is considered impractical by some because it is diffi-

cult to measure degrees of happiness over the long term, and hence, to measure the relative value of particular actions or policies. 3. Republic by Plato Plato recognized that one element of justice related to property rights in that Socrates and Glaucon both agreed that it would be unjust for one to deprive another of what is his own. However, this concept was expanded to include one’s natural talents as something one possesses. So, it would be unjust for a person not to pursue, or for another to prevent the pursuit of, a career which provides for maximum expression and development of his or her natural abilities. This concept of justice was in marked contrast to the view presented by Thrasymachus that justice was a function of the politically powerful. RESEARCH AND EXPLORE Explore the following questions using the research tools available on www.mysearchlab.com. Explore on mythinkinglab.com

1. In the chapter, in the debate about cloning, Francis Fukuyama states that “Nietzsche, not John Stuart Mill or John Rawls, should be your guide to the politics of such a future.” Explain the reference to Mill. Why did Fukuyama specifically say that Mill should not be the guide? 2. The chapter asked what kind of rights and responsibilities the genetic parents have toward the embryo. Is it a relationship of ownership? Of parenthood? How can the idea of justice, as related to property rights, be applied to this question?

2 Abortion

The Narrative 48 Ruth Padawer, “The Two-Minus-One Pregnancy” 48 An Introduction to the Moral Issues 55 Introduction: The Controversy 56 Background: The Statistics 56 Background: The Law 57 Background: Pregnancy and Fetal Development 58 Primitive Streak 59 Human Form 59 Viability 59 The Main Arguments 60 Rethinking the Labels 60 The Moral Status of the Fetus 61 Criteria of Personhood 61 Necessary and Sufficient Conditions 61 The Search for Criteria of Personhood 61 Conceived-by-Humans 62 The DNA Argument 62 The Physical Resemblance Argument 62 The Soul Criterion 62 The Viability Criterion 62 Don Marquis’ Future-of-Value-Like-Ours Argument 62 Criteria of Personhood, Once Again 63 The Relevance of Personhood: Thomson’s Defense of Abortion 64 Gradualist Theories of Moral Status 64 The Rights of the Pregnant Woman 64 The Right to Privacy 64 The Right to Ownership of One’s Body 65 47

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The Right to Equal Treatment 65 The Right to Self-Determination 65 The Natural Law Tradition 66 The Principle of Double Effect 66 Additional Ethical Questions 67 Who Makes the Decision? 67 Parental Consent 67 Role of the Biological Father 67 Who Pays for the Decision? 67 Fetal Homicide 68 Fetal Harm 68 Gender Imbalance 69 Abortion and Compromise: Seeking Common Ground 69 Reducing Unwanted Pregnancies 69 Ensuring Genuinely Free and Informed Choice 70 Abortion and Sorrow 70 Living Together with Moral Differences 70 The Arguments 71 Jane English, “Abortion and the Concept of a Person” 71 Patrick Lee and Robert P. George, “The Wrong of Abortion” 77 Concluding Discussion Questions 87 For Further Reading 88

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The Narrative Ruth Padawer

“The Two-Minus-One Pregnancy” About the Author: Ruth Padawer ([email protected]) is a writer and teaches at the Columbia School of Journalism. Her most recent article for the magazine was about how DNA testing is changing fatherhood. About the Article: When this article was published as the lead article in the New York Times Magazine in August, 2011, many readers responded with discomfort and dismay. In the article, Padawer describes the experiences of women who have conceived through IVF and, discovering that they are going to have twins, decide to abort one of the two fetuses. This raises interesting questions, because the pregnant woman is making a choice to have a child, but not to have two children from the same pregnancy. As You Read, Consider This: 1. In the particular method used in this kind of abortion, the physician and ultrasound technicians see the fetus, and in fact the physician picks out which fetus is going to be terminated. What moral difference does this make in your assessment of the procedure? Ruth Padawer, Two-minus-one pregnancy, New York Times, 8/10/11. Copyright © 2011 New York Times Company, Inc. Used with permission.

2. Pregnancy reduction is an unusual procedure, different from a regular abortion because the pregnant woman clearly wants to have a baby and will do so, unless something goes wrong. In some cases, it is done for medical reasons, especially when the pregnancy would result in triplets or more. However, in the cases described here, there is little medical concern relating to the risk of having twins. What moral constraints, if any, apply to such circumstances? 3. What guidelines, if any, should physicians use in deciding whether to perform such procedures?

A

s Jenny lay on the obstetrician’s examination table, she was grateful that the ultrasound tech had turned off the overhead screen. She didn’t want to see the two shadows floating inside her. Since making her decision, she had tried hard not to think about them, though she could often think of little else. She was 45 and pregnant after six years of fertility bills, ovulation injections, donor eggs and disappointment — and yet here she was, 14 weeks into her pregnancy, choosing to extinguish one of two healthy fetuses, almost as if having half an abortion. As the doctor inserted the needle into Jenny’s abdomen, aiming at one of the fetuses, Jenny tried not to flinch, caught between intense relief and intense guilt. “Things would have been different if we were 15 years younger or if we hadn’t had children already or if we were more financially secure,” she said later. “If I had conceived these twins naturally, I wouldn’t have reduced this pregnancy, because you feel like if there’s a natural order, then you don’t want to disturb it. But we created this child in such an artificial manner—in a test tube, choosing an egg donor, having the embryo placed in me— and somehow, making a decision about how many to carry seemed to be just another choice. The pregnancy was all so consumerish to begin with, and this became yet another thing we could control.” For all its successes, reproductive medicine has produced a paradox: in creating life where none seemed possible, doctors often generate more fetuses than they intend. In the mid-1980s, they devised an escape hatch to deal with these megapregnancies, terminating all but two or three fetuses to lower the risks to women and the babies they took home. But what began as an intervention for extreme medical circumstances has quietly become an option for women carrying twins. With that, pregnancy reduction shifted from a medical decision to an ethical dilemma. As science allows us to intervene more than ever at the beginning and the end of life, it outruns our ability to reach a new moral equilibrium. We still have to work out just how far we’re willing to go to construct the lives we want. Jenny’s decision to reduce twins to a single fetus was never really in doubt. The idea of managing two infants at this point in her life terrified her. She and her husband already had grade-school-age children, and she took pride in being a good mother. She felt that twins would soak up everything she had to give, leaving nothing for her older children. Even the twins would be robbed, because, at best, she could give each one only half of her attention and, she feared, only half of her love. Jenny desperately wanted another child, but not at the risk of becoming a second-rate parent. “This is bad, but it’s not anywhere as bad as neglecting your child or not giving everything you can to the children you have,” she told me, referring to the reduction. She and her husband worked out this moral calculation on their own, and they intend to never tell anyone about it. Jenny is certain that no one, not even her closest friends, would understand, and she doesn’t want to be the object of their curiosity or feel the sting of their judgment. This secrecy is common among women undergoing reduction to a singleton. Doctors who perform the procedure, aware of the stigma, tell patients to be cautious about revealing their decision. (All but one of the patients I spoke with insisted on anonymity.) Some patients are so afraid of being treated with disdain that they withhold this information from the obstetrician who will deliver their child. What is it about terminating half a twin pregnancy that seems more controversial than reducing triplets to twins or aborting a single fetus? After all, the math’s the same either way: one fewer fetus. Perhaps it’s because twin reduction (unlike abortion) involves selecting one fetus over another, when either one is equally wanted. Perhaps it’s our culture’s idealized notion of twins as lifelong soul mates, two halves of one whole. Or perhaps it’s because the desire for more choices conflicts with our discomfort about meddling with ever more aspects of reproduction. No agency tracks how many reductions occur in the United States, but those who offer the procedure report that demand for reduction to a singleton, while still fairly rare, is rising. Mount Sinai Medical Center in New York, one of the largest providers of the procedure, reported that by 1997, 15 percent of reductions were to a singleton. Last year, by comparison, 61 of the center’s 101 reductions were to a singleton, and 38 of those pregnancies started as twins.

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That shift has made some doctors in the field uneasy, and many who perform pregnancy reductions refuse to go below twins. After being rebuffed by physicians close to home, Jenny went online and found Dr. Joanne Stone, the highly regarded head of Mount Sinai’s maternal-fetal-medicine unit. Jenny traveled thousands of miles to get there. She still resents the first doctor back home who told her she shouldn’t reduce twins and another who dismissively told her to just buck up and buy diapers in bulk. Even some people who support abortion rights admit to feeling queasy about reduction to a singleton. “I completely respect and support a woman’s choice,” one commentator wrote on UrbanBaby.com, referring to a woman who said she reduced her pregnancy to protect her marriage and finances. One fetus was male, the other female, and the woman eliminated the male because she already had a son. “Something about that whole situation just seemed unethical to me,” the commentator continued. “I just couldn’t sleep at night knowing that I terminated my daughter’s perfectly healthy twin brother.” Dr. Mark Evans, an obstetrician and geneticist, was among the first to reduce a pregnancy. He quickly became one of the procedure’s most visible and busiest practitioners, as well as one of the most prolific authors on the topic. Early on, Evans decided the industry needed guidelines, and in 1988, he and an ethicist with the National Institutes of Health issued them. One of their central tenets was that most reductions below twins violated ethical principles. Two years later, as demand for twin reductions climbed, Evans published another journal article, arguing that reduction to singletons “crosses the line between doing a procedure for a medical indication versus one for a social indication.” He urged his colleagues to resist becoming “technicians to our patients’ desires.” The justification for eliminating some fetuses in a multiple pregnancy was always to increase a woman’s chance of bringing home a healthy baby, because medical risks rise with every fetus she carries. The procedure, which is usually performed around Week 12 of a pregnancy, involves a fatal injection of potassium chloride into the fetal chest. The dead fetus shrivels over time and remains in the womb until delivery. Some physicians found reduction unnerving, particularly because the procedure is viewed under ultrasound, making it quite visually explicit, which is not the case with abortion. Still, even some doctors who opposed abortion agreed that it was better to save some fetuses than risk them all. Through the early 1990s, the medical consensus was that reducing pregnancies of quadruplets or quintuplets clearly improved the health of the woman and her offspring. Doctors disagreed about whether to reduce those to triplets or twins and about whether to reduce triplet gestations at all. But as ultrasound equipment improved and doctors gained technical expertise, the procedure triggered fewer miscarriages, and many doctors concluded that reducing a triplet gestation to twins was safer than a triplet birth. Going below twins, though, was usually out of the question. In 2004, however, Evans publicly reversed his stance, announcing in a major obstetrics journal that he now endorsed twin reductions. For one thing, as more women in their 40s and 50s became pregnant (often thanks to donor eggs), they pushed for two-to-one reductions for social reasons. Evans understood why these women didn’t want to be in their 60s worrying about two tempestuous teenagers or two college-tuition bills. He noted that many of the women were in second marriages, and while they wanted to create a child with their new spouse, they did not want two, especially if they had children from a previous marriage. Others had deferred child rearing for careers or education, or were single women tired of waiting for the right partner. Whatever the particulars, these patients concluded that they lacked the resources to deal with the chaos, stereophonic screaming, and exhaustion of raising twins. Evans’s new position wasn’t just a reaction to changing demographics. The calculus of risks had also changed. For one thing, he argued, in experienced hands like his, the procedure rarely prompted a miscarriage. For another, recent studies had revealed that the risks of twin pregnancies were greater than previously thought. They carried an increased chance of prematurity, low birth weight, and cerebral palsy in the babies and gestational diabetes and pre-eclampsia in the mother. Marking what he called a “juncture in the cultural evolution of human understanding of twins,” Evans concluded that “parents who choose to reduce twins to a singleton may have a higher likelihood of taking home a baby than pregnancies remaining with twins.” He became convinced that everyone carrying twins, through reproductive technology or not, should at least know that reduction was an option. “Ethics,” he said, “evolve with technology.” Many doctors, including some who do reduction to a singleton, dispute Evans’s conclusions, pointing out that while twin pregnancies carry more risks than singleton pregnancies, most twins (especially fraternal) do

just fine. Dr. Richard Berkowitz, a perinatologist at Columbia University Medical Center who was an early practitioner of pregnancy reduction, says: “The overwhelming majority of women carrying twins are going to be able to deliver two healthy babies.” Though Berkowitz insists that there is no clear medical benefit to reducing below twins, he will do it at a patient’s request. “In a society where women can terminate a single pregnancy for any reason — financial, social, emotional — if we have a way to reduce a twin pregnancy with very little risk, isn’t it legitimate to offer that service to women with twins who want to reduce to a singleton?” Berkowitz gave me a short history of reduction. Perinatology’s goal is to improve pregnancy outcomes, he said. Reduction began as part of that effort: losing some fetuses for the sake of others. But its role evolved into something quite different, as patients requested elective reduction to a singleton. “The only reason we’re the ones doing that is because we’re the ones who have the skills to do it, but that’s not why we got those skills,” he said. “It didn’t start with people who conceived twins and said, ‘I only want one’; it ended up with that.” Other doctors refuse to reduce below twins unless the pregnancy presents unusual medical concerns. Among them is Dr. Ronald Wapner, director of reproductive genetics at Columbia and another reduction pioneer. Sometime in the late 1990s, when Wapner practiced in Philadelphia, he received his first two-to-one request. “She said, ‘Either reduce me to a singleton, or I’ll end the pregnancy.’ “ He consulted his staff, all women, and they concluded that if a woman can choose to end a pregnancy, she can reduce from two to one. Besides, in this case, the team would be saving a fetus that would otherwise be aborted. As word spread, a stream of patients called Wapner’s office, scheduling reductions to a singleton. A few months later, after the last patient of the day left, the sonographer who had worked with Wapner for nearly 20 years stopped at his office. She told me what happened next, on condition of anonymity because she doesn’t want her relatives to know everything her work entails: “I told him I just wasn’t comfortable doing a termination of a healthy baby for social reasons, and that if we were going to do a lot of these elective reductions, I thought he should bring in someone else who was more comfortable. From the beginning, I had wrestled with the whole idea of doing reductions, because I was raised in the church. And after a lot of soul searching, I had decided there were truly good medical reasons to reducing higher-order multiples to twins. But I had a hard time reconciling doing reductions two to one. So I said to Dr. Wapner, ‘Is this really the business we want to be in?’” Wapner immediately called a meeting with his staff. Every one of them — the sonographer, the genetic counselors, the schedulers — supported abortion rights, but all confessed their growing unease with reductions to a singleton. “There’s no medical justification in a normal twin pregnancy to reduce to one,” Wapner said. “So we decided to allocate our resources to those who would get the most benefit. We were in the business to improve pregnancy outcomes, and those reductions didn’t fit the criteria.” He hasn’t done an elective two-to-one reduction since. Evans estimates that the majority of doctors who perform reductions will not go below twins. Shelby Van Voris was pregnant with triplets when she discovered this for herself. After she and her husband tried for three years to get pregnant, they went to a fertility doctor near their home in Savannah, Ga. He put Shelby, then 30, on fertility drugs, and when that didn’t work, he ramped things up with injections. By then, her husband, a 33-year-old Army officer, had been deployed to Iraq. He left behind three vials of sperm, and she was artificially inseminated. “You do weird things when mortars are flying at your husband’s head,” she said. She soon found out she was carrying triplets. Frantic, she yelled at the doctor: “This is not an option for us! I want only one!” Her fertility specialist referred her to a doctor in Atlanta who did reductions. But when Shelby called, the office manager told her that she would have to pay extra for temporary staff to assist with the procedure, because the regular staff refused to reduce pregnancies below twins. She contacted three more doctors, and in each case was told: not below two. “It was horrible,” she says. “I felt like the pregnancy was a monster, and I just wanted it out, but because we tried for so long, abortion wasn’t an option. My No. 1 priority was to be the best mom I could be, but how was I supposed to juggle two newborns or two screaming infants while my husband was away being shot at? We don’t have family just sitting around waiting to get called to help me with a baby.” Eventually, she heard about Evans and flew to New York for the procedure. “I said, ‘You choose whoever is going to be safe and healthy,’” she says. “I didn’t give him any other criteria. I didn’t choose gender. None of that was up for grabs, because I had to make it as ethically O.K. for me as I could. But I wanted only one.”

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She paid $6,500 for the reduction and left Evans’s office incredibly relieved. “I went out on that street with my mother and jumped up and down saying: ‘I’m pregnant! I’m pregnant!’ And then I went and bought baby clothes for the first time.” Today, her daughter is 2½ years old. Shelby intends to tell her about the reduction someday, to teach her that women have choices, even if they’re sometimes difficult. “I am the mother of a very demanding toddler,” she says. “I can’t imagine this times two, and not ever knowing if I’d have another person here to help me. This is what I can handle. I’m good with this. But that’s all.” Who doesn’t want to create a more certain and comfortable future for themselves and their children? The more that science makes that possible, the more it has inflated our expectations of what family life should be. We’ve come to believe that the improvements are not only our due but also our responsibility. Just look at the revolution in attitudes toward selecting egg or sperm donors. In the 1970s, when sperm donation took off, most clients were married women with infertile husbands; many couples didn’t want to know about the source of the donation. Today patients in the United States can choose donors based not only on their height, hair color, and ethnicity but also on their academic and athletic accomplishments, temperament, hairiness, and even the length of a donor’s eyelashes. Sheena Iyengar, a social psychologist at Columbia Business School and the author of “The Art of Choosing,” suggests that limitless choice is a particularly American ideal. In a talk at a TED conference last year in Oxford, England, Iyengar said that “the story upon which the American dream depends is the story of limitless choice. This narrative promises so much: freedom, happiness, success. It lays the world at your feet and says you can have anything, everything.” Nevertheless, she subsequently told me, “we are in the midst of a choice revolution right now, where we’re trying to figure out where the ethical boundaries should be.” Reduction is hardly the only area in which reproductive innovation has outpaced cultural consensus. Americans disagree bitterly about abortion. They also debate the ethics of egg donation, sex selection, gestational surrogacy and menopausal women being impregnated with younger women’s fertilized eggs. And yet all these options are now available, at least to those who are well heeled or well insured. The ability of women to control their fertility has created all kinds of welcome choices. “But the dark lining of that otherwise very silver cloud is that you make the choice of when to get pregnant, and so you feel really responsible for its consequences, like do you have enough money to do it well, and are you going to be able to provide your child with everything you think you ought to provide?” says Josephine Johnston, a bioethicist at the Hastings Center in Garrison, N.Y., who focuses on assisted reproduction. “In an environment where you can have so many choices, you own the outcome in a way that you wouldn’t have, had the choices not existed. If reduction didn’t exist, women wouldn’t worry that by not reducing, they’re at fault for making life more difficult for their existing kids. In an odd way, having more choices actually places a much greater burden on women, because we become the creators of our circumstance, whereas, before, we were the recipients of them. I’m not saying we should have less choices; I’m saying choices are not always as liberating and empowering as we hope they will be.” Consider the choice of which fetus to eliminate: if both appear healthy (which is typical with twins), doctors aim for whichever one is easier to reach. If both are equally accessible, the decision of who lives and who dies is random. To the relief of patients, it’s the doctor who chooses — with one exception. If the fetuses are different sexes, some doctors ask the parents which one they want to keep. Until the last decade, most doctors refused even to broach that question, but that ethical demarcation has eroded, as ever more patients lobby for that option and doctors discover that plenty opt for girls. Some patients, like Shelby Van Voris, want no part in the decision. Others say that as much as they hate the idea of choosing based on sex, if there’s a choice to be made, they want to be the ones to make it. Society judges reproductive choices based on the motives behind them. Though roughly half of Americans identify as “pro-choice” and half as “pro-life,” polls also show the distinction blurs depending on why the woman is aborting. If a woman is the victim of incest or rape, or if her health is threatened, far more people — including abortion opponents — understand her choice to end the pregnancy. Support falls off if a woman aborts for financial reasons and is lowest of all if she aborts because of the fetus’s sex. Think about the common reaction to a woman who aborts because contraception failed versus a woman (and her partner) who took no precaution at all. “It changes our judgment of the moral character of the individual making the abortion decision,” says Bonnie Steinbock, a philosophy professor who is on the ethics committee of

the American Society for Reproductive Medicine. “In the first case, it wasn’t her ‘fault’; in the second, it was. It doesn’t mean the careless person shouldn’t have the right to an abortion, but it does mean we’re going to have a very different reaction to that choice.” Likewise, people may judge two-to-one reductions more harshly because the fertility treatment that yielded the pregnancy significantly increased the chance of multiples. “People may think, You brought this about yourself, so you should be willing to take some of the risk,” Steinbock says. Women who reduce to singletons sometimes think the same thing. “Most of the two-to-one patients have gone to incredible lengths to get pregnant,” Donna Steinberg, a clinical psychologist in Manhattan who specializes in counseling infertility patients, says. “They’ve paid a lot of money and put their bodies through tremendous stress, and they’ve gotten what they wanted — and now they’re going to reduce? Outsiders think, ‘How is that possible?’ And that’s also where the patients’ guilt comes from.” It’s not only the parents who may feel guilty. Even if parents work hard to conceal it, the child may discover the full story of his or her origins, and we don’t know what feelings of guilt or vulnerability or loss this discovery might summon. The doctors who do reductions sometimes sense their patients’ unease, and they work to assuage it. “I do spend quite a bit of time going through the medical risks of twins with them, because it takes away a little bit of the guilt they feel,” says Stone, the Mount Sinai doctor. Sometimes, she says, couples disagree about whether to reduce a twin pregnancy, and she encourages them to see a therapist so they can be at peace with whatever they decide. One of Stone’s patients, a New York woman, was certain that she wanted to reduce from twins to a singleton. Her husband yielded because she would be the one carrying the pregnancy and would stay at home to raise them. They came up with a compromise. “I asked not to see any of the ultrasounds,” he said. “I didn’t want to have that image, the image of two. I didn’t want to torture myself. And I didn’t go in for the procedure either, because less is more for me.” His wife was relieved that her husband remained in the waiting room; she, too, didn’t want to deal with his feelings. In some ways, the reasons for reducing to a singleton are not so different from the decision to abort a pregnancy because prenatal tests reveal anomalies. In both cases, the pregnancies are wanted, but not when they entail unwanted complications — complications for the parents as much as the child. Many studies show the vast majority of patients abort fetuses after prenatal tests reveal genetic conditions like Down syndrome that are not life-threatening. What drives that decision is not just concern over the quality of life for the future child but also the emotional, financial or social difficulty for parents of having a child with extra needs. As with reducing two healthy fetuses to one, the underlying premise is the same: this is not what I want for my life. That was the thinking of Dr. Naomi Bloomfield, an obstetrician near Albany who found out she was pregnant with twins when her first child was not quite a year old. “I couldn’t have imagined reducing twins for nonmedical reasons,” she said, “but I had an amnio and would have had an abortion if I found out that one of the babies had an anomaly, even if it wasn’t life-threatening. I didn’t want to raise a handicapped child. Some people would call that selfish, but I wouldn’t. Parents who abort for an anomaly just don’t want that life for themselves, and it’s their prerogative to fashion their lives how they want. Is terminating two to one really any different morally?” I was eight weeks pregnant when my husband and I, with our 2-year-old daughter in tow, visited friends who had recently had twins. Our friends, two of the most laid-back parents we knew, looked exhausted, beaten, overrun. Between their infants and their 3-year-old, it seemed someone was always hungry, howling, or filling a diaper. The second my husband and I stepped into our car to drive home, we said in unintentional unison, “Thank God we’re not having twins.” One week later, I began to cramp and bleed, so my midwife did an ultrasound to see if I had miscarried. The fetus was fine. It wasn’t, however, alone. “Twins,” the midwife announced cheerfully. My terror was instantaneous, and for the next few days, I could not seem to grab enough oxygen to breathe. Aborting half the pregnancy didn’t occur to us — who knew it would even be doable? — but for a few panicky hours, we wondered if it was possible to give one up for adoption. I was right to be afraid. Studies report enormous disruption in families with multiples, and higher levels of social isolation, exhaustion and depression in mothers of twins. The incessant demands of caring for two sameaged babies eclipse the needs of other children and the marriage. It certainly did for us. There’s no doubt that life with twins and a third child so close in age has often felt all-consuming and out of control. And yet the thought of not having any one of them is unbearable now, because they are no longer shadowy fetuses but full-fledged human beings whom I love in a huge and aching way.

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Plenty of infertility patients who conceive twins are ecstatic from the start about getting a two-for-one deal; some studies indicate that the majority of I.V.F. patients prefer twins. Though most doctors don’t believe reduction below twins is medically justified, they do argue that it is best to avoid a multiple pregnancy from the outset. Fertility drugs and in vitro fertilization both markedly increase the chance of multiples. About 5 to 20 percent of pregnancies from fertility drugs turn out to be twins or higher, according to the American Society for Reproductive Medicine, and half of babies conceived through I.V.F. are part of a multiple pregnancy. Perinatologists and obstetricians have lobbied fertility specialists to use ovulation-inducing drugs more judiciously and to transfer fewer embryos into their patients. Over the past few years, the campaign has resulted in fewer pregnancies of triplets and up, but the number of twin pregnancies continues to climb. Clearly there is room for improvement. The problem is that for all the choices and opportunities that fertility treatments offer, there is still a lot that doctors cannot control. A. and her partner had been together 15 years when they decided to get serious about having children. Because both women were 45, they tried to double their already slim chances by both being inseminated. They each tried it three times; nothing took. At their doctor’s suggestion, they chose an egg donor in her mid-20s. Both women went through I.V.F., each with two embryos transferred. Both women got pregnant, but A. quickly miscarried. Her partner (who did not want to be identified, even by an initial) gave birth to a healthy boy, whom they adore. A. did another round of I.V.F. with frozen embryos, hoping to provide their son with a sibling. It didn’t work. So when their boy was nearly a year old, both women underwent I.V.F. again. Given A.’s fertility history, the doctor predicted she had just a 5 percent chance of getting pregnant. On their son’s first birthday, both women found out they were pregnant, both with twins. Four in all. “In our wildest expectations, we never imagined being in this situation,” A. said. “We both went through I.V.F. before, and we came out with one baby. We did it exactly the same way as last time, so we never expected this.” A. and her partner were sick, physically and emotionally. Because A. had already miscarried once, her doctor worried she might not carry two to term; if she reduced, the doctor said, she had a better chance of taking a baby home. The women were tempted to reduce both pregnancies, so each woman would carry one, in part to ensure that even if one miscarried, they would have at least one baby. “But we discovered that the reality of having two pregnant moms when you have a 14-month-old is insane. We’ve both been very ill from the pregnancies, and it’s been hard to give him what he needs. At 14 months, they’re inquisitive and energetic, and it was becoming harder and harder to chase him and get him up and down the slide. There were days I’d be in the bathroom throwing up, she’d be on all fours with him, and then we’d switch. We all think we can conquer the world, but then reality hits you, and you realize you have limitations.” For the sake of the boy they already had, they decided to reduce A.’s pregnancy to one, and right after that A.’s partner lost her whole pregnancy. “I don’t wish this on anyone,” A. says. “I’m very grateful that we had this option at our disposal, that it can be done safely and in a legal way, but it was very difficult for both of us. I still wonder, Did we choose the right one?—even though I wasn’t the one who chose. That idea, that one’s gone and one’s here, it’s almost like playing God. I mean, who are we to choose? Even as it was happening, I wondered what the future would have been if the doctor had put the needle into the other one.” The women have told no one in their families, no colleagues and only one friend. I asked A. what would happen if she wound up losing the pregnancy after all. “We’ve talked a lot about it,” she said, after a bit. “I’ve come to realize there’s only so much we can control. There’s a point where you just have to let nature take its course.” Their baby is due in December.

For Further Discussion 1. Selective pregnancy reduction is a relatively new phenomenon. What impact do you think it may have on sibling relationships? In the reading from Eva and Leo Kittay in the previous chapter, Leo Kittay questioned with the family should be understood as a club to which you must gain admittance or as a kind of natural unit. Discuss this issue in regard to the two-minus-one pregnancy. 2. Many people have found this type of case unsettling in a way that is different from the standard case of abortion. What is it about this particular scenario that may make it unusually problematic? List the factors.

Abortion An Introduction to the Moral Issues

Introduction: The Controversy 56 Background: The Statistics 56 Background: The Law 57 Background: Pregnancy and Fetal Development 58 Primitive Streak 59 Human Form 59 Viability 59 The Main Arguments 60 Rethinking the Labels 60 The Moral Status of the Fetus 61 Criteria of Personhood 61 Necessary and Sufficient Conditions 61 The Search for Criteria of Personhood 61 Conceived-by-Humans 62 The DNA Argument 62 The Physical Resemblance Argument 62 The Soul Criterion 62 The Viability Criterion 62 Don Marquis’ Future-of-Value-Like-Ours Argument 62 Criteria of Personhood, Once Again 63 The Relevance of Personhood: Thomson’s Defense of Abortion 64 Gradualist Theories of Moral Status 64 The Rights of the Pregnant Woman 64 The Right to Privacy 64 The Right to Ownership of One’s Body 65 The Right to Equal Treatment 65 The Right to Self-Determination 65 The Natural Law Tradition 66 The Principle of Double Effect 66 Additional Ethical Questions 67 Who Makes the Decision? 67 55

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Parental Consent 67 Role of the Biological Father 67 Who Pays for the Decision? 67 Fetal Homicide 68 Fetal Harm 68 Gender Imbalance 69 Abortion and Compromise: Seeking Common Ground 69 Reducing Unwanted Pregnancies 69 Ensuring Genuinely Free and Informed Choice 70 Abortion and Sorrow 70 Living Together with Moral Differences 70

Introduction: The Controversy Abortion remains one of the most controversial social, political, and ethical issues in the United States today. In the United States, abortion was outlawed by many state laws until 1973, when the Supreme Court issued Roe v. Wade, a ruling that said that the state laws unconstitutionally violated a woman’s Constitutional right to privacy. This has continued to be a matter of contention, both within the Court and in the country as a whole. In campaigns from the local to the presidential level, positions on abortion are matters of heated debate. Within families, churches, and civic organizations, the differences on these issues often leave people polarized and dissatisfied. In looking at the ethical issues involved in abortion, our primary goal is understanding, trying to see why thoughtful, well-informed people of good will can disagree so deeply on such a fundamental issue. An examination of the arguments may also reveal different areas of possible agreement, of common ground. Moreover, we shall see the way in which our moral beliefs about abortion tie in with a web of other issues, such that a shift in one area might imply reconsideration in another. Finally, it is important to recognize that we are looking at an issue that often is agonizing and heart breaking. Few women want to have an abortion in the sense that this is a goal toward which they strive; for most, it is simply the least objectionable option they feel they have. Moreover, there is a significant difference between the legality of abortion and its morality. Some may believe that women ought to have the right to make the decision, but feel that they themselves would never choose to terminate a pregnancy. Indeed, some may hold that the pregnant women ought to be the ones who are entitled to make the choice, but they may also believe that ethically this choice is justified only under the most serious conditions.

Background: The Statistics It is helpful to understand the frequency with which abortion occurs in the United States. If there were three or four abortions per year, this would clearly be a problem of less magnitude than if there were three or four thousand a year. It’s also helpful to look both at the absolute numbers (how many abortions performed) and the percentage figures (what percentage of pregnancies ended in elective abortions). Overall, the rate (percentage) of abortions in the United States steadily declined from 1981 (when there were 29.3 abortions per 1,000 women) until about 2005, when it leveled off to approximately 19.5 abortions per 1,000 women, according to statistics from the Alan Guttmacher Institute, the research arm of Planned Parenthood. (CDC statistics, based on reports submitted voluntarily by the states, run slightly lower, but with the same overall trends.) Thus for the last several years, the total numbers have remained steady or increased slightly: about 1.2 million abortions a year. In the thirty-five years from 1973 to 2008, almost 50 million legal abortions have been performed in the United States. Whatever a person’s position may be on the morality of abortion, this is a stunningly high number.

Chapter 2. Abortion

Nor is this the only stunning number. In percentage terms, again according to the Guttmacher Institute, 22 percent of all pregnancies (excluding miscarriages) end in abortion. In other words, at least one in five of every pregnancy ends in abortion. Moreover, about 40 percent of all pregnancies in the United States are unintended— and almost half (48 percent) of those end in abortion. One of the key questions this raises is whether the number of abortions could be reduced if the number of unintended pregnancies could be brought down. It’s also important to note another statistical trend: abortion-related deaths. In 1965, there were approximately 200 abortion-related deaths recorded, that is, deaths of pregnant women related to abortion. (It is highly likely that there many others that were unrecorded.) During the next eight years, more than a dozen states liberalized their abortion laws, and the number of abortion-related death began to decline. By 1973, the time of Roe v. Wade, the number was below forty. Now it hovers at five or less per year. Again, this is a fact that may have moral implications. One of the moral arguments advanced in favor of legalizing abortion is that, when abortion is illegal, women die or suffer deeply harmful consequences from illegal abortions. At what point in the pregnancy do abortions typically occur? Again, this is a fact that has potential moral relevance for many people. Many regard a late-term abortion as morally much more problematic than a firsttrimester abortion. Over 90 percent occur in the first trimester according to the CDC. A little over 7 percent were performed in the 14-20 week period. About 1.3 percent were performed after 20 weeks, but the CDC statistics do not separate the number of these that were in the third trimester, which is the politically and morally most controversial area. Abortion providers who offered third trimester abortions were often threatened and in several cases killed. Finally, it’s helpful to have some sense of the age, race, and income distribution of women who have abortions. Women 20–29 have the highest rates of abortions, followed by adolescents (15–19) and then women 30 and older. More than 80 percent are unmarried. In the last twenty years, an increasingly large percentage of women having abortions have been poor or low income. The rate of abortions among white women has been declining, while the rate among Hispanic and Black women has been increasing in the United States. Thus, while the total numbers have been relatively steady in recent years, the internal composition of those numbers has shifted.

Background: The Law The law in regard to abortion in the United States is complex and varies in important respects from one state to the next. In the decade prior to Roe v. Wade, some states had begun to liberalize their abortion laws, while most states continued to have very strict prohibitions of abortion. The Supreme Court decision Roe v. Wade (1973) said that it was unconstitutional for states to restrict access to abortion under most circumstances. It articulated the state’s role according to the three trimesters of pregnancy: • First trimester: the state has no interest in regulating the woman’s decisions and she has complete autonomy (in consultation with her physician) over the abortion decision, based on the woman’s right to privacy; the fetus is a “potential life.” • Second trimester: the state has a legitimate interest in regulating abortion to protect the health of the pregnant woman; • Third trimester: the state has an interest in protecting the potential life of the fetus except when this may interfere with the woman’s life or health. This tripartite division became a convenient framework within which to understand the increasing moral and legal weight of the abortion decision. The Court handed down another decision that same day, Doe v. Bolton (1973), that defined considerations of the woman’s health in the third trimester very broadly, effectively further limiting the state’s interest in second and third trimester abortions. In subsequent years, a back-and-forth movement occurred between state legislatures and the Supreme Court, in part because the United States Congress never passed comprehensive legislation in this area. Thus individual states enacted legislation establishing limits on abortion within their state, parties opposed to the

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legislation challenged it in court, and eventually (if the appeal reached that level) the Supreme Court issued a ruling about whether the state had exceeded its authority or not. The Court invalidated many state requirements: consent of the husband for a married woman, and parental consent for a minor daughter in some cases; various informed consent requirements intended to highlight potential risks; the ban on so-called partial-birth abortions. The Court also upheld other laws: the ability of states to refuse Medicaid support for abortions for the poor; the Hyde amendment that restricts federal funding for abortion, allowing such funding only to pregnancies resulting from rape or incest; limitations on the use of federal and state funds for abortion-related activities and family planning. In addition, it seemed to reinstate state restrictions that it had previously struck down in regard to consent and waiting periods. The key Planned Parenthood of Southeastern Pa. v. Casey (1992) moved from the trimester approach of Roe to a pre- and postviability approach, seeing viability as the decisive moment at which the state’s interest become overriding. It also shifted the constitutional foundation from a right to privacy to a right to liberty. The 2003 Congressional Partial-Birth Abortion Ban Act, a piece of federal legislation rather than from an individual state, was quickly challenged in Gonzalez v. Carhart (2003), and the court upheld the constitutionality of the legislation. This decision seemed to extend the state’s interest to fetal life and to limit the applicability of Roe v. Wade. The political debate on the proper legal limits of a woman’s right to have an abortion will undoubtedly continue. Let’s turn now to consider the last of our background issues. Then we will turn to a consideration of the ethical issues.

Background: Pregnancy and Fetal Development Although Roe v. Wade and the debates it engendered popularized the trimester schema, it may not be the morally most illuminating framework. Casey (1992) stressed viability as a more important point of demarcation. Let’s examine the biology a bit more closely. For most of us, the biology plays some role in shaping our position on the morality of abortion. Even those who maintain that the embryo is a full human person at the moment of conception usually argue that, looking at the biological development, there is no other nonarbitrary moment to draw the line between when we do not have a human being and when we do. Many Americans recognize a gradation in the way in which they view the embryo and fetus. This is most evident in attitudes toward miscarriages. Typically, the further along the pregnancy, the more grievous we perceive the loss. (Please note that these are generalizations: a miscarriage at six weeks for someone who has repeatedly tried to conceive can be a terrible loss.) In the public perception, there is a significant difference between the loss at six weeks and at six months. Both are real, but one is treated with much more gravity than the other. Moral debates often turn precisely on the details of embryonic and fetal development. What happens? When does it happen? Here are some of the key specific versions of these questions: • When is the basic “blueprint” (or DNA) established? (At conception) • When does the embryo attach to the uterine wall? (About ten days; this is typically identified as the point at which a woman is said to be pregnant.) • When does the heart begin to beat? (Around 23rd day) • When are brain waves first detectable? (About six weeks) • When does the human nervous system first begin to form? (About week 5) • What does the fetus begin to look like a human (hands, feet, face)? (Beginning about eight weeks) • When can the fetus begin to experience pain? (about 24 weeks) • When is the fetus capable of surviving outside the womb? (About 23 weeks) Each of these can have moral significance. For example, those who argue that human life should be protected from the moment of conception can point to the “genetic blueprint” that we now know is present from the very beginning. Some moral philosophers will argue that certain methods of contraception that prevent the embryo from attaching to the uterine wall (including the “morning after” pill) are equivalent to abortion. Many

Chapter 2. Abortion

see a fetal heartbeat as both a real and symbolic indicator of life. The development of the human nervous system is a necessary biological condition for our existence and for many it is difficult to imagine we have a human person until it is present. The ability to feel pain has been cited in some recent legislative debates about when to limit abortions. Let’s look at three points that are of special moral interest. Primitive Streak

When sperm and egg come, they form what is called a zygote, which contains the full genetic blueprint (DNA) to become a child. This is called conception. The zygote begins as a single cell, but the number of cells increases rapidly as cells divide and thus multiply. It becomes known as a morula or pre-embryo about three days after conception. As the cells multiply in a typical pregnancy, the zygote is moving down the Fallopian tube toward the uterus. After about five days, it looks like a ball of cells, similar to what Americans call a soccer ball. This is the blastocyst. The outer shell of the blastocyst will eventually become the placenta, and the inner cell mass will become the embryo. Typically, the blastocyst attaches to the wall of the uterus around the sixth to the tenth day, a process called implantation. Once it is attached to the cell wall, hormones are produced that can be detected in the woman’s urine. Typically, this is about the twelfth day after conception. This is the moment at which a woman is medically said to be pregnant. This entire period of time, about two weeks, is called gestation. About two weeks after conception, a crucial event occurs: the emergence of the primitive streak. The blastocyst is now called an embryo, and this term is used until the tenth week, after which it will be called a fetus. Several important changes occur with the primitive streak. The spontaneous divisions that result in twins are no longer possible. The embryo begins to elongate, starting to change from its round shape to something approximating an American football. This is also the very earliest point at which we see the faint beginnings of differentiation of cells into more specialized cells that will eventually become heart cells, brain cells, etc. The primitive streak has been identified in some countries, including England, as a morally significant dividing line in regard to stem cell research. Human embryonic stem cell lines, they maintain, must be derived from embryos before the emergence of the primitive streak. Human Form

A picture is worth a thousand words, and unfortunately in this book it is not possible to reproduce in detailed color the various photos of embryonic and fetal development. An excellent source of these is the Web site The Visible Embryo (http://www.visembryo.com/baby/index.html). The National Institutes of Health provides a very reliable textual description (http://www.nlm.nih.gov/medlineplus/ency/article/002398.htm) of the stages of development, as does the Canadian Web site Religious Tolerance (http://www.religioustolerance.org/abo_ fetu.htm). Readers are strongly urged to consult these sites and see what a blastocyst, embryo, and fetus look like at various stages of development. Clearly human appearance alone is not a sufficient condition for the protections of personhood, but presumably it means something. Viability

Although medicine has made significant advances in this area, it is rare for a fetus to survive earlier than twentyfour weeks, and often that is with serious disabilities. Few hospitals try to save babies at twenty-three weeks, almost all attempt very aggressively to try to save babies by the twenty-sixth week. Almost no doctors perform abortions after this point, and it is extraordinarily rare that any woman would want an abortion at that point. About 0.04 percent of all abortions occur in the third trimester. These late-term abortions usually fall into one of three categories. First, a serious fetal defect is discovered. One of the ethical questions here is how serious the defect must be to justify such a decision. Second, the pregnant woman develops a medical condition that puts her life or health seriously in danger if the pregnancy is not terminated. For example, if the woman is diagnosed with a life-threatening and fast-growing type of cancer, the treatment of which is incompatible with pregnancy, then the termination of the pregnancy may occur. Radiation

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therapy or chemotherapy, for example, might so endanger the fetus that the pregnant woman chooses an abortion. Third, there may be cases where young girls conceal the pregnancy until very late in the process. These are very complex cases that may sometimes involve incest. In the first two types of cases, the pregnant woman typically does not want an abortion, but decides that it is the least bad alternative.

The Main Arguments Let’s now turn to the moral arguments that have been advanced for and against the permissibility of abortion. Rethinking the Labels

The ongoing discussion of abortion in American society is often framed as a debate between two sides, usually called pro-life and pro-choice. The labels themselves are as instructive as they are misleading. The labels are instructive because they illustrate that the two sides are looking at two different things. Notice that this is very different from, let’s say, the controversy between pro-death penalty and anti-death penalty advocates. If we were to illustrate the death penalty positions or many of the other issues considered in this book, we might get something like this: Pro

Most issues

Con

Those are opposite sides of the same issue. It is logically contradictory to be pro-death penalty and antideath penalty. In the abortion debate, the terrain is somewhat different. The labels point to the issue that each side sees as being of primary importance: one label points our attention toward the life of the fetus (and its attendant rights), the other emphasizes the choice to be made by pregnant woman. So we get something like this: Pro

Respect for Life

Con

Pro

Freedom for Choice

Con

These are, in effect, two independent variables that are not logically opposed to one another. The labels can be misleading insofar as each label implies that the other side does not care about either life or choice, as though each side had a monopoly on either life or choice. It is misleading to think that advocates of abortion rights are anti-life, just as it is misleading to think that the opponents of abortion are against choice as such. We should not assume, just based on the labels, that pro-life advocates are the only ones concerned about life or that they are not concerned about freedom of choice. Conversely, we should not assume that pro-choice advocates are unconcerned about life or that they are the only ones concerned about choice. These are two independent variables, and in many cases it will be a question of the relative weight given to each. Moreover, the relative weight given to each factor may shift, depending upon the stage of the pregnancy. The weight given to the woman’s freedom of choice may be quite high in the first weeks of pregnancy, but may gradually lessen as the fetus develops. In what we will call the Gradualist View, the further along the pregnancy, the more serious the reason should be to terminate it. We’ll discuss gradualism later. Finally, it is worth noting that one other way in which the pro-life and pro-choice labels may be misleading. Someone may be pro-life in regard to the abortion debate (and thus opposed to killing the unborn), but may be in favor of capital punishment, war, and other uses of killing. Conversely, someone may be pro-choice (and thus a supporter of individual liberty) in regard to abortion, but may be in favor of very strict environmental regulations or other types of restrictions on individual liberty.

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The Moral Status of the Fetus Initially, much of the philosophical debate about abortion centered around the question of the moral status of the fetus—in particular, if and when the fetus is a person. Most participants in the discussion took for granted that if the fetus can be shown to be a person, then abortion is morally wrong. Thus the discussion focused primarily on whether the fetus could be shown to be a person or not. To answer this question, it was necessary to specify what we meant by a person. Criteria of Personhood

Anyone who remembers scenes of the Mos Eisley Cantina in the Star Wars movies will have no difficulty imagining strange creatures that are not human but whom we would treat as persons (in some cases, dangerous persons). It’s clear what makes them different from us, but what makes them similar to us in some morally relevant way? Why would we treat them with respect while we treat other strange looking creatures as mere animals? What is it that makes humans (and perhaps other species scattered across the universe) special, what gives them moral standing? When you begin to ask that question, you are asking one of the key philosophical questions: what are the necessary and sufficient conditions of personhood? Is it the ability to think? To speak? To laugh? To drink at a bar? Let’s look at this question more closely. Necessary and Sufficient Conditions

In attempting to define personhood, philosophers have looked for the criteria or standards by means of which we determine whether a being is a person or not. This is a search for sufficient conditions (that is, conditions that if present would guarantee personhood) and necessary conditions (that is, conditions that must be present in order for personhood to be present). This is an important distinction, so let me illustrate it with an everyday example. Eating five pieces of cheesecake is a sufficient condition for getting fat. However, it is not a necessary condition for getting fat, since there are many others ways—some of which I’ve tried—of gaining weight. Hydration (taking in liquid, whether through drinking or IV fluids) is a necessary condition of staying alive for human beings. Without hydration, without fluids, we die in a matter of days. Taken alone, though, it is not a sufficient condition. We need more than fluids to stay alive: we need nutrition as well, and we need oxygen, and several other things as well. Together these are jointly necessary and sufficient for staying alive. The philosophical argument about abortion asserts that the embryo or fetus is a certain kind of being, that it has certain properties that require us to treat it in certain ways. The argument has the following structure: Some criterion is seen as conferring personhood, and personhood is seen as conferring certain rights, including the right to life. Thus the overall structure of the argument looks like this: Criterion

➪

Personhood

➪

Rights

We can see the two critical junctures in the argument just by looking at this diagram. The first is in the transition from the criterion to personhood. What justification is there for claiming that this criterion (or group of criteria) justifies the claim that a being is a person? The second transition has sometimes been seen as less problematic, but it may have more difficulties than are initially apparent. The issue in this transition is whether personhood always justifies the right to life.

The Search for Criteria of Personhood A number of criteria have been advanced for personhood. Some of these result in conferring personhood quite early in fetal development, sometimes from the moment of conception.

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Conceived by Humans

The conceived-by-humans criterion is, at least on the surface, the most straightforward: anyone conceived by human parents is a human being. But this straightforwardness turns out to be misleading. We obviously acknowledge the personhood of anyone born of human parents. This is the indisputably true sense of “conceived by humans.” However, we do not obviously and necessarily acknowledge the personhood of everything “conceived by humans” in the strict sense. This either equivocates or begs the question. The DNA Argument

The genetic structure argument maintains that a human genetic code is a sufficient condition for personhood. All the genetic information for the fully formed human being is present in the fetus at the time of conception; therefore, it has the rights of a person. Nothing more needs to be added, and if nothing interferes with the development of the fetus, it will emerge as a full-fledged human baby. The Physical Resemblance Argument

The physical resemblance criterion claims that something that looks human is human. Advocates of this criterion then claim that the fetus is a person because of its physical resemblance to a full-term baby. Movies such as The Silent Scream (which graphically depicts the contortions of a fetus during an abortion) depend strongly on such a criterion. This criterion seems rhetorically more powerful than the appeal to DNA (since DNA lacks the same visual and emotive impact), but less rigorous, because resemblance can be more strong in the eye of the beholder than DNA structures. The Soul Criterion

The presence-of-a-soul criterion is often evoked by religious thinkers. The criterion is then used in an argument maintaining that God gives an immortal soul to the fetus at a particular moment, at which time the fetus becomes a person. Although contemporary versions of this argument usually maintain that the implantation of a soul takes place at the time of conception, St. Thomas Aquinas—one of the most influential of modern theologians— claimed that implantation usually occurs at quickening, around the third month. (Aquinas also thought that this event occurred later for females than it did for males.) The principal difficulty with this argument is that it attempts to clarify the opaque by an appeal to the obscure: God’s will, at least in matters such as the implantation of a soul, is even more difficult to discern than the personhood of the fetus. The Viability Criterion

The viability criterion sees personhood as inextricably tied to the ability to exist independently of the mother’s womb. A fetus is thus seen as a person and having a right to life when it could survive (even with artificial means) outside the body of the mother. This criterion is clearly dependent on developments in medical technology that make it possible to keep increasingly young premature babies alive. If artificial wombs are eventually developed, then viability might be pushed back to a much earlier stage in fetal development. Don Marquis’ Future-of-Value-Like-Ours Argument

Finally, the future-of-value-like-ours criterion maintains that fetuses have a future, just as adult human beings have a future. Just as the killing of adults is wrong because it deprives them of everything that comprises their future, so too is the killing of a fetus that deprives it of its future. Don Marquis develops this argument in his article, “Why Abortion Is Immoral,” and has elaborated it in a series of subsequent articles. One of the strengths of Marquis’ argument is its simplicity and its lack of metaphysical or religious baggage. It is simple in that it relies on a general intuition we all share about what is wrong with killing in general: namely, killing a person deprives that person of his or her future, a future like ours. Just as our future is of value to us, so too the future of the person killed is of value to that person. By saying that it avoids metaphysical or religious baggage, I don’t mean in any way to disparage either metaphysics or religion; but I do intend to point out that

Chapter 2. Abortion

people do not always share the same religious beliefs or metaphysical commitments, insofar as they think about the latter at all. An argument that depends on a particular religious belief or metaphysical commitment typically will be persuasive only to those who share that belief. Arguments that appeal to a religious notion of the soul may convince fellow believers yet fail to persuade those outside the circle of belief. Similarly, arguments that depend on a specific metaphysical notion of personhood may be persuasive for those who share that same metaphysical commitment, but may leave others unpersuaded. Moreover, those who share, say, that religious commitment probably already agree with you on this issue anyway. Part of the power of Marquis’s position is that it depends on uncontroversial and widely shared premises. In particular, he avoids controversial claims about the metaphysical status of the fetus and its status as a person with rights. Instead, he focuses on the straightforward question: does the fetus have a future-of-value like ours? If our answer to that question is “yes,” and if further we believe that depriving a being of a future-of-value like ours is wrong, then abortion is wrong. One of the interesting questions that relates to Marquis’s argument is whether unimplanted embryos in a petri dish in the laboratory or frozen at a fertility clinic have a future-of-value like ours. It seems possible to make an argument that the fetus does not have a future like ours until it is implanted in a woman’s uterus. Once that occurs, it takes some positive action to prevent it from continuing along its natural trajectory toward birth. Yet as long as it is outside the woman’s body, it does not yet have a future-of-value like ours and it requires a positive act—implantation—to occur. Criteria of Personhood, Once Again

Some philosophers have argued that there are other criteria that are necessary conditions of personhood and that fetuses usually lack these characteristics. These are criteria that we usually associate with adult human beings: reasoning, a concept of self, use of language, and so on. (These criteria are often particularly relevant in discussions of the end of life: at what point, if any, does a breathing human being cease to be a person?) There are several dangers with appeals to such criteria. Most notably, such criteria may set the standard of personhood too high and justify not only abortion, but also infanticide, the killing of brain-damaged adults, and involuntary euthanasia. There are a number of possible responses to this lack of consensus in regard to the conditions of personhood. Two arguments have been advanced that see this lack of consensus as supporting a conservative position on the morality of abortion. The Let’s Play It Safe argument states that we cannot be absolutely sure when the fetus becomes a person, so let’s be careful and err on the safe side. This is often coupled with the Let’s Not Be Arbitrary argument, which states that because we do not know precisely the moment at which a fetus assumes personhood, we should assume that it becomes a person at the moment of conception and act accordingly. The moment of conception provides, according to this argument, the only nonarbitrary point of demarcation. Other philosophers have taken a quite different tack in the face of this disagreement about the conditions of personhood. They have argued that it is impossible to define the concept of a person with the necessary precision. The best we can achieve is to specify something like a family resemblance, a group of criteria, some of which must always be present but none of which in isolation is necessary. This concept was introduced by the twentieth century philosopher Ludwig Wittgenstein, and Jane English uses this notion in her discussion of abortion. The analogy here is one with which most of us are already familiar: biologically related members of a single family often share some characteristics with one another—the shape of the ears, the chin, the hair color, eyes, and so on. The interesting thing is that no one member of the family has to share some single characteristic— some may have the eyes, others the hair, and so on. Thus there is no necessary condition of family resemblance. Analogously, we might say that there is a cluster of characteristics (many of them mentioned earlier) that are typical of persons, but we may be unable to state that any one of them is a necessary condition of personhood. It’s important to realize the ways in which selecting particular criteria of personhood either expand or contract the boundaries of personhood. If rationality, for example, is the measure of personhood, then it may be that even newborn infants do not make the cut. If being conceived by a human is the criterion, then this may include entities such as teratomas (a type of tumor that often has hair, teeth, etc. growing inside it) and certainly anencephalic infants (without a higher brain, only the lower brain stem) as persons. Some criteria include too much, some too little.

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The Relevance of Personhood: Thomson’s Defense of Abortion

There was a widespread assumption that if the fetus is a person, then abortion is morally wrong. The first major article to challenge this assumption was Judith Jarvis Thomson’s “A Defense of Abortion” (1971), which presented an intriguing example. Imagine that, without your prior knowledge or consent, you are sedated in your sleep and surgically connected to a famous violinist, who must share the use of your kidneys for nine months until he is able to survive on his own. Even granting that the violinist is obviously a full-fledged person, Thomson argues that you are morally justified in disconnecting yourself from the violinist, even if it results in his death. Going back to our diagram of the two main stages of the abortion argument, we can see that Thomson’s strategy is to question the transition from “personhood” to “right to life.” Even granting that the dependent entity is a full person (whether fetus or violinist), we may still be morally justified in cutting off support and thereby killing that person. Thus, Thomson argues, the morality of abortion does not depend on our answer to the question of whether the fetus is a person or not. A more developed version of Thomson’s example is to be found in Jane English’s selection, “Abortion and the Concept of a Person.” Thomson’s article has been criticized on many fronts, but despite these criticisms, the major impact of her piece has been to open the door to the possibility that the answer to the question of abortion does not depend solely on the moral status of the fetus. This opened the door to a more extensive consideration of the other principal moral consideration in this situation, the rights of the pregnant woman. Gradualist Theories of Moral Status

Our language often pushes us in particular directions, sometimes shaping issues in ways that are difficult to detect at first glance. Consider the language of personhood. Typically, we think of personhood in binary terms: something either is a person or it is not. There is nothing in between. We could liken this to a standard light switch: the light is either on or off. The language of personhood, of rights, and of souls all leads us in this binary direction. The position we see in Roe v. Wade, in Jane English’s article, and often in the popular consciousness is more analogous to a dimmer switch, a sliding scale. This is implicit in another metaphor we sometimes use to understand the moral life: weight. The further along the pregnancy, the weightier the reason must be for an abortion to be justified. When we weigh things, and reasons, we are always comparing, always looking for a balance between different kinds of things. With a slider switch, there is a full “on” and a full “off,” but there are also many points in between these two extremes. Some, such as Jane English, have in effect suggested that this is the more appropriate way of looking at the moral significance of the fetus. Moreover, the trimester format of Roe v. Wade suggests a similar way of thinking. In contrast, court decisions and legislation that stresses viability tend to presuppose the on–off metaphor.

The Rights of the Pregnant Woman The second principal focus of moral concern is on the rights of the pregnant woman. Yet what precisely are these rights? At least four main arguments have been advanced: the right to privacy, the right to ownership and control over one’s own body, the right to equal treatment, and the right to self-determination. The Right to Privacy

In Roe v. Wade (1973), the Supreme Court based its support for a woman’s right to abortion in part on the claim that the woman has a right to privacy. In constitutional law, the right to privacy seems to have two distinct senses. First, certain behaviors—such as sexual intercourse—are usually thought to be private; the government may not infringe upon these behaviors unless there is some particularly compelling reason (such as preventing the sexual abuse of children) for doing so. Second, some decisions in an individual’s life—such as the choice of a mate or a career—are seen as matters of individual autonomy or self-determination; these are private in the sense that the government has no right to tell an individual what to do in such areas. This second sense of privacy will be discussed later in the section on the right to self-determination. In this first sense of privacy, a

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woman’s decision to have an abortion may be something protected from the government’s prying eyes because it may involve intimate issues, to which outsiders have no right of access. The Right to Ownership of One’s Own Body

Some have argued that the right to abortion is based on a woman’s right to control her own body and in some instances this is seen as a property right. This approach also seems wide of the mark. To be sure, no one else owns our bodies and, in this sense, there seems to be a right to control our own bodies. However, it is doubtful whether the relationship we have with our own bodies is best understood in terms of ownership, nor is the presence of the fetus most perceptively grasped as the intrusion onto private property. The Right to Equal Treatment

Some jurists, most notably Ruth Bader Ginsburg, have suggested that a woman’s right to abortion may be best justified constitutionally through an appeal to the right to equal protection under the law. Pregnancy results from the combined actions of two people, yet the woman typically bears a disproportionate amount of the responsibility and burden. This line of reasoning certainly seems highly relevant to striking down laws and regulations that discriminate against women because of pregnancy, but it is unclear whether it alone is sufficient to support a right to abortion. In fact, it would seem that there must be some other, more fundamental right that is at stake here. The Right to Self-Determination

When we consider the actual conflict that many women experience in making the decision about abortion, it would seem that it centers primarily around the effects that an unwanted pregnancy and child would have on their lives. The most fundamental right at issue for the pregnant woman in this context would seem to be the right to determine the course of her own life. In this context, it is relevant to ask how much the pregnancy would interfere with the woman’s life. As John Martin Fisher pointed out, one of the misleading aspects of Thomson’s violinist example is that it suggests pregnancy would virtually eliminate one’s choices for nine months. In actuality, the violinist case would be comparable only to the most difficult of pregnancies, those that require months of strict bed rest. Yet in most cases, pregnancy does not involve such an extreme restriction on the woman’s everyday life; the restrictions on self-determination are much less. In what ways do pregnancy and childbirth potentially conflict with self-determination? Consider, first of all, the extremes on the spectrum. On the one hand, imagine a most grave threat to self-determination: a rape that results in an extremely difficult pregnancy that required constant bed rest, childbirth that contained a high risk of the mother’s death, and the likelihood that the child would require years of constant medical attention. Conception, pregnancy, delivery, and the child would all severely limit (if not destroy) the mother’s choices in life. These carry enormous moral weight. On the other hand, an easy pregnancy and birth of a perfectly healthy baby are potentially much less restrictive to a woman’s power of self-determination. Raising a child, of course, is potentially quite restrictive to selfdetermination, but in those cases where adoption is a reasonable option, raising the child is not necessary. There is a further perplexity about self-determination. It is reasonable, as Fisher and others have done, to distinguish between what is central to one’s self-determination and what is peripheral to it. We intuitively recognize this when we hear, for example, of a pianist whose hands have been crushed in an accident. Although such an accident would be terrible for anyone, it is especially terrible for a person whose life is devoted to making music with his or her hands. If the pianist were to become color blind, this would be much less serious because it would not strike as centrally at the pianist’s sense of self. (We would have a quite different assessment of color blindness in a painter, however.) Yet the perplexity centers on those cases in which people make something central to their sense of identity that we, as outsiders, would consider peripheral at best. For example, the couple who want an abortion because bearing a child would force them to postpone a vacation for two months seems to be giving undue weight to the timing of their vacation. What if, to take an even more extreme case, a woman bank robber decided on an abortion because pregnancy would interfere with robbing banks? Or has accepted a new job that might involve exposure to hazardous chemicals that could be harmful to a fetus? Are there any limits to what can legitimately be taken as central to selfdetermination? And who is the proper person to determine in a specific case what those limits are?

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The Natural Law Tradition The natural law tradition places the question of abortion within a much larger view of the world. This is a tremendously powerful and coherent worldview that sees the specific issue of abortion within a much larger context. The natural law tradition goes back to medieval Christian theology, and one of its most famous representatives was Thomas Aquinas. For Aquinas, and for many others after him, the universe is created by God and God has established the purpose or telos (the Greek word for “purpose”) for everything in the universe. Sexual activity between humans, for example, has the goal of creating children. God implants this goal in the very natural order of things, so it is woven into the fabric of the universe. Moreover, because this goal is established by God, and because God is all-good (omnibenevolent) and all-powerful (omnipotent), the goal itself must necessarily be good. Conversely, anything that thwarts this goal is considered bad because it is in opposition to God’s will. Finally, we should note that God also created the human intellect, and the result of this is that there is a kind of congruence between the intellect and reality such that our minds are naturally adapted to uncover this natural law. Thus the natural law is something that human beings can grasp. This is, as I mentioned, a powerful and coherent view of the world: it encompasses almost everything and provides an account of how the individual parts fit within a greater whole. It is a strongly teleological view of the world, that is, it seems the world in terms of its purposes or final goals, which are established by God. We can easily see how, within this framework, abortion is morally unacceptable. First, artificial means of contraception are immoral because they thwart the natural purpose of sexual intercourse, which is procreation. (One can also see the conceptual foundation for opposition to homosexuality.) Indeed, Aquinas—relying on what is now recognized as an antiquated and misleading biology—did not think that the fetus was ensouled (that is, received a personal, immortal soul) until quickening. Nonetheless, he opposed early abortion because he considered it a violation of God’s design, unnatural and morally wrong. Indeed, we still see this position in the Catholic Church and other institutions which oppose artificial birth control. Second, abortion itself—once the soul has arrived—is wrong because both the thwarting of the natural order (a movement toward birth and life) and also because it is the killing of a human being. The arrival of the soul, I would suggest, means among other things that this being (the fetus) is a child of God and thus under God’s protection. This position obviously comes with what philosophers would call a lot of metaphysical baggage. In other words, it does not treat the issue of abortion in isolation, but establishes an entire view of the world and creation within which our specific position on abortion can be articulated. This is both its strength and its weakness. It is a strength because it does present a total worldview, something that many humans feel is worthy of belief and devotion. Moreover, for those who carry the same baggage (that is, share the same worldview), acceptance of the argument comes easily. But it is also a weakness in that those who do not share the larger worldview may be unmoved by specific arguments that require larger commitments of belief. In the public arena, we often look for reasons that anyone could accept, without presupposing a particular religious or metaphysical worldview.

The Principle of Double Effect There is an interesting exception to the opposition to abortion in the natural law tradition, and it arises in those cases where the purpose of the action that results in the abortion is the saving of the woman’s life. In the case of an ectopic pregnancy (where the pregnancy occurs in the fallopian tube) or uterine cancer (when the pregnant woman may die if the cancerous uterus is not removed immediately), natural law theories have held that abortion may be morally permissible as the consequence of treating the harmful condition. Centuries of Christian theology and philosophy have finely honed this Principle of the Double Effect, which allows us to perform certain actions that would otherwise be immoral. Typically, four conditions have to be met for an action to be morally permissible: (a) the action itself must be either morally good or at least morally neutral, (b) the bad consequences must not be intended, (c) the good consequences cannot be the direct causal result of the bad conse-

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quences, and (d) the good consequences must be proportionate to the bad consequences. For example, the principle of the double effect may allow a pro-life physician to remove a cancerous uterus from a pregnant woman, even if the fetus is thereby killed. Removal of the uterus is in itself morally neutral; it is not done in order to abort the fetus; the elimination of the cancer does not result from the killing of the fetus; and the saving of the woman’s life is proportionate to the termination of the pregnancy. Thus it meets the four conditions of the principle of double effect. We will see that this principle is used in end-of-life discussions and in discussions of the morality of warfare, especially in regard to civilian casualties.

Additional Ethical Questions Much of our previous discussion has centered on the question of the moral permissibility of abortion. There are still a number of other, specific moral questions related to abortion that are worth considering. Who Makes the Decision?

Given the legality of abortion in general, difficult legal and ethical questions remain about the process of consent. Let’s consider just two of these here: parental consent for minors and the role of the biological father in the decision-making process.

Parental Consent One of the controversial issues on the state and federal levels has been whether girls who are minors need parental consent and/or notification. Clearly for almost any other medical procedure (including ones that are far less serious), parental consent is necessary for medical treatment. Why make an exception in this case? Several arguments have been advanced. First, the lesser evil argument: underage girls, discovering that they are pregnant and deciding that they do not want to have the baby, may be afraid to tell their parents and instead turn to unsafe methods of abortion. Second, the abuse argument: very young girls sometimes (accurate statistics are difficult to obtain, for obvious reasons) become pregnant because of incest or sexual abuse by an immediate family member. To require parental notification and/or permission might involve asking permission from the very person responsible for the abuse, or at least from those responsible for concealing the abuse. Critics of these arguments usually maintain some version of the primacy of the family argument. These decisions, they argue, are best made within the family, and it is inappropriate for the government to step in and interfere with what is essentially a family process, empowering a minor against her parents’ knowledge or wishes.

Role of Biological Father What role or rights does the biological father have in the abortion decision? Although it takes two to become pregnant (in the standard scenario, at least), it is clear that thereafter the weight is solely on the shoulders of the pregnant woman or girl. Biological fathers are able to walk away from pregnancies (and eventual fatherhood) in a way that women are not. The philosopher George W. Harris, in an article “Fathers and Fetuses,” has argued that in certain circumstances (usually involving conscious deception of the man or unilateral renunciation of a joint commitment to parenthood), abortion of a fetus would be a violation of the biological father’s autonomy and count as a wrong done to him. This might make the abortion decision morally wrong but would not affect its legality. It is important to realize the larger context of this issue: for centuries, the biological father decided the woman’s fate, including the course of her pregnancy. This issue is inextricably bound up with the question of the autonomy of women in society overall.

Who Pays for the Decision? One of the more contentious issues in American politics has been about public funding of abortion (and, to a lesser extent, family planning that involves contraception). The issue here is whether it is morally permissible to use the tax dollars of those who consider abortion to be profoundly immoral (i.e., the killing of innocent human

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beings) to support public funding of abortion. Analogously, we might ask whether it is morally permissible to use tax dollars from people who are pacifist to support military operations. Or, the tax dollars of morally based vegetarians to support meat products. Fetal Homicide

Consider your position on the issue of abortion. Now ask yourself the following question: • If someone attacks a pregnant woman and intentionally kills the unborn fetus without killing the pregnant woman, what crime(s) is the attacker guilty of? Simply assault, or assault and homicide? This is a difficult question and may reveal some of our deepest intuitions about the moral status of the fetus. California was one of the first states in the nation to introduce a fetal homicide law, in part in response to a California case in which a woman was attacked by her ex-husband, who said that he was going to “stomp it out of her,” referring to the pregnancy and the child she was going to have. (This is roughly the second question posed earlier.) Prosecutors tried to charge the ex-husband not only with assault, but also with murder of the fetus (called “Baby Girl Voigt,” using the biological father’s last name). The California State Supreme Court dismissed the charges and said that if the fetus had not yet been born alive, it could not be killed. It was not a person, with the corresponding protections that persons have under the constitution. Thus it could not be murdered. Public reaction to this case led California to pass the Fetal Homicide Law, and most other states have now instituted similar laws. There is a wide range of such laws in regard both to the period of time the fetus is protected and also the crimes defined by the laws. Some states cover everything from conception to birth, others begin protection at quickening or at viability. Some laws treat this as murder, homicide, or manslaughter, and some introduce terms such as “fetal homicide” or “feticide.” In some states, the attacker does not necessarily have to know that the woman is pregnant; in others, that is required. Clearly, in these cases there is a harm to the pregnant woman, and presumably that harm goes beyond simple assault. At the very least, we want to say that the pregnant woman has lost part of her future, that is, the future she would have shared with her child if it had been born. But many would also say that the fetus or unborn baby has lost something, namely, a future like ours. This is very much what Don Marquis describes as what makes abortion morally wrong: like killing in general, it is wrong because it deprives the fetus of a future of value, a future like ours. Yet if the fetus has legitimate moral interests, then this has important implications for our thinking about abortion. Just in case this example seems far-fetched, it is worth noting that murder is among the leading causes of death among pregnant women. Precise statistics are still difficult to obtain, because only recently have states been requiring pregnancy status to be indicated on death certificates. A 2004 Washington Post study uncovered 1,367 maternal homicides over a fourteen-year period. At that point, thirteen states had no tracking measure in place for this issue at all. In 2004, Congress passed the Unborn Victims of Violence Act (PL 108-212) that recognizes the “child in utero” can be the victim of a crime. The law defines a “child in utero” as “a member of the species homo sapiens, at any stage of development, who is carried in the womb.” The offender may be guilty even if the offender did not know the woman was pregnant or did not intend to harm or kill the fetus. The legislation makes an explicit exception for abortion, but the exception stands in uneasy tension with the rest of the act. This legislation has in fact relatively narrow applicability, since it is a federal rather than a state law. This, too, goes back to a California murder. In 2005, Scott Peterson, who was convicted of murdering his wife, Laci Peterson, during her eighth month of pregnancy and their unborn son in Modesto, California, in 2002, was sentenced to death by lethal injection. He is currently on death row. Fetal Harm

A related but distinct set of issues arise in regard to fetal harm. These fall into two categories. First, scenarios in which the fetus is harmed due to the (perhaps blameworthy) actions of someone else. For example, a fetus may be harmed by certain medications that were previously thought to be safe or by pollutants in ground water. The

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question here is what value we give to the fetus above and beyond what the pregnant woman suffers. In many cases, the fetus is born and grows up suffering from the effects of such factors. Clearly once it is born, it has interests, but the harms occur before birth. Again, this may prompt us to look at the consistency between these cases and abortion cases. The second scenario relates to pregnant women who knowingly endanger or harm their fetuses during pregnancy, typically though alcohol or substance abuse. Is this to be treated as child abuse? To what extent can the state intervene to protect the fetus? Do health care providers (physicians and nurses) have any obligations to the fetus over and above (and perhaps in conflict with) their obligations to the pregnant woman? Some of this abusive behavior may occur very early in a pregnancy, well before viability. What are the responsibilities of the state in this situation? Does it have a duty to protect the well-being of the fetus? If so, does that imply that the fetus is a person? Or does the state sometimes have duties to non-persons? Gender Imbalance

In some societies, abortion is used as a means of sex selection. In some Asian countries, there has been an increasing imbalance between males and females. This is particular true in countries in which male babies are valued over female babies, and war exacerbated in China during its policy of one child per family. Many Chinese parents felt that, if they could only have one child, they definitely wanted it to be a son. In a number of Asian countries, the use of abortion for sex selection that would eliminate females has been made illegal, although often it continues to be practiced. The 2012 World Development Report on Gender Equality and Development details many of the ways in which gender inequality is growing around the world. They estimate that approximately 4 million women go “missing” each year in developing countries. The Nobel prize–winning economist and political philosopher, Amartya Sen, estimated that there are millions of females who are not born or left to die at birth in countries such as India. Why would the state have an interest in preventing gender imbalance? Several factors come into play. No one is certain of what possible social problems may be created by such an imbalance, but certainly this would change courting and marriage dynamics, probably in significant ways. Furthermore, a society with an excess of males might be more likely to go to war, realizing that the impact of losing a percentage of their young men would be much less severe than it would for other societies. In the United States, much of the regulatory work—if it can be called that—is done by individual clinics. Overall, there is no evidence to suggest that in the United States as a whole, sex selection would lean disproportionately toward sons rather than daughters. However, many fertility centers will only engage in sex selection for what is called “gender balancing.” The typical case is a family with two or three children, all of the same sex, who want to have a child of the opposite sex.

Abortion and Compromise: Seeking a Common Ground Initially, it might seem that there is no room for compromise in matters of abortion. If it is the intentional killing of an innocent human being, then it cannot be countenanced. If it does not involve killing a human being, then it should not be prohibited. It is either wrong or right, and there seems to be little middle ground. Yet as we begin to reflect on the issue, we see that there are indeed areas of potential cooperation. Let’s briefly consider several such areas. Reducing Unwanted Pregnancies

One of the striking aspects of the abortion issue is its potential avoidability. Abortions occur when there are unwanted pregnancies. In the United States, almost half of all pregnancies are unintended, and half of those unintended pregnancies end in abortions. To the extent that we can reduce unwanted pregnancies, we can reduce abortions. Certainly there are cases of unwanted pregnancy due to rape or incest and there are cer-

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tainly other cases due to the failure of contraceptive devices. Unfortunately, despite our best efforts, none of these types of cases will probably be completely eliminated in the future. Yet they comprise only a small percentage of the cases of unwanted pregnancies; moreover, there is already agreement that these should be further reduced. Unintended pregnancies account for half of all abortions. To the extent that these can be reduced, the number of abortions can be greatly reduced. Conservatives, liberals, and many others can agree on this goal, although they may emphasize quite different ways of achieving it. Conservatives will stress the virtue of chastity and the value of abstinence. Liberals will stress the importance of contraceptives and family planning. Others will urge social and political changes that will ensure that women have at least an equal voice in decisions about sexual intercourse. Some will respond to the conservative call, others to the liberal program. Yet the common result may be the reduction of unwanted pregnancies and, with that, the reduction of abortions. In addition to this, an increase in responsibility in the area of sexuality may help to reduce the spread of AIDS and other sexually communicated diseases. Ensuring Genuinely Free and Informed Choice

There is widespread agreement among almost all parties that a choice made freely is better than one made under pressure or duress. There are several ways of increasing the likelihood of a genuinely free and informed choice. First, the earlier the choice, the better. Many people maintain that the more the fetus is developed, the more morally serious is the abortion decision. Second, women should have the opportunity to make the choice without undue outside pressure. There are a number of ways in which undue outside pressure can be reduced, most notably through providing genuinely impartial counseling in an atmosphere devoid of coercion (demonstrations, etc.). Third, alternatives to abortion should be available. These include adoption (for those who wish to give their baby up for adoption), aid to dependent children (for those who wish to raise their own babies), day care (for those who work full-time and raise children), and adequate maternity leave. Abortion and Sorrow

Naomi Wolf refers to a Japanese practice that honors the memory of departed fetuses. This is called Mizuko Kuyo. Philosophically, one of the most interesting aspects of this practice is that it unites two elements that are rarely brought together in the American philosophical discussion of abortion. In the practice of Mizuko Kuyo, couples who have had an abortion (or a spontaneous miscarriage) dedicate a doll at a temple to the memory of the departed fetus. To some extent, this is analogous to the practice of lighting a votive candle in Christian churches. What is noteworthy is that Japanese society both permits abortion and at the same time recognizes that it is a sorrowful occasion. In most instances, American philosophical literature chooses one or the other of these elements, but not both simultaneously. Living Together with Moral Differences

Abortion is a particularly interesting and important moral issue in contemporary America, for it poses most clearly to us as a society the question of how we can live together with deep moral differences. People on all sides of the abortion controversy are intelligent people of good will, genuinely trying to do what they believe is right. The challenge for all of us in such situations is to view one another in this light and seek to create a community that embraces and respects our differences while at the same time preserving our moral integrity. It is in this spirit that you are urged to approach the articles contained in this section. None provides the final answer to all our questions about the morality of abortion, but each helps to shed light on the moral complexity of the situation and the differing moral insights with which we as a society approach this difficult issue. Even if none of these articles provides the complete answer to the problem of abortion, each does help us to better understand ourselves and others.

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Jane English

“Abortion and the Concept of a Person” About the Author: Jane English (1947–1978) received her doctorate from Harvard University. She authored several articles in the field of ethics before her untimely death in a mountain climbing accident on the Matterhorn at the age of 31. About the Article: English challenges a common belief often shared by both advocates and critics of abortion. Both sides often claim that the permissibility of abortion turns on the question of whether the fetus is a person or not. English argues that (1) the notion of personhood is not precise enough to offer a decisive criterion for judging whether the fetus is a person and (2) there are a number of cases in which we can reasonably conclude that (a) abortion is permissible even if the fetus is a person and (b) abortion is not permissible even if the fetus is not a person. The issue of abortion, in other words, does not turn on the issue of the personhood of the fetus. As You Read, Consider This: 1. What reasons does English offer for claiming that the notion of personhood is not precise enough to serve as a foundation for deciding the abortion issue? Do you agree with her reasons? 2. Why, according to English, do we need “an additional premise” to move from the claim that the fetus is a person to the conclusion that abortion is always morally wrong?

T

he abortion debate rages on. Yet the two most popular positions seem to be clearly mistaken. Conservatives maintain that a human life begins at conception and that therefore abortion must be wrong because it is murder. But not all killings of humans are murders. Most notably, self-defense may justify even the killing of an innocent person. Liberals, on the other hand, are just as mistaken in their argument that since a fetus does not become a person until birth, a woman may do whatever she pleases in and to her own body. First, you cannot do as you please with your own body if it affects other people adversely.1 Second, if a fetus is not a person, that does not imply that you can do to it anything you wish. Animals, for example, are not persons, yet to kill or torture them for no reason at all is wrong. At the center of the storm has been the issue of just when it is between ovulation and adulthood that a person appears on the scene. Conservatives draw the line at conception, liberals at birth. In this paper, I first examine our concept of a person and conclude that no single criterion can capture the concept of a person and no sharp line can be drawn. Next I argue that if a fetus is a person, abortion is still justifiable in many cases; and if a fetus is not a person, killing it is still wrong in many cases. To a large extent, these two solutions are in agreement. I conclude that our concept of a person cannot and need not bear the weight that the abortion controversy has thrust upon it.

I

The several factions in the abortion argument have drawn battle lines around various proposed criteria for determining what is and what is not a person. For example, Mary Anne Warren2 lists five features (capacities for reasoning, self-awareness, complex communication, etc.) as her criteria for personhood and argues for the permissibility of abortion because a fetus falls outside this concept. Baruch Brody3 uses brain waves. Michael Tooley4 picks having-a-concept-of-self as his criterion and concludes that infanticide and abortion are justifiJane English, Abortion and the Concept of a Person; Canadian Journal of Philosophy, Vol. 5, No. 2 (October, 1975). Copyright © 1975. Reprinted by permission of the Canadian Journal of Philosophy.

READING

The Arguments

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able, while the killing of adult animals is not. On the other side, Paul Ramsey5 claims a certain gene structure is the defining characteristic. John Noonan6 prefers conceived-of-humans and presents counterexamples to various other candidate criteria. For instance, he argues against viability as the criterion because the newborn and infirm would then be non-persons, since they cannot live without the aid of others. He rejects any criterion that calls upon the sorts of sentiments a being can evoke in adults on the grounds that this would allow us to exclude other races as non-persons if we could just view them sufficiently unsentimentally. These approaches are typical: foes of abortion propose sufficient conditions for personhood which fetuses satisfy, while friends of abortion counter with necessary conditions for personhood which fetuses lack. But these both presuppose that the concept of a person can be captured in a straightjacket of necessary and/or sufficient conditions.7 Rather, “person” is a cluster of features, of which rationality, having a self-concept and being conceived of humans are only part. What is typical of persons? Within our concept of a person we include, first, certain biological factors: descended from humans, having a certain genetic make-up, having a head, hands, arms, eyes, capable of locomotion, breathing, eating, sleeping. There are psychological factors: sentience, perception, having a concept of self and of one’s own interests and desires, the ability to use tools, the ability to use language or symbol systems, the ability to joke, to be angry, to doubt. There are rationality factors: the ability to reason and draw conclusions, the ability to generalize and to learn from past experience, the ability to sacrifice present interests for greater gains in the future. There are social factors: the ability to work in groups and respond to peer pressures, the ability to recognize and consider as valuable the interests of others, seeing oneself as one among “other minds,” the ability to sympathize, encourage, love, the ability to evoke from others the responses of sympathy, encouragement, love, the ability to work with others for mutual advantage. Then there are legal factors: being subject to the law and protected by it, having the ability to sue and enter contracts, being counted in the census, having a name and citizenship, the ability to own property, inherit, and so forth. Now the point is not that this list is incomplete, or that you can find counterinstances to each of its points. People typically exhibit rationality, for instance, but someone who was irrational would not thereby fail to qualify as a person. On the other hand, something could exhibit the majority of these features and still fail to be a person, as an advanced robot might. There is no single core of necessary and sufficient features which we can draw upon with the assurance that they constitute what really makes a person; there are only features that are more or less typical. This is not to say that no necessary or sufficient conditions can be given. Being alive is a necessary condition for being a person, and being a U.S. Senator is sufficient. But rather than falling inside a sufficient condition or outside a necessary one, a fetus lies in the penumbra region where our concept of a person is not so simple. For this reason I think a conclusive answer to the question whether a fetus is a person is unattainable. Here we might note a family of simple fallacies that proceed by stating a necessary condition for personhood and showing that a fetus has that characteristic. This is a form of the fallacy of affirming the consequent. For example, some have mistakenly reasoned from the premise that a fetus is human (after all, it is a human fetus rather than, say, a canine fetus), to the conclusion that it is a human. Adding an equivocation of “being,” we get the fallacious argument that since a fetus is something both living and human, it is a human being. Nonetheless, it does seem clear that a fetus has very few of the above family of characteristics, whereas a newborn baby exhibits a much larger proportion of them—and a two-year old has even more. Note that one traditional anti-abortion argument has centered on pointing out the many ways in which a fetus resembles a baby. They emphasize its development (“It already has ten fingers . . .”) without mentioning its dissimilarities to adults (it still has gills and a tail). They also try to evoke the sort of sympathy on our part that we only feel toward other persons (“Never to laugh . . . or feel the sunshine?”). This all seems to be a relevant way to argue, since its purpose is to persuade us that a fetus satisfies so many of the important features on the list that it ought to be treated as a person. Also note that a fetus near the time of birth satisfies many more of these factors than a fetus in the early months of development. This could provide reason for making distinctions among the different stages of pregnancy, as the U.S. Supreme Court has done.8 Historically, the time at which a person has been said to come into existence has varied widely. Muslims date personhood from fourteen days after conception. Some medievals followed Aristotle in placing ensoulment at

forty days after conception for a male fetus and eighty days for a female fetus.9 In European common law since the seventeenth century, abortion was considered the killing of a person only after quickening, the time when a pregnant woman first feels the fetus move on its own. Nor is this variety of opinions surprising. Biologically, a human being develops gradually. We shouldn’t expect there to be any specific time or sharp dividing point when a person appears on the scene. For these reasons I believe our concept of a person is not sharp or decisive enough to bear the weight of a solution to the abortion controversy. To use it to solve that problem is to clarify obscurum per obscurius. II

Next let us consider what follows if a fetus is a person after all. Judith Jarvis Thomson’s landmark article, “A Defense of Abortion,”10 correctly points out that some additional argumentation is needed at this point in the conservative argument to bridge the gap between the premise that the fetus in an innocent person and the conclusion that killing it is always wrong. To arrive at this conclusion, we would need the additional premise that killing an innocent person is always wrong. But killing an innocent person is sometimes permissible, most notably in self-defense. Some examples may help draw out our intuitions or ordinary judgments about self-defense. Suppose a mad scientist, for instance, hypnotized innocent people to jump under the bushes and attack innocent passers-by with knives. If you are so attacked, we agree you have a right to kill the attacker in selfdefense, if killing him is the only way to protect your life or to save yourself from serious injury. It does not seem to matter here that the attacker is not malicious but himself an innocent pawn, for your killing of him is not done in a spirit of retribution but only in self-defense. How severe an injury may you inflict in self-defense? In part this depends upon the severity of the injury to be avoided: you may not shoot someone merely to avoid having your clothes torn. This might lead one to the mistaken conclusion that the defense may only equal the threatened injury in severity; that to avoid death you may kill, but to avoid a black eye you may only inflict a black eye or the equivalent. Rather, our laws and customs seem to say that you may create an injury somewhat, but not enormously, greater than the injury to be avoided. To fend off an attack whose outcome would be as serious as rape, a severe beating or the loss of a finger, you may shoot; to avoid having your clothes torn, you may blacken an eye. Aside from this, the injury you may inflict should only be the minimum necessary to deter or incapacitate the attacker. Even if you know he intends to kill you, you are not justified in shooting him if you could equally well save yourself by the simple expedient of running away. Self-defense is for the purpose of avoiding harms rather than equalizing harms. Some cases of pregnancy present a parallel situation. Though the fetus is itself innocent, it may pose a threat to the pregnant woman’s well-being, life prospects or health, mental or physical. If the pregnancy presents a slight threat to her interests, it seems self-defense cannot justify abortion. But if the threat is on a par with a serious beating or the loss of a finger, she may kill the fetus that poses such a threat, even if it is an innocent person. If a lesser harm to the fetus could have the same defensive effect, killing it would not be justified. It is unfortunate that the only way to free the woman from the pregnancy entails the death of the fetus (except in very late stages of pregnancy). Thus a self-defense model supports Thomson’s point that the woman has a right only to be freed from the fetus, not a right to demand its death.11 The self-defense model is most helpful when we take the pregnant woman’s point of view. In the pre-Thomson literature, abortion is often framed as a question for a third party: do you, a doctor, have a right to choose between the life of the woman and that of the fetus? Some have claimed that if you were a passer-by who witnessed a struggle between the innocent hypnotized attacker and his equally innocent victim, you would have no reason to kill either in defense of the other. They have concluded that the self-defense model implies that a woman may attempt to abort herself, but that a doctor should not assist her. I think the position of the third party is somewhat more complex. We do feel some inclination to intervene on behalf of the victim rather than the attacker, other things equal. But if both parties are innocent, other factors come into consideration. You would rush to the aid of your husband whether he was attacker or attackee. If a hypnotized famous violinist were

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attacking a skid row bum, we would try to save the individual who is of more value to society. These considerations would tend to support abortion in some cases. But suppose you are a frail senior citizen who wishes to avoid being knifed by one of these innocent hypnotics, so you have hired a body-guard to accompany you. If you are attacked, it is clear we believe that the bodyguard, acting as your agent, has a right to kill the attacker to save you from a serious beating. Your rights of self-defense are transferred to your agent. I suggest that we should similarly view the doctor as the pregnant woman’s agent in carrying out a defense she is physically incapable of accomplishing herself. Thanks to modern technology, the cases are rare in which a pregnancy poses as clear a threat to a woman’s bodily health as an attacker brandishing a switchblade. How does self-defense fare when more subtle, complex and long-range harms are involved? To consider a somewhat fanciful example, suppose you are a highly trained surgeon when you are kidnapped by the hypnotic attacker. He says he does not intend to harm you but to take you back to the mad scientist who, it turns out, plans to hypnotize you to have a permanent mental block against all your knowledge of medicine. This would automatically destroy your career which would in turn have a serious adverse impact on your family, your personal relationships and your happiness. It seems to me that if the only way you can avoid this outcome is to shoot the innocent attacker, you are justified in so doing. You are defending yourself from a drastic injury to your life prospects. I think it is no exaggeration to claim that unwanted pregnancies (most obviously among teenagers) often have such adverse life-long consequences as the surgeon’s loss of livelihood. Several parallels arise between various views on abortion and the self-defense model. Let’s suppose further that these hypnotized attackers only operate at night, so that it is well known that they can be avoided completely by the considerable inconvenience of never leaving your house after dark. One view is that since you could stay home at night, therefore if you go out and are selected by one of these hypnotized people, you have no right to defend yourself. This parallels the view that abstinence is the only acceptable way to avoid pregnancy. Others might hold that you ought to take along some defense such as Mace which will deter the hypnotized person without killing him, but that if this defense fails, you are obliged to submit to the resulting injury, no matter how severe it is. This parallels the view that contraception is all right but abortion is always wrong, even in cases of contraceptive failure. A third view is that you may kill the hypnotized person only if he will actually kill you, but not if he will only injure you. This is like the position that abortion is permissible only if it is required to save a woman’s life. Finally we have the view that it is all right to kill the attacker, even if only to avoid a very slight inconvenience to yourself and even if you knowingly walked down the very street where all these incidents have been taking place without taking along any Mace or protective escort. If we assume that a fetus is a person, this is the analogue of the view that abortion is always justifiable, “on demand.” The self-defense model allows us to see an important difference that exists between abortion and infanticide, even if a fetus is a person from conception. Many have argued that the only way to justify abortion without justifying infanticide would be to find some characteristic of personhood that is acquired at birth. Michael Tooley, for one, claims infanticide is justifiable because the really significant characteristics of a person are acquired some time after birth. But all such approaches look to characteristics of the developing human and ignore the relation between the fetus and the woman. What if, after birth, the presence of an infant or the need to support it posed a grave threat to the woman’s sanity or life prospects? She could escape this threat by the simple expedient of running away. So a solution that does not entail the death of the infant is available. Before birth, such solutions are not available because of the biological dependence of the fetus on the woman. Birth is the crucial point not because of any characteristics the fetus gains, but because after birth the woman can defend herself by a means less drastic than killing the infant. Hence self-defense can be used to justify abortion without necessarily thereby justifying infanticide. III

On the other hand, supposing a fetus is not after all a person, would abortion always be morally permissible? Some opponents of abortion seem worried that if a fetus is not a full-fledged person, then we are justified in

treating it in any way at all. However, this does not follow. Non-persons do get some consideration in our moral code, though of course they do not have the same rights as persons have (and in general they do not have moral responsibilities), and though their interests may be overridden by the interests of persons. Still, we cannot just treat them in any way at all. Treatment of animals is a case in point. It is wrong to torture dogs for fun or to kill wild birds for no reason at all. It is wrong Period, even though dogs and birds do not have the same rights persons do. However, few people think it is wrong to use dogs as experimental animals, causing them considerable suffering in some cases, provided that the resulting research will probably bring discoveries of great benefit to people. And most of us think it all right to kill birds for food or to protect our crops. People’s rights are different from the consideration we give to animals, then, for it is wrong to experiment on people, even if others might later benefit a great deal as a result of their suffering. You might volunteer to be a subject, but this would be supererogatory; you certainly have a right to refuse to be a medical guinea pig. But how do we decide what you may or may not do to non-persons? This is a difficult problem, one for which I believe no adequate account exists. You do not want to say, for instance, that torturing dogs is all right whenever the sum of its effects on people is good—when it doesn’t warp the sensibilities of the torturer so much that he mistreats people. If that were the case, it would be all right to torture dogs if you did it in private, or if the torturer lived on a desert island or died soon afterward, so that his actions had no effect on people. This is an inadequate account, because whatever moral consideration animals get, it has to be indefeasible, too. It will have to be a general proscription of certain actions, not merely a weighing of the impact on people on a case-by-case basis. Rather, we need to distinguish two levels on which consequences of actions can be taken into account in moral reasoning. The traditional objections to Utilitarianism focus on the fact that it operates solely on the first level, taking all the consequences into account in particular cases only. Thus Utilitarianism is open to “desert island” and “lifeboat” counterexamples because these cases are rigged to make the consequences of actions severely limited. Rawls’s theory could be described as a teleological sort of theory, but with teleology operating on a higher level.12 In choosing the principles to regulate society from the original position, his hypothetical choosers make their decision on the basis of the total consequences of various systems. Furthermore, they are constrained to choose a general set of rules which people can readily learn and apply. An ethical theory must operate by generating a set of sympathies and attitudes toward others which reinforces the functioning of that set of moral principles. Our prohibition against killing people operates by means of certain moral sentiments including sympathy, compassion and guilt. But if these attitudes are to form a coherent set, they carry us further: we tend to perform supererogatory actions, and we tend to feel similar compassion toward person-like non-persons. It is crucial that psychological facts play a role here. Our psychological constitution makes it the case that for our ethical theory to work, it must prohibit certain treatment of non-persons which are significantly personlike. If our moral rules allowed people to treat person-like non-persons in ways we do not want people to be treated, this would undermine the system of sympathies and attitudes that makes the ethical system work. For this reason, we would choose in the original position to make mistreatment of some sorts of animals wrong in general (not just wrong in the cases with public impact), even though animals are not themselves parties in the original position. Thus it makes sense that it is those animals whose appearance and behavior are most like those of people that get the most consideration in our moral scheme. It is because of “coherence of attitudes,” I think, that the similarity of a fetus to a baby is very significant. A fetus one week before birth is so much like a newborn baby in our psychological space that we cannot allow any cavalier treatment of the former while expecting full sympathy and nutritive support for the latter. Thus, I think that anti-abortion forces are indeed giving their strongest arguments when they point to the similarities between a fetus and a baby, and when they try to evoke our emotional attachment to and sympathy for the fetus. An early horror story from New York about nurses who were expected to alternate between caring for six-week premature infants and disposing of viable 24-week aborted fetuses is just that—a horror story. These beings are so much alike that no one can be asked to draw a distinction and treat them so very differently.

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Remember, however, that in the early weeks after conception a fetus is very much unlike a person. It is hard to develop these feelings for a set of genes which doesn’t yet have a head, hands, beating heart, response to touch or the ability to move by itself. Thus it seems to me that the alleged “slippery slope” between conception and birth is not so very slippery. In the early stages of pregnancy, abortion can hardly be compared to murder for psychological reasons, but in the latest stages it is psychologically akin to murder. Another source of similarity is the bodily continuity between fetus and adult. Bodies play a surprisingly central role in our attitudes toward persons. One has only to think of the philosophical literature on how far physical identity suffices for personal identity or Wittgenstein’s remark that the best picture of the human soul is the human body. Even after death when all agree the body is no longer a person, we still observe elaborate customs of respect for the human body; like people who torture dogs, necrophilics are not to be trusted with people.13 So it is appropriate that we show respect to a fetus as the body continuous with the body of a person. This is a degree of resemblance to persons that animals cannot rival. Michael Tooley also utilizes a parallel with animals. He claims that it is always permissible to drown newborn kittens and draws conclusions about infanticide.14 But it is only permissible to drown kittens when their survival would cause some hardship. Perhaps it would be a burden to feed and house six more cats or to find other homes for them. The alternative of letting them starve produces even more suffering than the drowning. Since the kittens get their rights secondhand, so to speak, via the need for coherence in our attitudes, their interests are often overridden by the interests of full-fledged persons. But if their survival would be no inconvenience to people at all, then it is wrong to drown them, contra Tooley. Tooley’s conclusions about abortion are wrong for the same reason. Even if a fetus is not a person, abortion is not always permissible, because of the resemblance of a fetus to a person. I agree with Thomson that it would be wrong for a woman who is seven months pregnant to have an abortion just to avoid having to postpone a trip to Europe. In the early months of pregnancy when the fetus hardly resembles a baby at all, then, abortion is permissible whenever it is in the interests of the pregnant woman or her family. The reasons would only need to outweigh the pain and inconvenience of the abortion itself. In the middle months, when the fetus comes to resemble a person, abortion would be justifiable only when the continuation of the pregnancy or the birth of the child would cause harm—physical, psychological, economic or social—to the woman. In the last months of pregnancy, even on our current assumption that a fetus is not a person, abortion seems to be wrong except to save a woman from significant injury or death. The Supreme Court has recognized similar gradations in the alleged slippery slope stretching between conception and birth. To this point, the present paper has been a discussion of the moral status of abortion only, not its legal status. In view of the great physical, financial and sometimes psychological costs of abortion, perhaps the legal arrangement most compatible with the proposed moral solution would be the absence of restrictions, that is, so-called abortion “on demand.” So I conclude, first, that application of our concept of a person will not suffice to settle the abortion issue. After all, the biological development of a human being is gradual. Second, whether a fetus is a person or not, abortion is justifiable early in a pregnancy to avoid modest harms and seldom justifiable late in pregnancy except to avoid significant injury or death.

Journal/Discussion Questions ✍ In your own experience, do you think of the fetus as a person? In what sense(s)? In what ways did English’s remarks shed light on your moral feelings toward the unborn? 1. English indicates that it is not always morally wrong to kill an innocent person. What support does she give for this claim? Do you agree with her? 2. What does English mean by “coherence of attitudes”? What role does this term play in the development of her argument? 3. Under what circumstances would English hold that abortion is morally wrong? What are her reasons? Do you agree with her? Why or why not?

Notes 1. We also have paternalistic laws which keep us from harming our own bodies even when no one else is affected. Ironically, anti-abortion laws were originally designed to protect pregnant women from a dangerous but tempting procedure. 2. Mary Anne Warren, “On the Moral and Legal Status of Abortion,” Monist 5 (1973), p. 55. 3. Baruch Brody, “Fetal Humanity and the Theory of Essentialism” in Robert Baker and Frederick Elliston (eds.) Philosophy and Sex (Buffalo, NY, 1975). 4. Michael Tooley, “Abortion and Infanticide.” Philosophy and Public Affairs I (1971). 5. Paul Ramsey, “The Morality of Abortion,” in James Rachels (ed.), Moral Problems (New York, 1971). 6. John Noonan, “Abortion and the Catholic Church: A Summary History,” Natural Law Forum12 (1967), pp. 125–131. 7. Wittgenstein has argued against the possibility of so capturing the concept of a game, Philosophical Investigations (New York, 1958), §66–71. 8. Not because the fetus is partly a person and so has some of the rights of persons but rather because of the rights of person-like non-persons. This I discuss in part III. 9. Aristotle himself was concerned, however, with the different question of when the soul takes form. For historical data, see Jimmye Kimmey “How the Abortion Laws Happened,” Ms. I (April, 1973), p. 48 ff. and John Noonan, loc. cit. 10. J.J. Thomson, “A Defense of Abortion,” Philosophy and Public Affairs I (1971). 11. Ibid., p. 52. 12. John Rawls, A Theory of Justice (Cambridge, MA, 1971), §§3–4. 13. On the other hand, if they can be trusted with people, then our moral customs are mistaken. It all depends on the facts of psychology. 14. Op. cit., pp. 40, 60–61.

Patrick Lee and Robert P. George

“The Wrong of Abortion” About the Authors: Patrick Lee is the John N. and Jamie D. McAleer Professor of Bioethics and the director of the Institute of Bioethics at Franciscan University of Steubenville. His books include Abortion and Unborn Human Life (2nd ed., 2010). Robert P. George is the McCormick Professor of Jurisprudence at Princeton University and served as a member of President Bush’s President’s Council on Bioethics. About the Article: In this article, Lee and George present a sustained argument for the wrongness of abortion, addressing some of the major defenses of abortion that have been advanced in the philosophical literature. As You Read This, Consider the Following Questions: 1. Lee and George discuss arguments that distinguish between persons and human beings. Such arguments, they claim, rest on a false premise. What is the premise? Do you think that it is false? Discuss. 2. Explain the objection that Lee and George make to Thomson’s comparison of the right to life with the right to vote. 3. The authors distinguish between two kinds of potentiality. How does that distinction figure in their argument against abortion? 4. In their discussion of abortion as non-intentional killing, the authors present a critique of the violinist example developed by J. J. Thomson and discussed in the selection from Jane English. What is their criticism of that argument? 5. What relevance does the physical continuity of children to their parents have in regard to our understanding of abortion? Robert P. George and Patrick Lee, “The Wrong of Abortion” from Andrew I. Cohen and Christopher Wellman, eds., Contemporary Debates in Applied Ethics (New York: Blackwell Publishers, 2005).

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M

uch of the public debate about abortion concerns the question whether deliberate feticide ought to be unlawful, at least in most circumstances. We will lay that question aside here in order to focus first on the question: is the choice to have, to perform, or to help procure an abortion morally wrong? We shall argue that the choice of abortion is objectively immoral. By “objectively” we indicate that we are discussing the choice itself, not the (subjective) guilt or innocence of someone who carries out the choice: someone may act from an erroneous conscience, and if he is not at fault for his error, then he remains subjectively innocent, even if his choice is objectively wrongful. The first important question to consider is: what is killed in an abortion? It is obvious that some living entity is killed in an abortion. And no one doubts that the moral status of the entity killed is a central (though not the only) question in the abortion debate. We shall approach the issue step by step, first setting forth some (though not all) of the evidence that demonstrates that what is killed in abortion—a human embryo—is indeed a human being, then examining the ethical significance of that point.

Human Embryos and Fetuses are Complete (though Immature) Human Beings

It will be useful to begin by considering some of the facts of sexual reproduction. The standard embryology texts indicate that in the case of ordinary sexual reproduction the life of an individual human being begins with complete fertilization, which yields a genetically and functionally distinct organism, possessing the resources and active disposition for internally directed development toward human maturity.1 In normal conception, a sex cell of the father, a sperm, unites with a sex cell of the mother, an ovum. Within the chromosomes of these sex cells are the DNA molecules which constitute the information that guides the development of the new individual brought into being when the sperm and ovum fuse. When fertilization occurs, the 23 chromosomes of the sperm unite with the 23 chromosomes of the ovum. At the end of this process there is produced an entirely new and distinct organism, originally a single cell. This organism, the human embryo, begins to grow by the normal process of cell division—it divides into 2 cells, then 4, 8, 16, and so on (the divisions are not simultaneous, so there is a 3-cell stage, and so on). This embryo gradually develops all of the organs and organ systems necessary for the full functioning of a mature human being. His or her development (sex is determined from the beginning) is very rapid in the first few weeks. For example, as early as eight or ten weeks of gestation, the fetus has a fully formed, beating heart, a complete brain (although not all of its synaptic connections are complete—nor will they be until sometime after the child is born), a recognizably human form, and the fetus feels pain, cries, and even sucks his or her thumb. There are three important points we wish to make about this human embryo. First, it is from the start distinct from any cell of the mother or of the father. This is clear because it is growing in its own distinct direction. Its growth is internally directed to its own survival and maturation. Second, the embryo is human: it has the genetic makeup characteristic of human beings. Third, and most importantly, the embryo is a complete or whole organism, though immature. The human embryo, from conception onward, is fully programmed actively to develop himself or herself to the mature stage of a human being, and, unless prevented by disease or violence, will actually do so, despite possibly significant variation in environment (in the mother’s womb). None of the changes that occur to the embryo after fertilization, for as long as he or she survives, generates a new direction of growth. Rather, all of the changes (for example, those involving nutrition and environment) either facilitate or retard the internally directed growth of this persisting individual. Sometimes it is objected that if we say human embryos are human beings, on the grounds that they have the potential to become mature humans, the same will have to be said of sperm and ova. This objection is untenable. The human embryo is radically unlike the sperm and ova, the sex cells. The sex cells are manifestly not whole or complete organisms. They are not only genetically but also functionally identifiable as parts of the male or female potential parents. They clearly are destined either to combine with an ovum or sperm or die. Even when they succeed in causing fertilization, they do not survive; rather, their genetic material enters into the composition of a distinct, new organism. Nor are human embryos comparable to somatic cells (such as skin cells or muscle cells), though some have tried to argue that they are. Like sex cells, a somatic cell is functionally only a part of a larger organism. The human embryo, by contrast, possesses from the beginning the internal resources and active disposition to

develop himself or herself to full maturity; all he or she needs is a suitable environment and nutrition. The direction of his or her growth is not extrinsically determined, but the embryo is internally directing his or her growth toward full maturity. So, a human embryo (or fetus) is not something distinct from a human being; he or she is not an individual of any non-human or intermediate species. Rather, an embryo (and fetus) is a human being at a certain (early) stage of development—the embryonic (or fetal) stage. In abortion, what is killed is a human being, a whole living member of the species homo sapiens, the same kind of entity as you or I, only at an earlier stage of development. No-Person Arguments: The Dualist Version

Defenders of abortion may adopt different strategies to respond to these points. Most will grant that human embryos or fetuses are human beings. However, they then distinguish “human being” from “person” and claim that embryonic human beings are not (yet) persons. They hold that while it is wrong to kill persons, it is not always wrong to kill human beings who are not persons. Sometimes it is argued that human beings in the embryonic stage are not persons because embryonic human beings do not exercise higher mental capacities or functions. Certain defenders of abortion (and infanticide) have argued that in order to be a person, an entity must be self-aware (Singer, 1993; Tooley, 1983; Warren, 1984). They then claim that, because human embryos and fetuses (and infants) have not yet developed self-awareness, they are not persons. These defenders of abortion raise the question: Where does one draw the line between those who are subjects of rights and those that are not? A long tradition says that the line should be drawn at persons. But what is a person, if not an entity that has self-awareness, rationality, etc.? This argument is based on a false premise. It implicitly identifies the human person with a consciousness which inhabits (or is somehow associated with) and uses a body; the truth, however, is that we human persons are particular kinds of physical organisms. The argument here under review grants that the human organism comes to be at conception, but claims nevertheless that you or I, the human person, comes to be only much later, say, when self-awareness develops. But if this human organism came to be at one time, but I came to be at a later time, it follows that I am one thing and this human organism with which I am associated is another thing. But this is false. We are not consciousnesses that possess or inhabit bodies. Rather, we are living bodily entities. We can see this by examining the kinds of action that we perform. If a living thing performs bodily actions, then it is a physical organism. Now, those who wish to deny that we are physical organisms think of themselves, what each of them refers to as “I,” as the subject of self-conscious acts of conceptual thought and willing (what many philosophers, ourselves included, would say are non-physical acts). But one can show that this “I” is identical to the subject of physical, bodily actions, and so is a living, bodily being (an organism). Sensation is a bodily action. The act of seeing, for example, is an act that an animal performs with his eye- balls and his optic nerve, just as the act of walking is an act that he performs with his legs. But it is clear in the case of human individuals that it must be the same entity, the same single subject of actions, that performs the act of sensing and that performs the act of understanding. When I know, for example, that “That is a tree,” it is by my understanding, or a self-conscious intellectual act, that I apprehend what is meant by “tree,” apprehending what it is (at least in a general way). But the subject of that proposition, what I refer to by the word “That,” is apprehended by sensation or perception. Clearly, it must be the same thing—the same I—which apprehends the predicate and the subject of a unitary judgment. So, it is the same substantial entity, the same agent, which understands and which senses or perceives. And so what all agree is referred to by the word “I” (namely, the subject of conscious, intellectual acts) is identical with the physical organism which is the subject of bodily actions such as sensing or perceiving. Hence the entity that I am, and the entity that you are – what you and I refer to by the personal pronouns “you” and “I”—is in each case a human, physical organism (but also with nonphysical capacities). Therefore, since you and I are essentially physical organisms, we came to be when these physical organisms came to be. But, as shown above, the human organism comes to be at conception.2 Thus you and I came to be at conception; we once were embryos, then fetuses, then infants, just as we were once toddlers, pre-adolescent children, adolescents, and young adults.

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So, how should we use the word “person”? Are human embryos persons or not? People may stipulate different meanings for the word “person,” but we think it is clear that what we normally mean by the word “person” is that substantial entity that is referred to by personal pronouns—”I,” “you,” “she,” etc. It follows, we submit, that a person is a distinct subject with the natural capacity to reason and make free choices. That subject, in the case of human beings, is identical with the human organism, and therefore that subject comes to be when the human organism comes to be, even though it will take him or her months and even years to actualize the natural capacities to reason and make free choices, natural capacities which are already present (albeit in radical, i.e. root, form) from the beginning. So it makes no sense to say that the human organism came to be at one point but the person—you or I—came to be at some later point, To have destroyed the human organism that you are or I am even at an early stage of our lives would have been to have killed you or me. No-Person Arguments: The Evaluative Version

Let us now consider a different argument by which some defenders of abortion seek to deny that human beings in the embryonic and fetal stages are “persons” and, as such, ought not to be killed. Unlike the argument criticized in the previous section, this argument grants that the being who is you or I came to be at conception, but contends that you and I became valuable and bearers of rights only much later, when, for example, we developed the proximate, or immediately exercisable, capacity for self-consciousness. Inasmuch as those who advance this argument concede that you and I once were human embryos, they do not identify the self or the person with a nonphysical phenomenon, such as consciousness. They claim, however, that being a person is an accidental attribute. It is an accidental attribute in the way that someone’s being a musician or basketball player is an accidental attribute. Just as you come to be at one time, but become a musician or basketball player only much later, so, they say, you and I came to be when the physical organisms we are came to be, but we became persons (beings with a certain type of special value and bearers of basic rights) only at some time later (Dworkin, 1993; Thomson, 1995). Those defenders of abortion whose view we discussed in the previous section disagree with the pro-life position on an ontological issue, that is, on what kind of entity the human embryo or fetus is. Those who advance the argument now under review, by contrast, disagree with the pro-life position on an evaluative question. Judith Thomson argued for this position by comparing the right to life with the right to vote: “If children are allowed to develop normally they will have a right to vote; that does not show that they now have a right to vote” (1995). According to this position, it is true that we once were embryos and fetuses, but in the embryonic and fetal stages of our lives we were not yet valuable in the special way that would qualify us as having a right to life. We acquired that special kind of value and the right to life that comes with it at some point after we came into existence. We can begin to see the error in this view by considering Thomson’s comparison of the right to life with the right to vote. Thomson fails to advert to the fact that some rights vary with respect to place, circumstances, maturity, ability, and other factors, while other rights do not. We recognize that one’s right to life does not vary with place, as does one’s right to vote. One may have the right to vote in Switzerland, but not in Mexico. Moreover, some rights and entitlements accrue to individuals only at certain times, or in certain places or situations, and others do not. But to have the right to life is to have moral status at all; to have the right to life, in other words, is to be the sort of entity that can have rights or entitlements to begin with. And so it is to be expected that this right would differ in some fundamental ways from other rights, such as a right to vote. In particular, it is reasonable to suppose (and we give reasons for this in the next few paragraphs) that having moral status at all, as opposed to having a right to perform a specific action in a specific situation, follows from an entity’s being the type of thing (or substantial entity) it is. And so, just as one’s right to life does not come and go with one’s location or situation, so it does not accrue to someone in virtue of an acquired (i.e., accidental) property, capacity, skill, or disposition. Rather, this right belongs to a human being at all times that he or she exists, not just during certain stages of his or her existence, or in certain circumstances, or in virtue of additional, accidental attributes. Our position is that we human beings have the special kind of value that makes us subjects of rights in virtue of what we are, not in virtue of some attribute that we acquire some time after we have come to be. Obviously,

defenders of abortion cannot maintain that the accidental attribute required to have the special kind of value we ascribe to “persons” (additional to being a human individual) is an actual behavior. They of course do not wish to exclude from personhood people who are asleep or in reversible comas. So, the additional attribute will have to be a capacity or potentiality of some sort.3 Thus, they will have to concede that sleeping or reversibly comatose human beings will be persons because they have the potentiality or capacity for higher mental functions. But human embryos and fetuses also possess, albeit in radical form, a capacity or potentiality for such mental functions; human beings possess this radical capacity in virtue of the kind of entity they are, and possess it by coming into being as that kind of entity (viz., a being with a rational nature). Human embryos and fetuses cannot of course immediately exercise these capacities. Still, they are related to these capacities differently from, say, how a canine or feline embryo is. They are the kind of being—a natural kind, members of a biological species—which, if not prevented by extrinsic causes, in due course develops by active self-development to the point at which capacities initially possessed in root form become immediately exercisable. (Of course, the capacities in question become immediately exercisable only some months or years after the child’s birth.) Each human being comes into existence possessing the internal resources and active disposition to develop the immediately exercisable capacity for higher mental functions. Only the adverse effects on them of other causes will prevent this development. So, we must distinguish two sorts of capacity or potentiality for higher mental functions that a substantial entity might possess: first, an immediately (or nearly immediately) exercisable capacity to engage in higher mental functions; second, a basic, natural capacity to develop oneself to the point where one does perform such actions. But on what basis can one require the first sort of potentiality—as do proponents of the position under review in this section—which is an accidental attribute, and not just the second? There are three decisive reasons against supposing that the first sort of potentiality is required to qualify an entity as a bearer of the right to life. First, the developing human being does not reach a level of maturity at which he or she performs a type of mental act that other animals do not perform—even animals such as dogs and cats—until at least several months after birth. A six-week old baby lacks the immediately (or nearly immediately) exercisable capacity to perform characteristically human mental functions. So, if full moral respect were due only to those who possess a nearly immediately exercisable capacity for characteristically human mental functions, it would follow that six-week old infants do not deserve full moral respect. If abortion were morally acceptable on the grounds that the human embryo or fetus lacks such a capacity for characteristically human mental functions, then one would be logically committed to the view that, subject to parental approval, human infants could be disposed of as well. Second, the difference between these two types of capacity is merely a difference between stages along a continuum. The proximate or nearly immediately exercisable capacity for mental functions is only the development of an underlying potentiality that the human being possesses simply by virtue of the kind of entity it is. The capacities for reasoning, deliberating, and making choices are gradually developed, or brought towards maturation, through gestation, childhood, adolescence, and so on. But the difference between a being that deserves full moral respect and a being that does not (and can therefore legitimately be disposed of as a means of benefiting others) cannot consist only in the fact that, while both have some feature, one has more of it than the other. A mere quantitative difference (having more or less of the same feature, such as the development of a basic natural capacity) cannot by itself be a justificatory basis for treating different entities in radically different ways. Between the ovum and the approaching thousands of sperm, on the one hand, and the embryonic human being, on the other hand, there is a clear difference in kind. But between the embryonic human being and that same human being at any later stage of its maturation, there is only a difference in degree. Note that there is a fundamental difference (as we showed above) between the gametes (the sperm and the ovum), on the one hand, and the human embryo and fetus, on the other. When a human being comes to be, a substantial entity that is identical with the entity that will later reason, make free choices, and so on, begins to exist. So, those who propose an accidental characteristic as qualifying an entity as a bearer of the right to life (or as a “person” or being with “moral worth”) are ignoring a radical difference among groups of beings, and instead fastening onto a mere quantitative difference as the basis for treating different groups in radically different ways. In other words, there are beings a, b, c, d, e, etc. And between a’s and b’s on the one hand and c’s, d’s and e’s on the other hand, there is a fundamental difference, a difference in kind not just in degree. But proponents of the position

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that being a person is an accidental characteristic ignore that difference and pick out a mere difference in degree between, say, d’s and e’s, and make that the basis for radically different types of treatment. That violates the most basic canons of justice. Third, being a whole human being (whether immature or not) is an either/or matter—a thing either is or is not a whole human being. But the acquired qualities that could be proposed as criteria for personhood come in varying and continuous degrees: there is an infinite number of degrees of the development of the basic natural capacities for self-consciousness, intelligence, or rationality. So, if human beings were worthy of full moral respect (as subjects of rights) only because of such qualities, and not in virtue of the kind of being they are, then, since such qualities come in varying degrees, no account could be given of why basic rights are not possessed by human beings in varying degrees. The proposition that all human beings are created equal would be relegated to the status of a superstition. For example, if developed self-consciousness bestowed rights, then, since some people are more self-conscious than others (that is, have developed that capacity to a greater extent than others), some people would be greater in dignity than others, and the rights of the superiors would trump those of the inferiors where the interests of the superiors could be advanced at the cost of the inferiors. This conclusion would follow no matter which of the acquired qualities generally proposed as qualifying some human beings (or human beings at some stages) for full respect were selected. Clearly, developed self-consciousness, or desires, or so on, are arbitrarily selected degrees of development of capacities that all human beings possess in (at least) radical form from the coming into existence of the human being until his or her death. So, it cannot be the case that some human beings and not others possess the special kind of value that qualifies an entity as having a basic right to life, by virtue of a certain degree of development. Rather, human beings possess that kind of value, and therefore that right, in virtue of what (i.e., the kind of being) they are; and all human beings – not just some, and certainly not just those who have advanced sufficiently along the developmental path as to be able immediately (or almost immediately) to exercise their capacities for characteristically human mental functions—possess that kind of value and that right.4 Since human beings are valuable in the way that qualifies them as having a right to life in virtue of what they are, it follows that they have that right, whatever it entails, from the point at which they come into being—and that point (as shown in our first section) is at conception. In sum, human beings are valuable (as subjects of rights) in virtue of what they are. But what they are are human physical organisms. Human physical organisms come to be at conception. Therefore, what is intrinsically valuable (as a subject of rights) comes to be at conception. The Argument that Abortion is Justified as Non-intentional Killing

Some “pro-choice” philosophers have attempted to justify abortion by denying that all abortions are intentional killing. They have granted (at least for the sake of argument) that an unborn human being has a right to life but have then argued that this right does not entail that the child in utero is morally entitled to the use of the mother’s body for life support. In effect, their argument is that, at least in many cases, abortion is not a case of intentionally killing the child, but a choice not to provide the child with assistance, that is, a choice to expel (or “evict”) the child from the womb, despite the likelihood or certainty that expulsion (or “eviction”) will result in his or her death (Little, 1999; McDonagh, 1996; Thomson, 1971). Various analogies have been proposed by people making this argument. The mother’s gestating a child has been compared to allowing someone the use of one’s kidneys or even to donating an organ. We are not required (morally or as a matter of law) to allow someone to use our kidneys, or to donate organs to others, even when they would die without this assistance (and we could survive in good health despite rendering it). Analogously, the argument continues, a woman is not morally required to allow the fetus the use of her body. We shall call this “the bodily rights argument.” It may be objected that a woman has a special responsibility to the child she is carrying, whereas in the cases of withholding assistance to which abortion is compared there is no such special responsibility. Proponents of the bodily rights argument have replied, however, that the mother has not voluntarily assumed responsibility for the child, or a personal relationship with the child, and we have strong responsibilities to others only if we have

voluntarily assumed such responsibilities (Thomson, 1971) or have consented to a personal relationship which generates such responsibilities (Little, 1999). True, the mother may have voluntarily performed an act which she knew may result in a child’s conception, but that is distinct from consenting to gestate the child if a child is conceived. And so (according to this position) it is not until the woman consents to pregnancy, or perhaps not until the parents’ consent to care for the child by taking the baby home from the hospital or birthing center, that the full duties of parenthood accrue to the mother (and perhaps the father). In reply to this argument we wish to make several points. We grant that in some few cases abortion is not intentional killing, but a choice to expel the child, the child’s death being an unintended, albeit foreseen and (rightly or wrongly) accepted, side effect. However, these constitute a small minority of abortions. In the vast majority of cases, the death of the child in utero is precisely the object of the abortion. In most cases the end sought is to avoid being a parent; but abortion brings that about only by bringing it about that the child dies. Indeed, the attempted abortion would be considered by the woman requesting it and the abortionist performing it to have been unsuccessful if the child survives. In most cases abortion is intentional killing. Thus, even if the bodily rights argument succeeded, it would justify only a small percent-age of abortions. Still, in some few cases abortion is chosen as a means precisely toward ending the condition of pregnancy, and the woman requesting the termination of her pregnancy would not object if somehow the child survived. A pregnant woman may have less or more serious reasons for seeking the termination of this condition, but if that is her objective, then the child’s death resulting from his or her expulsion will be a side effect, rather than the means chosen. For example, an actress may wish not to be pregnant because the pregnancy will change her figure during a time in which she is filming scenes in which having a slender appearance is important; or a woman may dread the discomforts, pains, and difficulties involved in pregnancy. (Of course, in many abortions there may be mixed motives: the parties making the choice may intend both ending the condition of pregnancy and the death of the child.) Nevertheless, while it is true that in some cases abortion is not intentional killing, it remains misleading to describe it simply as choosing not to provide bodily life support. Rather, it is actively expelling the human embryo or fetus from the womb. There is a significant moral difference between not doing something that would assist someone, and doing something that causes someone harm, even if that harm is an unintended (but foreseen) side effect. It is more difficult morally to justify the latter than it is the former. Abortion is the act of extracting the unborn human being from the womb—an extraction that usually rips him or her to pieces or does him or her violence in some other way. It is true that in some cases causing death as a side effect is morally permissible. For example, in some cases it is morally right to use force to stop a potentially lethal attack on one’s family or country, even if one foresees that the force used will also result in the assailant’s death. Similarly, there are instances in which it is permissible to perform an act that one knows or believes will, as a side effect, cause the death of a child in utero. For example, if a pregnant woman is discovered to have a cancerous uterus, and this is a proximate danger to the mother’s life, it can be morally right to remove the cancerous uterus with the baby in it, even if the child will die as a result. A similar situation can occur in ectopic pregnancies. But in such cases, not only is the child’s death a side effect, but the mother’s life is in proximate danger. It is worth noting also that in these cases what is done (the means) is the correction of a pathology (such as a cancerous uterus, or a ruptured uterine tube). Thus, in such cases, not only the child’s death, but also the ending of the pregnancy, are side effects. So, such acts are what traditional casuistry referred to as indirect or non-intentional, abortions. But it is also clear that not every case of causing death as a side effect is morally right. For example, if a man’s daughter has a serious respiratory disease and the father is told that his continued smoking in her presence will cause her death, it would obviously be immoral for him to continue the smoking. Similarly, if a man works for a steel company in a city with significant levels of air pollution, and his child has a serious respiratory problem making the air pollution a danger to her life, certainly he should move to another city. He should move, we would say, even if that meant he had to resign a prestigious position or make a significant career change. In both examples, (a) the parent has a special responsibility to his child, but (b) the act that would cause the child’s death would avoid a harm to the parent but cause a significantly worse harm to his child. And so, although

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the harm done would be a side effect, in both cases the act that caused the death would be an unjust act, and morally wrongful as such. The special responsibility of parents to their children requires that they at least refrain from performing acts that cause terrible harms to their children in order to avoid significantly lesser harms to themselves. But (a) and (b) also obtain in intentional abortions (that is, those in which the removal of the child is directly sought, rather than the correction of a life-threatening pathology) even though they are not, strictly speaking, intentional killing. First, the mother has a special responsibility to her child, in virtue of being her biological mother (as does the father in virtue of his paternal relationship). The parental relationship itself—not just the voluntary acceptance of that relationship—gives rise to a special responsibility to a child. Proponents of the bodily rights argument deny this point. Many claim that one has full parental responsibilities only if one has voluntarily assumed them. And so the child, on this view, has a right to care from his or her mother (including gestation) only if the mother has accepted her pregnancy, or perhaps only if the mother (and/or the father?) has in some way voluntarily begun a deep personal relationship with the child (Little, 1999). But suppose a mother takes her baby home after giving birth, but the only reason she did not get an abortion was that she could not afford one. Or suppose she lives in a society where abortion is not available (perhaps very few physicians are willing to do the grisly deed). She and her husband take the child home only because they had no alternative. Moreover, suppose that in their society people are not waiting in line to adopt a newborn baby. And so the baby is several days old before anything can be done. If they abandon the baby and the baby is found, she will simply be returned to them. In such a case the parents have not voluntarily assumed responsibility; nor have they consented to a personal relationship with the child. But it would surely be wrong for these parents to abandon their baby in the woods (perhaps the only feasible way of ensuring she is not returned), even though the baby’s death would be only a side effect. Clearly, we recognize that parents do have a responsibility to make sacrifices for their children, even if they have not voluntary assumed such responsibilities, or given their consent to the personal relationship with the child. The bodily rights argument implicitly supposes that we have a primordial right to construct a life simply as we please, and that others have claims on us only very minimally or through our (at least tacit) consent to a certain sort of relationship with them. On the contrary, we are by nature members of communities. Our moral good- ness or character consists to a large extent (though not solely) in contributing to the communities of which we are members. We ought to act for our genuine good or flourishing (we take that as a basic ethical principle), but our flourishing involves being in communion with others. And communion with others of itself—even if we find ourselves united with others because of a physical or social relationship which precedes our consent—entails duties or responsibilities. Moreover, the contribution we are morally required to make to others will likely bring each of us some discomfort and pain. This is not to say that we should simply ignore our own good, for the sake of others. Rather, since what (and who) I am is in part constituted by various relationships with others, not all of which are initiated by my will, my genuine good includes the contributions I make to the relationships in which I participate. Thus, the life we constitute by our free choices should be in large part a life of mutual reciprocity with others. For example, I may wish to cultivate my talent to write and so I may want to spend hours each day reading and writing. Or I may wish to develop my athletic abilities and so I may want to spend hours every day on the baseball field. But if I am a father of minor children, and have an adequate paying job working (say) in a coal mine, then my clear duty is to keep that job. Similarly, if one’s girlfriend finds she is pregnant and one is the father, then one might also be morally required to continue one’s work in the mine (or mill, factory, warehouse, etc.). In other words, I have a duty to do something with my life that contributes to the good of the human community, but that general duty becomes specified by my particular situation. It becomes specified by the connection or closeness to me of those who are in need. We acquire special responsibilities toward people, not only by consenting to contracts or relationships with them, but also by having various types of

union with them. So, we have special responsibilities to those people with whom we are closely united. For example, we have special responsibilities to our parents, and brothers and sisters, even though we did not choose them. The physical unity or continuity of children to their parents is unique. The child is brought into being out of the bodily unity and bodies of the mother and the father. The mother and the father are in a certain sense prolonged or continued in their off- spring. So, there is a natural unity of the mother with her child, and a natural unity of the father with his child. Since we have special responsibilities to those with whom we are closely united, it follows that we in fact do have a special responsibility to our children anterior to our having voluntarily assumed such responsibility or consented to the relationship.5 The second point is this: in the types of case we are considering, the harm caused (death) is much worse than the harms avoided (the difficulties in pregnancy). Pregnancy can involve severe impositions, but it is not nearly as bad as death—which is total and irreversible. One needn’t make light of the burdens of pregnancy to acknowledge that the harm that is death is in a different category altogether. The burdens of pregnancy include physical difficulties and the pain of labor, and can include significant financial costs, psychological burdens, and interference with autonomy and the pursuit of other important goals (McDonagh, 1996: ch. 5). These costs are not inconsiderable. Partly for that reason, we owe our mothers gratitude for carrying and giving birth to us. However, where pregnancy does not place a woman’s life in jeopardy or threaten grave and lasting damage to her physical health, the harm done to other goods is not total. Moreover, most of the harms involved in pregnancy are not irreversible: pregnancy is a nine-month task—if the woman and man are not in a good position to raise the child, adoption is a possibility. So the difficulties of pregnancy, considered together, are in a different and lesser category than death. Death is not just worse in degree than the difficulties involved in pregnancy; it is worse in kind. It has been argued, however, that pregnancy can involve a unique type of burden. It has been argued that the intimacy involved in pregnancy is such that if the woman must remain pregnant without her consent then there is inflicted on her a unique and serious harm. Just as sex with consent can be a desired experience but sex without consent is a violation of bodily integrity, so (the argument continues) pregnancy involves such a close physical intertwinement with the fetus that not to allow abortion is analogous to rape—it involves an enforced intimacy (Boonin, 2003: 84; Little, 1999: 300–3). However, this argument is based on a false analogy. Where the pregnancy is unwanted, the baby’s “occupying” the mother’s womb may involve a harm; but the child is committing no injustice against her. The baby is not forcing himself or herself on the woman, but is simply growing and developing in a way quite natural to him or her. The baby is not performing any action that could in any way be construed as aimed at violating the mother.6 It is true that the fulfillment of the duty of a mother to her child (during gestation) is unique and in many cases does involve a great sacrifice. The argument we have presented, however, is that being a mother does generate a special responsibility, and that the sacrifice morally required of the mother is less burdensome than the harm that would be done to the child by expelling the child, causing his or her death, to escape that responsibility. Our argument equally entails responsibilities for the father of the child. His duty does not involve as direct a bodily relationship with the child as the mother’s, but it may be equally or even more burdensome. In certain circumstances, his obligation to care for the child (and the child’s mother), and especially his obligation to provide financial support, may severely limit his freedom and even require months or, indeed, years, of extremely burdensome physical labor. Historically, many men have rightly seen that their basic responsibility to their family (and country) has entailed risking, and in many cases, losing, their lives. Different people in different circumstances, with different talents, will have different responsibilities. It is no argument against any of these responsibilities to point out their distinctness. So, the burden of carrying the baby, for all its distinctness, is significantly less than the harm the baby would suffer by being killed; the mother and father have a special responsibility to the child; it follows that intentional abortion (even in the few cases where the baby’s death is an unintended but foreseen side effect) is unjust and therefore objectively immoral.

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Notes 1. See, for example: Carlson (1994: chs. 2–4); Gilbert (2003: 183–220, 363–90); Larson (2001: chs. 1–2); Moore and Persaud (2003: chs. 1–6); Muller (1997: chs. 1–2); O’Rahilly and Mueller (2000: chs. 3–4). 2. For a discussion of the issues raised by twinning and cloning, see George and Lobo (2002). 3. Some defenders of abortion have seen the damaging implications of this point for their position (Stretton, 2004), and have struggled to find a way around it. There are two leading proposals. The first is to suggest a mean between a capacity and an actual behavior, such as a disposition. But a disposition is just the development or specification of a capacity and so raises the unanswerable question of why just that much development, and not more or less, should be required. The second proposal is to assert that the historical fact of someone having exercised a capacity (say, for conceptual thought) confers on her a right to life even if she does not now have the immediately exercisable capacity. But suppose we have baby Susan who has developed a brain and gained sufficient experience to the point that just now she has the immediately exercisable capacity for conceptual thought, but she has not yet exercised it. Why should she be in a wholly different category than say, baby Mary, who is just like Susan except she did actually have a conceptual thought? Neither proposal can bear the moral weight assigned to it. Both offer criteria that are wholly arbitrary. 4. In arguing against an article by Lee, Dean Stretton claims that the basic natural capacity of rationality also comes in degrees, and that therefore the argument we are presenting against the position that moral worth is based on having some accidental characteristic would apply to our position also (Stretton, 2004). But this is to miss the important distinction between having a basic natural capacity (of which there are no degrees, since one either has it or one doesn’t), and the development of that capacity (of which there are infinite degrees). 5. David Boonin claims, in reply to this argument – in an earlier and less developed form, presented by Lee (1996: 122) – that it is not clear that it is impermissible for a woman to destroy what is a part of, or a continuation of, herself. He then says that to the extent the unborn human being is united to her in that way, “it would if anything seem that her act is easier to justify than if this claim were not true” (2003: 230). But Boonin fails to grasp the point of the argument (perhaps understandably since it was not expressed very clearly in the earlier work he is discussing). The unity of the child to the mother is the basis for this child being related to the woman in a different way from how other children are. We ought to pursue our own good and the good of others with whom we are united in various ways. If that is so, then the closer someone is united to us, the deeper and more extensive our responsibility to the person will be. 6. In some sense being bodily “occupied” when one does not wish to be is a harm; however, just as the child does not (as explained in the text), neither does the state inflict this harm on the woman, in circumstances in which the state prohibits abortion. By prohibiting abortion the state would only prevent the woman from performing an act (forcibly detaching the child from her) that would unjustly kill this developing child, who is an innocent party.

References Boonin, David (2003). A Defense of Abortion. New York: Cambridge University Press. Carlson, Bruce (1994). Human Embryology and Developmental Biology. St. Louis, MO: Mosby. Dworkin, Ronald (1993). Life’s Dominion: An Argument about Abortion, Euthanasia, and Individual Freedom. New York: Random House. Feinberg, Joel (ed.) (1984). The Problem of Abortion, 2nd edn. Belmont, CA: Wadsworth, 1984. George, Robert (2001). “We should not kill human embryos – for any reason.” In The Clash of Orthodoxies: Law, Religion, and Morality in Crisis (pp. 317–23). Wilmington, DL: ISI Books. George, Robert and Lobo, Gòmez (2002). “Personal statement.” In The President’s Council on Bioethics (2002, pp. 294–306). Gilbert, Scott (2003). Developmental Biology, 7th edn. Sunderland, MA: Sinnauer Associates. Larson, William J. (2001). Human Embryology, 3rd edn. New York: Churchill Livingstone. Lee, Patrick (1996). Abortion and Unborn Human Life. Washington, DC: Catholic University of America Press. Little, Margaret Olivia (1999). “Abortion, intimacy, and the duty to gestate.” Ethical Theory and Moral Practice, 2: 295–312.

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McDonagh, Eileen (1996). Breaking the Abortion Deadlock: From Choice to Consent. New York: Oxford University Press, 1996. Moore, Keith, and Persaud, T. V. N. (2003). The Developing Human, Clinically Oriented Embryology, 7th edn. New York: W. B. Saunders. Muller, Werner A. (1997). Developmental Biology. New York: Springer Verlag. O’Rahilly, Ronan, and Mueller, Fabiola (2000). Human Embryology and Teratology, 3rd edn. New York: John Wiley & Sons. The President’s Council on Bioethics (2002). Human Cloning and Human Dignity: the Report of the President’s Council on Bioethics. New York: Public Affairs. Singer, Peter (1993). Practical Ethics, 2nd edn. Cambridge: Cambridge University Press. Stretton, Dean (2004). “Essential properties and the right to life: a response to Lee.” Bioethics, 18/3: 264–82. Thomson, Judith Jarvis (1971). “A defense of abortion.” Philosophy and Public Affairs, 1: 47–66; reprinted, among other places, in Feinberg (1984, pp. 173–87). Thomson, Judith Jarvis (1995). “Abortion.” Boston Review. Available at .www.bostonreview.mit.edu/BR20.3/ thomson.html. Tooley, Michael (1983). Abortion and Infanticide. New York: Oxford University Press. Warren, Mary Ann (1984). “On the moral and legal status of abortion.” In Feinberg (1984, pp. 102–19).

Further Reading Bailey, Ronald (2001). “Are stem cells babies?” reason online. Available at. http://reason.com/archives/2001/07/11/ are-stem-cells-babies. Beckwith, Francis (1993). Politically Correct Death: Answering the Arguments for Abortion Rights. Grand Rapids, MI: Baker. Beckwith, Francis (2000). Abortion and the Sanctity of Human Life. Joplin, MO: College Press. Chappell, T. D. J. (1998). Understanding Human Goods: A Theory of Ethics. Edinburgh: Edinburgh University Press. Finnis, John (1999). “Abortion and health care ethics.” In Helga Kuhse and Peter Singer (eds.), Bioethics: An Anthology (pp. 13–20). London: Blackwell. Finnis, John (2001). “Abortion and cloning: some new evasions.” Available at http://lifeissues.net/writers/fin/ fin_01aborcloneevasions.html. Grisez, Germain (1990). “When do people begin?” Proceedings of the American Catholic Philosophical Quarterly, 63: 27–47. Lee, Patrick (2004). “The pro-life argument from substantial identity: a defense.” Bioethics, 18/3: 249–63. Marquis, Don (1989). “Why abortion is immoral.” Journal of Philosophy, 86: 183–202. Oderberg, David (2000) Applied Ethics: A Non-Consequentialist Approach. New York: Oxford University Press. Pavlischek, Keith (1993). “Abortion logic and paternal responsibilities: one more look at Judith Thomson’s ‘Defense of abortion’.” Public Affairs Quarterly, 7: 341–61. Schwarz, Stephen (1990). The Moral Question of Abortion. Chicago: Loyola University Press. Stone, Jim (1987). “Why potentiality matters.” Journal of Social Philosophy, 26: 815–30. Stretton, Dean (2000). “The argument from intrinsic value: a critique.” Bioethics, 14: 228–39.

Concluding Discussion Questions Where Do You Stand Now?

Instructions You have already answered the following questions in your moral problems self-quiz at the beginning of this book. Now that you have studied the material in this section, take a moment to answer the same questions again. You can either enter your answers below or complete the survey on-line at http://ethics.sandiego.edu/surveys.

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Chapter 2: Abortion The principal moral consideration about abortion is the question of whether the fetus is a person or not. The principal moral consideration about abortion is the question of the rights of the pregnant woman. The only one who should have a voice in making the decision about an abortion is the pregnant woman. Abortion should be legal but morally discouraged. Abortion protesters are justified in breaking the law to prevent abortions.

Now compare your answers to this self-quiz with the answers to the initial self-quiz. How, if at all, have your answers changed? How have the reasons for your answers changed?

Journal/Discussion Questions ✍ You have now read, thought, and discussed a number of aspects of the morality of the abortion decision. How have your views changed and developed? What idea had the greatest impact on your thinking about abortion? ✍ Imagine that a close friend at another college just called you to tell you that she was pregnant and that she didn’t know what to do. Although she is not asking you to tell her what to do, she does ask you to tell her what you believe about abortion. Write her a letter in which you tell her what your own beliefs are. Talk, among other things, about what sorts of factors should be taken into consideration. ✍ If you were going to have a baby, to what extent would you want to select its characteristics in

advance? Which characteristics, if any, would you not want to consciously select? Physical characteristics? Physical and mental capabilities? Personality traits? Sex? Sexual orientation? 1. What, in the readings in this chapter, was the most thought-provoking idea you encountered? In what ways did it prompt you to reconsider some of your previous beliefs? 2. Has your overall position on the morality of abortion changed? If so, in what way(s)? If your position has not changed, have your reasons developed in any way? If so, in what way(s)? Has your understanding changed of the reasons supporting other positions that are different from your own changed? If so, in what way(s)?

For Further Reading Web Resources For an overview of Web-based resources relating to abortion, including relevant Supreme Court decisions, see the abortion page of Ethics Updates (http:// ethics.sandiego.edu). Among the resources listed there on abortion is an excellent article in the Boston Review on abortion by Judith Jarvis Thomson and comments by Philip L. Quinn, Donald Regan, Douglas Laycock, Drucilla Cornell, Peter de Marneffe, and a rejoinder by Judith Jarvis Thomson. Steven Schwartz’s The Moral Question of Abortion is also

available online. I have also included a set of online resources on Mizuko Kuyo, the memorial rites for the spirits of departed fetuses in Japan. The CDC (www.cdc.gov) and the Gutmacher Institute (www.Gutmacher.org) websites both contain helpful empirical data on the number of induced abortions and other relevant empirical data.

Review Articles and Reports For a comprehensive bibliographical guide to abortion, see Diane E. Fitzpatrick, A History of Abortion in the

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United States: A Working Bibliography of Journal Articles (Monticello, IL: Vance Bibliographies, 1991). For excellent surveys of the philosophical issues, see Nancy (Ann) Davis, “Abortion,” Encyclopedia of Ethics, edited by Lawrence C. Becker and Charlotte B. Becker (New York: Garland, 1992), Vol. I, pp. 2–6; Mary Ann Warren, “Abortion,” Blackwell Companion to Bioethics, edited by Helga Kuhse and Peter Singer (Oxford: Blackwell, 2001), pp. 127–134; and especially John Harris and Søren Holm, “Abortion,” The Oxford Handbook of Practical Ethics, edited by Hugh LaFollette, ed. (New York: Oxford University Press, 2003), pp. 112–135.

Anthologies and Books There are a number of excellent anthologies of selections dealing solely with the issue of abortion. The Abortion Controversy—25 Years After Roe v. Wade, A Reader, 2nd ed. edited by Louis P. Pojman and Francis J. Beckwith (Belmont: Wadsworth, 1998) has a number of superb articles with a very balanced selection of viewpoints. The Problem of Abortion, 3rd ed., edited by Susan Dwyer and Joel Feinberg (Belmont, CA: Wadsworth, 1996) contains a number of important pieces covering a wide range of positions, as does The Ethics of Abortion: Pro-Life vs. Pro-Choice, rev. ed., edited by Robert M. Baird and Stuart E. Rosenbaum (Buffalo: Prometheus Books, 1993). Lewis M. Schwartz’s Arguing about Abortion (Belmont, CA: Wadsworth, 1993) not only contains a number of important essays, but also (a) provides a well-done introduction to reconstructing and evaluating argumentative discourse and (b) offers an outline and analysis of six of the essays contained in the anthology. Among the many excellent books on the morality of abortion, see David Boonin, A Defense of Abortion (Cambridge: Cambridge University Press, 1998) and Francis J. Beckwith, Defending Life: A Moral and Legal Case Against Abortion Choice (Cambridge: Cambridge University Press, 2007), which contains a critique of Boonin and others. Jeff McMahon’s The Ethics of Killing: Problems at the Margins of Life (New York: Oxford University Press, 2002, and Stephen D. Schwarz with Kiki Latimer, Understanding Abortion: From Mixed Feelings to Rational Thought (Lanham: Lexington Books, 2012), which presents an account of the ethics of killing in cases in which the metaphysical or moral status of the individual killed is uncertain or controversial; he deals with not only with embryos and fetuses, but also anencephalic infants, persons in irreversible comas, and other difficult cases at the margins of life. Laurie

Shrage’s Abortion and Social Responsibility: Depolarizing the Debate (New York: Oxford, 2003) argues for a reduction of the current six-month period of abortion on demand but only if there is a significant increase in services to ensure universal access to abortion in earlier months of pregnancy. Jeffrey Reiman’s Abortion and the Ways We Value Human Life (Lanham: Rowman and Littlefield, 1999) argues that the foundation of opposition to abortion is to be found in the way in which we value human lives “irreplaceably;” he provides an interesting critique of Don Marquis as well. Bonnie Steinbock’s Life Before Birth: The Moral and Legal Status of Embryos and Fetuses, 2nd ed. (New York: Oxford, 2011) concentrates primarily on the issue of the status of embryos and fetuses, whereas F. M. Kamm’s Creation and Abortion (New York: Oxford, 1992) develops a broader theory of creating new people responsibility and explores the issue of abortion within this context; these themes are extended in her Morality, Mortality: Rights, Duties, and Status (New York: Oxford, 2001). Rosiland Hursthouse’s Beginning Lives (Oxford: Basil Blackwell, 1987) includes a perceptive account of the issue of abortion. Christopher Tollefsen and Robert P. George, Embryo: A Defense of Human Life (New York: Doubleday, 2008) is a strong defense of the moral status of the embryo, with special emphasis on the implications of this position for human embryonic stem cell research. Tollefsen is a philosophy professor and Robert George is a professor of law at Princeton and was a member of the President’s Council on Bioethics.

Key Essays Among philosophers, there are several key essays that have set the stage for the philosophical discussion of abortion. The most reprinted essay in contemporary philosophy is probably Judith Jarvis Thomson’s “A Defense of Abortion,” which originally appeared in the inaugural issue of Philosophy and Public Affairs Vol. 1, No. 1 (Fall 1971), pp. 47–66 and is reprinted in her Rights, Restitution, & Risk: Essays in Moral Theory (Cambridge: Harvard University Press, 1986), which also contains her “Rights and Deaths,” a reply to several critics of her initial essay. Don Marquis’s “Why Abortion Is Immoral,” Journal of Philosophy, Vol. 86 (1989) is one of the most philosophically sophisticated arguments against abortion, and it too has generated a number of replies, including Walter Sinnott-Armstrong “You Can’t Lose What You Ain’t Never Had: A Reply to Marquis on Abortion,” Philosophical Studies, Vol. 96,

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No. 1, (October, 1999), pp. 59–72. Elizabeth Harman’s “Creation Ethics: The Moral Status of Early Fetuses and the Ethics of Abortion,” Philosophy and Public Affairs, Vol. 28, No. 4 (Fall, 1999), pp. 310–324, argues in favor of a very liberal theory of early abortion while addressing such issues as early miscarriages, love for early fetuses, and regret over abortions. Marquis has written a comprehensive defense of his position and addressed alternative positions in Don Marquis, “Abortion Revisited,” The Oxford Handbook of Bioethics, edited by Bonnie Steinbock (New York: Oxford, 2009), 395-414. For a discussion between Marquis and Tooley, see Philosophy TV (http://www. philostv.com/don-marquis-and-michael-tooley) John T. Noonan, Jr.’s “An Almost Absolute Value in History,” is also widely reprinted (including in Noonan’s The Morality of Abortion, cited earlier) and is a strong, classic statement of the conservative view. Joel Feinberg’s “Abortion,” in Matters of Life and Death, edited by Tom Regan (New York: Random House, 1980), pp. 183–217, is a careful and nuanced discussion of the question of the moral status of the fetus. Roger Wertheimer’s “Understanding the Abortion Argument,” Philosophy and Public Affairs, Vol. 1, No. 1 (Fall, 1971), pp. 67–95, presents strong arguments for a fairly conservative view. For a very thoughtful discussion of the ethical issues surrounding abortion—and the philosophical traditions underlying our positions on these issues—from three different perspectives, see Michael Tooley, Celia Wolf-Devine and Philip E. Devine, and Alison M. Jagger, Abortion: Three Perspectives (New York: Oxford, 2009). For the principle of double effect, see. G. E. M. Anscombe’s “Modern Moral Philosophy,” Philosophy, Vol. 33 (1958), pp. 26–42, which raises important questions about the distinction between intended consequences and foreseen consequences. Phillipa Foot expresses doubts about the moral significance of this distinction in her article, “Abortion and the Doctrine of Double Effect,” in her Virtues and Vices and Other Essays (Berkeley: University of California Press, 1978), pp. 19–32. Many of these key essays are gathered together in P. A. Woodward, The Doctrine of Double Effect (West Bend, Ind.: University of Notre Dame Press, 2001). For a strong defense of this principle, see Thomas Cavanugh, Double-Effect Reasoning: Doing Good and Avoiding Evil (New York: Oxford University Press, 2006).

Abortion and Religion Abortion has been a controversial issue within the Christian tradition, and this debate has generated

countless resources, a number of which have been mentioned earlier. For the “seamless garment” doctrine of respect for life, see Joseph Cardinal Bernardin, Selected Works of Joseph Cardinal Bernardin: Church and Society, Vol. 2 (Collegeville, MN: Liturgical Press, 2000). In addition, abortion has been an issue in other religious traditions. See Islamic Ethics of Life: Abortion, War, and Euthanasia, Studies in Comparative Religion, edited by Jonathan E. Brockopp and Gene Outka (Columbia, SC: University of South Carolina Press, 2003); Harold G. Coward, Julius J. Lipner, and Katherine K. Young, Hindu Ethics: Purity, Abortion, and Euthanasia (Albany, NY: State University of New York Press, 1989); William R. La Fleur, Liquid Life: Abortion and Buddhism in Japan (Princeton: Princeton University Press, 2000); Damien Keown, ed., Buddhism and Abortion (Honolulu, Hawai’i: University of Hawaii Press, 1998); Daniel Schiff, Abortion in Judaism (Cambridge: Cambridge University Press, 2002). John Hyde Evans’ Contested Reproduction: Genetic Technologies, Religion, and Public Debate (Chicago: University of Chicago Press, 2010) presents a nuanced and sympathetic articulation of the ways in which religiouslyminded Christians think about issues of genetic technologies, and contains valuable insights in regard to the moral status of the embryo and fetus.

On Finding a Common Ground Several recent contributions to the search for common ground in the abortion discussion are Laurence H. Tribe, Abortion: The Clash of Absolutes (New York: Norton, 1992); Roger Rosenblatt, Life Itself (New York: Vintage Books, 1992); Ronald Dworkin, Life’s Dominion: An Argument about Abortion, Euthanasia, and Individual Freedom (New York: Knopf, 1993); and Elizabeth Mensch and Alan Freeman, The Politics of Virtue. Is Abortion Debatable? (Durham: Duke University Press, 1993). For an excellent review of Tribe’s book, see Nancy (Ann) Davis, “The Abortion Debate: The Search for Common Ground,” Ethics, Vol. 103, No. 3 (April, 1993), pp. 516–539, and Vol. 103, No. 4 (July, 1993), pp. 731–778. For a discussion of abortion within the general context of a theory of compromise, see Martin Benjamin, Splitting the Difference: Compromise and Integrity in Ethics and Politics (Lawrence, KS: University of Kansas Press, 1990), especially pp. 151–171; and Georgia Warnke, Legitimate Differences: Interpretation in the Abortion Controversy and Other Public Debates (Berkeley: University of California Press, 1999). For a model of how to conduct a fruitful dialogue on this issue, see the Boston Public Conversations

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Project (http://www.publicconversations.org), which brings together committed activists on various sides of controversial issues to engage in genuine dialogue. Their project initially arose in response to an abortion clinic shooting in Boston at the end of 1994.

Movies • Perhaps the most influential anti-abortion movie has been “The Silent Scream” (http://www.silentscream. org). For a thoughtful, philosophical study of this movie, see Joan C. Callahan, “The Silent Scream,” Philosophy Research Archives, Vol. 11, pp. 181–95. • The 2000 video, Soldiers in the Army of God, is a HBO documentary film includes an interview with

Rev. Paul Hill, a Presbyterian minister executed in 2003 for killing two abortionists in Florida. • The 2007 movie 4 Months, 3 Weeks and 2 Days won a number of awards (Palme d’Or Cann, 2007; International Critics Prize at Canne, FIPRESCI’s Grand Prix, Best Film of the Year by the National Film Critics Association) and deals with a woman helping her friend arrange an illegal abortion in Romania in the 1980s. • Tony Kaye’s Lake of Fire (2006) is a graphic documentary that has representatives from various sides of the debate, including Pat Buchanan, Noam Chomsky, Alan Dershowitz, and Nat Hentoff. • The 2007 film Juno deals with the issue of unplanned pregnancy, and adoption.

MySearchLab Connections Sources OnLine READ AND REVIEW Study and Review: Chapter 2 The text explores moral issues surrounding the topic of abortion. These readings further explore that theme. 1. Meditations on First Philosophy by René Descartes Written in a partly autobiographical style, Descartes explains how he came upon his method for using “clear and distinct perception” for discovering truth. In the course of his discussion he also offers a detailed discussion of what separates man from the rest of the animals. 2. Protagoras by Plato Plato’s Protagoras both stands on its own as an investigation of the nature of goodness and as a pivotal dialogue for understanding the development of Plato’s thought. In it, Socrates argues that goodness must be like gold: all its parts are the same and commensurate, differing only in size. In that way, unlike Protagoras’ account, we can have a moral science: a precise measuring of good and bad, so that we can put an end to interminable moral disagreement. 3. Politics by Aristotle Aristotle is considered by many the Father of Biology (he began the system of classification of species which is still largely relied upon today), but he also pioneered major trends in physics and was

among the first to write a book about logic, much of which is still used today. RESEARCH AND EXPLORE Explore the following questions using the research tools available on www.mysearchlab.com. Explore on mythinkinglab.com

1. One question brought out in the chapter is “what is it to be a person?” What are some of the ways this question has been answered by philosophers? 2. The chapter discusses necessary and sufficient conditions, and brings several criteria that may be used to determine personhood. Logicians discuss, among other things, the definition of necessary and sufficient conditions and their use in logical arguments. Do any of the criteria in the chapter meet the definition of necessary and sufficient conditions? Why or why not? 3. In its discussion of abortion, the chapter shares some statistics about abortion in the United States. Statistics could be classified as natural facts. How do natural facts differ from moral facts as put forward in the normative ethics of Plato, Aristotle, and others? Are natural facts, in this case, statistics, useful in forming a position on abortion? Why or why not?

3 Euthanasia

The Narratives 93 Atul Gawande, “Letting Go” 93 Susan M. Wolf, “My Father’s Death” 108 An Introduction to the Moral Issues 113 Some Initial Distinctions 114 Active vs. Passive Euthanasia 114 Conceptual Clarity 114 Moral Significance 115 Consequentialist vs. Deontological Approaches 115 Voluntary, Nonvoluntary, and Involuntary Euthanasia 116 Distinction between Nonvoluntary and Involuntary 116 Assisted vs. Unassisted Euthanasia 117 Euthanasia: A Table of Fundamental Distinctions 117 Euthanasia as the Compassionate Response to Suffering 118 The Sanctity of Life and the Right to Die 118 The Sanctity of Life 118 The Right to Die 119 The Conflict of Traditions 119 The Value of Life and the Cost of Caring 119 Slippery Slopes 120 Undervalued Groups 120 The Oregon Experience 120 The Argument 121 James Rachels, “Active and Passive Euthanasia” 121 Concluding Discussion Questions 125 For Further Reading 126

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Atul Gawande

“Letting Go. What Should Modern Medicine Do When It Can’t Save Your Life?” About the Author: Atul Gawande is a Harvard-trained surgeon who now teaches at Harvard Medical School. His first book, Complications, is the story of his first year as a surgery resident. He has gradually become recognized as one of the most thoughtful voices in contemporary medicine. About the Article: In this article, Gawande addresses an issue many of us—whether patients or physicians—would like to avoid: what do we do when medicine can no longer save our live? Doctors are trained to fight death, often to the bitter end, but little in their training helps them to answer the question of when enough is enough, and almost nothing helps them to work with the family to insure that the final portions of a dying patient’s life are as fulfilling as possible. As You Read This Article, Consider These Questions: 1. Dr. Gawande is very good at highlighting the language used in medicine to discuss difficult topics, language that sometimes obscures the reality to which it refers. As you read, note some examples of this analysis of language. Do you have any examples from your own experience that you can add to this list? 2. What, according to Gawande, are the disadvantages of dying in an ICU? Do you agree with his analysis? 3. What is the ars moriendi? What function did it play in medieval society? 4. Those who are crucially ill often are receiving fluids and nutrition intravenously and through stomach tubes. In some instances, patients or family decide to remove nutrition and hydration (fluids). Discuss the moral dimensions of this decision. Is this something that you can ever imagine doing? 5. Gawande discusses a change in some hospice policies, a change which allows patients to continue with the medications as part of a process of “concurrent care.” Discuss the merits and drawbacks of this program.

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ara Thomas Monopoli was pregnant with her first child when her doctors learned that she was going to die. It started with a cough and a pain in her back. Then a chest X-ray showed that her left lung had collapsed, and her chest was filled with fluid. A sample of the fluid was drawn off with a long needle and sent for testing. Instead of an infection, as everyone had expected, it was lung cancer, and it had already spread to the lining of her chest. Her pregnancy was thirty-nine weeks along, and the obstetrician who had ordered the test broke the news to her as she sat with her husband and her parents. The obstetrician didn’t get into the prognosis—she would bring in an oncologist for that—but Sara was stunned. Her mother, who had lost her best friend to lung cancer, began crying. The doctors wanted to start treatment right away, and that meant inducing labor to get the baby out. For the moment, though, Sara and her husband, Rich, sat by themselves on a quiet terrace off the labor floor. It was a warm Monday in June, 2007. She took Rich’s hands, and they tried to absorb what they had heard. Monopoli was thirty-four. She had never smoked, or lived with anyone who had. She exercised. She ate well. The diagnosis was bewildering. “This is going to be O.K.,” Rich told her. “We’re going to work through this. It’s going to be hard, yes. But we’ll figure it out. We can find the right treatment.” For the moment, though, they had a baby to think about. “So Sara and I looked at each other,” Rich recalled, “and we said, ‘We don’t have cancer on Tuesday. It’s a cancerfree day. We’re having a baby. It’s exciting. And we’re going to enjoy our baby.’ “On Tuesday, at 8:55 p.m., Vivian Monopoli, seven pounds nine ounces, was born. She had wavy brown hair, like her mom, and she was perfectly healthy. Atul Gawande, “Letting Go,” The New Yorker, 07/26/2010. Copyright © 2010 Atul Gawande. Reprinted by permission.

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The next day, Sara underwent blood tests and body scans. Dr. Paul Marcoux, an oncologist, met with her and her family to discuss the findings. He explained that she had a non-small cell lung cancer that had started in her left lung. Nothing she had done had brought this on. More than fifteen per cent of lung cancers—more than people realize—occur in non-smokers. Hers was advanced, having metastasized to multiple lymph nodes in her chest and its lining. The cancer was inoperable. But there were chemotherapy options, notably a relatively new drug called Tarceva, which targets a gene mutation commonly found in lung cancers of female non-smokers. Eighty-five per cent respond to this drug, and, Marcoux said, “some of these responses can be long-term.” Words like “respond” and “long-term” provide a reassuring gloss on a dire reality. There is no cure for lung cancer at this stage. Even with chemotherapy, the median survival is about a year. But it seemed harsh and pointless to confront Sara and Rich with this now. Vivian was in a bassinet by the bed. They were working hard to be optimistic. As Sara and Rich later told the social worker who was sent to see them, they did not want to focus on survival statistics. They wanted to focus on “aggressively managing” this diagnosis. Sara was started on the Tarceva, which produced an itchy, acne-like facial rash and numbing tiredness. She also underwent a surgical procedure to drain the fluid around her lung; when the fluid kept coming back, a thoracic surgeon eventually placed a small, permanent tube in her chest, which she could drain whenever fluid accumulated and interfered with her breathing. Three weeks after the delivery, she was admitted to the hospital with severe shortness of breath from a pulmonary embolism—a blood clot in an artery to the lungs, which is dangerous but not uncommon in cancer patients. She was started on a blood thinner. Then test results showed that her tumor cells did not have the mutation that Tarceva targets. When Marcoux told Sara that the drug wasn’t going to work, she had an almost violent physical reaction to the news, bolting to the bathroom in middiscussion with a sudden bout of diarrhea. Dr. Marcoux recommended a different, more standard chemotherapy, with two drugs called carboplatin and paclitaxel. But the paclitaxel triggered an extreme, nearly overwhelming allergic response, so he switched her to a regimen of carboplatin plus gemcitabine. Response rates, he said, were still very good for patients on this therapy. She spent the remainder of the summer at home, with Vivian and her husband and her parents, who had moved in to help. She loved being a mother. Between chemotherapy cycles, she began trying to get her life back. Then, in October, a CT scan showed that the tumor deposits in her left lung and chest and lymph nodes had grown substantially. The chemotherapy had failed. She was switched to a drug called pemetrexed. Studies found that it could produce markedly longer survival in some patients. In reality, however, only a small percentage of patients gained very much. On average, the drug extended survival by only two months—from eleven months to thirteen months—and that was in patients who, unlike Sara, had responded to first-line chemotherapy. She worked hard to take the setbacks and side effects in stride. She was upbeat by nature, and she managed to maintain her optimism. Little by little, however, she grew sicker—increasingly exhausted and short of breath. By November, she didn’t have the wind to walk the length of the hallway from the parking garage to Marcoux’s office; Rich had to push her in a wheelchair. A few days before Thanksgiving, she had another CT scan, which showed that the pemetrexed—her third drug regimen—wasn’t working either. The lung cancer had spread: from the left chest to the right; to the liver; to the lining of her abdomen; and to her spine. Time was running out. This is the moment in Sara’s story that poses a fundamental question for everyone living in the era of modern medicine: What do we want Sara and her doctors to do now? Or, to put it another way, if you were the one who had metastatic cancer—or, for that matter, a similarly advanced case of emphysema or congestive heart failure—what would you want your doctors to do? The issue has become pressing, in recent years, for reasons of expense. The soaring cost of health care is the greatest threat to the country’s long-term solvency, and the terminally ill account for a lot of it. Twenty-five per cent of all Medicare spending is for the five per cent of patients who are in their final year of life, and most of that money goes for care in their last couple of months which is of little apparent benefit. Spending on a disease like cancer tends to follow a particular pattern. There are high initial costs as the cancer is treated, and then, if all goes well, these costs taper off. Medical spending for a breast-cancer survivor, for instance, averaged an estimated fifty-four thousand dollars in 2003, the vast majority of it for the initial diagnostic

testing, surgery, and, where necessary, radiation and chemotherapy. For a patient with a fatal version of the disease, though, the cost curve is U-shaped, rising again toward the end—to an average of sixty-three thousand dollars during the last six months of life with an incurable breast cancer. Our medical system is excellent at trying to stave off death with eight-thousand-dollar-a-month chemotherapy, three-thousand-dollar-a-day intensive care, five-thousand-dollar-an-hour surgery. But, ultimately, death comes, and no one is good at knowing when to stop. The subject seems to reach national awareness mainly as a question of who should “win” when the expensive decisions are made: the insurers and the taxpayers footing the bill or the patient battling for his or her life. Budget hawks urge us to face the fact that we can’t afford everything. Demagogues shout about rationing and death panels. Market purists blame the existence of insurance: if patients and families paid the bills themselves, those expensive therapies would all come down in price. But they’re debating the wrong question. The failure of our system of medical care for people facing the end of their life runs much deeper. To see this, you have to get close enough to grapple with the way decisions about care are actually made. Recently, while seeing a patient in an intensive-care unit at my hospital, I stopped to talk with the criticalcare physician on duty, someone I’d known since college. “I’m running a warehouse for the dying,” she said bleakly. Out of the ten patients in her unit, she said, only two were likely to leave the hospital for any length of time. More typical was an almost eighty-year-old woman at the end of her life, with irreversible congestive heart failure, who was in the I.C.U. for the second time in three weeks, drugged to oblivion and tubed in most natural orifices and a few artificial ones. Or, the seventy-year-old with a cancer that had metastasized to her lungs and bone, and a fungal pneumonia that arises only in the final phase of the illness. She had chosen to forgo treatment, but her oncologist pushed her to change her mind, and she was put on a ventilator and antibiotics. Another woman, in her eighties, with end-stage respiratory and kidney failure, had been in the unit for two weeks. Her husband had died after a long illness, with a feeding tube and a tracheotomy, and she had mentioned that she didn’t want to die that way. But her children couldn’t let her go, and asked to proceed with the placement of various devices: a permanent tracheotomy, a feeding tube, and a dialysis catheter. So now she just lay there tethered to her pumps, drifting in and out of consciousness. Almost all these patients had known, for some time, that they had a terminal condition. Yet they—along with their families and doctors—were unprepared for the final stage. “We are having more conversation now about what patients want for the end of their life, by far, than they have had in all their lives to this point,” my friend said. “The problem is that’s way too late.” In 2008, the national Coping with Cancer project published a study showing that terminally ill cancer patients who were put on a mechanical ventilator, given electrical defibrillation or chest compressions, or admitted, near death, to intensive care had a substantially worse quality of life in their last week than those who received no such interventions. And, six months after their death, their caregivers were three times as likely to suffer major depression. Spending one’s final days in an I.C.U. because of terminal illness is for most people a kind of failure. You lie on a ventilator, your every organ shutting down, your mind teetering on delirium and permanently beyond realizing that you will never leave this borrowed, fluorescent place. The end comes with no chance for you to have said goodbye or “It’s O.K.” or “I’m sorry” or “I love you.” People have concerns besides simply prolonging their lives. Surveys of patients with terminal illness find that their top priorities include, in addition to avoiding suffering, being with family, having the touch of others, being mentally aware, and not becoming a burden to others. Our system of technological medical care has utterly failed to meet these needs, and the cost of this failure is measured in far more than dollars. The hard question we face, then, is not how we can afford this system’s expense. It is how we can build a health-care system that will actually help dying patients achieve what’s most important to them at the end of their lives. For all but our most recent history, dying was typically a brief process. Whether the cause was childhood infection, difficult childbirth, heart attack, or pneumonia, the interval between recognizing that you had a lifethreatening ailment and death was often just a matter of days or weeks. Consider how our Presidents died before the modern era. George Washington developed a throat infection at home on December 13, 1799, that killed him by the next evening. John Quincy Adams, Millard Fillmore, and Andrew Johnson all succumbed to strokes, and died within two days. Rutherford Hayes had a heart attack and died three days later. Some deadly illnesses took

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a longer course: James Monroe and Andrew Jackson died from the months-long consumptive process of what appears to have been tuberculosis; Ulysses Grant’s oral cancer took a year to kill him; and James Madison was bedridden for two years before dying of “old age.” But, as the end-of-life researcher Joanne Lynn has observed, people usually experienced life-threatening illness the way they experienced bad weather—as something that struck with little warning—and you either got through it or you didn’t. Dying used to be accompanied by a prescribed set of customs. Guides to ars moriendi, the art of dying, were extraordinarily popular; a 1415 medieval Latin text was reprinted in more than a hundred editions across Europe. Reaffirming one’s faith, repenting one’s sins, and letting go of one’s worldly possessions and desires were crucial, and the guides provided families with prayers and questions for the dying in order to put them in the right frame of mind during their final hours. Last words came to hold a particular place of reverence. These days, swift catastrophic illness is the exception; for most people, death comes only after long medical struggle with an incurable condition—advanced cancer, progressive organ failure (usually the heart, kidney, or liver), or the multiple debilities of very old age. In all such cases, death is certain, but the timing isn’t. So everyone struggles with this uncertainty—with how, and when, to accept that the battle is lost. As for last words, they hardly seem to exist anymore. Technology sustains our organs until we are well past the point of awareness and coherence. Besides, how do you attend to the thoughts and concerns of the dying when medicine has made it almost impossible to be sure who the dying even are? Is someone with terminal cancer, dementia, incurable congestive heart failure dying, exactly? I once cared for a woman in her sixties who had severe chest and abdominal pain from a bowel obstruction that had ruptured her colon, caused her to have a heart attack, and put her into septic shock and renal failure. I performed an emergency operation to remove the damaged length of colon and give her a colostomy. A cardiologist stented her coronary arteries. We put her on dialysis, a ventilator, and intravenous feeding, and stabilized her. After a couple of weeks, though, it was clear that she was not going to get much better. The septic shock had left her with heart and respiratory failure as well as dry gangrene of her foot, which would have to be amputated. She had a large, open abdominal wound with leaking bowel contents, which would require twice-a-day cleaning and dressing for weeks in order to heal. She would not be able to eat. She would need a tracheotomy. Her kidneys were gone, and she would have to spend three days a week on a dialysis machine for the rest of her life. She was unmarried and without children. So I sat with her sisters in the I.C.U. family room to talk about whether we should proceed with the amputation and the tracheotomy. “Is she dying?” one of the sisters asked me. I didn’t know how to answer the question. I wasn’t even sure what the word “dying” meant anymore. In the past few decades, medical science has rendered obsolete centuries of experience, tradition, and language about our mortality, and created a new difficulty for mankind: how to die. One Friday morning this spring, I went on patient rounds with Sarah Creed, a nurse with the hospice service that my hospital system operates. I didn’t know much about hospice. I knew that it specialized in providing “comfort care” for the terminally ill, sometimes in special facilities, though nowadays usually at home. I knew that, in order for a patient of mine to be eligible, I had to write a note certifying that he or she had a life expectancy of less than six months. And I knew few patients who had chosen it, except maybe in their very last few days, because they had to sign a form indicating that they understood their disease was incurable and that they were giving up on medical care to stop it. The picture I had of hospice was of a morphine drip. It was not of this brown-haired and blue-eyed former I.C.U. nurse with a stethoscope, knocking on Lee Cox’s door on a quiet street in Boston’s Mattapan neighborhood. “Hi, Lee,” Creed said when she entered the house. “Hi, Sarah,” Cox said. She was seventy-two years old. She’d had several years of declining health due to congestive heart failure from a heart attack and pulmonary fibrosis, a progressive and irreversible lung disease. Doctors tried slowing the disease with steroids, but they didn’t work. She had cycled in and out of the hospital, each time in worse shape. Ultimately, she accepted hospice care and moved in with her niece for support. She was dependent on oxygen, and unable to do the most ordinary tasks. Just answering the door, with her thirtyfoot length of oxygen tubing trailing after her, had left her winded. She stood resting for a moment, her lips pursed and her chest heaving.

Creed took Cox’s arm gently as we walked to the kitchen to sit down, asking her how she had been doing. Then she asked a series of questions, targeting issues that tend to arise in patients with terminal illness. Did Cox have pain? How was her appetite, thirst, sleeping? Any trouble with confusion, anxiety, or restlessness? Had her shortness of breath grown worse? Was there chest pain or heart palpitations? Abdominal discomfort? Trouble with bowel movements or urination or walking? She did have some new troubles. When she walked from the bedroom to the bathroom, she said, it now took at least five minutes to catch her breath, and that frightened her. She was also getting chest pain. Creed pulled a stethoscope and a blood-pressure cuff from her medical bag. Cox’s blood pressure was acceptable, but her heart rate was high. Creed listened to her heart, which had a normal rhythm, and to her lungs, hearing the fine crackles of her pulmonary fibrosis but also a new wheeze. Her ankles were swollen with fluid, and when Creed asked for her pillbox she saw that Cox was out of her heart medication. She asked to see Cox’s oxygen equipment. The liquid-oxygen cylinder at the foot of the neatly made bed was filled and working properly. The nebulizer equipment for her inhaler treatments, however, was broken. Given the lack of heart medication and inhaler treatments, it was no wonder that she had worsened. Creed called Cox’s pharmacy to confirm that her refills had been waiting, and had her arrange for her niece to pick up the medicine when she came home from work. Creed also called the nebulizer supplier for same-day emergency service. She then chatted with Cox in the kitchen for a few minutes. Her spirits were low. Creed took her hand. Everything was going to be all right, she said. She reminded her about the good days she’d had—the previous weekend, for example, when she’d been able to go out with her portable oxygen cylinder to shop with her niece and get her hair colored. I asked Cox about her previous life. She had made radios in a Boston factory. She and her husband had two children, and several grandchildren. When I asked her why she had chosen hospice care, she looked downcast. “The lung doctor and heart doctor said they couldn’t help me anymore,” she said. Creed glared at me. My questions had made Cox sad again. “It’s good to have my niece and her husband helping to watch me every day,” she said. “But it’s not my home. I feel like I’m in the way.” Creed gave her a hug before we left, and one last reminder. “What do you do if you have chest pain that doesn’t go away?” she asked. “Take a nitro,” Cox said, referring to the nitroglycerin pill that she can slip under her tongue. “And?” “Call you.” “Where’s the number?” She pointed to the twenty-four-hour hospice call number that was taped beside her phone. Outside, I confessed that I was confused by what Creed was doing. A lot of it seemed to be about extending Cox’s life. Wasn’t the goal of hospice to let nature take its course? “That’s not the goal,” Creed said. The difference between standard medical care and hospice is not the difference between treating and doing nothing, she explained. The difference was in your priorities. In ordinary medicine, the goal is to extend life. We’ll sacrifice the quality of your existence now—by performing surgery, providing chemotherapy, putting you in intensive care—for the chance of gaining time later. Hospice deploys nurses, doctors, and social workers to help people with a fatal illness have the fullest possible lives right now. That means focussing on objectives like freedom from pain and discomfort, or maintaining mental awareness for as long as possible, or getting out with family once in a while. Hospice and palliative-care specialists aren’t much concerned about whether that makes people’s lives longer or shorter. Like many people, I had believed that hospice care hastens death, because patients forgo hospital treatments and are allowed high-dose narcotics to combat pain. But studies suggest otherwise. In one, researchers followed 4,493 Medicare patients with either terminal cancer or congestive heart failure. They found no difference in survival time between hospice and nonhospice patients with breast cancer, prostate cancer, and colon cancer. Curiously, hospice care seemed to extend survival for some patients; those with pancreatic cancer gained an

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average of three weeks, those with lung cancer gained six weeks, and those with congestive heart failure gained three months. The lesson seems almost Zen: you live longer only when you stop trying to live longer. When Cox was transferred to hospice care, her doctors thought that she wouldn’t live much longer than a few weeks. With the supportive hospice therapy she received, she had already lived for a year. Creed enters people’s lives at a strange moment—when they have understood that they have a fatal illness but have not necessarily acknowledged that they are dying. “I’d say only about a quarter have accepted their fate when they come into hospice,” she said. When she first encounters her patients, many feel that they have simply been abandoned by their doctors. “Ninety-nine per cent understand they’re dying, but one hundred per cent hope they’re not,” she says. “They still want to beat their disease.” The initial visit is always tricky, but she has found ways to smooth things over. “A nurse has five seconds to make a patient like you and trust you. It’s in the whole way you present yourself. I do not come in saying, ‘I’m so sorry.’ Instead, it’s: ‘I’m the hospice nurse, and here’s what I have to offer you to make your life better. And I know we don’t have a lot of time to waste.’ ” That was how she started with Dave Galloway, whom we visited after leaving Lee Cox’s home. He was fortytwo years old. He and his wife, Sharon, were both Boston firefighters. They had a three-year-old daughter. He had pancreatic cancer, which had spread; his upper abdomen was now solid with tumor. During the past few months, the pain had become unbearable at times, and he was admitted to the hospital several times for pain crises. At his most recent admission, about a week earlier, it was found that the tumor had perforated his intestine. There wasn’t even a temporary fix for this problem. The medical team started him on intravenous nutrition and offered him a choice between going to the intensive-care unit and going home with hospice. He chose to go home. “I wish we’d gotten involved sooner,” Creed told me. When she and the hospice’s supervising doctor, Dr. JoAnne Nowak, evaluated Galloway upon his arrival at home, he appeared to have only a few days left. His eyes were hollow. His breathing was labored. Fluid swelled his entire lower body to the point that his skin blistered and wept. He was almost delirious with abdominal pain. They got to work. They set up a pain pump with a button that let him dispense higher doses of narcotic than he had been allowed. They arranged for an electric hospital bed, so that he could sleep with his back raised. They also taught Sharon how to keep Dave clean, protect his skin from breakdown, and handle the crises to come. Creed told me that part of her job is to take the measure of a patient’s family, and Sharon struck her as unusually capable. She was determined to take care of her husband to the end, and, perhaps because she was a firefighter, she had the resilience and the competence to do so. She did not want to hire a private-duty nurse. She handled everything, from the I.V. lines and the bed linens to orchestrating family members to lend a hand when she needed help. Creed arranged for a specialized “comfort pack” to be delivered by FedEx and stored in a mini-refrigerator by Dave’s bed. It contained a dose of morphine for breakthrough pain or shortness of breath, Ativan for anxiety attacks, Compazine for nausea, Haldol for delirium, Tylenol for fever, and atropine for drying up the upperairway rattle that people can get in their final hours. If any such problem developed, Sharon was instructed to call the twenty-four-hour hospice nurse on duty, who would provide instructions about which rescue medications to use and, if necessary, come out to help. Dave and Sharon were finally able to sleep through the night at home. Creed or another nurse came to see him every day, sometimes twice a day; three times that week, Sharon used the emergency hospice line to help her deal with Dave’s pain crises or hallucinations. After a few days, they were even able to go out to a favorite restaurant; he wasn’t hungry, but they enjoyed just being there, and the memories it stirred. The hardest part so far, Sharon said, was deciding to forgo the two-litre intravenous feedings that Dave had been receiving each day. Although they were his only source of calories, the hospice staff encouraged discontinuing them because his body did not seem to be absorbing the nutrition. The infusion of sugars, proteins, and fats made the painful swelling of his skin and his shortness of breath worse—and for what? The mantra was live for now. Sharon had balked, for fear that she’d be starving him. The night before our visit, however, she and Dave decided to try going without the infusion. By morning, the swelling was markedly reduced. He could move more, and with less discomfort. He also began to eat a few morsels of food, just for the taste of it, and that made Sharon feel better about the decision.

When we arrived, Dave was making his way back to bed after a shower, his arm around his wife’s shoulders and his slippered feet taking one shuffling step at a time. “There’s nothing he likes better than a long hot shower,” Sharon said. “He’d live in the shower if he could.” Dave sat on the edge of his bed in fresh pajamas, catching his breath, and then Creed spoke to him as his daughter, Ashlee, ran in and out of the room in her beaded pigtails, depositing stuffed animals in her dad’s lap. “How’s your pain on a scale of one to ten?” Creed asked. “A six,” he said. “Did you hit the pump?” He didn’t answer for a moment. “I’m reluctant,” he admitted. “Why?” Creed asked. “It feels like defeat,” he said. “Defeat?” “I don’t want to become a drug addict,” he explained. “I don’t want to need this.” Creed got down on her knees in front of him. “Dave, I don’t know anyone who can manage this kind of pain without the medication,” she said. “It’s not defeat. You’ve got a beautiful wife and daughter, and you’re not going to be able to enjoy them with the pain.” “You’re right about that,” he said, looking at Ashley as she gave him a little horse. And he pressed the button. Dave Galloway died one week later—at home, at peace, and surrounded by family. A week after that, Lee Cox died, too. But, as if to show just how resistant to formula human lives are, Cox had never reconciled herself to the incurability of her illnesses. So when her family found her in cardiac arrest one morning they followed her wishes and called 911 instead of the hospice service. The emergency medical technicians and firefighters and police rushed in. They pulled off her clothes and pumped her chest, put a tube in her airway and forced oxygen into her lungs, and tried to see if they could shock her heart back. But such efforts rarely succeed with terminal patients, and they did not succeed with her. Hospice has tried to offer a new ideal for how we die. Although not everyone has embraced its rituals, those who have are helping to negotiate an ars moriendi for our age. But doing so represents a struggle—not only against suffering but also against the seemingly unstoppable momentum of medical treatment. Just before Thanksgiving of 2007, Sara Monopoli, her husband, Rich, and her mother, Dawn Thomas, met with Dr. Marcoux to discuss the options she had left. By this point, Sara had undergone three rounds of chemotherapy with limited, if any, effect. Perhaps Marcoux could have discussed what she most wanted as death neared and how best to achieve those wishes. But the signal he got from Sara and her family was that they wished to talk only about the next treatment options. They did not want to talk about dying. Recently, I spoke to Sara’s husband and her parents. Sara knew that her disease was incurable, they pointed out. The week after she was given the diagnosis and delivered her baby, she spelled out her wishes for Vivian’s upbringing after she was gone. She had told her family on several occasions that she did not want to die in the hospital. She wanted to spend her final moments peacefully at home. But the prospect that those moments might be coming soon, that there might be no way to slow the disease, “was not something she or I wanted to discuss,” her mother said. Her father, Gary, and her twin sister, Emily, still held out hope for a cure. The doctors simply weren’t looking hard enough, they felt. “I just couldn’t believe there wasn’t something,” Gary said. For Rich, the experience of Sara’s illness had been disorienting: “We had a baby. We were young. And this was so shocking and so odd. We never discussed stopping treatment.” Marcoux took the measure of the room. With almost two decades of experience treating lung cancer, he had been through many of these conversations. He has a calm, reassuring air and a native Minnesotan’s tendency to avoid confrontation or overintimacy. He tries to be scientific about decisions. “I know that the vast majority of my patients are going to die of their disease,” he told me. The data show that, after failure of second-line chemotherapy, lung-cancer patients rarely get any added survival time from further treatments and often suffer significant side effects. But he, too, has his hopes. He told them that, at some point, “supportive care” was an option for them to think about. But, he went on, there were also experimental therapies. He told them about several that were under trial. The most promising

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was a Pfizer drug that targeted one of the mutations found in her cancer’s cells. Sara and her family instantly pinned their hopes on it. The drug was so new that it didn’t even have a name, just a number-PF0231006-and this made it all the more enticing. There were a few hovering issues, including the fact that the scientists didn’t yet know the safe dose. The drug was only in a Phase I trial—that is, a trial designed to determine the toxicity of a range of doses, not whether the drug worked. Furthermore, a test of the drug against her cancer cells in a petri dish showed no effect. But Marcoux didn’t think that these were decisive obstacles—just negatives. The critical problem was that the rules of the trial excluded Sara because of the pulmonary embolism she had developed that summer. To enroll, she would need to wait two months, in order to get far enough past the episode. In the meantime, he suggested trying another conventional chemotherapy, called Navelbine. Sara began the treatment the Monday after Thanksgiving. It’s worth pausing to consider what had just happened. Step by step, Sara ended up on a fourth round of chemotherapy, one with a minuscule likelihood of altering the course of her disease and a great likelihood of causing debilitating side effects. An opportunity to prepare for the inevitable was forgone. And it all happened because of an assuredly normal circumstance: a patient and family unready to confront the reality of her disease. I asked Marcoux what he hopes to accomplish for terminal lung-cancer patients when they first come to see him. “I’m thinking, Can I get them a pretty good year or two out of this?” he said. “Those are my expectations. For me, the long tail for a patient like her is three to four years.” But this is not what people want to hear. “They’re thinking ten to twenty years. You hear that time and time again. And I’d be the same way if I were in their shoes.” You’d think doctors would be well equipped to navigate the shoals here, but at least two things get in the way. First, our own views may be unrealistic. A study led by the Harvard researcher Nicholas Christakis asked the doctors of almost five hundred terminally ill patients to estimate how long they thought their patient would survive, and then followed the patients. Sixty-three per cent of doctors overestimated survival time. Just seventeen per cent underestimated it. The average estimate was five hundred and thirty per cent too high. And, the better the doctors knew their patients, the more likely they were to err. Second, we often avoid voicing even these sentiments. Studies find that although doctors usually tell patients when a cancer is not curable, most are reluctant to give a specific prognosis, even when pressed. More than forty per cent of oncologists report offering treatments that they believe are unlikely to work. In an era in which the relationship between patient and doctor is increasingly miscast in retail terms—”the customer is always right”— doctors are especially hesitant to trample on a patient’s expectations. You worry far more about being overly pessimistic than you do about being overly optimistic. And talking about dying is enormously fraught. When you have a patient like Sara Monopoli, the last thing you want to do is grapple with the truth. I know, because Marcoux wasn’t the only one avoiding that conversation with her. I was, too. Earlier that summer, a PET scan had revealed that, in addition to her lung cancer, she also had thyroid cancer, which had spread to the lymph nodes of her neck, and I was called in to decide whether to operate. This second, unrelated cancer was in fact operable. But thyroid cancers take years to become lethal. Her lung cancer would almost certainly end her life long before her thyroid cancer caused any trouble. Given the extent of the surgery that would have been required, and the potential complications, the best course was to do nothing. But explaining my reasoning to Sara meant confronting the mortality of her lung cancer, something that I felt ill prepared to do. Sitting in my clinic, Sara did not seem discouraged by the discovery of this second cancer. She seemed determined. She’d read about the good outcomes from thyroid-cancer treatment. So she was geared up, eager to discuss when to operate. And I found myself swept along by her optimism. Suppose I was wrong, I wondered, and she proved to be that miracle patient who survived metastatic lung cancer? My solution was to avoid the subject altogether. I told Sara that the thyroid cancer was slow-growing and treatable. The priority was her lung cancer, I said. Let’s not hold up the treatment for that. We could monitor the thyroid cancer and plan surgery in a few months. I saw her every six weeks, and noted her physical decline from one visit to the next. Yet, even in a wheelchair, Sara would always arrive smiling, makeup on and bangs bobby-pinned out of her eyes. She’d find small things to laugh about, like the tubes that created strange protuberances under her dress. She was ready to try anything, and I found myself focussing on the news about experimental therapies for her lung cancer. After one of her chemotherapies

seemed to shrink the thyroid cancer slightly, I even raised with her the possibility that an experimental therapy could work against both her cancers, which was sheer fantasy. Discussing a fantasy was easier—less emotional, less explosive, less prone to misunderstanding—than discussing what was happening before my eyes. Between the lung cancer and the chemo, Sara became steadily sicker. She slept most of the time and could do little out of the house. Clinic notes from December describe shortness of breath, dry heaves, coughing up blood, severe fatigue. In addition to the drainage tubes in her chest, she required needle-drainage procedures in her abdomen every week or two to relieve the severe pressure from the litres of fluid that the cancer was producing there. A CT scan in December showed that the lung cancer was spreading through her spine, liver, and lungs. When we met in January, she could move only slowly and uncomfortably. Her lower body had become swollen. She couldn’t speak more than a sentence without pausing for breath. By the first week of February, she needed oxygen at home to breathe. Enough time had elapsed since her pulmonary embolism, however, that she could start on Pfizer’s experimental drug. She just needed one more set of scans for clearance. These revealed that the cancer had spread to her brain, with at least nine metastatic growths across both hemispheres. The experimental drug was not designed to cross the blood-brain barrier. PF0231006 was not going to work. And still Sara, her family, and her medical team remained in battle mode. Within twenty-four hours, Sara was scheduled to see a radiation oncologist for whole-brain radiation to try to reduce the metastases. On February 12th, she completed five days of radiation treatment, which left her immeasurably fatigued, barely able get out of bed. She ate almost nothing. She weighed twenty-five pounds less than she had in the fall. She confessed to Rich that, for the past two months, she had experienced double vision and was unable to feel her hands. “Why didn’t you tell anyone?” he asked her. “I just didn’t want to stop treatment,” she said. “They would make me stop.” She was given two weeks to recover her strength after the radiation. Then she would be put on another experimental drug from a small biotech company. She was scheduled to start on February 25th. Her chances were rapidly dwindling. But who was to say they were zero? In 1985, the paleontologist and writer Stephen Jay Gould published an extraordinary essay entitled “The Median Isn’t the Message,” after he had been given a diagnosis, three years earlier, of abdominal mesothelioma, a rare and lethal cancer usually associated with asbestos exposure. He went to a medical library when he got the diagnosis and pulled out the latest scientific articles on the disease. “The literature couldn’t have been more brutally clear: mesothelioma is incurable, with a median survival of only eight months after discovery,” he wrote. The news was devastating. But then he began looking at the graphs of the patient-survival curves. Gould was a naturalist, and more inclined to notice the variation around the curve’s middle point than the middle point itself. What the naturalist saw was remarkable variation. The patients were not clustered around the median survival but, instead, fanned out in both directions. Moreover, the curve was skewed to the right, with a long tail, however slender, of patients who lived many years longer than the eight-month median. This is where he found solace. He could imagine himself surviving far out in that long tail. And he did. Following surgery and experimental chemotherapy, he lived twenty more years before dying, in 2002, at the age of sixty, from a lung cancer that was unrelated to his original disease. “It has become, in my view, a bit too trendy to regard the acceptance of death as something tantamount to intrinsic dignity,” he wrote in his 1985 essay. “Of course I agree with the preacher of Ecclesiastes that there is a time to love and a time to die—and when my skein runs out I hope to face the end calmly and in my own way. For most situations, however, I prefer the more martial view that death is the ultimate enemy—and I find nothing reproachable in those who rage mightily against the dying of the light.” I think of Gould and his essay every time I have a patient with a terminal illness. There is almost always a long tail of possibility, however thin. What’s wrong with looking for it? Nothing, it seems to me, unless it means we have failed to prepare for the outcome that’s vastly more probable. The trouble is that we’ve built our medical system and culture around the long tail. We’ve created a multitrillion-dollar edifice for dispensing the medical equivalent of lottery tickets-and have only the rudiments of a system to prepare patients for the near-certainty that those tickets will not win. Hope is not a plan, but hope is our plan.

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For Sara, there would be no miraculous recovery, and, when the end approached, neither she nor her family was prepared. “I always wanted to respect her request to die peacefully at home,” Rich later told me. “But I didn’t believe we could make it happen. I didn’t know how.” On the morning of Friday, February 22nd, three days before she was to start her new round of chemo, Rich awoke to find his wife sitting upright beside him, pitched forward on her arms, eyes wide, struggling for air. She was gray, breathing fast, her body heaving with each open-mouthed gasp. She looked as if she were drowning. He tried turning up the oxygen in her nasal tubing, but she got no better. “I can’t do this,” she said, pausing between each word. “I’m scared.” He had no emergency kit in the refrigerator. No hospice nurse to call. And how was he to know whether this new development was fixable? We’ll go to the hospital, he told her. When he asked if they should drive, she shook her head, so he called 911, and told her mother, Dawn, who was in the next room, what was going on. A few minutes later, firemen swarmed up the stairs to her bedroom, sirens wailing outside. As they lifted Sara into the ambulance on a stretcher, Dawn came out in tears. “We’re going to get ahold of this,” Rich told her. This was just another trip to the hospital, he said to himself. The doctors would figure this out. At the hospital, Sara was diagnosed with pneumonia. That troubled the family, because they thought they’d done everything to keep infection at bay. They’d washed hands scrupulously, limited visits by people with young children, even limited Sara’s time with baby Vivian if she showed the slightest sign of a runny nose. But Sara’s immune system and her ability to clear her lung secretions had been steadily weakened by the rounds of radiation and chemotherapy as well as by the cancer. In another way, the diagnosis of pneumonia was reassuring, because it was just an infection. It could be treated. The medical team started Sara on intravenous antibiotics and high-flow oxygen through a mask. The family gathered at her bedside, hoping for the antibiotics to work. This could be reversible, they told one another. But that night and the next morning her breathing only grew more labored. “I can’t think of a single funny thing to say,” Emily told Sara as their parents looked on. “Neither can I,” Sara murmured. Only later did the family realize that those were the last words they would ever hear from her. After that, she began to drift in and out of consciousness. The medical team had only one option left: to put her on a ventilator. Sara was a fighter, right? And the next step for fighters was to escalate to intensive care. This is a modern tragedy, replayed millions of times over. When there is no way of knowing exactly how long our skeins will run—and when we imagine ourselves to have much more time than we do—our every impulse is to fight, to die with chemo in our veins or a tube in our throats or fresh sutures in our flesh. The fact that we may be shortening or worsening the time we have left hardly seems to register. We imagine that we can wait until the doctors tell us that there is nothing more they can do. But rarely is there nothing more that doctors can do. They can give toxic drugs of unknown efficacy, operate to try to remove part of the tumor, put in a feeding tube if a person can’t eat: there’s always something. We want these choices. We don’t want anyone-certainly not bureaucrats or the marketplace to limit them. But that doesn’t mean we are eager to make the choices ourselves. Instead, most often, we make no choice at all. We fall back on the default, and the default is: Do Something. Is there any way out of this? In late 2004, executives at Aetna, the insurance company, started an experiment. They knew that only a small percentage of the terminally ill ever halted efforts at curative treatment and enrolled in hospice, and that, when they did, it was usually not until the very end. So Aetna decided to let a group of policyholders with a life expectancy of less than a year receive hospice services without forgoing other treatments. A patient like Sara Monopoli could continue to try chemotherapy and radiation, and go to the hospital when she wished—but also have a hospice team at home focussing on what she needed for the best possible life now and for that morning when she might wake up unable to breathe. A two-year study of this “concurrent care” program found that enrolled patients were much more likely to use hospice: the figure leaped from twenty-six per cent to seventy per cent. That was no surprise, since they weren’t forced to give up anything. The surprising result was that they

did give up things. They visited the emergency room almost half as often as the control patients did. Their use of hospitals and I.C.U.s dropped by more than two-thirds. Over-all costs fell by almost a quarter. This was stunning, and puzzling: it wasn’t obvious what made the approach work. Aetna ran a more modest concurrent-care program for a broader group of terminally ill patients. For these patients, the traditional hospice rules applied—in order to qualify for home hospice, they had to give up attempts at curative treatment. But, either way, they received phone calls from palliative-care nurses who offered to check in regularly and help them find services for anything from pain control to making out a living will. For these patients, too, hospice enrollment jumped to seventy per cent, and their use of hospital services dropped sharply. Among elderly patients, use of intensive-care units fell by more than eighty-five per cent. Satisfaction scores went way up. What was going on here? The program’s leaders had the impression that they had simply given patients someone experienced and knowledgeable to talk to about their daily needs. And somehow that was enough—just talking. The explanation strains credibility, but evidence for it has grown in recent years. Two-thirds of the terminalcancer patients in the Coping with Cancer study reported having had no discussion with their doctors about their goals for end-of-life care, despite being, on average, just four months from death. But the third who did were far less likely to undergo cardiopulmonary resuscitation or be put on a ventilator or end up in an intensivecare unit. Two-thirds enrolled in hospice. These patients suffered less, were physically more capable, and were better able, for a longer period, to interact with others. Moreover, six months after the patients died their family members were much less likely to experience persistent major depression. In other words, people who had substantive discussions with their doctor about their end-of-life preferences were far more likely to die at peace and in control of their situation, and to spare their family anguish. Can mere discussions really do so much? Consider the case of La Crosse, Wisconsin. Its elderly residents have unusually low end-of-life hospital costs. During their last six months, according to Medicare data, they spend half as many days in the hospital as the national average, and there’s no sign that doctors or patients are halting care prematurely. Despite average rates of obesity and smoking, their life expectancy outpaces the national mean by a year. I spoke to Dr. Gregory Thompson, a critical-care specialist at Gundersen Lutheran Hospital, while he was on I.C.U. duty one recent evening, and he ran through his list of patients with me. In most respects, the patients were like those found in any I.C.U.—terribly sick and living through the most perilous days of their lives. There was a young woman with multiple organ failure from a devastating case of pneumonia, a man in his mid-sixties with a ruptured colon that had caused a rampaging infection and a heart attack. Yet these patients were completely different from those in other I.C.U.s I’d seen: none had a terminal disease; none battled the final stages of metastatic cancer or untreatable heart failure or dementia. To understand La Crosse, Thompson said, you had to go back to 1991, when local medical leaders headed a systematic campaign to get physicians and patients to discuss end-of-life wishes. Within a few years, it became routine for all patients admitted to a hospital, nursing home, or assisted-living facility to complete a multiplechoice form that boiled down to four crucial questions. At this moment in your life, the form asked: 1. Do you want to be resuscitated if your heart stops? 2. Do you want aggressive treatments such as intubation and mechanical ventilation? 3. Do you want antibiotics? 4. Do you want tube or intravenous feeding if you can’t eat on your own? By 1996, eighty-five per cent of La Crosse residents who died had written advanced directives, up from fifteen per cent, and doctors almost always knew of and followed the instructions. Having this system in place, Thompson said, has made his job vastly easier. But it’s not because the specifics are spelled out for him every time a sick patient arrives in his unit. “These things are not laid out in stone,” he told me. Whatever the yes/no answers people may put on a piece of paper, one will find nuances and complexities in what they mean. “But, instead of having the discussion when they get to the I.C.U., we find many times it has already taken place.”

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Answers to the list of questions change as patients go from entering the hospital for the delivery of a child to entering for complications of Alzheimer’s disease. But, in La Crosse, the system means that people are far more likely to have talked about what they want and what they don’t want before they and their relatives find themselves in the throes of crisis and fear. When wishes aren’t clear, Thompson said, “families have also become much more receptive to having the discussion.” The discussion, not the list, was what mattered most. Discussion had brought La Crosse’s end-of-life costs down to just over half the national average. It was that simpleand that complicated. One Saturday morning last winter, I met with a woman I had operated on the night before. She had been undergoing a procedure for the removal of an ovarian cyst when the gynecologist who was operating on her discovered that she had metastatic colon cancer. I was summoned, as a general surgeon, to see what could be done. I removed a section of her colon that had a large cancerous mass, but the cancer had already spread widely. I had not been able to get it all. Now I introduced myself. She said a resident had told her that a tumor was found and part of her colon had been excised. Yes, I said. I’d been able to take out “the main area of involvement.” I explained how much bowel was removed, what the recovery would be like—everything except how much cancer there was. But then I remembered how timid I’d been with Sara Monopoli, and all those studies about how much doctors beat around the bush. So when she asked me to tell her more about the cancer, I explained that it had spread not only to her ovaries but also to her lymph nodes. I said that it had not been possible to remove all the disease. But I found myself almost immediately minimizing what I’d said. “We’ll bring in an oncologist,” I hastened to add. “Chemotherapy can be very effective in these situations.” She absorbed the news in silence, looking down at the blankets drawn over her mutinous body. Then she looked up at me. “Am I going to die?” I flinched. “No, no,” I said. “Of course not.” A few days later, I tried again. “We don’t have a cure,” I explained. “But treatment can hold the disease down for a long time.” The goal, I said, was to “prolong your life” as much as possible. I’ve seen her regularly in the months since, as she embarked on chemotherapy. She has done well. So far, the cancer is in check. Once, I asked her and her husband about our initial conversations. They don’t remember them very fondly. “That one phrase that you used—‘prolong your life’—it just . . .” She didn’t want to sound critical. “It was kind of blunt,” her husband said. “It sounded harsh,” she echoed. She felt as if I’d dropped her off a cliff. I spoke to Dr. Susan Block, a palliative-care specialist at my hospital who has had thousands of these difficult conversations and is a nationally recognized pioneer in training doctors and others in managing end-of-life issues with patients and their families. “You have to understand,” Block told me. “A family meeting is a procedure, and it requires no less skill than performing an operation.” One basic mistake is conceptual. For doctors, the primary purpose of a discussion about terminal illness is to determine what people want—whether they want chemo or not, whether they want to be resuscitated or not, whether they want hospice or not. They focus on laying out the facts and the options. But that’s a mistake, Block said. “A large part of the task is helping people negotiate the overwhelming anxiety—anxiety about death, anxiety about suffering, anxiety about loved ones, anxiety about finances,” she explained. “There are many worries and real terrors.” No one conversation can address them all. Arriving at an acceptance of one’s mortality and a clear understanding of the limits and the possibilities of medicine is a process, not an epiphany. There is no single way to take people with terminal illness through the process, but, according to Block, there are some rules. You sit down. You make time. You’re not determining whether they want treatment X versus Y. You’re trying to learn what’s most important to them under the circumstances—so that you can provide information and advice on the approach that gives them the best chance of achieving it. This requires as much listening as talking. If you are talking more than half of the time, Block says, you’re talking too much. The words you use matter. According to experts, you shouldn’t say, “I’m sorry things turned out this way,” for example. It can sound like pity. You should say, “I wish things were different.” You don’t ask, “What do you want when you are dying?” You ask, “If time becomes short, what is most important to you?”

Block has a list of items that she aims to cover with terminal patients in the time before decisions have to be made: what they understand their prognosis to be; what their concerns are about what lies ahead; whom they want to make decisions when they can’t; how they want to spend their time as options become limited; what kinds of trade-offs they are willing to make. Ten years ago, her seventy-four-year-old father, Jack Block, a professor emeritus of psychology at the University of California at Berkeley, was admitted to a San Francisco hospital with symptoms from what proved to be a mass growing in the spinal cord of his neck. She flew out to see him. The neurosurgeon said that the procedure to remove the mass carried a twenty-per-cent chance of leaving him quadriplegic, paralyzed from the neck down. But without it he had a hundred-per-cent chance of becoming quadriplegic. The evening before surgery, father and daughter chatted about friends and family, trying to keep their minds off what was to come, and then she left for the night. Halfway across the Bay Bridge, she recalled, “I realized, ‘Oh, my God, I don’t know what he really wants. ’” He’d made her his health-care proxy, but they had talked about such situations only superficially. So she turned the car around. Going back in “was really uncomfortable,” she said. It made no difference that she was an expert in end-oflife discussions. “I just felt awful having the conversation with my dad.” But she went through her list. She told him, “‘I need to understand how much you’re willing to go through to have a shot at being alive and what level of being alive is tolerable to you.’ We had this quite agonizing conversation where he said—and this totally shocked me—‘Well, if I’m able to eat chocolate ice cream and watch football on TV, then I’m willing to stay alive. I’m willing to go through a lot of pain if I have a shot at that.’ “I would never have expected him to say that,” Block went on. “I mean, he’s a professor emeritus. He’s never watched a football game in my conscious memory. The whole picture—it wasn’t the guy I thought I knew.” But the conversation proved critical, because after surgery he developed bleeding in the spinal cord. The surgeons told her that, in order to save his life, they would need to go back in. But he had already become nearly quadriplegic and would remain severely disabled for many months and possibly forever. What did she want to do? “I had three minutes to make this decision, and, I realized, he had already made the decision.” She asked the surgeons whether, if her father survived, he would still be able to eat chocolate ice cream and watch football on TV. Yes, they said. She gave the O.K. to take him back to the operating room. “If I had not had that conversation with him,” she told me, “my instinct would have been to let him go at that moment, because it just seemed so awful. And I would have beaten myself up. Did I let him go too soon?” Or she might have gone ahead and sent him to surgery, only to find—as occurred—that he survived only to go through what proved to be a year of “very horrible rehab” and disability. “I would have felt so guilty that I condemned him to that,” she said. “But there was no decision for me to make.” He had decided. During the next two years, he regained the ability to walk short distances. He required caregivers to bathe and dress him. He had difficulty swallowing and eating. But his mind was intact and he had partial use of his hands— enough to write two books and more than a dozen scientific articles. He lived for ten years after the operation. This past year, however, his difficulties with swallowing advanced to the point where he could not eat without aspirating food particles, and he cycled between hospital and rehabilitation facilities with the pneumonias that resulted. He didn’t want a feeding tube. And it became evident that the battle for the dwindling chance of a miraculous recovery was going to leave him unable ever to go home again. So, this past January, he decided to stop the battle and go home. “We started him on hospice care,” Block said. “We treated his choking and kept him comfortable. Eventually, he stopped eating and drinking. He died about five days later.” Susan Block and her father had the conversation that we all need to have when the chemotherapy stops working, when we start needing oxygen at home, when we face high-risk surgery, when the liver failure keeps progressing, when we become unable to dress ourselves. I’ve heard Swedish doctors call it a “breakpoint discussion,” a systematic series of conversations to sort out when they need to switch from fighting for time to fighting for the other things that people value-being with family or travelling or enjoying chocolate ice cream. Few people have this discussion, and there is good reason for anyone to dread these conversations. They can unleash difficult emotions. People can become angry or overwhelmed. Handled poorly, the conversations can cost a person’s trust. Handled well, they can take real time.

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I spoke to an oncologist who told me about a twenty-nine-year-old patient she had recently cared for who had an inoperable brain tumor that continued to grow through second-line chemotherapy. The patient elected not to attempt any further chemotherapy, but getting to that decision required hours of discussion—for this was not the decision he had expected to make. First, the oncologist said, she had a discussion with him alone. They reviewed the story of how far he’d come, the options that remained. She was frank. She told him that in her entire career she had never seen third-line chemotherapy produce a significant response in his type of brain tumor. She had looked for experimental therapies, and none were truly promising. And, although she was willing to proceed with chemotherapy, she told him how much strength and time the treatment would take away from him and his family. He did not shut down or rebel. His questions went on for an hour. He asked about this therapy and that therapy. And then, gradually, he began to ask about what would happen as the tumor got bigger, the symptoms he’d have, the ways they could try to control them, how the end might come. The oncologist next met with the young man together with his family. That discussion didn’t go so well. He had a wife and small children, and at first his wife wasn’t ready to contemplate stopping chemo. But when the oncologist asked the patient to explain in his own words what they’d discussed, she understood. It was the same with his mother, who was a nurse. Meanwhile, his father sat quietly and said nothing the entire time. A few days later, the patient returned to talk to the oncologist. “There should be something. There must be something,” he said. His father had shown him reports of cures on the Internet. He confided how badly his father was taking the news. No patient wants to cause his family pain. According to Block, about two-thirds of patients are willing to undergo therapies they don’t want if that is what their loved ones want. The oncologist went to the father’s home to meet with him. He had a sheaf of possible trials and treatments printed from the Internet. She went through them all. She was willing to change her opinion, she told him. But either the treatments were for brain tumors that were very different from his son’s or else he didn’t qualify. None were going to be miraculous. She told the father that he needed to understand: time with his son was limited, and the young man was going to need his father’s help getting through it. The oncologist noted wryly how much easier it would have been for her just to prescribe the chemotherapy. “But that meeting with the father was the turning point,” she said. The patient and the family opted for hospice. They had more than a month together before he died. Later, the father thanked the doctor. That last month, he said, the family simply focussed on being together, and it proved to be the most meaningful time they’d ever spent. Given how prolonged some of these conversations have to be, many people argue that the key problem has been the financial incentives: we pay doctors to give chemotherapy and to do surgery, but not to take the time required to sort out when doing so is unwise. This certainly is a factor. (The new health-reform act was to have added Medicare coverage for these conversations, until it was deemed funding for “death panels” and stripped out of the legislation.) But the issue isn’t merely a matter of financing. It arises from a still unresolved argument about what the function of medicine really is—what, in other words, we should and should not be paying for doctors to do. The simple view is that medicine exists to fight death and disease, and that is, of course, its most basic task. Death is the enemy. But the enemy has superior forces. Eventually, it wins. And, in a war that you cannot win, you don’t want a general who fights to the point of total annihilation. You don’t want Custer. You want Robert E. Lee, someone who knew how to fight for territory when he could and how to surrender when he couldn’t, someone who understood that the damage is greatest if all you do is fight to the bitter end. More often, these days, medicine seems to supply neither Custers nor Lees. We are increasingly the generals who march the soldiers onward, saying all the while, “You let me know when you want to stop.” All-out treatment, we tell the terminally ill, is a train you can get off at any time—just say when. But for most patients and their families this is asking too much. They remain riven by doubt and fear and desperation; some are deluded by a fantasy of what medical science can achieve. But our responsibility, in medicine, is to deal with human beings as they are. People die only once. They have no experience to draw upon. They need doctors and nurses who are willing to have the hard discussions and say what they have seen, who will help people prepare for what is to come—and to escape a warehoused oblivion that few really want.

Sara Monopoli had had enough discussions to let her family and her oncologist know that she did not want hospitals or I.C.U.s at the end—but not enough to have learned how to achieve this. From the moment she arrived in the emergency room that Friday morning in February, the train of events ran against a peaceful ending. There was one person who was disturbed by this, though, and who finally decided to intercede— Chuck Morris, her primary physician. As her illness had progressed through the previous year, he had left the decision-making largely to Sara, her family, and the oncology team. Still, he had seen her and her husband regularly, and listened to their concerns. That desperate morning, Morris was the one person Rich called before getting into the ambulance. He headed to the emergency room and met Sara and Rich when they arrived. Morris said that the pneumonia might be treatable. But, he told Rich, “I’m worried this is it. I’m really worried about her.” And he told him to let the family know that he said so. Upstairs in her hospital room, Morris talked with Sara and Rich about the ways in which the cancer had been weakening her, making it hard for her body to fight off infection. Even if the antibiotics halted the infection, he said, he wanted them to remember that there was nothing that would stop the cancer. Sara looked ghastly, Morris told me. “She was so short of breath. It was uncomfortable to watch. I still remember the attending”—the oncologist who admitted her for the pneumonia treatment. “He was actually kind of rattled about the whole case, and for him to be rattled is saying something.” After her parents arrived, Morris talked with them, too, and when they were finished Sara and her family agreed on a plan. The medical team would continue the antibiotics. But if things got worse they would not put her on a breathing machine. They also let him call the palliative-care team to visit. The team prescribed a small dose of morphine, which immediately eased her breathing. Her family saw how much her suffering diminished, and suddenly they didn’t want any more suffering. The next morning, they were the ones to hold back the medical team. “They wanted to put a catheter in her, do this other stuff to her,” her mother, Dawn, told me. “I said, ‘No. You aren’t going to do anything to her.’ I didn’t care if she wet her bed. They wanted to do lab tests, blood-pressure measurements, finger sticks. I was very uninterested in their bookkeeping. I went over to see the head nurse and told them to stop.” In the previous three months, almost nothing we’d done to Sara—none of our chemotherapy and scans and tests and radiation—had likely achieved anything except to make her worse. She may well have lived longer without any of it. At least she was spared at the very end. That day, Sara fell into unconsciousness as her body continued to fail. Through the next night, Rich recalled, “there was this awful groaning.” There is no prettifying death. “Whether it was with inhaling or exhaling, I don’t remember, but it was horrible, horrible, horrible to listen to.” Her father and her sister still thought that she might rally. But when the others had stepped out of the room, Rich knelt down weeping beside Sara and whispered in her ear. “It’s O.K. to let go,” he said. “You don’t have to fight anymore. I will see you soon.” Later that morning, her breathing changed, slowing. At 9:45 a.m., Rich said, “Sara just kind of startled. She let a long breath out. Then she just stopped.”

Journal/Discussion Questions ✍ As you develop your own position on the morality and legality of possible end-of-life decisions, in what ways does this article help you to develop your own thinking? 1. Imagine that you had to write an advanced directive, specifying which medical procedures you would want and which you would want withheld at the end of life. What would you say? 2. Talk with some people you love about what, in their eyes, would count as a good death—and what they would not want to happen as part of their death. 3. Death is inevitable for all of us. What in your eyes would be a good death? What examples of a good death have you seen in your own family? Of a bad death?

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Susan M. Wolf

Confronting Physician-Assisted Suicide and Euthanasia: My Father’s Death About the Author: Susan M. Wolf is the McKnight Presidential Professor of Law, Medicine & Public Policy; Faegre & Benson Professor of Law; and Professor of Medicine at the University of Minnesota, where she teaches in the areas of health law, law and science, and bioethics. About the Article: This article represents an unusual intersection between decades of scholarly and scientific research and reflection, on the one hand, and intense personal experience and decision making, both for a loved one and for oneself, on the other hand. Wolf reflects on the difficult issues raised by her father’s death and her duties both to him and to herself. As You Read This Article, Ask Yourself: 1. If you were in Professor Wolf’s position, would you have acted any differently? What if you were in her father’s position? Discuss your reasons. 2. As you sort through the issues raised by Professor Wolf, what issue do you see in the future for yourself? For those whom you love and for whom you will have some responsibility in making decisions?

Duty: An act . . . required of one by position, social custom, law, or religion. . . . Moral obligation. —American Heritage Dictionary of the English Language, 4th ed.

M

y father’s death forced me to rethink all I had written over two decades opposing legalization of physicianassisted suicide and euthanasia.1 That should not have surprised me. Years ago, when I started working on end-of-life care, he challenged my views on advance directives by insisting that he would want “everything,” even in a persistent vegetative state. “I made the money, so I can spend it.” More deeply, he argued that the Holocaust was incompatible with the existence of God. There is no afterlife, he claimed. This is it, and he wanted every last bit of “it” on any terms. My father was a smart, savvy lawyer, the family patriarch. He was forceful, even intimidating at times. We had fought over the years, especially as I neared college. That was probably necessary—my separating and our disengaging. When I was a child, it was a family joke how often he and I said the same thing at the same time. We were alike in many ways. My father was diagnosed with a metastatic head and neck cancer in 2002. His predictable view was “spare no effort.” A top head and neck surgeon worked through conflicting pathology reports to locate the primary tumor in the thyroid and excise the gland. Metastases would crop up from time to time, but radiation and then CyberKnife radiosurgery kept them in check. For five years he did well. Things changed in June of 2007. The last CyberKnife treatment was billed as the worst, with significant pain likely to follow. Sure enough, ten days later, my father’s pain on swallowing became severe. He began losing weight—a lot of it. He weakened. He fell twice in his apartment. His regular internist was out of town, so he went to the emergency room of a local hospital. Doctors did little for this seventy-nine year-old man with a five-year history of metastatic thyroid cancer plus emphysema and chronic obstructive pulmonary disease. He was briefly discharged to home but finally made it to the head and neck surgeon who had found the primary tumor in 2002. One look at my father and the surgeon admitted him, ordering a gastrostomy tube to deliver nutrition. Now my father was in an excellent hospital, with the head and neck, pulmonology, and gastroenterology services working him up. The mood brightened and the family gathered around him. I spent days in his sunny hospital room reminiscing, plowing through the New York Times with him, singing the college fight songs he offered as lullabies when I was little. Susan M. Wolf, “Confronting Physician-Assisted Suicide and Euthanasia: My Father’s Death,” Hastings Center Report 38, no. 5 (2008): 23–26. Copyright © 2008 Hastings Center. Used with permission.

With multiple services focusing on my father’s condition, I hoped the picture would soon come clear. I waited for a single physician to put the pieces together. And the medical picture was becoming worse. A surgical procedure revealed cancer in the liver. Pulmonology added pneumonia to the roster of lung ailments. Meanwhile, dipping oxygen saturation numbers drove a trip to the intensive care unit. Attempted endoscopy revealed a tumor between the esophagus and trachea, narrowing the esophagus. But no physician was putting the whole picture together. What treatment and palliative options remained, if any? What pathways should he—and we— be considering at this point? He Said He Wanted to Stop My father was becoming increasingly weak. He was finding it difficult to “focus,” as he put it. He could not read, do the New York Times crossword puzzles he used to knock off in an hour, or even watch TV. Fortunately, he could talk, and we spent hours on trips he had taken around the world, family history, his adventures as a litigator. But he was confined to bed and did little when he was alone. Then one morning he said he wanted to stop. No more tube feeding. No one was prepared for this switch from a lifetime of “spare no effort.” He told me he feared he was now a terrible burden. I protested, knowing that I would willingly bear the “burden” of his illness. I suspect that what others said was more powerful, though. I was later told that the doctor urged him not to stop, warning that he would suffer a painful death, that morphine would be required to control the discomfort, and that my father would lose consciousness before the day was out. Instead of assuring my father that health professionals know how to maintain comfort after termination of artificial nutrition and hydration, my father was scared away from this option. Weeks later, my father would wish aloud that he had carried through with this decision. Convinced now that he had no choice, my father soldiered on. But hospital personnel announced that it was time for him to leave the hospital. We were incredulous. He could not stand, walk, or eat. He had bedsores. Even transferring him from bed to a chair was difficult. And the rigors of transporting him in the early August heat were worrisome. But they urged transfer to a rehabilitation facility. My father was assured that with continued tube feeding and rehab, he could be walking into the surgeon’s office in October. It seemed to me my father was being abandoned. His prognosis was clearly bad and he himself had now raised the prospect of stopping tube feeding and dying, but it shocked me to see the hospital try to get rid of him. Yes, the hospital said he could return (somehow) in late September to see the ENT oncologist. But as far as I knew, that physician had never even met my father. And I doubted my father would make it to September. Still, no one was integrating the big picture. There seemed to be little choice. My father was successfully transported by ambulance to another hospital with a well-regarded rehabilitation unit. The transfer provided brief respite. My father was delighted that he was now only blocks from his apartment, and the enticing possibility of actually going home beckoned. But the rehab unit demanded hours per day of rigorous work from each patient. My father was too weak. And his pneumonia was an issue. He was moved off rehab to the medical floor. A compassionate and attentive hospitalist appeared, trying to put together the big picture. She set about collecting the reports from the prior two hospitals and integrating them. Again, many teams were on board, including rheumatology now for flaring gout. I requested the palliative care team. Even though my father could be lucid and “himself,” I listened painfully as he faltered through the questions on their minimental exam. It was hard to accept that this paragon of analytic and verbal precision was failing. I alerted a member of the palliative care team that my father had evidently been misinformed at the prior hospital about the consequences of stopping artificial nutrition and hydration. I urged her to find a time to reassure him that he indeed had choices, could refuse treatments if he wanted to, and could be confident that his comfort would be maintained. I made clear to her that I hoped he would choose to stay the course for now and remain with us, but that he deserved to know that he had the choice. My father had designated his two proxy decision-makers (one of them me), but could still participate in the medical decision-making. His values and his subjective experience—whether he wanted more interventions or had reached his limit—were key. Still unresolved, though, was the question of where we were headed. Could tube feeding and rehab bring him home and even walking into the surgeon’s office in October? Was there treatment that could slow the growth of the newly discovered cancer in his lung? Should we instead pursue hospice care? At times, my father’s

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illness seemed like Rashomon, a story with conflicting versions and possible trajectories. But soon my father was back in the ICU, with oxygen saturation percentages dipping into the seventies. Tube feeding was so uncomfortable that it was administered slowly through the night. Pain medication was a constant. Despite this, he held court in his room, enjoying the banter, and offering his own with that wry smile and cocked eyebrow. He was briefly transferred to the pulmonary care unit, as the most pressing issues at this point were actually not cancer but lung mucus and secretions, as well as pneumonia. I arrived one morning to find him upset. His nurse was not answering his calls, and his immobility left him at her mercy. I summoned the highly experienced and empathetic supervisor, but even behind closed doors with her he was afraid to speak plainly. I saw this tough-as-nails litigator reduced to fearful dependence. “Can We Accelerate?” By morning there was a new problem. My father had developed a massive bleed. Nursing had found him in a pool of his own blood, lying among the clots. The gastroenterologists took him in for a procedure, spending hours trying to find the source of the bleed. They never found it. My father required transfusion of most of his blood volume. The bleeding abated, but we knew it could resume any time. That was it—the final blow. My father was back in the ICU now, but the bleed and the hours spent searching for its source were too much. He waited until we gathered at his bedside. His speech was halting now, but his determination obvious. “Tell me my choices.” We went through each option—you can keep going like this, or you can go back to the floor if the ICU is bothering you, or you can halt the tube feeding and IV hydration. You also can wait, rather than deciding right now. For close to an hour we stayed in a tight circle around his bed, straining to hear his every word, crying, responding to each question. At one point, I thought he wanted to wait, but he called us back. “It could happen again. At 2 a.m.,” he said. He wanted a decision now. “That’s what I want. To terminate.” He made it clear he wanted to stop tube feeding and IV hydration. But that wasn’t enough. He wanted consensus. With the decision made, we set about communicating it to the caregivers and getting new orders written. It was then that he uttered three words that shook me. “Can we accelerate?” It seemed he was asking for more—a fast death, by assisted suicide or euthanasia. Reflexively, I said no, but with a promise— we can make absolutely certain they keep you comfortable. Even if you can’t talk, even if you appear comatose, if you merely furrow your brow, we’ll know you need more pain medication. I knew right away that I needed to think through my “no.” In reality, we were in the ICU of a major hospital in a jurisdiction that allowed neither assisted suicide nor euthanasia. Indeed, no jurisdiction in the United States allows euthanasia, and my father was beyond assisted suicide by swallowing prescribed lethal medication, as he couldn’t swallow anything. But I still needed to think this through. I knew that in some ways, my father presented what proponents of assisted suicide and euthanasia would regard as a strong case. He was clearly dying of physical causes, unlike the controversial 1991 Chabot case in the Netherlands involving a patient who was merely depressed. He certainly had less than six months to live. He was probably depressed by his illness, but in a way that was appropriate to his situation. His decisional capacity had surely declined, but he was able to express definite treatment preferences. Moreover, he wasn’t asking for a change in policy or law. Statewide or national changes in policy require considering a huge range of patients, anticipating the predictable errors and abuses. The Dutch have bravely documented all of this through empirical study of their practice of legalized euthanasia—violations of the requirement for a contemporaneous request by a competent patient, doctors failing to report the practice as required, and practice falling down the slippery slope to euthanasia of newborns.2 Oregon has documented its experience with legalized assisted suicide, too, but only the cases reported as required, leaving great uncertainty about cases not reported.3 My father wasn’t asking for societal change, though, only whether he himself could “accelerate.” I faced the highly individual question of how to do right by my own father. We Kept Vigil, Around the Clock In truth, it was life that answered the question, not logic. In some ways, it would have been psychologically easier, or at least faster, to bring the ordeal we all were experiencing to a quick end. I was in a city far from my husband and children, doing shifts at my father’s bedside at all hours, fearful of

more looming medical disasters increasing his discomfort. But instead of ending all of this and fleeing, we stayed, redoubling our attention to him. I stroked his thick white hair. He and I reminisced. He was always a great raconteur. We talked and talked over the next days. The decision to stop tube feeding actually seemed to lighten his load. A decision. In a way, it was a relief. And executing the decision took work, itself a devotion. It was around 6 p.m. when the decision was made. The ICU doctor came to the bedside to confirm the new plan and assure my father that he would be kept comfortable. But the palliative care professional, about to go off-duty, insisted that my father would need to leave the hospital. I was astonished. Was she saying he could not terminate treatment here? That the hospital had no in-patient hospice care? That you could accept invasive treatment at this hospital, but not refuse it? After years of working on end-of-life issues, I knew better. I confronted her: “You know that my father has a constitutional and common law right to refuse invasive treatment, including in this hospital.” She acceded, but insisted that he would no longer meet the criteria for hospitalization; he would need to leave, to a hospice facility or home. The hospital evidently had no hospice to offer. Fine, we would set about arranging admission to hospice. There was more—concerns over whether the fluid flowing through a remaining line would wrongly prolong his life and whether giving morphine by pump rather than through his line would do the same. I reached out by cell phone and e-mail to colleagues who were expert in maintaining comfort when artificial nutrition and hydration are stopped. We signed the papers requesting transfer to hospice. At one point, my father asked, “Will I see the end coming or fade away?” No one in the hospital was counseling my father. I worked my cell phone for answers and carried them to my father’s bedside. To a man who could hold no faith after the Holocaust, I even brought the words and experience of my rabbi. We kept vigil, around the clock. He was out of the ICU now, in a hospital room awaiting transfer to hospice. As he began to doze more and talk less, we watched carefully for the slightest sign of discomfort. We had promised we would assure his comfort. That meant constant vigilance. The last time I saw my father, he was motionless. His eyes were closed. He had stopped speaking. He appeared unresponsive. His breathing was quieter, rasps gone with dehydration. I took his hand. I told him I loved him. I stroked his hair, still full and silvered. I spoke to him from the heart, words that remain between him and me. Then I heard myself say, “If I am a good mother, it’s because you were a great father.” And to my surprise, he moved his jaw. Not his lips or his mouth. But he opened his jaw three times. It was our signal, the one we’d worked out in the ICU. Three means “I love-you.” Tears streamed down my face. I struggled, remembering the rabbi’s caution that the ones we love most may need permission to leave us, to die. “I know you may have to leave before I get back. That’s okay.” It felt nearly impossible to let him go. My chest was bursting. The pain was crushing. When I finally left, I was working to breathe. Taking one step then another. Breaking down, collecting myself, breaking down again. He died not long after. In the End I will not pretend—there was a price to be paid for going the longer way, not the shorter. My father died slowly. He had to trust that we would keep a ferocious vigil, demanding whatever palliative care he needed. It was he who traveled that road, not me. I paid my own price, though. I felt the heavy weight of his trust and the obligation to fight for him. I was scared I might fail. I felt very close to the jaws of death. But with every memory we shared while he could speak, every lilt of his eyebrow and wry smile, we basked together in life, reveled in a bit more of fifty-four years together and his nearly eighty on this earth. Family and caregivers did manage to keep him comfortable. He died loved and loving. I grieve still. I reread the letters he wrote home from Oxford in his twenties, I pore over the genealogy charts he painstakingly constructed over decades, I finger the abacus he kept in his law office. I go to e-mail him, then remember. I would not want to bear the burden of having “accelerated,” of causing his death by euthanasia or assisted suicide; this is hard enough. My father’s death made me rethink my objections to legalizing assisted suicide and euthanasia, but in the end it left me at ease with what I’ve written. Staying, keeping vigil, fighting to secure a comfortable death, stroking his hair, standing guard as death approached was my duty. It was the final ripening of my love. We both changed, even closer at the end.

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Acknowledgments Thanks to Gene Borgida, Kathleen Foley, Bruce Jennings, and Joanne Lynn for helpful comments. Any errors are my own.

Notes 1. In the mid-1980s, I had led the Hastings Center project that developed Guidelines on the Termination of Life-Sustaining Treatment and the Care of the Dying (Indianapolis: Indiana University Press, 1987). For a sample of my subsequent work on physician-assisted suicide, see “Gender, Feminism, and Death: Physician-Assisted Suicide and Euthanasia,” in Feminism and Bioethics: Beyond Reproduction, ed. S.M. Wolf (New York: Oxford University Press, 1996), 282–317; “Physician-Assisted Suicide in the Context of Managed Care,” Duquesne Law Review 35 (1996): 455–79; “Physician-Assisted Suicide, Abortion, and Treatment Refusal: Using Gender to Analyze the Difference,” in Physician-Assisted Suicide, ed. R. Weir (Indianapolis: Indiana University Press, 1997), 167–201; “Facing Assisted Suicide and Euthanasia in Children and Adolescents,” in Regulating How We Die: The Ethical, Medical, and Legal Issues Surrounding Physician-Assisted Suicide, ed. L.L. Emanuel (Cambridge, Mass.: Harvard University Press, 1998), 92–119, 274–94; “Pragmatism in the Face of Death: The Role of Facts in the Assisted Suicide Debate,” Minnesota Law Review 82 (1998): 1063–1101; and “Assessing Physician Compliance with the Rules for Euthanasia and Assisted Suicide,” Archives of Internal Medicine 165 (2005): 1677–79. 2. I discuss all of this in my work cited above. See also P.J. van der Maas et al., “Euthanasia and Other Medical Decisions Concerning the End of Life,” Lancet 338 (1991): 669–74; L. Pijnenborg et al., “Life-Terminating Acts without Explicit Request of Patient,” Lancet 341 (1993): 1196–99; P.J. van der Maas et al., “Euthanasia, Physician-Assisted Suicide, and Other Medical Practices Involving the End of Life in the Netherlands, 1990–1995,” New England Journal of Medicine 335 (1996): 1699–1705; G. van der Wal et al., “Evaluation of the Notification Procedure for Physician-Assisted Death in the Netherlands,” New England Journal of Medicine 335 (1996): 1706–11; A. van der Heide and P.J. van der Maas, “Medical End-of-life Decisions Made for Neonates and Infants in the Netherlands,” Lancet 350 (1997): 251–55; B.D. Onwuteaka-Philipsen et al., “Euthanasia and Other End-of-life Decisions in the Netherlands in 1990, 1995, and 2001,” Lancet 362 (2003): 39599; T. Sheldon, “Only Half of Dutch Doctors Report Euthanasia, Report Says,” British Medical Journal 326 (2003): 1164; T. Sheldon, “Dutch Reporting of Euthanasia Cases Falls—Despite Legal Reporting Requirements,” 328 (2004): 1336; B.D. Onwuteaka-Philipsen et al., “Dutch Experience of Monitoring Euthanasia,” British Medical Journal 331 (2005): 691–93; E. Verhagen and P.J.J. Sauer, “The Groningen Protocol: Euthanasia in Severely Ill Newborns,” New England Journal of Medicine 352 (2005): 959–62; A. van der Heide et al., “End-of-Life Practices in the Netherlands Under the Euthanasia Act,” New England Journal of Medicine 356 (2007): 1957–65. 3. See K. Foley and H. Hendin, “The Oregon Report: Don’t Ask, Don’t Tell,” Hastings Center Report 29, no. 3 (1999): 37–42; E.J. Emanuel, “Oregon’s Physician-Assisted Suicide Law: Provisions and Problems,” Archives of Internal Medicine 156 (1996): 825–29.

End-of-Life Decisions An Introduction to the Moral Issues

Some Initial Distinctions 114 Active vs. Passive Euthanasia 114 Conceptual Clarity 114 Moral Significance 115 Consequentialist vs. Deontological Approaches 115 Voluntary, Nonvoluntary, and Involuntary Euthanasia 116 Distinction between Nonvoluntary and Involuntary 116 Assisted vs. Unassisted Euthanasia 117 Euthanasia: A Table of Fundamental Distinctions 117 Euthanasia as the Compassionate Response to Suffering 118 The Sanctity of Life and the Right to Die 118 The Sanctity of Life 118 The Right to Die 119 The Conflict of Traditions 119 The Value of Life and the Cost of Caring 119 Slippery Slopes 120 Undervalued Groups 120 The Oregon Experience 120

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s we consider the details of the issue of euthanasia, it is helpful to begin by realizing the pervasiveness of the issue. Increasingly, people die in a medical context—often a hospital—that is unfamiliar to them and populated primarily by strangers, often finding their days and nights filled with unwanted intrusions such as beeping monitors, paging announcements, the moans and cries of other patients, glare from florescent lights, and the like. Currently, 85 percent of Americans die in some kind of health-care facility (this includes not only hospitals, but nursing homes, hospices, etc.); of this group, 70 percent (which is equivalent to almost 60 percent of the population as a whole) choose to withhold some kind of life-sustaining treatment.1 Unlike some of the other issues such as the death penalty or even abortion, this is an issue that we will all face, both in terms of ourselves and in terms of our loved ones. Many students have already been involved in family discussions and decisions about what is right to do for a grandparent, perhaps—even more painfully— a parent or sibling. These decisions are often agonizing, especially when the preferences of the loved one are not clear. 113

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Dying in a hospital is particularly difficult, for there is nothing within medicine itself—which is tenaciously committed to winning every possible battle with death, even though there is no hope of ever winning the war—that helps physicians to let go, to allow an individual to die peacefully. There are certainly many physicians who show great wisdom in dealing with this issue (Dr. Atul Gawande is a great example of this), but their wisdom flows primarily from their character as persons rather than from their medical knowledge. Medical knowledge alone does not tell us when to let go, and medical practice—perhaps quite rightly—is often committed to fighting on and on, no matter what the odds. Yet this means that each of us as patients must face this question squarely.

Some Initial Distinctions Recent discussions of euthanasia have been dominated by several important distinctions—and by disagreement over exactly how the distinctions are to be drawn and what significance they should have. The three most important of these are the distinction between active and passive euthanasia, voluntary and involuntary euthanasia, and assisted and unassisted euthanasia. Let’s consider each of these in turn. Active vs. Passive Euthanasia

The distinction between active and passive euthanasia seems, on the surface, easy enough. Active euthanasia occurs in those instances in which someone takes active means, such as a lethal injection, to bring about someone’s death; passive euthanasia occurs in those instances in which someone simply refuses to intervene to prevent someone’s death. In a hospital setting, a Do Not Resuscitate (DNR) order is one of the most common means of passive euthanasia. Conceptual Clarity

Perhaps more than any other philosopher, James Rachels has called into question the validity and usefulness of the distinction between passive and active euthanasia. Instead of publishing his highly-influential article, “Active and Passive Euthanasia,” in a philosophy journal where its impact would have been limited primarily to other philosophers, he published it in JAMA, the Journal of the American Medical Association. He did this for two reasons. First, he wanted to bring about change, and the best way to do that is to address those who set policy. Second, he wanted to criticize the AMA’s policy, which allowed passive euthanasia but did not permit active euthanasia. The critique developed by Rachels and others criticized the standard position (the AMA’s position) on two levels. First, it attacked the conceptual clarity of the distinction, arguing that the line between active and passive is much more blurred than one might initially think. One reason this distinction becomes conceptually slippery, especially in regard to the notion of passive euthanasia, is that it is embedded in a background set of assumptions about what constitutes normal care and what the normal duties of care givers are. In typical hospital settings, there is a distinction between ordinary and extraordinary care. At one end of the spectrum, giving someone food and water is clearly ordinary care; at the other end of the spectrum, giving someone an emergency heart and lung transplant to save that person’s life is clearly extraordinary care. Refusing to give food and water seems to be different than refusing to perform a transplant. Both are passive, but one involves falling below the expectations of normal care whereas the other does not. Typically, DNRs (Do Not Resuscitate orders) would fall somewhere in the middle ground on this scale. The source of this bit of conceptual slipperiness comes from the fact that we need to distinguish between two levels of passive euthanasia: (1) refusing to provide extraordinary care and (2) refusing to provide any lifesustaining care at all. Just as in daily life, we would distinguish between the person who refuses to jump into a turbulent sea to save a drowning child and the person who refuses to reach into a bathtub to save a

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baby drowning there, so, too, in medical contexts we must distinguish between refusing to take extraordinary means to prevent death and refusing to provide normal care (such as nutrition and hydration) to sustain life. There is at least a second reason why this distinction is conceptually slippery, especially in regard to the notion of active euthanasia. As we have already seen in our discussion of abortion, philosophers distinguish between the intended consequences of an action and the unintended (but foreseeable) consequences of an action. This distinction is crucial to the principle of the double effect, which under certain specifiable conditions morally permits an individual to perform an action that would otherwise not be allowed. Many Catholic ethicists, for example, would argue that a physician might be morally permitted to perform a surgical procedure such as a hysterectomy to remove a cancerous uterus even if this results in the death of a fetus, as long as the intention was not to kill the fetus, the cause was serious, and there was no other means to that end. Similarly, physicians might give certain terminal patients painkillers in large dosages, realizing that such dosages might hasten an inevitable death but having no other way of alleviating the patient’s extreme pain. Again, the line between active and passive becomes blurred. Moral Significance

In addition to attacking the conceptual clarity of the active/passive distinction, some ethicists have attacked the moral significance of this distinction. The standard view is that active euthanasia is morally much more questionable than passive euthanasia, because it involves actively choosing to bring about the death of a human being. Critics of the moral significance of this distinction have argued that active euthanasia is often more compassionate than passive euthanasia and morally preferable to it. The typical type of case they adduce is one in which (1) there is no doubt that the patient will die soon, (2) the option of passive euthanasia causes significantly more pain for the patient (and often the family as well) than active euthanasia and does nothing to enhance the remaining life of the patient, and (3) passive measures will not bring about the death of the patient. Certain types of cancers (liver cancer and throat cancers are prime examples here) are not only extremely painful, but also very resistant to painkilling medications in dosages that still permit patients to be aware of themselves and those around them. It is not uncommon for situations to occur in which patients will undoubtedly die (within several days, if not hours) and in which their remaining time will be filled either with extreme pain or unconsciousness resulting from pain medication. Removal of life-support may not bring about the death of such patients if their heart and respiratory systems have not been seriously compromised. In such situations, passive euthanasia seems to be crueler than active euthanasia and therefore morally less preferable. The increasing use of terminal sedation adds further complexity to this picture. Typically, the primary physician caring for a dying patient seeks to maintain a balance in the use of pain medications between keeping the patient as aware and psychologically “present” to loved ones as possible and keeping the patient’s pain under control. In some difficult cases, the pain becomes so intense that there is no way to control the patient’s without deep, continuous sedation which will, in effect, put the patient into a medically induced coma until death. This is often accompanied by the withdrawal not only of most medications and life support, but also of hydration and nutrition. Once again, the line between active and passive seems to blur. Blurred lines are not always bad and certainly are not always avoidable, but in this case they cause a very real problem: if one side of the line (passive euthanasia) is morally acceptable, and if the other side of the line (active euthanasia) is both morally and legally unacceptable, how can you know that you are doing the right thing? Without conceptual clarity in this area, we can’t distinguish right from wrong. Consequentialist vs. Deontological Approaches

One of the reasons that reasonable, well-informed people of good will disagree in their moral assessments of some of these end-of-life cases can be attributed to the difference between consequentialist and deontological

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moral theories. Recall that deontological theories in general propose a set of rules to live by, and these rules are absolute, not subject to change based on the consequences. For example, some of us may follow a rule such as “Always be loyal to your friends and family,” and as a result would not betray our friends or family, even when we could gain a lot by it or even when it might produce the greatest overall amount of good. Physicians, too, often live by rules, rules that help them to define their professional identity. Two such (sometimes implicit) rules are relevant here. Some physicians may feel, “I will do everything in my power as a physician to keep my patients alive.” Almost all adhere, again at least implicitly, to a more modest rule: “I will never intentionally end the life of one of my patients,” and most see this rule as a corollary of the first rule of medicine, “Do no harm.” Thus many physicians feel that intentionally ending someone’s life is not a line they are willing to cross, either as persons or as professionals. To cross this line is, for them, to do something that betrays their identity as physicians. Consequentialists, on the other hand, see the moral world in quite different terms, and this has important implications for end-of-life care. Imagine a not-uncommon case in the treatment of liver failure. (This case is actually presented in detail in Bill Moyers’ “On Our Own Terms,” a video that is part of the four-part series, “A Death of One’s Own.”) A patient dying of liver failure is delirious, literally out of his mind as a result of the disease that will kill him in the next few days or weeks. There is simply no chance of recovery, and it is impossible to keep his pain at a tolerable level without medicating him so deeply that he is unconscious. A physician at that point may order terminal sedation and the withdrawal of medications, hydration and nutrition. If so, the patient will then remain essentially in a coma for a few days, perhaps as long as a week, before dying of the liver cancer. This is legally permissible and does not violate the AMA guidelines, because it is an example of passive euthanasia. The consequentialist (including the utilitarian) asks, however, how is the world a better place because this patient has been allowed to remain in a medically induced coma for several days and then die rather than have his life (if that was his wish) ended by a painless lethal injection. The utilitarian will point to additional costs, not only in terms of hospital and medical bills, but also in terms of the psychological pain to family members, medical personnel, and the like. For the utilitarian, this is a no-brainer. When we add up the amount of financial and emotional cost of those extra days, the choice is easy. In fact, since for utilitarians one is generally obligated to maximize utility, to choose the best option, we are actually not just permitted, but obligated to choose active euthanasia in a case such as this. Voluntary, Nonvoluntary, and Involuntary Euthanasia

The second crucial distinction in discussion of euthanasia is among voluntary, nonvoluntary, and involuntary euthanasia. Voluntary euthanasia occurs when the individual chooses to die; nonvoluntary euthanasia occurs when the individual’s death is brought about (either actively or passively) without the individual’s choosing to die; involuntary euthanasia occurs when the individual’s death is brought about against the individual’s wishes. Several points need to be made about this distinction.

Distinction between Nonvoluntary and Involuntary Involuntary euthanasia covers those cases in which an individual does not want to be euthanized; nonvoluntary euthanasia refers to those in which the individual cannot make an expressed choice at all. The former class of cases is clearly troubling: the individual wishes to live and someone else intentionally terminates that individual’s life. Most would say that this is simply murder. The latter class of cases is more common and morally more ambiguous. How do we treat those individuals, usually terminally ill and unable to choose (due to coma or some other medical condition), who may be in great pain and who have never clearly expressed their wishes about euthanasia in the past? Similarly, infants are unable to express their wishes about this (or any other) matter. If euthanasia is employed in such cases, it is not voluntary, but not in the same sense as it is involuntary when the patient has expressed a clear wish not to be euthanized. The morally most troubling of these cases will be those of involuntary euthanasia where the patient is unable to choose.

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Assisted vs. Unassisted Euthanasia

The final important distinction in the discussion of euthanasia centers around the fact that many instances of euthanasia occur when an individual is no longer physically able to carry out the act. Assistance becomes necessary, either to perform the action at all or at least to die in a relatively painless and nonviolent way. Several important points need to be noted about this distinction. First, the issue of euthanasia typically arises for the elderly after a period of a debilitating disease. It is not uncommon in the last days, perhaps even weeks, of life, for a patient to be unable to swallow. In some cases, they are not able to open a bottle of pills or get a pill to their mouth. This is not unusual. Thus, though they may have been able to end their lives earlier with medication in an unassisted manner, they may not be able to do so without assistance in the last days of life. Second, “assisted” can have two different meanings, depending on the level of assistance. Currently, the laws in Oregon and now the state of Washington allow for physician-assisted dying, but what they mean by this is that physicians can supply the patients (who meet the specific state criteria) with a barbiturate power that can be mixed with liquid or something such as applesauce, which the patient can then ingest. However, the physician cannot administer a lethal dose through an IV or by means of an injection. In order to avoid confusion, let’s call the first type physician-assisted euthanasia and the second type physician-administered euthanasia. Thus, once patients have lost the ability to swallow, physician-assisted dying is not within their reach and, if they are to avail themselves of this option, need physician-assisted euthanasia. The following chart helps us to see the ways in which these basic distinctions relate to one another, the types of acts they designate, and their current legal status in the United States:

Euthanasia: Some Fundamental Distinctions

Passive (Often involves withholding further life-extending treatments)

Active: Not Assisted (physician does not provide any help or medication)

Active: Physicianassisted (physician supplies medication that patient then takes)

Active: Physicianadministered (physician actually administers medication directly)

Voluntary

Currently legal; often contained in living wills

Equivalent to suicide for the patient

Equivalent to suicide for the patient; possibly accessory to murder for the assistant

Involves the physician actually administering the life-ending medication for the purpose of ending life.

Nonvoluntary: Patient not able to choose

Sometimes legal, but only with court permission

Not possible

Equivalent to either suicide or being murdered for the patient; legally equivalent to murder for the assistant

Examples might be Dutch physician– administered termination of lives of newborns with severe handicaps.

Involuntary: Against patient’s wishes

Not legal

Not possible

Seems impossible: if Equivalent to murder the patient is assisting, by the physician. then it’s difficult to see how it could be involuntary.

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Equipped with these distinctions, let’s now turn to a consideration of the fundamental moral issues raised by euthanasia, looking first at the justifications that have been offered for and against euthanasia and then considering the three most typical types of cases: defective newborns, adults with profoundly diminished lives, and those in the final and painful phase of a terminal illness.

Euthanasia as the Compassionate Response to Suffering One of the principal moral motives that attracts some of us to euthanasia is compassion: we see needless suffering, whether in ourselves or others, we want to alleviate or end it, and euthanasia seems to be the only means of doing so. The paradigmatic situation here is that of a patient who is near death, who is in great pain that is not responsive to medication, and who has already made an informed choice to die. At that juncture, those who care about the patient simply want the patient’s suffering to end—there seems to be no point in further suffering, for there is no hope of recovery—and euthanasia becomes the only way of ending it. In some cases, this may even involve breaking the law and going to prison as a result. Two points need to be noted about the argument from compassion. First, it is important to realize that the debate about physician-assisted euthanasia is not a debate between those who favor compassion and those who oppose it. That would be simplistic and misleading. Both sides care about compassion. They differ only on the question of how best to express their compassion. In the face of suffering and death, we often feel powerless and helpless. Sometimes all we can do for the dying is to sit with them, to hold their hand, to rub their leg, to reminisce and tell them stories (even if they can’t hear), and to be present to their suffering and their death. This is not easy for anyone, but it is particularly difficult for those of us who have grown up in a technological society, a society in which we seek to “fix” everything. There are some things we cannot fix. Second, our helplessness in the face of someone else’s impending death is uncomfortable for us because it reminds us that one day we too will be in this position. We often enter murky psychological waters with felt but unseen currents pushing us in directions that we only dimly perceive. When we fight to delay someone else’s death, we may at the same time be fighting to delay our own. Third, the issue of compassion for suffering also is affected by our view of the value of suffering itself. Here there seems to be a deep divide between the beliefs of theists and non-theists. I’ll confine myself to Christian belief here, since that is what I know best. Within most Christian frameworks, suffering has a salvific value, that is, it contributes to the salvation of souls. Moreover, it is an integral part of God’s plan, and insofar as it comes from God, it cannot be evil in itself. Suffering, in other words, has a point, a purpose, and that purpose is a divine one. Thus it is not a mere senseless blemish on the world. In a utilitarian worldview, suffering seems to have only negative value. It is never something that can be good in itself, although occasionally it may have some instrumental value. For example, the pain you experience when you touch a hot stove may have instrumental value insofar as it teaches you not to do that again in the future. But pain itself in the utilitarian universe has no salvific value. Thus deeply committed Christians can find a value in suffering, whereas deeply committed utilitarians do not find any such value in suffering.

The Sanctity of Life and the Right to Die As I have tried to stress throughout this introduction, there are very few villains in the debate over euthanasia, but there are disagreements about the interpretation and relative place of certain fundamental values and rights. One of the most prominent areas of conflict centers around the relationship between the sanctity of life and the right to die. The Sanctity of Life

Human life, many believe, is sacred. In its original form, this belief is a religious one; the sanctity of life is an indication that life is a gift from God and therefore cannot be ended by human hand without violating God’s law

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or rejecting God’s love. Moreover, in its original form—one sees this most clearly in Buddhism, but also in other religious traditions—this belief encompasses all life, not just human life. In this form, it is not only a tradition that encompasses pacifism and opposes capital punishment, abortion, and euthanasia, but also one that respects the lives of animals and the living environment as a whole. Life is a sacred gift from God, and it is not the proper role of human beings to take it away from anyone. Respect for life, in the words of the Catholic cardinal Joseph Bernardin, is a “seamless garment” that covers the entire fabric of living creation. No distinction is drawn about the quality of life. All life is to be respected, loved, and cared for. We cannot pick and choose which lives we find sacred. It is this tradition that leads to the compassion of the Buddha and of Mother Theresa. Followers of this tradition do not support either active or passive euthanasia in the sense discussed here. However, they certainly are committed to the broader sense of “dying well” and spiritual discipline is often part of that commitment. Their alternative to active or passive euthanasia in the Western sense is not neglect, but compassion and love and ministering to the sick, the infirm, and the dying. Moreover, it typically involves a spiritual exercise, a gradual mastery of the art of dying. These are issues rarely discussed in the utilitarian tradition. The Right to Die

Those who argue that human beings have a right to die usually differ from those who stress the sanctity of life on two principal points. First, and more important, they do not see life as a gift from God that cannot be disposed of at will; instead, they often see life ontologically as an accident and almost always morally as the possession of an individual. The dominant metaphor in the philosophical tradition here is of life as property rather than gift. In this tradition, each person is seen as owning his or her own life and owners are allowed to do whatever they want with their property. Second, respect for life in this tradition entails allowing the proper owner (i.e., the individual) to decide for himself or herself whether to continue living. Notice that this tradition does not deny respect for life; rather, it has a different view of the source of life and of who holds proper dominion over life, and this in turn affects the way in which respect is properly expressed. Those in this tradition respond quite differently to illnesses that profoundly reduce the quality of an individual’s life or produce great and needless pain. Their focus is on reducing suffering, maintaining a minimal threshold of quality for the individual’s life, and encouraging individuals to make their own decisions about the termination of their own life. The focus is thus on the quality of life and individual autonomy. The types of cases that those in this tradition point to are usually cases in which individuals want to die to end their suffering but are kept alive against their own wishes because a family member, the court, or in some cases the administrators of health care facilities—ever fearful of suits and federal investigations—are unwilling to let them die. The Conflict of Traditions

It is important to understand the nature of this disagreement—and it is especially important to avoid certain easy ways of misunderstanding it. This is not a conflict between those who respect life and those who do not, nor is it a conflict between those who are indifferent to suffering and those who seek to eliminate it. Rather, it is a conflict between two types of traditions, both of which respect life and both of which encourage compassion and the reduction of suffering. The differences between them center on how they understand life and what they accept as legitimate ways of reducing suffering. The Value of Life and the Cost of Caring

In the Groundwork of a Metaphysics of Morals, Immanuel Kant drew a crucial moral distinction between rational beings and mere things.2 Everything, Kant maintains, has either a price or a dignity. Mere things always have a price; that is, an equivalent value of some kind (usually a monetary one)—they can be exchanged one for the other. Rational beings, however, have dignity, for the value of a human being is such that it is beyond all calculations of price; they cannot be exchanged, one for the other. In drawing this distinction, Kant articulated a moral insight that remains powerful today: the belief that human life is priceless and that we therefore ought not to put a price tag on it. Human life is to be preserved at all costs, for the value of human life is beyond that of any costs. Indeed, this may well be one of the motivations in critical care situations when the full arsenal of medicine’s skill

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and technology is brought to bear on a frail, old, dying person to prolong his or her life for a few days, weeks, or even months. We cannot put a price tag on human life, the Kantian inside us says. There is something morally odious about thinking that a human life can be traded for something else.

Slippery Slopes Even among those who are not opposed to euthanasia in principle, there are serious reservations about the possibility that legalizing euthanasia could lead to abuses. Once the door is opened even a little, the danger is that more will be permitted than we originally wanted, either through further legalization or because of objectionable but common abuses that although not permitted by the new proposal, could not be effectively curbed. History makes us cautious. Euthanasia of the physically and mentally handicapped and others who were deemed “unfit” was an integral part of Hitler’s plan, and by some estimates as many as 200,000 handicapped people were killed as part of the Nazi eugenics program. Not surprisingly, many are watching the Netherlands very carefully now, for active euthanasia has been tolerated there for a number of years and legalized in 1994. Undervalued Groups

The slippery slope argument has an added dimension when placed within a social context of discrimination. In a society in which the lives of certain classes of people are typically undervalued, legalized euthanasia could become a further instrument of discrimination. The classes discriminated against may vary from society to society, and the classes may be based on race, ethnicity, gender, social orientation, religious beliefs, social class, age, or some other characteristic. However the classes are determined, the point remains the same: legalized euthanasia would be more likely to encourage the early deaths of members of those classes that are discriminated against in society. For this argument to work, it must either presuppose that euthanasia is bad in itself or else that it would encourage certain morally unjustified kinds of euthanasia such as involuntary euthanasia. The latter line of argument seems to be plausible; namely, that the legalization of voluntary euthanasia would result in undue pressure on certain segments of society to “choose” euthanasia when they did not really want to do so. There is certainly no shortage of undervalued groups in the United States. Some groups are racially constituted: some Native Americans and some African Americans feel that their people have been treated in ways that have genocidal overtones. Similar issues exist for the poor and the homeless, but they are often less able to advance their own interests in public forums. Finally, and perhaps most pervasively, the elderly in the United States (and elsewhere as well) form a group that is often highly undervalued. The Oregon Experience

On the other hand, it is important to look at the data for the use of physician-assisted dying in Oregon, which has the longest track record in this area since it began in 1997. Their Web site (search for Oregon’s Death with Dignity Act) provides annual data reports and an overview of the entire time during which it has been active. Interestingly, comparative few people actually avail themselves of this option. In 2011, about 114 people requested the medication, and about 71 actually used it. There has been a steady but slow increase in both numbers over the years, but nothing comparable to the huge increase that many critics predicted before the passage of the Oregon legislation. Moreover, those who choose this option do not seem to be those who are most at risk—the very elderly, the poor, the impoverished, and so on. Rather, they seem as a group to be middle-class, reasonably well educated individuals who place a high value on personal control of their lives. Whether Oregon will prove to be typical of the rest of the nation remains to be seen.

Notes 1. Miles, S., and Gomez, C., Protocols for Elective Use of Life-Sustaining Treatment. (New York: SpringerVerlag, 1988). Cited in Margaret Battin, “Euthanasia: The Way We Do It, the Way They Do It,” Journal of Pain and Symptom Management, 6, no. 5, 298–305.

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2. Immanuel Kant, The Moral Law: Kant’s Groundwork of the Metaphysic of Morals, trans. and anal. by H.J. Paton (London: Hutchinson University Library, 1969), pp. 96–97.

Journal/Discussion Questions 1. Under what conditions, if any, would you want others to withhold medical treatment from you? To withhold fluids and nutrition? To actively terminate your life? 2. Write your own living will, including in it all instructions and requests you think are relevant.

James Rachels

“Active and Passive Euthanasia” About the Author: James Rachels was one of the most prominent of contemporary moral philosophers, especially in the area of applied ethics. His books include Created From Animals: The Moral Implications of Darwinism, The Elements of Moral Philosophy, and The End of Life: The Morality of Euthanasia. About the Article: This article, originally published in a medical journal and directed toward physicians, was the first major challenge to the moral significance of the distinction between active and passive euthanasia. As You Read, Consider This: 1. Why, according to Rachels, is active euthanasia morally preferable to passive euthanasia in some cases? 2. What, according to Rachels, is the difference between killing and letting die?

T

he distinction between active and passive euthanasia is thought to be crucial for medical ethics. The idea is that it is permissible, at least in some cases, to withhold treatment and allow a patient to die, but it is never permissible to take any direct action designed to kill the patient. This doctrine seems to be accepted by most doctors, and it is endorsed in a statement adopted by the House of Delegates of the American Medical Association on December 4, 1973: The intentional termination of the life of one human being by another—mercy killing—is contrary to that for which the medical profession stands and is contrary to the policy of the American Medical Association. The cessation of the employment of extraordinary means to prolong the life of the body when there is irrefutable evidence that biological death is imminent is the decision of the patient and/or his immediate family. The advice and judgment of the physician should be freely available to the patient and/or his immediate family. However, a strong case can be made against this doctrine. In what follows I will set out some of the relevant arguments, and urge doctors to reconsider their views on this matter. To begin with a familiar type of situation, a patient who is dying of incurable cancer of the throat is in terrible pain, which can no longer be satisfactorily alleviated. He is certain to die within a few days, even if present

James Rachels, “Active and Passive Euthanasia,” New England Journal of Medicine, Vol. 292, No. 2 (January 9, 1975), pp. 78–80. Copyright © 1970 New England Journal of Medicine. Used with permission.

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treatment is continued, but he does not want to go on living for those days since the pain is unbearable. So he asks the doctor for an end to it, and his family joins in the request. Suppose the doctor agrees to withhold treatment, as the conventional doctrine says he may. The justification for his doing so is that the patient is in terrible agony, and since he is going to die anyway, it would be wrong to prolong his suffering needlessly. But now notice this. If one simply withholds the treatment, it may take the patient longer to die, and so he may suffer more than he would if more direct action were taken and a lethal injection given. This fact provides strong reason for thinking that, once the initial decision not to prolong his agony has been made, active euthanasia is actually preferable to passive euthanasia, rather than the reverse. To say otherwise is to endorse the option that leads to more suffering rather than less, and is contrary to the humanitarian impulse that prompts the decision not to prolong his life in the first place. Part of my point is that the process of being “allowed to die” can be relatively slow and painful, whereas being given a lethal injection is relatively quick and painless. Let me give a different sort of example. In the United States about one in 600 babies is born with Down’s syndrome. Most of these babies are otherwise healthy—that is, with only the usual pediatric care, they will proceed to an otherwise normal infancy. Some, however, are born with congenital defects such as intestinal obstructions that require operations if they are to live. Sometimes, the parents and the doctor will decide not to operate, and let the infant die. Anthony Shaw describes what happens then: When surgery is denied [the doctor] must try to keep the infant from suffering while natural forces sap the baby’s life away. As a surgeon whose natural inclination is to use the scalpel to fight off death, standing by and watching a salvageable baby die is the most emotionally exhausting experience I know. It is easy at a conference, in a theoretical discussion, to decide that such infants should be allowed to die. It is altogether different to stand by in the nursery and watch as dehydration and infection wither a tiny being over hours and days. This is a terrible ordeal for me and the hospital staff—much more so than for the parents who never set foot in the nursery.1 I can understand why some people are opposed to all euthanasia, and insist that such infants must be allowed to live. I think I can also understand why other people favor destroying these babies quickly and painlessly. But why should anyone favor letting “dehydration and infection wither a tiny being over hours and days”? The doctrine that says that a baby may be allowed to dehydrate and wither, but may not be given an injection that would end its life without suffering, seems so patiently cruel as to require no further refutation. The strong language is not intended to offend, but only to put the point in the clearest possible way. My second argument is that the conventional doctrine leads to decisions concerning life and death made on irrelevant grounds. Consider again the case of the infants with Down’s syndrome who need operations for congenital defects unrelated to the syndrome to live. Sometimes, there is no operation, and the baby dies, but when there is no such defect, the baby lives on. Now, an operation such as that to remove an intestinal obstruction is not prohibitively difficult. The reason why such operations are not performed in these cases is, clearly, that the child has Down’s syndrome and the parents and doctor judge that because of that fact it is better for the child to die. But notice that this situation is absurd, no matter what view one takes of the lives and potentials of such babies. If the life of such an infant is worth preserving, what does it matter if it needs a simple operation? Or, if one thinks it better that such a baby should not live on, what difference does it make that it happens to have an unobstructed intestinal tract? In either case, the matter of life and death is being decided on irrelevant grounds. It is the Down’s syndrome, and not the intestines, that is the issue. The matter should be decided, if at all, on that basis, and not be allowed to depend on the essentially irrelevant question of whether the intestinal tract is blocked. What makes this situation possible, of course, is the idea that when there is an intestinal blockage, one can “let the baby die,” but when there is no such defect there is nothing that can be done, for one must not “kill” it. The fact that this idea leads to such results as deciding life or death on irrelevant grounds is another good reason why the doctrine should be rejected. One reason why so many people think that there is an important moral difference between active and passive euthanasia is that they think killing someone is morally worse than letting someone die. But is it? Is killing,

in itself, worse than letting die? To investigate this issue, two cases may be considered that are exactly alike except that one involves killing whereas the other involves letting someone die. Then, it can be asked whether this difference makes any difference to the moral assessments. It is important that the cases be exactly alike, except for this one difference, since otherwise one cannot be confident that it is this difference and not some other that accounts for any variation in the assessments of the two cases. So, let us consider this pair of cases: In the first, Smith stands to gain a large inheritance if anything should happen to his six-year-old cousin. One evening while the child is taking his bath, Smith sneaks into the bathroom and drowns the child, and then arranges things so that it will look like an accident. In the second, Jones also stands to gain if anything should happen to his six-year-old cousin. Like Smith, Jones sneaks in planning to drown the child in his bath. However, just as he enters the bathroom Jones sees the child slip and hit his head, and fall face down in the water. Jones is delighted; he stands by, ready to push the child’s head back under if it is necessary, but it is not necessary. With only a little thrashing about, the child drowns all by himself, “accidentally,” as Jones watches and does nothing. Now Smith killed the child, whereas Jones “merely” let the child die. That is the only difference between them. Did either man behave better, from a moral point of view? If the difference between killing and letting die were in itself a morally important matter, one should say that Jones’s behavior was less reprehensible than Smith’s. But does one really want to say that? I think not. In the first place, both men acted from the same motive, personal gain, and both had exactly the same end in view when they acted. It may be inferred from Smith’s conduct that he is a bad man, although that judgment may be withdrawn or modified if certain further facts are learned about him—for example, that he is mentally deranged. But would not the very same thing be inferred about Jones from his conduct? And would not the same further considerations also be relevant to any modification of this judgment? Moreover, suppose Jones pleaded, in his own defense, “After all, I didn’t do anything except just stand there and watch the child drown. I didn’t kill him; I only let him die.” Again, if letting die were in itself less bad than killing, this defense should have at least some weight. But it does not. Such a “defense” can only be regarded as a grotesque perversion of moral reasoning. Morally speaking, it is no defense at all. Now, it may be pointed out, quite properly, that the cases of euthanasia with which doctors are concerned are not like this at all. They do not involve personal gain or the destruction of normal, healthy children. Doctors are concerned only with cases in which the patient’s life is of no further use to him, or in which the patient’s life has become or will soon become a terrible burden. However, the point is the same in these cases: The bare difference between killing and letting die does not, in itself, make a moral difference. If a doctor lets a patient die, for humane reasons, he is in the same moral position as if he had given the patient a lethal injection for humane reasons. If his decision was wrong—if, for example, the patient’s illness was in fact curable—the decision would be equally regrettable no matter which method was used to carry it out. And if the doctor’s decision was the right one, the method used is not in itself important. The AMA policy statement isolates the crucial issue very well; the crucial issue is “the intentional termination of the life of one human being by another.” But after identifying this issue, and forbidding “mercy killing,” the statement goes on to deny that the cessation of treatment is the intentional termination of a life. This is where the mistake comes in, for what is the cessation of treatment, in these circumstances, if it is not “the intentional termination of the life of one human being by another.” Of course it is exactly that, and if it were not, there would be no point to it. Many people will find this judgment hard to accept. One reason, I think, is that it is very easy to conflate the question of whether killing is, in itself, worse than letting die, with the very different question of whether most actual cases of killing are more reprehensible than most actual cases of letting die. Most actual cases of killing are clearly terrible (think, for example, of all the murders reported in the newspapers), and one hears of such cases every day. On the other hand, one hardly ever hears of a case of letting die, except for the actions of doctors who are motivated by humanitarian reasons. So one learns to think of killing in a much worse light than of letting die. But this does not mean that there is something about killing that makes it in itself worse than letting die, for it is not the bare difference between killing and letting die that makes the difference in these cases. Rather, the other factors—the murderer’s motive of personal gain, for example, contrasted with the doctor’s humanitarian motivation—account for different reactions to the different cases.

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I have argued that killing is not in itself any worse than letting die; if my contention is right, it follows that active euthanasia is not any worse than passive euthanasia. What arguments can be given on the other side? The most common, I believe, is the following: The important difference between active and passive euthanasia is that, in passive euthanasia, the doctor does not do anything to bring about the patient’s death. The doctor does nothing, and the patient dies of whatever ills already afflict him. In active euthanasia, however, the doctor does something to bring about the patient’s death: he kills him. The doctor who gives the patient with cancer a lethal injection has himself caused his patient’s death; whereas if he merely ceases treatment, the cancer is the cause of the death. A number of points need to be made here. The first is that it is not exactly correct to say that in passive euthanasia the doctor does nothing, for he does do one thing that is very important: he lets the patient die. “Letting someone die” is certainly different, in some respects, from other types of action—mainly in that it is a kind of action that one may perform by way of not performing certain other actions. For example, one may let a patient die by way of not giving medication, just as one may insult someone by way of not shaking his hand. But for any purpose of moral assessment, it is a type of action nonetheless. The decision to let a patient die is subject to moral appraisal in the same way that a decision to kill him would be subject to moral appraisal: it may be assessed as wise or unwise, compassionate or sadistic, right or wrong. If a doctor deliberately let a patient die who was suffering from a routinely curable illness, the doctor would certainly be to blame for what he had done, just as he would be to blame if he had needlessly killed the patient. Charges against him would then be appropriate. If so, it would be no defense at all for him to insist that he didn’t “do anything.” He would have done something very serious indeed, for he let his patient die. Fixing the cause of death may be very important from a legal point of view, for it may determine whether criminal charges are brought against the doctor. But I do not think that this notion can be used to show a moral difference between active and passive euthanasia. The reason why it is considered bad to be the cause of someone’s death is that death is regarded as a great evil—and so it is. However, if it has been decided that euthanasia— even passive euthanasia—is desirable in a given case, it has also been decided that in this instance death is no greater an evil than the patient’s continued existence. And if this is true, the usual reason for not wanting to be the cause of someone’s death simply does not apply. Finally, doctors may think that all of this is only of academic interest—the sort of thing that philosophers may worry about but that has no practical bearing on their own work. After all, doctors must be concerned about the legal consequences of what they do, and active euthanasia is clearly forbidden by the law. But even so, doctors should also be concerned with the fact that the law is forcing upon them a moral doctrine that may well be indefensible, and has a considerable effect on their practices. Of course, most doctors are not now in the position of being coerced in this matter, for they do not regard themselves as merely going along with what the law requires. Rather, in statements such as the AMA policy statement that I have quoted, they are endorsing this doctrine as a central point of medical ethics. In that statement, active euthanasia is condemned not merely as illegal but as “contrary to that for which the medical profession stands,” whereas passive euthanasia is approved. However, the preceding considerations suggest that there is really no moral difference between the two, considered in themselves (there may be important moral differences in some cases in their consequences, but, as I pointed out, these differences may make active euthanasia, and not passive euthanasia, the morally preferable option). So, whereas doctors may have to discriminate between active and passive euthanasia to satisfy the law, they should not do any more than that. In particular, they should not give the distinction any added authority and weight by writing it into official statements of medical ethics.

Note 1. A. Shaw, “Doctor, Do We Have a Choice?” The New York Times Magazine (January 30, 1972): 54.

Journal/Discussion Questions ✍ Rachels maintains that active euthanasia is sometimes justified on the basis of a desire to alleviate suffering, and that it is more humane than passive euthanasia. What limits are there on compassionate action? Can compassion ever be a legitimate reason for ending someone’s life? 1. Rachels offers two principal arguments against the distinction between active and passive euthanasia. What are these arguments? 2. What objections to his position does Rachels consider? Are you convinced by his replies to those objections? Can you think of any objections that Rachels does not consider? What are they? 3. Rachels claims that “killing is not in itself any worse than letting die.” What support does he offer for this claim? Do you agree? Why or why not?

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Concluding Discussion Questions Where Do You Stand Now?

Instructions

Strongly Agree

Agree

Undecided

Disagree

Strongly Disagree

You have already answered the following questions in your moral problems self-quiz at the beginning of this book. Now that you have studied the material in this section, take a moment to answer the same questions again. You can either enter your answers below or complete the survey on-line at http://ethics.sandiego.edu/surveys.

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Chapter 3: Euthanasia Euthanasia is always morally wrong. Euthanasia should be illegal at least under almost all circumstances. The principal moral consideration about euthanasia is the question of whether the person freely chooses to die or not. Actively killing someone is always morally worse than just letting them die. Sometimes we have a duty to die.

Compare your answers to this self-quiz with the answers to the initial self-quiz. How, if at all, have your answers changed? How have the reasons for your answers changed? To see how others have responded to these questions and to take this survey online, visit http://ethics.sandiego.edu/surveys/

Journal/Discussion Questions 1. Under what conditions, if any, would you want others to withhold medical treatment from you? To withhold fluids and nutrition? To actively terminate your life?

2. Review the living will you wrote at the beginning of this chapter. What changes, if any, would you make in it after reading this chapter?

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3. You have now read, thought, and discussed a number of aspects of the morality of the euthanasia decision. How have your views changed and developed? Has your understanding of the reasons supporting other positions that are different from your own changed? What issue(s) remain unresolved for you at this point? 4. What, in the readings is this section, was the most thought-provoking idea you encountered? In

what ways did it prompt you to reconsider some of your previous beliefs? 5. In light of the preceding readings, what do you think is the single most compelling reason for legalizing euthanasia? What do you think is the single most compelling reason for not doing so? If euthanasia were to be legalized, what do you think would be the most important safeguard that should accompany it?

For Further Reading Web Resources For Web-based resources, including the major Supreme Court decisions on end-of-life decisions, see the Euthanasia page of Ethics Updates (http:// ethics.sandiego.edu/euthanasia/). Among the resources on that page that are of particular interest to philosophy students are up-to-date links to the following: • The Amicus Brief, Assisted Suicide: The Brief by Ronald Dworkin, Thomas Nagel, Robert Nozick, John Rawls, Thomas Scanlon, and Judith Jarvis Thomson (New York Review of Books, 1997) • Robert Young, “Voluntary Euthanasia,” Stanford Encyclopedia of Philosophy • Frances M. Kamm’s “A Right to Choose Death? A moral argument for the permissibility of euthanasia and physician-assisted suicide” Boston Review(1997); • John Hardwig, “Dying at the Right Time: Reflections on Assisted and Unassisted Suicide” • John Hardwig, “Is There a Duty to Die?” Hastings Center Report • Peter Suber, “Against the Sanctity of Life” • Vivian Rothstein, “Beyond the Call of Duty. A Daughter Reflects on the Meaning of Her Mother’s Suicide.” The Boston Review, Summer, 1997. • Joan Didion, “The Case of Terri Schiavo.” New York Review of Books (June, 2009).

Journals In addition to the standard journals on ethics mentioned in Chapter 1, see • The Hastings Center Report • The Journal of Medicine and Philosophy

• Bioethics • The Kennedy Institute of Ethics Journal

Videos Among the excellent video resources are: • Bill Moyers, A Death of One’s Own. PBS four-part series on death and dying. An excellent resource. Unfortunately, not free, but check your library. Visit Ethics Updates for links to many free online videos relating to end-of-life decisions.

Review Articles For an excellent survey of the philosophical issues (and a very helpful annotated bibliography), see Gerald Dworkin, “Physician-Assisted Death: The State of the Debate,” The Oxford Handbook of Bioethics, edited by Bonnie Steinbock (New York: Oxford University Press, 2009); .Margaret P. Battin, “Euthanasia and Physician-Assisted Suicide,” The Oxford Handbook of Practical Ethics, edited by Hugh LaFollette (New York: Oxford, 2005); Michael Tooley, “Euthanasia and Assisted Suicide,” in A Companion to Applied Ethics: Blackwell Companions to Philosophy, edited by R. G. Frey (Malden, MA: Blackwell Publishing, 2003), pp. 326–41; and Part VII of A Companion to Bioethics: Second Edition, edited by Helga Kahse and Peter Singer (Oxford: Blackwell, 2009), including Dan W. Brock, “Medical Decisions at the End of Life;” Jeff McMahan, “Brain Death, Cortical Death, and Persistent Vegetative State;” Alexander Morgan Capron, “Advance Directives;” and Brian Stoffel, “Voluntary Euthanasia, Suicide, and Physician-assisted Suicide,” For an overview of Buddhist perspectives, see Damien Keown, “Suicide, Assisted Suicide, and

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Euthanasia: A Buddhist Perspective” in Varieties of Ethical Reflection: New Directions for Ethics in a Global Context, edited by Michael G. Barnhart (New York: Lexington Books, 2002), pp. 263–82.

Anthologies There are several very helpful anthologies that deal with euthanasia. See: Leslie P. Francis, Bruce M. Landesman, Margaret P. Battin, eds., Death, Dying and the Ending of Life, 2 vols. (New York: Ashgate, 2007); Margaret Foley, K. and H. Hendin, eds. The Case Against Assisted Suicide: For the Right to End-ofLife Care (Baltimore: The Johns Hopkins University Press, 2002); Gerald Dworkin, R. G. Frey, and Sissela Bok, Euthanasia and Physician-Assisted Suicide (For and Against) (Cambridge: Cambridge University Press, 1998) leans more toward the defense of physician-assisted euthanasia than its title indicates; a much richer set of viewpoints is to be found in Physician-Assisted Suicide, edited by Margaret P. Battin, Rosamond Rhodes, and Anita Silvers (New York: Routledge, 1998). Beneficent Euthanasia, edited by Marvin Kohl (Buffalo: Prometheus Books, 1975) contains a very good range of classic pieces; Ethical Issues Relating to Life and Death, edited by John Ladd (New York: Oxford University Press, 1979); Euthanasia: The Moral Issues, edited by Robert M. Baird and Stuart E. Rosenbaum (Buffalo: Prometheus Books, 1989) contains a nice balance of philosophical and popular pieces; Euthanasia: Opposing Viewpoints, edited by Carol Wekesser (San Diego: Greenhaven Press, 1995), also contains a good balance of philosophical and popular pieces, all in relatively short segments, as does Terminal Illness: Opposing Viewpoints, edited by Mary Williams (San Diego: Greenhaven, 2001). Also see, Voluntary Euthanasia, edited by A.B. Downing and Barbara Smoker (London: Peter Owen, 1986), which includes a number of important essays, including an exchange between Yale Kamisar and Glanville Williams; The Dilemmas of Euthanasia, edited by J. A. Behnke and Sissela Bok (New York, 1975); Suicide and Euthanasia, edited by Baruch Brody (Dordrecht: Kluwer); and Euthanasia Examined, edited by John

Keown (Cambridge: Cambridge University Press, 1995); Euthanasia: A New York Times Reader (Upper Saddle River, NJ: Prentice-Hall, 1999). On the duty to die, see John Hardwig et al., Is There a Duty to Die? (New York: Routledge, 2000) and Is There a Duty to Die?, edited by James M. Humber and Robert F. Almeder (Totowa, NJ: Humana Press, 2000). Hardwig’s original article is available free online. On the distinction between killing and letting die, see Killing and Letting Die, edited by Bonnie Steinbock and Alastair Norcross, 2nd ed. (New York: Fordham University Press, 1994), which contains virtually all the major essays on this topic; it also contains an excellent bibliography.

Single-Author Works Among the key philosophical works on euthanasia in recent years are: L. W. Sumner, Assisted Death: A Study in Ethics and Law (New York: Oxford University Press, 2011); Neil M. Gorsuch, The Future of Assisted Suicide and Euthanasia (Princeton, N.J.: Princeton University Press, 2006); Robert Young, Medically Assisted Death (New York: Cambridge University Press, 2007); Margaret Pabst Battin, Ending Life: Ethics and the Way We Die (New York: Oxford University Press, 2005); Ian Dowbiggin, A Merciful End: The Euthanasia Movement in Modern America. (New York: Oxford University Press, 2003); Kathleen Foley, Herbert Hendin, The Case against Assisted Suicide: For the Right to End-of-Life Care (Baltimore: Johns Hopkins University Press, 2002); Jeff McMahan, The Ethics of Killing: Problems at the Margins of Life. )New York: Oxford, 2002); J. Koewn, Euthanasia, Ethics and Public Policy: An Argument against Legalization. New York: Cambridge University Press, 2002. On the Dutch experience, see Stuart Youngner and Gerrit K. Kimsma, eds., Physician-Assisted Death in Perspective: Assessing the Dutch Experience (New York: Cambridge University Press, 2012); R. CohenAlmagor, Euthanasia in the Netherlands: The Policy and Practice of Mercy Killing (New York: Springer, 2010).

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MySearchLab Connections Sources OnLine READ AND REVIEW Study and Review: Chapter 3 The text explores moral issues surrounding the topic of euthanasia. These readings further explore that theme. 1. Foundation for the Metaphysics of Morals by Immanuel Kant Kant’s purpose here is directed to moral philosophy, and he focuses on the following question: Is it not of the utmost necessity to construct a pure moral philosophy which is completely freed from everything which may be only empirical and thus belong to anthropology? 2. An Introduction to the Principles of Morality and Legislation by Jeremy Bentham Jeremy Bentham’s “Principles of Morals and Legislation,” which was first published in 1789, is a classical exposition of the basic principles of utilitarianism. 3. Higher & Lower Pleasures by John Stuart Mill John Stuart Mill was a leading nineteeth century proponent of the ethical theory called utilitarianism. Utilitarianism holds that acts can be judged morally according to their consequences, and the only consequence that matters is utility. Mill understands utility in terms of the greatest happiness for all. But what sort of happiness counts? Mill here distinguishes among types of pleasures and

claims that certain sorts of pleasures—particularly those associated with the intellect—are superior sorts of pleasures. They are better pleasures not just in the quantity of pleasure they offer but in the type of pleasure they are. This theory attempts to respond to the challenge that utilitarianism is just a doctrine that encourages wanton indulgence. RESEARCH AND EXPLORE Explore the following questions using the research tools available on www.mysearchlab.com. Explore on mythinkinglab.com

1. Deontologists, such as Kant, support the moral theory that the worth of an action is based on the motives of the acting agent, not the consequences. Make a case either for or against euthanasia from a deontological perspective. 2. Consequentialists, including utilitarian philosophers such as Bentham and Mill, state that actions are judged right or wrong based on their outcome. Make a case either for or against euthanasia from a consequentialist perspective. 3. In addition to attacking the conceptual clarity of the active/passive distinction, some ethicists have attacked the moral significance of this distinction. Is this lack of conceptual clarity an issue of definitions that can be addressed by metaethicists? Can logic bring clarity to the issue?

4 Punishment and the Death Penalty

The Narrative 130 Helen Prejean, C.S.J., “Crime Victims on the Anvil of Pain” 130 An Introduction to the Moral Issues 133 Punishment 134 A Few Statistics 134 American Exceptionalism 135 Two Justifications of Punishment 136 Backward-Looking Approaches to Punishment 136 The Lex Talionis 136 Retributivism and Deontology 137 Retributivism and Revenge 137 Forward-Looking Justifications of Punishment 137 Deterrence 138 Some Examples of Creative Thinking 139 H.O.P.E.: Hawaii’s Opportunity Probation with Enforcement 139 Dismantling Drug Markets 140 Deterrence, Consequentialism, and Deontology 141 Rehabilitation 141 Punishment, Reconciliation, and Healing 142 Additional Issues about Punishment 143 The Treatment of Juveniles 143 Solitary Confinement 143 Punishment and Race 144 The Uniformity of Punishment and States’ Rights 144 Capital Punishment 145 A Life for a Life 145 Interpreting the Lex Talionis 145 Reiman’s Objection to the Death Penalty 146

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The Sanctity of Life 146 David Gelernter and the Value of Life 146 Hope and the Possibility of Change 147 The Effect of the Death Penalty: Deterrence or Rehabilitation? 147 The Empirical Findings 147 The Argument from Common Sense 147 The Moral Issues 148 Deterrence and Publicity 148 The Irrevocability of Capital Punishment 148 The Demand for Certitude 148 Variations among the States on the Death Penalty 149 Scott Turow on the Death Penalty 149 The Death Penalty and International Relations 150 Diversity and Consensus 150 The Arguments 151 David Gelernter, “What Do Murderers Deserve? The Death Penalty in Civilized Societies” Jeffrey H. Reiman, “Against the Death Penalty” 155 Concluding Discussion Questions 161 For Further Reading 162

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The Narrative Helen Prejean, C.S.J.

“Crime Victims on the Anvil of Pain” About the Author: Sister Helen Prejean, C.S.J., is a native of Louisiana, a member of the Sisters of St. Joseph of Medaille, and a spiritual counselor both to inmates on death row and to the families of their victims. Her book and the movie based on it, Dead Man Walking: An Eyewitness Account of the Death Penalty in the United States, quickly became one of the most influential works questioning the morality of the death penalty. About the Article: In the following newspaper article from 1988, Helen Prejean tries to do justice both to her firm conviction that the death penalty is wrong and her compassion for those who have lost a family member to a violent crime. She describes, briefly but graphically, the pain of both and the effects of their pain on her. As You Read, Consider This: 1. Do you think that Sister Prejean perceives the death row inmates clearly? The families of the victims? 2. What moves you about Sister Prejean’s account of her ministry to death row inmates and to the families of their victims?

Helen Prejean, C.S.J, “Crime Victims on the Anvil of Pain,” St. Petersburg Times, May 15, 1988, Sunday, City Edition, Section: Perspective, p. 1D. Reprinted with kind permission of the author.

I

stand outside the door and take a deep breath. It’s my first meeting with the New Orleans Chapter of Parents of Murdered Children, a support group for people whose children have met violent deaths. Vernon Harvey, my nemesis of sorts, waits for me on the other side of the door. His stepdaughter, Faith, was murdered by Robert Lee Willie. I was Robert’s spiritual adviser. Both of us witnessed Robert’s execution in the electric chair. Prior to the execution, both of us had appeared at the Pardon Board hearing—he, urging Robert’s death; I, pleading for his life. He was furious at me. “You should be helping victims’ families,” he had told me. Finally, at his urging I was coming to this meeting. People ask me how I got involved in all this. Good question. I ask it of God sometimes when I pray. For 20 years I did what most other Catholic nuns were doing—teaching the young, conducting religious education programs in a suburban church parish. But in 1981, I moved into a steamy public housing project in New Orleans and for the first time in my life tasted the struggle of those who live on the “underside of history.” One day a friend in prison ministry asked me to become a pen pal to someone on death row. “Sure,” I said, having no idea what lay in store for me. I wrote to Elmo Patrick Sonnier, then I became his spiritual adviser, then I watched him die in the electric chair. I became a strong advocate for death row inmates and their families. I am with Elmo Patrick Sonnier in the death house. The guards are in his cell, shaving his head, his left ankle. . . . He returns to the metal door where I sit on the other side. His body sags in the chair. He looks naked, stripped. He smokes cigarettes and drinks black coffee. I’ve known him for two years. As a child he alternated between divorced parents and he was out on his own by the time he was 16. He had done his share of settling life’s challenges with his fists, but never anything like Nov. 5, 1977, when he and his brother killed a teen-age couple. The fathers of the victims will be there to witness his execution. He’s talking non-stop . . . snatches from the past . . . how good it felt to go hunting when the weather was cool . . . driving 18 wheelers . . . ”thank you for your love . . . please take care of my Mama . . . ” We pray together. “God, just give me the strength to make that last walk.” He starts to shiver. A guard puts a denim jacket over his shoulders. It’s midnight. “Time to go, Sonnier,” the warden says. We walk to the electric chair, my hand on his shoulder as I read from the Bible. We stop. I look up and see the chair. The guards are leading me away. “Pray for me, Pat.” He turns around. “I will, Sister Helen, I will.” His last words . . . he looks at the parents of the murdered teen-agers. “Forgive me for what me and my brother did.” He sits in the chair. The guards move quickly, strapping his arms, his legs. He finds my face among the witnesses. “I love you,” he says. I turn the doorknob and enter the room where the Parents of Murdered Children are meeting. Vernon comes over to greet me. His eyes say, “You’re coming around—at last.” The meeting begins. The motto of the group is “Give sorrow words.” “Laura was stabbed by my son’s best friend one week before her 12th birthday. Her skiing outfit is still hanging in the closet . . . five years now. I just can’t give it away.” “When my child was killed, it took over a week to find her body. The police treated us like we were the criminals. They brushed us off whenever we phoned.” “I got to witness the son of a b— fry who killed our daughter. The chair is too quick. I hope he’s burning in hell.” “I’m beginning to let my anger go. I put John’s picture on the Christmas tree. My Christmas angel, I call him.” “Friends avoid us. If you try to bring up your child’s death, they change the subject.” I leave the meeting stunned by the pain I have been allowed to touch. On the anvil of that pain I forge a new commitment to expend my energies for victims’ families as well as death row inmates. Now I work on a task

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force to see that victims’ families get state-allotted funds for counseling, unemployment compensation, funeral expenses. Only a handful of sheriff ’s offices in Louisiana bother to appoint the personnel to administer these funds. Related, I think, to a mind-set prevalent in our criminal justice system: big on recrimination; short on healing. As I see it, the death penalty is just another killing (and a highly selective one at that; two-thirds of all executions happen in four southern states). Obviously executions don’t do anything for the criminal, and, from what I’ve seen, they don’t do much for victims’ families either. Our need to protect ourselves from killers is real. When I walk to my car at night I glance often over my shoulder. I know now that really bad things can happen to really good people. But surely in 1988 we who purport to be the most civilized of societies can find a way to incapacitate dangerous criminals without imitating their tragic, violent behavior.

Journal/Discussion Questions ✍ Sister Prejean’s reactions to both the death row inmates and to the families of their victims are probably different from our own—certainly the combination is most unusual, for she seems able to appreciate the humanity of both without idealizing either. Do you think that her perceptions are correct? If they are different from your own and you think they are correct, what makes it difficult for you fully to perceive the humanity of these murderers? Of their victims? 1. How does Sister Prejean reconcile her commitment to the death row inmates and to the families of their victims? Does this have more moral force than if she were just committed to one or the other alone? Why? 2. Why is Sister Prejean opposed to the death penalty? What does she suggest as an alternative?

Punishment and the Death Penalty An Introduction to the Moral Issues

Punishment 134 A Few Statistics 134 American Exceptionalism 135 Two Justifications of Punishment 136 Backward-Looking Approaches to Punishment 136 The Lex Talionis 136 Retributivism and Deontology 137 Retributivism and Revenge 137 Forward-Looking Justifications of Punishment 137 Deterrence 138 Some Examples of Creative Thinking 139 H.O.P.E.: Hawaii’s Opportunity Probation with Enforcement 139 Dismantling Drug Markets 140 Deterrence, Consequentialism, and Deontology 141 Rehabilitation 141 Punishment, Reconciliation, and Healing 142 Additional Issues about Punishment 143 The Treatment of Juveniles 143 Solitary Confinement 143 Punishment and Race 144 The Uniformity of Punishment and States’ Rights 144 Capital Punishment 145 A Life for a Life 145 Interpreting the lex talionis 145 Reiman’s Objection to the Death Penalty 146 The Sanctity of Life 146 David Gelernter and the Value of Life 146 Hope and the Possibility of Change 147

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The Effect of the Death Penalty: Deterrence or Rehabilitation? The Empirical Findings 147 The Argument from Common Sense 147 The Moral Issues 148 Deterrence and Publicity 148 The Irrevocability of Capital Punishment 148 The Demand for Certitude 148 Variations among the States on the Death Penalty 149 Scott Turow on the Death Penalty 149 The Death Penalty and International Relations 150 Diversity and Consensus 150

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n this chapter, we will be looking at punishment in general and at capital punishment—the death penalty—in particular. We can best understand the difficult issues that surround the death penalty when we place them within the wider context of our policies about punishment in general.

Punishment The situation in the United States in regard to both punishment in general and the death penalty in particular is genuinely exceptional. Let’s begin by looking more closely at the empirical situation in regard to punishment in the United States. A Few Statistics

The United States is a leader in many areas, areas about which we are rightly proud. In the area of punishment, however, we are leaders in ways that are more disturbing. The United States, which has about 5 percent of the world’s population, has 25 percent of its prisoners. We have more prisoners (in absolute numbers, not just percentage) than China. Currently, one out of every hundred American adults (about 2.2 million) is in jail or prison, and one in every thirty-one is currently involved in the criminal justice system—on bail, in jail or prison, on parole or probation. Nearly ten percent of U.S. prison inmates are now serving life sentences, and two-third of those are black or Latino. In California alone, there are almost 35,000 prisoners serving life sentences without the possibility of parole; almost 300 of them are persons who committed crimes when they were 16 or 17 years old. These are staggering statistics, and since taxpayers support those in prison, they are also financially daunting. Since the 1970s, we have seen a steady increase in the number of prisoners, which only in 2011 seems to be leveling off, mainly because of financial pressure from the states to cut back on costs. The increase seems to have been driven by a multiplicity of factors, including the swiftly expanding criminalization of drugs, strident calls to “get tough” on crime that resulted in new laws such as California’s “Three Strikes” law, increasingly constricted federal sentencing guidelines that resulted in more people getting longer sentences, and a general lack of imagination and leadership in looking for better and more effective approaches to punishment. As a result, we find ourselves with one of the most expensive systems in the world and the largest prison population of any country. The Pew Center on the States (http://www.pewcenteronthestates.org) tracks many of these trends in its free on-line section devoted to “Corrections and Public Safety.” All of that might still be palatable if we got the results we wanted, but here too the American criminal justice system seems to fall woefully short. In medium- and high-security state and federal prisons, prisoners rarely emerge better than when they began their incarceration. To survive in such an environment, it is usually necessary to affiliate with a gang, and almost all the gangs are racially or ethnically based. Moreover, these are gangs that expect affiliation to continue after one has left prison. Second, for inmates in such facilities, sex becomes

Chapter 4. Punishment and the Death Penalty

immediately associated with violence. This is an environment in which rape literally does not count. Although some small efforts are made to track the number of rapes, there is widespread agreement that the numbers we have bear little correlation with reality. Third, when in prison there is a lot of free time in the yard and elsewhere. What do most inmates do? They lift, they work out, they exercise. The result is that when they emerge from prison, they are much more likely to be racists than when they went in, they are much more likely to associate sex with violence, and they are much more likely to be incredibly strong. This is not a recipe for success. Some inmates go against the tide, and they deserve our admiration for doing so, but they are a small minority. Largely, medium- and high-security prisons are advanced schools for criminality, run by those who failed their last test (and thus got caught). In the language of criminology, prisons are criminogenic, that is, they tend to create crime or criminal behavior. Nor is there much chance for those who do emerge from prison. Over 40 percent of inmates are back in prison within three years of their release, despite much greater spending on prisons in recent years. In many cases, they have lost their right to vote, at least a symbolic marker of their investment in the political system. Many of them will face great hurdles in trying to find and retain a job. Many have been moved around to prisons outside their original locale, and their ties to the noncriminal elements of their community have often been attenuated. In contrast, their gang-based affiliation often remains strong, and there is a surprising amount of continuity between life inside and outside the prison in terms of gang life. Bottom line: we spend a lot of money shaping an extraordinarily large number people who will in most cases be more of a drain on the social, economic, and political system than when they were originally sentenced. Moreover, those involved in administering the criminal justice system will often attest to the randomness of the entire process. Often, criminals are not caught. They get away with crime far more often than they are apprehended, and they are often only apprehended because they continue to commit crimes, time and again, until finally caught. Second, there is arbitrariness at the level of charges, and both the arresting officer and the district attorney have great latitude in terms of how serious a crime they specify. There are, of course, guidelines, but there is a lot of room for prosecutorial discretion within those broad guidelines, discretion that is typically not subject to outside review. Third, most defendants do not go to trial, but rather plea bargain. In most states, less than 10 percent of the cases go to trial, and in many places in the United States less than 5 percent of felony convictions reach a jury. Fourth, the process is slow, and if someone is out on bail, it may be quite a long time before they actually have to start serving their sentence. (Bail, which usually requires the defendant to pay a 10 percent fee to a bail bondsman unless the defendant has the cash to post bail, is also almost exclusively an American institution, found in only a handful of other places in the world.) Fifth, the punishment imposed may not only vary from judge to judge, but also from one jurisdiction to another. (A helpful hint: if you are planning to commit any crime, stay away from Texas.) Presumably most of us believe, at least in theory, that a just punishment is not only one that is proportional to the offense, but also one that is the same for everyone in the same circumstances. There is little indication that this is the way it works in practice in the United States. All of this is exacerbated by a political climate that rarely rewards genuine improvements in this area. Few politicians have ever lost an election as a result of claiming that we must “get tough” on crime, but several have been defeated because opponents have depicted them as “weak on crime.” Very, very few people—perhaps none—have won an election in the United States on the basis of an enlightened and creative policy for dealing with crime. In some ways, we get the criminal justice we deserve. American Exceptionalism

In 2008, Adam Liptak did an excellent series in The New York Times called “American Exception,” detailing the ways in which the criminal justice system in the United States is exceptional in the world. “American Exceptionalism” in general refers to ways in which the United States is exceptional, especially in its policies, in contrast to the rest of the world. We will return to this same issue of American exceptionalism in Chapter 5, which discusses war and American policy. Some of these ways are admirable, some less so. Liptak notes a number of areas in which the United States stand out, one of which we have already mentioned: although we have only 5 percent of the world’s population, we have 25 percent of the world’s prisoners.

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Among other ways we are different is the American system of bail for profit, which imposes a financial burden disproportionately on the poor. We are one of the few countries in the world to impose punitive damages in civil courts, and often those damage awards are not honored by other countries. Only in the United States is it possible for someone to receive a life sentence for loaning a car to persons who then use it in the commission of murder. We are also unique in sentencing teenagers to life in prison, sometimes without the possibility of parole. In most countries, judges are insulated from political pressure, but in the United States judges are subject to the election process and the political pressure that often incurs. The United States has a much stronger realm of free speech than many other countries, with far fewer restrictions on things such as hate speech. Only the United States throws out all tainted evidence if police fail to inform a suspect of his or her Miranda rights. In most of the world, the court appoints non-partisan expert witnesses, so there is little chance of the expensive battles between dueling expert witnesses that are found in some high profile cases in the United States. Overall, the influence of the United States (and its Supreme Court) on other courts around the world has been steadily decreasing. Many countries that used to look to the United States for leadership in the law now look elsewhere. Two Justifications of Punishment

There are certainly underlying political, economic, and social causes that have helped shape our current criminal justice system, but now I want to turn to the underlying philosophical justifications of punishment in order to better understand our current situation within a wider philosophical context. Broadly speaking, there are two main types of justification for punishment: backward-looking theories, which look back to the severity of the crime itself in determining the appropriate punishment; and forwardlooking theories, which look ahead to the possible desirable consequences of punishment. Let’s look at each of these approaches. Backward-Looking Approaches to Punishment

The Lex Talionis We have all heard of the law of “an eye for an eye, a tooth for a tooth,” a legal principle often known by its Latin name, the lex talionis. This is a prime example of a backward-looking justification of punishment, and it tells us that the severity of the punishment ought to be equal to the severity of the offense. The lex talionis answers two questions for us: • Why do we punish? • How much do we punish? It answers the first question with what is called the principle of retribution: we punish in order to pay back the offender for the harm he or she caused. It answers the second question with a specific version of the principle of equivalent proportionality: the severity of the punishment ought to be equivalent to the severity of the crime. Notice that this is different from merely saying that there has to be some general principle of proportionality, with the worst punishments being reserved for the worst crimes. No, this principle is more specific: it says that the punishment must be as severe as the crime. When we look more closely at the principle of equivalent proportionality, we see that matters are a bit more complex. Possibly it works for eyes, teeth, and even life. We can imagine if someone, say in a brawl, blinded another person in one eye, then the proper retribution would be to blind the offender in one eye as well. Similarly for teeth. Perhaps even similarly for a life: if a person commits murder, then the person must then forfeit his or her own life. Yet there is a wide range of crimes for which such proportionality seems less obvious. What do we do with airplane hijackers? What about someone who commits credit card fraud? A peeping Tom? The difficulty is clear: there are many offenses for which there is no obvious one-to-one correlation between offense and punishment. At this point, we may well want to make the principle of retribution into some kind of general principle of proportionality, such that the worst crimes deserve the worst punishments. This seems reasonable, and I suspect

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most people—insofar as they are retributivists—accept something along these lines. However, even here we see difficulties. Some crimes are so terrible that it is difficult to imagine what would be proportional. Imagine that one of the individuals who perpetrated the 9/11 attacks had survived. What punishment would be great enough to be proportionate to the harm caused? We would have to kill and torture the individual many times over, and probably in the process kill his family members as well so that he would experience a bit of the pain of loss that survivors of the 9/11 attacks feel every day. In other words, even with the general principle of proportionality, there is a problem at the upper reaches of the scale, when the horror of crimes far exceeds anything that can be imposed on the perpetrators.

Retributivism and Deontology Retributivism is an example of a deontological approach to crime and punishment. It does not look forward to possible consequences, but rather looks back at the offense itself and advances a fundamental rule of the moral life, the lex talionis. Recall the key difference between deontological and consequentialist approaches: consequentialist approaches claim that the rightness or wrongness of an action (such as punishment) is dependent on the consequences of the action, and generally speaking we are obligated to act in such a way as to maximize the consequences. Deontological approaches, on the other hand, say that the right course of action is the one that corresponds to the basic rules governing the moral life. Deontologists may disagree among themselves about precisely what those rules are, but we certainly find in many religious and cultural traditions something akin to the lex talionis: the rule that the severity of the punishment must be proportional to the severity of the offense or crime. An interesting example of the tension between deontological and consequentialist approaches is to be found in the prosecution of accused Nazi war criminals. Anyone who is accused of being a Nazi war criminal today must be very old, since World War II ended in 1945. Do they pose a threat to the future? Are they likely to again follow the path of the persecutors, rounding people up and sending them to their death? Unlikely, not only because they are very old but also because that particular machinery of death no longer exists. True, they might try to espouse their horrific views to others, but probably only within a fairly confined circle. Moreover, their age raises another important factor: are they still the same person after all these decades? Some certainly are, but it is not improbable that some have genuinely changed in the interim and experience true contrition for their previous heinous deeds. Yet those who maintain this strict deontological standpoint will staunchly argue that “justice must be done,” that is, the offender must be punished commensurate with his or her offense.

Retribution and Revenge Retributivism is often criticized as simply equivalent to revenge. While some retributivists accept that label and deny that anything is wrong with revenge (as long as it is directed toward the right person and in the right way), most retributivists point out that there are several salient differences between retribution and revenge. First, revenge is typically carried out by individuals or families. If someone has wronged my sister, my brothers and I may go out and find that person and inflict punishment. That’s a typical case of revenge, a personal act of getting back at the person who has done you (or those close to you) wrong. In contrast to this, retribution is (a) carried out by the state, and is (b) done in everyone’s name. Second, whereas revenge is inextricably personal, retribution is impersonal. An essential dimension of this is that there are procedural guarantees in retribution that are not present in revenge. The accused party is, first of all, accused. Then there is a trial to determine guilt. Then, if guilty, a sentence is carried out in the name of the state. Third, revenge typically results in a back-and-forth escalation, a feud that steadly escalates over time and eventually its original cause is lost in the mists of memory. Retribution, on the other hand, seeks a balancing of the scales in which the offender ultimately admits the wrongness of his acts and sees the punishment as fitting. In other words, the offender comes to realize that he deserves to be punished. This rarely happens in revenge. Forward-Looking Justifications of Punishment

The other principal way in which punishment is justified is to look to the future. In this framework, we punish with a goal of making the world a better place, sometimes in several different ways. Such an approach is consequentialist

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insofar as it maintains that it is on the basis of possible consequences that we decide whether and how to punish. It is utilitarian if we look at the consequences for everyone, whereas it is an example of group-consequentialism if we only look at the consequences for a limited group of people, such as citizens. Thus consequentialism is the umbrella term, and both utilitarianism and group consequentialism are types of conseqeuntialism. There are several ways in which we might focus on consequences. One of these ways may be that we hope to make the world a safer place, one in which such crimes are not likely to recur in the future. A second way is that we may seek to rehabilitate the criminal, seeking to transform the person into a more law-abiding and productive member of society. Third, we may seek to reestablish the state of harmony and peace that existed prior to the commision of the crime, to put things back in balance. Let’s examine each of these three justifications, noting that they may not be mutually exclusive.

Deterrence When we think about deterrence as the goal of punishment, we need to distinguish between (a) deterring the criminal from committing that crime again in the future (often called specific deterrence), and (b) deterring other in society from committing similar crimes (often called general or indirect deterrence). Let’s consider specific deterrence first, then turn to general deterrence.

Specific Deterrence. If someone is convicted of hijacking an airplane, and then sentenced to a certain number of years in prison, that specific person is obviously specifically deterred from hijacking another plane as long as the person is in prison and there are no planes in prison. Notice that this kind of specific deterrence only works for certain kinds of crimes. If someone is a murderer and thrown in prison, he may continue to murder either guards or fellow prisoners. Having someone in prison does not necessarily specifically deter the person from committing that crime again unless it is something that is just impossible to do while in prison. Similarly, having a person in prison does not guarantee that the person will be specifically deterred from committing similar crimes in the future after being released from prison. One can, however, achieve specific long-term deterrence if the person eventually recognizes his deed as bad and genuinely repents. Presumably this occasionally happens, but it is hardly the standard case. It is much more likely that the criminal is simply sorry that he got caught and considers that unfair.

General Deterrence. Often punishment is meant as a warning to others that they should not commit a similar crime lest they too be punished. This is general deterrence, and certainly to some extent this is effective in society. However, it is important to note here that this kind of deterrence is simply the last in a long line of deterrence factors that the average individual encounters, and most of us are deterred far earlier than the threat of punishment. Family, religious institutions, schools, teams, civic organizations (such as scouts) all contribute to deterrence, and in most cases the vast majority of the citizenry is deterred first and foremost by these other lines of defense. It is only when all else fails that we turn to the threat of punishment as the final deterrent. It is important to realize the presence of these various lines of deterrence because, if we feel the need to “get tough on crime” and do things that will deter criminals, it may be that the most effective measures will ultimately lie earlier in the process. Punishment is the deterrent of last resort, the last thing that may stop a potential offender. If we want to strengthen deterrence, we may well want to strengthen those earlier factors, not just hand out longer and more expensive prison sentences. Another important question is lurking here. It is certainly true that longer prison sentences would deter most of us from committing crimes, but (a) we are already deterred by other factors, and (b) we are hardly more deterred by these longer sentences. On the other hand, what about that small percentage of the population that would be inclined to commit this crime? What deters them? In general, this is not a population well-known for planning ahead or for the rational calculation of potential costs and benefits. Yet increasing the severity of punishment is predicated precisely on the assumption that the person to be deterred is a rational agent: raise the

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ante, and the person is less likely to commit the crime. In actuality, however, they often assume that they will not get caught and, if they do, they can bargain their way out of the sentence by snitching on someone else, etc. In other words, increasingly severe punishments may only deter the ones who are already deterred, not those most in need of deterrence. We need to ask what we need to deter them in particular, and the answer to this question is not immediately obvious. When social scientists have looked at deterrence, they have noted several factors that are relevant. Cesari Beccaria, the eighteenth-century criminologist who was infulential in opposing torture and the death penalty, outlined one of the earliest theories of deterrence. In much of the literature, one finds the claim that for a punishment to have the maximal deterrent effect, it must be (1) swift, (2) certain, and (3) harsh. It is increasingly douftful whether harsh belongs in this list for at least three reasons. First, the more harsh a sentence is, the greater the procedural safeguards necessary to insure there are not miscarriages of justice; that, in turn, makes the imposition of the sentence less swift and certain. (This is particularly true with the death penalty.) Second, harsh punishments—especially in terms of longer prison sentences—incur additional costs in at least two ways. If someone is sentenced to ten years in prison instead of one, then the cost of the prisoner’s prison term is ten times greater. Moreover, if one person is sentenced to ten years, then in all likelihood that will exclude the possiblity of ten people being sentenced to one-year terms. That too may mean that other offenders are not arrested and tried, which in turn diminishes the “certain” factor in the punishment. Third, some people find themselves in such dire straits when contemplating committing a crime that a prison term, no matter how long, doesn’t look that bad. Anything, they may feel, would be more tolerable than the present situation. They are not, in other words, acting like rational cost-benefit analysts. Again, it is important to recognize that the population of potential offenders may, as a group, be less prone to the kinds of long-term reward-and-punishment reinforcers that are effective for the general population. They may, in other words, be more present-oriented than the population as a whole, more likely to respond to punishments and rewards in the immediate moment and less influences by the long-term consequences—both negative and positive—of their actions. It is important to realize that things that might deter in general may prove ineffective deterrents with a particular population. In thinking about deterrence, it is also helpful to look closely as the characteristics of the group of offenders you want to deter and what one might call the replacement rate among the offending group. If you arrest a corner drug dealer and send him to prison, it is likely that someone will take his place by the end of the day. If, on the other hand, you arrest an arsonist who is a pyromaniac, it is unlikely that he will be immediately replaced by another arsonist. Not all deterrence methods are equally effective for all types of crimes. Let’s look at some examples of creative deterrence, a topic well developed by Mark Kleiman in his book When Brute Force Fails: How to Have Less Crime and Less Punishment. Kleiman’s book provides an excellent example of utilitarian thinking about punishment at its best.

Some Examples of Creative Thinking Earlier in this chapter, I suggested that there is a distinct lack of imagination in the area of punishment in the United States. If getting tough doesn’t work, then—so the political mantra seems to go—we should get even tougher. After all, the alternative seems to be getting soft on crime, giving up on the task of bringing it under control. Yet this is, I think, a false dichotomy. There may be a third possibility, between getting tough and going soft—namely, getting smart about crime, that is, looking for the most cost-effective ways of controlling crime and making our lives safer. Let’s consider two examples, both of which are discussed by Kleiman.

H.O.P.E.: Hawaii’s Opportunity Probation with Enforcement Project HOPE grew out of frustration, the kind of frustration that many have experienced in regard to the criminal justice system. Steven Alm, a judge in Hawaii, felt that his courtroom had become a revolving door, often with the same inmates going in and out. Probation appeared to be a joke, and typically a person would have to violate the terms of probation multiple times before being even called into court. Something was not working. Judge Alm’s response was interesting and creative. He designed a very streamlined system, took a small group of thirty-five parolees, developed a set of sanctions for parole violation that were not harsh (e.g., one night

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in jail) but were swift and certain (if you test positive for drugs in the morning, you will be in jail in time for dinner), and met with those parolees to explain the rules. These are the rules—no exception, no delay in applying them. He expected a lot of violations, but found instead that very few in fact violated the terms of their parole—and those that did were immediately back in jail, but only for the short, specified time. This suggests that the crucial variables for deterrence, at least with this population, are that it be swift and certain, and that harshness played a comparatively minor role. It was enough for the parolees to know that every time they tested dirty, they would be back in jail by the end of the day. The threat was no longer hollow or random or delayed; it was swift and certain.

Dismantling Drug Markets Kleiman offers two contrasting stories that bring into focus the difficulties of dismantling drug markets and returning the neighborhoods in which they operated back to the residents. In the first case, New York police mounted “Operation Pressure Point” in Manhattan’s Lower East Side, where a notorious drug market had flourished openly for over twenty years, despite sporadic efforts of the police to arrest drug dealers. (Remember that drug dealers are often like weeds: you pull up one and the next day there’s a new one in its place.) The new police commissioner happened to drive by this area twice a day, to and from work, and eventually decided to do something drastic about it: Operation Pressure Point. Over a period of six months, one thousand police officers made over 17,000 arrests, and the operation was successful. The police broke the back of that drug market, and it never returned at anything like earlier levels and, after that initial six months, did not require additional surveillance. There were two drawbacks to Operation Pressure Point. First, it was very expensive in terms of dollars and resources. That’s tolerable in good economic times, even if never desirable. But the second drawback was much more significant: the total number of people sent to prison in New York during that time period did not increase. That means that, while the drug dealers were being arrested and tried and incarcerated, many other offenders were not arrested, not tried, not incarcerated. The operation wiped out the drug market in a particular neighborhood—and that’s undoubtedly a good thing—but it did so at the hidden price of neglecting crimes and criminals that otherwise would have been pursued. Kleiman contrasts this with an operation in High Point, N.C., which had a similar problem with a drug market in what otherwise would have been a quiet residential neighborhood. Instead of mounting a long and expensive police operation, the police worked with the community. They identified the drug dealers, and divided them into two categories: those who were not only drug dealers, but also violent criminals who assaulted and killed people; those who were run-of-the-mill drug dealers, often men who lived with their mothers since dealing crack was not a lucrative profession. They observed for three months, photographing multiple buys by undercover cops from all the drug dealers. Then they arrested the three violent drug dealers, charged and convicted them with long prison sentences. With the remaining sixteen dealers, they invited them (and their mothers) as well as community representatives and social workers to a meeting, promising in advance not to arrest anyone. The police gave each dealer (and his family) a folder that contained photos of their drug sales to undercover cops and an arrest warrant awaiting the signature of a judge. Then they told the dealers: if you sell drugs in this neighborhood or any other neighborhood in town, we will arrest you immediately and you will be in jail before the sun sets. The community representatives told the drug dealers that they would no longer tolerate drugs on the street, but that they would help the dealers find jobs if they wanted to go straight. The social services people told them that they could offer various services, from dental work (important to meth users) to tattoo removal, to help them turn their lives around. The police reiterated that they already had the evidence to arrest them, just waiting for the judge’s signature. “Make a decision,” they said, “This drug market is closed.” Over the course of the next months, three dealers who did not respond to the invitation to the meeting were arrested and convicted, as was one new dealer. The rest of the dealers stopped dealing, although some were eventually arrested for non-drug crimes. There are several important things to note here in terms of deterrence. Notice, first, that the question was not how to deter in general, but how to deter this specific population of offenders; and even then, they wisely divided that into two groups, the violent offenders and the non-violent ones. Second, they expended the minimum

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amount of resources possible, in sharp contrast to the New York approach. Taxpayers did not have to pay for the incarceration of those offenders who gave up on dealing drugs. Third, since it will be necessary to reintroduce these offenders into society anyway, it’s a big advantage not to even remove them in the first place. They are much more likely to become at least moderately productive and law-abiding members of society than if they had gone to prison. Fourth, the solution did not rely just on the police and the criminal justice system. It was an integrated response involving community and social services and the offenders’ families. Notice that the community elements and the family elements do not cost the taxpayer anything. Fifth, they effectively demonstrated how swift and certain the consequences would be. This is a population that is not well known for long-range planning and delayed gratification, which is part of the reason why a life of crime appears appealing. This specific kind of deterrence was well suited for its particular target audience. Deterrence, Consequentialism, and Deontology

If deterrence is one of the reasons that we punish—and almost everyone considers it to be at least one of the reasons, even if not the only or most important—then we can see the tension between deterrence and the lex talionis, between consequentialism and deontology. Strict retributivists, advocates of the lex talionis, always want the severity of the punishment to match the severity of the offense, but consequentialists who are interested in deterrence may use quite a different yardstick to measure the possible severity of the punishment. In the North Carolina example we discussed, a strict retributivist would want to see all the offenders punished equally and proportionately to the offense, irrespective of the costs incurred to the government and, indirectly, to the taxpayers. Those principally concerned with deterrence, on the other hand, will exhibit a much greater flexibility in their response, always looking for the response that maximizes the deterrent effect of the punishment. In the North Carolina example, the concern with deterrence resulted in some offenders being punished less severely than they strictly deserved. This certainly raises questions of justice as fairness, but those questions are much more severe when the imbalance is in the other direction. What if the deterrent effect of the punishment can be increased by punishing a person more severely than he or she deserves? Is it morally permissible, in order words, to make an example of someone by punishing that person more severely than he or she deserves, if in doing so we could increase the general deterrent effect of the punishment? One way of thinking about this question is to turn it into an either/or choice: either be a strict retributivist or be a deterrence theorist. Criminologists and other social scientists, as well as philosophers and politicians, often highlight these differences and try to force a person to choose one position over the other. A much more fruitful way of approaching this is to see these as complementary approaches. Clearly, we want both retribution and deterrence. It then becomes a matter of where we draw the line, how we achieve the proper balance between these competing concerns, and the answer to that question is not pre-ordained. It will depend on particular political, social, and economic circumstances that may affect priorities in regard to these two goals. This type of judgment requires what Aristotle called practical wisdom. Rehabilitation

Historically, prisons in the United States, at least in the northern states, were oriented toward rehabilitation of the prisoners, changing their character in such a way as to make them realize the seriousness of their offense and to feel contrition for what they had done. Indeed, they were often called penitentiaries, coming from the Latin word “paenitentia,” which means repentance or penitence. In the last fifty years, we have seen a growing disenchantment with rehabilitation, and an increasingly widespread belief that effective rehabilitation is beyond our reach. Several factors contributed to the decline of rehabilitation as a goal in punishment. First, rehabilitation is difficult under the best of circumstances, and it is particularly difficult for a population that does not necessarily want to be rehabilitated. Second, it is often difficult to distinguish those prisoners who would benefit from rehabilitation and those who would not. Third, rehabilitation often depends on factors beyond the control of those doing the rehabilitating. For example, the chances of success may depend on a strong network of family and non-criminal friends for the prisoner, but the best that rehabilitation officials can do is to facilitate access to

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such a network; if it does not exist, then rehabilitation officials cannot create it. Fourth, rehabilitation is expensive. This is a problem in at least two ways. In times of economic downturn (such as the present), there often just isn’t enough funding to support resource-intensive rehabilitation programs. In addition, citizens understandably feel resentful if they see resources being used to rehabilitate prisons (such as education and job training) that are not being offered to citizens at large. Fifth, there are numerous post-incarceration barriers that prisoners have to face that make it very difficult for even the successfully rehabilitated criminal to successfully reenter society and not be involved in crime in the future. It is often difficult to get a job, hard to find non-criminal friends, and in some cases the former prisoner has even lost the right to vote. Of course, if rehabilitation could be effective, then it would be a very effective mode of specific deterrence as well. There are notable examples of prisoners who have rehabilitated themselves—some of them are still in prison—but there is diminishing public support for this as a goal of punishment. Punishment, Reconciliation, and Healing

In the types of cases discussed so far, punishment is primarily viewed within the context of individual offenses. Let’s now turn to a series of problems that relate to punishment but are not confined only to individual offenses.

South Africa, Apartheid, Nelson Mandela, and Forgiveness. For decades, South Africa existed under the rule of apartheid, which oppressed, brutalized, disenfranchised, and often killed black South African residents in the name of maintaining white rule. This situation has been depicted in a number of very powerful movies, including Cry Freedom (about Steven Biko, the first half is excellent), Cry, the Beloved Country (based on Alan Paton’s superb novel), Red Dust (which deals with the Truth and Reconciliation Commission trials), Catch a Fire, A Dry White Season, The Color of Freedom (which depicts the relationship between Mandela and his guard, James Gregory). After the official end of apartheid with the first free multiracial election in South Africa’s history, the new President, Nelson Mandela, faced a daunting problem: tens of thousands of black South Africans had been beaten, tortured, kidnapped, or killed during the period of apartheid. Often this was done by the government itself. It was certainly almost always done with the implicit approval of the ruling white government. How should the new government under Nelson Mandela proceed in regard to the punishment of those crimes? A strict retributivist would demand punishment proportional to the crimes, and this would have involved the arrest, trial, and imprisonment of thousands of white South Africans. Such a move would also foster greater resentment among the whites, and the possibility of violent backlash was certainly real. In addition, blacks in South Africa had long been deprived of basic education and job training, and for its future prosperity, South Africa needed the participation of white South Africans as well as the blacks and colored (i.e., mixed race). On the other hand, it was morally intolerable to imagine that the new government would let past offenses be completely ignored, as though they had not happened. Too many people had suffered and died, and their memory must somehow be honored. To move into the future, South Africa must somehow heal its wounds. The question was how. It was this complex set of considerations that Nelson Mandela, Bishop Desmond Tutu, and other South African leaders faced, and part of their answer was the Truth and Reconciliation Commission, one of the first large-scale examples of restorative justice. Nelson Mandela had already set the tone of forgiveness and reconciliation for all of South Africa with his personal example: he not only invited his jailer (James Gregory) to his inauguration, but made him a distinguished guest of honor. He didn’t just preach forgiveness; first and foremost, he did it, providing a powerful example to both black and white citizens of South Africa. The movie Invictus portrays another key moment when Mandela united blacks and white around South Africa’s rugby team, long a symbol of white dominance in South Africa. The Truth and Reconciliation Commission attempted to find a middle ground between the backward-looking moral demand for punishment and the forward-looking concern about reconciliation and healing. (Similar commissions sprang up in South America after the overthrow of dictators there.) Victims and the families of victims could come forward and testify about their experiences and thereby honor the memories of those who

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had been killed or tortured. Perpetrators could come forward, confess their offenses, and receive amnesty for their offenses. This is a good example of what was earlier referred to as practical wisdom, Aristotle’s term to describe the decision-making process in real life. It is a balancing act among competing concerns, each of which needs to be respected. It is also an excellent example of moral imagination, finding a third possibility in a situation where most people only saw two opposing poles. Truth and reconciliation commissions are not the only instances of restorative justice, and the criminal justice system of the Navajo Nation takes the restoration of valance or harmony (hozho) as its principal aim. In the Navajo worldview, crime is seen as a disruption of the balance or harmony among persons and in some case the harmony between persons and the natural world. The aim of punishment should thus be the restoration of that proper balance, which often cannot be achieved without understanding why the offense occurred in the first place. Additional Issues about Punishment

From the preceding discussion, we can see that punishment is guided by competing moral concerns: on the one hand, backward-looking considerations about retribution and, on the other hand, forward-looking concerns about deterrence, rehabilitation, and reconciliation. There is no simple formula for balancing those concerns, but any satisfactory policy of punishment must take these carrying considerations into account in a convincing way. Before turning to a consideration of one specific form of punishment, the death penalty, let’s briefly consider a number of moral questions regarding punishment in general in the United States.

The Treatment of Juveniles The United States stands almost alone in the world in the way in which it treats juvenile offenders. It sentences individuals to life in prison without parole for crimes committed when they are under eighteen, and increasingly often it tries juveniles as adults. This was an extraordinarily rare event a few decades ago when everything was handled in juvenile courts and the records were sealed. This raises several issues.

Responsibility and Moral and Cognitive Development. There is increasing evidence from a variety of sources including the neurosciences that cognitive and emotional and even moral development are still not complete in the teen years. To what extent does this raise questions about how strictly we want to hold adolescents accountable for their behavior? This leads to our second question. Hope and the Possibility of Change. The younger a person is, the greater the possibility of positive change, all other things being equal. It may be difficult to turn around someone who has been living a life of crime for one or two decades, but far less so with someone who is young and a first-time offender. Moreover, people do change over a course of decades—we all do, whether criminals or not. What are the moral implications of such change when someone actually becomes a better person over a period of years? Youth and the Cost of Not Changing. If a seventeen-year old is sentenced to life in prison, we can look forward as taxpayers to supporting that person for fifty or more years. Sheer economics should caution us against the strict punishment of juveniles. It’s not a smart investment.

Solitary Confinement In the United States, solitary confinement was first used in 1829, and often led to insanity or suicide and gradually fell into disuse. When Alcatraz opened in 1934, one wing was reserved for solitary confinement. In the 1980s, prisons began increasingly to use “permanent lockdown,” which confined inmates to cells for twentythree hours a day. The Marion, Illinois prison in 1983, and the Pelican Bay prison in California, completed in

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1989, were the first new prisons to have only solitary confinement for all inmates. In the 1990s, the United States began to build Supermax prisons, which now exist in over thirty states. Some states confined as much as 20 percent of their prisoners to such facilities. About 25,000 prisoners are currently in Supermax facilities, at a cost of about fifty thousand dollars per prisoner. Fifty to eighty thousand are in restrictive segregation units, and many of these are also in solitary confinement. Prisoners in such facilities often have no human contact, live in a small cubicle with constant light, and have nothing to occupy their time. Solitary confinement raises both constitutional and moral issues. The constitutional issue is whether this counts as “cruel and unusual punishment.” Given its widespread use in the United States, it is hard to see how it could count as unusual. The ethical issues are more difficult. Is solitary confinement torture? In an article in The New Yorker in 2009 entitled “Hellhole. Is Long-term Solitary Confinement Torture,” Atul Gawande examined the effects of solitary confinement, looking not only at American prisons but also prison experiments in other countries and animal experiments. He concluded that we are, by nature, social animals and the long-term deprivation of human contact is devastating. In both humans and animals, it leaves creatures unable to relate to others, constantly angry and hallucinating, vacillating between periods of stupor and bouts of hyperactive aggression. Gawande contrasts our current situation with England’s situation a few decades ago, when it used harsh prison tactics, including extensive solitary confinement, to control its prison population, especially in the seventies. England had long struggled with terrorists from Northern Ireland, and the level of animosity was extraordinarily high. When solitary confinement was used, the problems became even worse as the costs mounted. After a decade, British prison officials reconsidered their policy, noting that most of the so-called troublemakers were individuals who put a high value on avoiding humiliation and saving face. They adopted a radically different approach: less isolation, more interaction, small blocks of rooms for about ten people, mental health privileges, the possibility of earning more privileges, visits, phone contacts, etc. Now England rarely uses solitary confinement and has a much lower rate of violence in its prisons than when it did use it. In 2006, the Commission on Safety and Abuse in America’s Prisons, a bipartisan group, recommended the abolition of solitary punishment and concluded that it lost its effectiveness when it lasted more than ten days. After that, such punishment is likely to do more harm than good.

Punishment and Race The racial compositions of prisons is disturbing, and there is a disproportionate number of blacks and Hispanics. In a Pew study using 2006 data, they mapped incarceration rates among men: 1 in 106 for whites, 1 in 36 for Hispanics, and 1 in 15 for black men. This is a stunning difference. (The differences are less pronounced for women.) The first question is obvious: to what do we attribute this difference? More specifically, is it an indication of a bias in the administration of the criminal justice system such that it punishes blacks and Hispanics disproportionately, a bias in our laws such that they define offenses committed more often by people of color as more severe crimes, or is it simply that black and Hispanic men are more likely to commit crimes, for whatever possibly excusable (poverty, lack of education, poor parenting, etc.) or possibly inexcusable (bad attitude, drugs, gangs, etc.) reasons? Or is it possible that some other variable (such as poverty or discrimination) is at work here, and that it is not primarily a matter of race at all? In Texas Tough: The Rise of America’s Prison Empire, Robert Perkinson argues that historically prisons in the North were much different from those in the South. Until late in the previous century, prisons in the North at least tried to rehabilitate prisoners. In contrast, prisons in the South developed, particularly after the Civil War, as ways of keeping white control over black freedmen. Indeed, black prisoners were typically forced to work in the fields owned by the prison or else leased out to farmers to work in their fields. In substance, it was slave labor, but the name had been changed.

The Uniformity of Punishment and States Rights Any mention of Texas cannot help but call up images of disparity in punishments, although Texas certainly does not have a monopoly in this area. The United States is a republic, a confederation of fifty individual states, each of which has a wide range of rights, rights that basically are only curtailed by the restrictions of the federal

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constitution. Most crimes, such as murder, are state crimes, not federal. Punishments for specific crimes can vary greatly from state to state, as we shall see in detail with the death penalty. In some cases, the federal government imposed mandatory minimum sentences, but often states were free to go their own way. Probably the area in which the federal government was most intrusive on state’s rights was in the area of anti-drug laws, and several presidents from Eisenhower onward conducted “wars on drugs.” The unevenness of punishment from one state to another has an understandable historical justification, but the moral question that gets asked in this regard is whether it is right for the same offense to be punished very severely in one state and much less so in another state. Typically, considerations of justice suggest that the same offense in two different places should be punished to the same extent, and that differences in this regard are unfair. We see this today not only in regard to marijuana laws, but also in regard to physician-assisted dying (legal in Oregon and Washington, a crime in other states) and gay marriage. So, too, abortion laws vary from one state to another.

Capital Punishment It’s an unusual group by almost any standards: China, Iran, Iraq, the United States, and Saudi Arabia. As a group, it would seem to have little in common except for one very important factor: they are the top five countries in the world in terms of executions. Indeed, most modern democracies have gotten rid of the death penalty years ago, and we find ourselves in the company of other counties we have often criticized in the past. Let’s now turn our attention to the principal justification for the death penalty: the lex talionis. A Life for a Life

Advocates of the death penalty often invoke the lex talionis, the law of “an eye for an eye, a tooth for a tooth,” as their justification for the death penalty. If we take that law literally, then it becomes “a death for a death.” It is, however, more helpful to take this law metaphorically as one of proportionality: our harshest punishment for our worst crimes. This is in fact the way in which it has been interpreted in the United States, where the death penalty is reserved for aggravated murder and a handful of other, similarly egregious crimes, and typically they have to be accompanied by “special circumstances” (such as murder for hire or murder of a police officer) to quality as capital offenses.

Interpreting the lex talionis Yet the legitimacy of this metaphorical interpretation raises interesting questions. Why don’t we take the lex talionis literally? Why shouldn’t a torturer be tortured as punishment? Why shouldn’t a rapist endure the agony of being raped as punishment? Why shouldn’t someone who has raped, tortured, and killed a person be punished in the same way? As we reflect on these questions, we discover that capital punishment isn’t the worst possible punishment—there are other punishments, such as torture and rape and mutilation, which are worse in some way. Indeed, there are some punishments that leave victims calling out to be killed in order to put an end to the punishment. Imagine if a person were raped, tortured, brought near to death, allowed to recover, and the process were then repeated over and over again. Presumably there would be some point at which the person would rather be dead. If this is not enough, imagine a particularly evil torturer amputating all four of the person’s limbs. Everyone, I think, would agree that this is worse than death. In what sense? It is crueler. If we ranked punishments along a continuum according to their level of cruelty, we might get something like this:

Punishments: Scale of Cruelty Monetary Fines

➪

Day Service

➪

Imprisonment

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Execution

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Rape and Torture

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This is a different scale than we might get if we ranked punishments according to the extent to which they destroyed a person’s future possibilities. Then we might get something like this: Punishments: Scale of Destruction of Life Possibilities Monetary Fines

➪

Day Service

➪

Imprisonment

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Rape and Torture

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Execution

The metaphorical interpretation of the lex talionis comes into play when the literal interpretation results in a punishment that is too far to the right on the cruelty scale. Clearly, everyone admits that some punishments are too cruel.

Reiman’s Objection to the Death Penalty The issue then becomes one of drawing the line: at what point do we say that the literal interpretation of the lex talionis results in a punishment that is too cruel? The claim of opponents of the death penalty is that the line should be drawn before execution; advocates of the death penalty draw the line after execution. This is basically the argument that Jeffrey Reiman, the author of The Rich Get Richer and the Poor Get Prison, advances in his work on the death penalty: there are certainly criminals whose crimes deserve the death penalty as a matter of justice. In fact, they may even deserve worse. However, torturing or even painlessly killing criminals diminishes us. We now can see that there is a sense in which the death penalty is the worst possible punishment (it completely destroys all future life possibilities) and a sense in which it isn’t the worst (other punishments may be crueler). Although literal interpretations of the lex talionis would seem to justify crueler punishments such as torture for convicted torturers, we are barred from such punishments because of their cruelty; yet the death penalty seems acceptable for the most heinous of crimes because it is the worst possible punishment in another sense. Reiman’s argument is that we ought to move the line over so that the death penalty falls on the side of unacceptable cruel punishments, even if they are deserved. The Sanctity of Life

Opponents of the death penalty are often motivated by a moral concern for the sanctity of life. We can distinguish three versions of this concern. First, the strong version, such as we find among Quakers and Buddhists, maintains an absolute prohibition on the taking of any human life. Some Catholics, such as Cardinal Bernardin, also support this position. It is thus opposed to the death penalty because it involves intentionally killing a human being, just as it would be opposed to war and even killing in self-defense. Second, the moderate version, which we find in many religious traditions, is opposed to any taking of innocent human life. This version would also be opposed to practices such as active euthanasia and may be opposed to the death penalty insofar as its administration inevitably involves inadvertently executing innocent people occasionally. Finally, the weak version of this view maintains that any practice involving the intentional killing of other human beings must have an extremely strong justification. Some who support this position would argue that there simply is not a sufficient justification for the death penalty rather than life in prison. For many who support the sanctity of life, the potential deterrent effect of capital punishment is not really an issue. In their eyes, even if capital punishment deters more effectively than alternative punishments, it still is not justified, for it involves the intentional taking of a human life.

David Gelernter and the Value of Life The premise of the sanctity of human life has, however, sometimes been used to justify exactly the opposite conclusion: if we take human life really seriously, then we will simply not permit the presence of murders in our midst. Capital punishment is the only way to rid ourselves of them with certitude, so capital punishment is justified in this perspective in terms of the value of human life.

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David Gelernter advocates a position roughly along these lines, although he does not depend on any explicit religious foundation for valuing human life. Gelernter, a professor of computer science at Yale, was a target of the Unabomber, Ted Kaczynski, and lost an eye, use of one hand, and suffered much other damage. This, he says, should not be tolerated in a civilized society, and the death penalty is the expression of our affirmation of the value of human life. Hope and the Possibility of Change

Opponents of the death penalty are often motivated by another, less articulated concern. For many of them, the death penalty is a sign of giving up, a sign that we have concluded—at least in this particular instance—that there is nothing salvageable about this criminal, that there is nothing that redeems this person’s life and justifies his (and it is almost always “his,” not “hers”) continued existence. Sometimes this is part of a larger religious worldview that sees hope for all human beings, no matter what their situation; sometimes it is part of a purely humanistic worldview that sees human beings as fundamentally good at the core and only brutalized and deformed through external influences. For those who share this belief, in whatever form, the death penalty is an act of breaking faith with ourselves, with our humanity, an act of despair from people who no longer know what else to do. The Effect of the Death Penalty: Deterrence or Brutalization?

What effect does the death penalty have? Two competing and incompatible claims have been advanced in answer to this question. On the one hand, some have argued that it has a deterrence effect, that is, it reduces the number of potential future crimes for which it is a punishment. On the other hand, others have argued that it results in what has been called the brutalization effect, that is, the number of capital crimes actually increases as a result of executions.

The Empirical Findings There are two distinct issues here: an empirical one and a normative one. The empirical question is in the domain of social scientists and their answer is by no means univocal. This is hardly surprising, given the complexity of the issue. One not only has to show that the death penalty deters, but that it deters more effectively than alternative punishments such as life imprisonment. Moreover, even if the death penalty as presently administered doesn’t deter more effectively than the alternatives, there is still the question of whether it might be a more effective deterrent if it were administered differently (more often, more quickly, etc.). The empirical findings on the effects of capital punishment have been mixed. They range between two extremes. On the one hand, some researchers have argued that the death penalty was responsible for saving seven or eight lives (of innocent potential victims) per year in the United States while it was being used.1 On the other hand, others have claimed that the number of capital offenses goes up immediately following an execution.2 One of the more interesting studies has compared contiguous states, such as North and South Dakota or Michigan and Illinois, where one has the death penalty and the other does not, but which in many other respects are similar. If the death penalty were an effective deterrent, one would expect that the rate of capital crimes would be lower in the state with the death penalty, but this has not been the case.

The Argument from Common Sense Some theorists have argued that we need not be bothered by these contradictory findings; all we need to do is to reflect for a moment, and common sense will give us the answer to our question about the deterrent effects of capital punishment. When prisoners are given a choice between life in prison and the death penalty, they inevitably choose life in prison. We don’t find “lifers” trying to get their sentence changed to death; on the other hand, we find there are plenty of prisoners on death row who are trying to get their sentences changed to life in prison. Common sense and a moment’s reflection tell us that virtually everyone considers execution to be worse than life in prison. And if everyone considers it to be worse, then they will be more deterred by it than by a life sentence.

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The common sense argument, at least in its initial version, falls short of the mark in at least two respects. First, granting the premises of the argument, we still have an additional question: Do potential criminals, when contemplating a capital offense, think that they will receive the death penalty rather than life in prison? For deterrence to work, it must be effective before the crime is committed, and the argument from common sense does not assure us that it is. This goes back to the issue we discussed earlier in regard to deterrent effects on specific groups. Second, the argument ignores any other factors as influencing the situation. (This is a problem with hypothetical examples in general: often we only discover in them the factors that we wanted to be there in the first place; real life cases are messier, more surprising, and consequently more instructive.) For example, it ignores the possibility that potential criminals might feel that because the state kills (through executions), it’s okay for them to kill.

The Moral Issue The moral issue on which deterrence turns is distinct from the empirical question: If it turns out that capital punishment deters significantly more effectively than alternative punishments, then should we employ it? After all, the death penalty is the intentional killing of another human being—in the eyes of some, murder by the state. It is certainly consistent to say that capital punishment deters and still be opposed to it because it violates the sanctity of human life (as we have already seen), because of the high probability that some innocent people will be executed, or because it is administered in our society in an unavoidably arbitrary manner. Deterrence and Publicity

If capital punishment is justified in terms of its deterrent effect, then it would seem to follow that it should be administered in such a way as to maximize its potential as a deterrent. If we are executing criminals in order to deter other (potential) criminals from committing the same crime, then shouldn’t we execute them in such a way as to have the greatest possible impact on anyone else who might commit such a crime? Two possible changes might increase the deterrent effect. First, as mentioned earlier, punishments that are administered quickly and surely are, all other things being equal, more likely to be effective deterrents than punishments that are administered long after the fact and sporadically. In capital punishment cases, every effort should be made to hasten the judicial process and the execution if the point of such punishment is deterrence. Second, the more vivid the realization of the consequences, the more effectively they influence behavior. In the case of capital punishment, this would seem to justify public, televised executions, presuming that they increase the deterrent effect of capital punishment. Indeed, if deterrence is the justification for such punishment, then it seems to be wasting an individual’s execution if the government does not maximize its potential deterrent effects. Of course, this would have to be done in a way that properly shelters children, and so forth, and at the same time is most likely to reach those most likely to commit capital crimes. The Irrevocability of Capital Punishment

One of the common objections to capital punishment is that it is irrevocable: once an innocent person is executed, there is no way to bring that person back to life again. Yet when we reflect on this argument, we see that it is not stated very precisely, for all punishment (except, perhaps, monetary fines, which can be returned with interest) is in a very real sense irrevocable. Twenty years in prison cannot be given back to someone who was falsely convicted. The real issue is that there is no way of even attempting to compensate for the injustice when someone has been executed, because the person is no longer alive to receive the compensation. The Demand for Certitude

The high stakes in capital punishment create an additional demand in terms of the level of certitude required to carry out the punishment. Precisely because there is no way to undo a mistake in capital punishment, we must be more certain than would otherwise be required that we are in fact executing the guilty party.

Chapter 4. Punishment and the Death Penalty

How often do mistakes get made? One recent estimate claimed that in the United States since 1900, fifty-seven innocent persons—or, more precisely, persons whose innocence can be proved in retrospect—have been executed.3 The further claim is that, if this number can be shown to have been innocent, how many more were innocent that we did not know about? This is a difficult empirical matter, but it seems reasonable to conclude that at least some times, innocent persons are executed, even if we are not certain how many. This situation is exacerbated by the increase in executions in recent years and by the Supreme Court decisions that exclude the uncovering of new evidence of innocence as a basis for reconsideration of a case. However, DNA tests have offered new, scientific evidence that has helped to exonerate a number of inmates on death row. Since capital punishment again became legal in 1976, eighty-two convicts—one out of every seven waiting to be executed—have been exonerated.4 There is a further issue with the demand for certitude. Because of the irrevocability of the death penalty, we must provide procedural safeguards intended to minimize the chance of a mistake. Typically, even in states where the death penalty is imposed often and without ambivalence, the average time on death row is over ten years. This alone mitigates the deterrent effect of the death penalty, since one of the key variables in deterrence is that it be swift. Ten years is not swift in anyone’s perspective, and the possibility that the sentence may be reduced along the way also makes it less certain—another key factor in deterrence. Variations among the States on the Death Penalty

Just as we mentioned in regard to punishment in general, our federalist system results in great variation in penalties among the states, including in regard to the death penalty. What is punished by execution in one state might result simply in a long prison sentence in another. Again, Texas stands out. Over a third of all executions in the United States occur in Texas—a stunning figure. What is even more interesting is that over half of those executions occur as the result of sentences handed down in Harris County (136 executions since 1976), although two other counties may soon surpass it since Texas has now also adopted life-without-parole as an option. (Before the Supreme Court ruled it unconstitutional in Roper v. Simmons, Texas had executed thirteen juveniles.) Texas is one of the few states whose constitution forbids the governor to declare a moratorium on carrying out the death penalty. The discrepancy in punishment from state to state raises questions about fairness, but these questions seem to have a special urgency in regard to the death penalty. Is it fair that the same crime within the same state but in a different county could result in such different punishments? Scott Turow on the Death Penalty

One of the most interesting commentators on the death penalty has been Scott Turow, an attorney and former federal prosecutor and the author of a number of best-selling legal thrillers. He was asked by the then-governor of Illinois, George Ryan, to participate in a commission on the death penalty in Illinois. That commission found that several of the people who were currently on death row in Illinois were not guilty—a particularly disturbing finding for a governor, for the governor is the one who signs the death warrant. It is also disturbing to us as citizens, since the execution is done in our name. Turow’s position, sketched out in a short book entitled Ultimate Punishment, gradually evolved from being somewhat in favor of the death penalty to being opposed to it, not in principle but in practice. He admits that some offenders may commit crimes so heinous that they do indeed deserve to die, but he thinks our criminal justice in practice is unable to distinguish that (presumably very small) number of cases from all the other cases. Thus he opposes the death penalty because he believes it will result both in the execution of innocent people and in the execution of people who deserve to be punished but not to be executed. Turow’s option has special weight insofar as he is intimately familiar with the machinery of justice, has a deep love for the law, and is not ruling the death penalty out in advance. Indeed, his initial work as a federal prosecutor (although there are few federal death penalty cases) give him, if anything, a particular receptiveness to the concerns of prosecutors. Even given all this, he decides in the final analysis that the death penalty in the United States just cannot be administered justly.

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The Death Penalty and International Relations

Another issue relating to the moral permissibility of the death penalty concern our relations with other countries. As mentioned in the introduction to this section, the United States is not in particularly desirable company in its support of the death penalty. Not only do we have little in common with other countries that use the death penalty, but the countries with which we do have a lot in common—liberal democracies around the world, including all the members of the European Union—are countries that do not support the death penalty. This is not just a matter of the company we keep, as it were. It is also a difficult matter in international relations. Many countries are hesitant or unwilling to extradite criminals to the United States if there is a danger that they would be executed. (This is similar to the way in which the United States used to hesitate to hand over prisoners for extradition to counties in which they might be tortured.) This issue becomes even more sensitive when the accused is a foreign national. The execution in the United States of many Mexican nationals has strained relations between the two countries. Just as the United States expressed outrage toward Singapore when an American citizen, Michael Fay, was convicted and sentenced to be caned, so too other countries look at the United States’ use of the death penalty and protest vehemently when it is applied to their own citizens.

Diversity and Consensus As always in this book, each of us has to come to a considered, reflective judgment that weighs complex and competing claims. Indeed, that’s the very nature of the problems selected for this book—the easy problems have been omitted, because we need little help in resolving them. We can, however, draw some conclusions that may provide part of the common ground we need here to reach a societal consensus on the issue of the death penalty. First, many people on both sides of this debate agree that the empirical evidence about the deterrent effect of capital punishment is inconclusive. There is no incontrovertible evidence that the death penalty is a more effective deterrent than life imprisonment, but neither is there clear evidence that it is not. Moreover, this remains such an empirically tricky question to settle that there is little likelihood that there will be an indisputable empirical answer to the question of the death penalty’s deterrent effect. Second, most people agree that human life is sacred or at least extremely valuable (for those who do not frame the issue in religious terms), but this shared belief leads to opposite conclusions. For some, it leads to a prohibition against capital punishment because it involves the intentional taking of human life. For others, it leads to support of the death penalty as either the proper penalty for violating the sanctity of life or as the deterrent most likely to preserve the sanctity of innocent life. Third, almost everyone would agree that a society in which capital crimes do not occur is better than one in which they occur and are punished. Our long-range focus needs to be on reducing the number of crimes that could be classified as capital, and the most effective long-term use of our resources is toward that end. It is an empirical question what will most effectively promote that goal—some suggestions include more community-based policing, more rehabilitation in and out of prison, more programs that reduce drug and alcohol use (which are often associated with crime), more programs that strengthen family and community values, and more research into which programs are most effective in reducing crime—and it is a question well worth pursuing. Finally, I would hope—and this is a personal hope rather than a statement of societal consensus—that many will agree that capital punishment, no matter how deserved it is on the basis of the crime (and surely there are crimes that justify it), is unworthy of us. It diminishes us, the ones in whose name it is administered. And it is, finally, an act of despair, a declaration that the person to be executed is beyond hope, beyond redemption. This may in fact be a realistic assessment of that individual, but there is moral merit in living in the area between realism and hope.

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Notes 1. See Isaac Ehrlich, “The Deterrent Effect of Capital Punishment: A Question of Life or Death,” American Economic Review, Vol. 65 (June, 1975), pp. 397–417; also see the discussion of this issue in Jeffrey Reiman’s “Justice, Civilization, and the Death Penalty,” and the bibliography in his Footnote 35. 2. W. Bowers and G. Pierce in “Deterrence or Brutalization: What is the Effect of Executions?” Crime & Delinquency, Vol. 26 (1980), pp. 453–84. 3. See especially the study by Hugo A. Bedeau and M. L. Radelet, “Miscarriages of Justice in Potentially Capital Cases,” Stanford Law Review, Vol. 40 (1987), pp. 21–179. 4. Caitlin Lovinger, “Death Row’s Living Alumni,” The New York Times, Week in Review, August 22, 1999, p. 4.

David Gelernter

“What Do Murderers Deserve? The Death Penalty in Civilized Societies” About the Author: David Gelernter, a professor of computer science at Yale, was letter-bombed in June 1993 and nearly lost his life. He is the author, most recently, of Drawing Life: Surviving the Unabomber and Machine Beauty: Elegance and the Heart of Technology. He is at work on a novel, portions of which have appeared in Commentary (August 1997 and January 1998). About the Article: Gelernter argues that capital punishment is not only permissible, but in a certain sense it is a characteristic of a civilized society that finds murder intolerable. It is part of our communal response to an intolerable action. As You Read, Consider This: 1. Murder, Gelernter tells us, always involves “messing in other people’s problems.” Why is this true? What significance does it have? 2. What role, according to Gelernter, do the emotions play in making decisions about the death penalty?

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o civilized nation ever takes the death penalty for granted; two recent cases force us to consider it yet again. A Texas woman, Karla Faye Tucker, murdered two people with a pickaxe, was said to have repented in prison, and was put to death. A Montana man, Theodore Kaczynski, murdered three people with mail bombs, did not repent, and struck a bargain with the Justice Department; he pleaded guilty and will not be executed. (He also attempted to murder others and succeeded in wounding some, myself included.) Why did we execute the penitent and spare the impenitent? However we answer this question, we surely have a duty to ask it. And we ask it—I do, anyway—with a sinking feeling, because in modern America, moral upside-downness is a specialty of the house. To eliminate race prejudice we discriminate by race. We promote the cultural assimilation of immigrant children by denying them schooling in English. We throw honest citizens in jail for child abuse, relying on testimony so phony any child could see through it. Orgasm studies are okay in public high schools but the Ten Commandments are not. We make a point of admiring manly women and womanly men. None of which has anything to do with capital punishment directly, but it all obliges us to approach any question about morality in modern America in the larger context of this country’s desperate confusion about elementary distinctions. Why execute murderers? To deter? To avenge? Supporters of the death penalty often give the first answer, opponents the second. But neither can be the whole truth. If our main goal were deterring crime, we would insist on public executions—which are not on the political agenda, and not an item that many Americans are “What Do Murderers Deserve?" by David Gelernter (Commentary, March/April 1998) Reprinted from COMMENTARY, April/1998 by permission: copyright © 2016 by Commentary, Inc.

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interested in promoting. If our main goal were vengeance, we would allow the grieving parties to decide the murderer’s fate; if the victim had no family or friends to feel vengeful on his behalf, we would call the whole thing off. In fact, we execute murderers in order to make a communal proclamation: that murder is intolerable. A deliberate murderer embodies evil so terrible that it defiles the community. Thus the late social philosopher Robert Nisbet: “Until a catharsis has been effected through trial, through the finding of guilt and then punishment, the community is anxious, fearful, apprehensive, and above all, contaminated.” Individual citizens have a right and sometimes a duty to speak. A community has the right, too, and sometimes the duty. The community certifies births and deaths, creates marriages, educates children, fights invaders. In laws, deeds, and ceremonies it lays down the boundary lines of civilized life, lines that are constantly getting scuffed and needing renewal. When a murder takes place, the community is obliged, whether it feels like it or not, to clear its throat and step up to the microphone. Every murder demands a communal response. Among possible responses, the death penalty is uniquely powerful because it is permanent and can never be retracted or overturned. An execution forces the community to assume forever the burden of moral certainty; it is a form of absolute speech that allows no waffling or equivocation. Deliberate murder, the community announces, is absolutely evil and absolutely intolerable, period. Of course, we could make the same point less emphatically if we wanted to—for example, by locking up murderers for life (as we sometimes do). The question then becomes: is the death penalty overdoing it? Should we make a less forceful proclamation instead? The answer might be yes if we were a community in which murder was a shocking anomaly and thus in effect a solved problem. But we are not. Our big cities are full of murderers at large. “One can guesstimate,” writes the criminologist and political scientist John J. DiIulio, Jr., “that we are nearing or may already have passed the day when 500,000 murderers, convicted and undetected, are living in American society.” DiIulio’s statistics show an approach to murder so casual as to be depraved. We are reverting to a pre-civilized state of nature. Our natural bent in the face of murder is not to avenge the crime but to shrug it off, except in those rare cases when our own near and dear are involved. (And even then, it depends.) This is an old story. Cain murders Abel and is brought in for questioning: where is Abel, your brother? The suspect’s response: how should I know? “What am I, my brother’s keeper?” It is one of the very first statements attributed to mankind in the Bible; voiced here by an interested party, it nonetheless expresses a powerful and universal inclination. Why mess in other people’s problems? And murder is always, in the most immediate sense, someone else’s problem, because the injured party is dead. Murder in primitive societies called for a private settling of scores. The community as a whole stayed out of it. For murder to count, as it does in the Bible, as a crime not merely against one man but against the whole community and against God—that was a moral triumph that is still basic to our integrity, and that is never to be taken for granted. By executing murderers, the community reaffirms this moral understanding by restating the truth that absolute evil exists and must be punished. Granted (some people say), the death penalty is a communal proclamation; it is nevertheless an incoherent one. If our goal is to affirm that human life is more precious than anything else, how can we make such a declaration by destroying life? But declaring that human life is more precious than anything else is not our goal in imposing the death penalty. Nor is the proposition true. The founding fathers pledged their lives (and fortunes and sacred honor) to the cause of freedom; Americans have traditionally believed that some things are more precious than life. (“Living in a sanitary age, we are getting so we place too high a value on human life—which rightfully must always come second to human ideas.” Thus E.B. White in 1938, pondering the Munich pact ensuring “peace in our time” between the Western powers and Hitler.) The point of capital punishment is not to pronounce on life in general but on the crime of murder. Which is not to say that the sanctity of human life does not enter the picture. Taking a life, says the Talmud (in the course of discussing Cain and Abel), is equivalent to destroying a whole world. The rabbis used this statement

to make a double point: to tell us why murder is the gravest of crimes, and to warn against false testimony in a murder trial. But to believe in the sanctity of human life does not mean, and the Talmud does not say it means, that capital punishment is ruled out. A newer objection grows out of the seemingly random way in which we apply capital punishment. The death penalty might be a reasonable communal proclamation in principle, some critics say, but it has become so garbled in practice that it has lost all significance and ought to be dropped. DiIulio writes that “the ratio of persons murdered to persons executed for murder from 1977 to 1996 was in the ballpark of 1,000 to 1”; the death penalty has become in his view “arbitrary and capricious,” a “state lottery” that is “unjust both as a matter of Judeo-Christian ethics and as a matter of American citizenship.” We can grant that, on the whole, we are doing a disgracefully bad job of administering the death penalty. After all, we are divided and confused on the issue. The community at large is strongly in favor of capital punishment; the cultural elite is strongly against it. Our attempts to speak with assurance as a community come out sounding in consequence like a man who is fighting off a choke-hold as he talks. But a community as cavalier about murder as we are has no right to back down. That we are botching things does not entitle us to give up. Opponents of capital punishment tend to describe it as a surrender to our emotions—to grief, rage, fear, blood lust. For most supporters of the death penalty, this is exactly false. Even when we resolve in principle to go ahead, we have to steel ourselves. Many of us would find it hard to kill a dog, much less a man. Endorsing capital punishment means not that we yield to our emotions but that we overcome them. (Immanuel Kant, the great advocate of the death penalty precisely on moral grounds, makes this point in his reply to the anti-capitalpunishment reformer Cesare Beccaria— accusing Beccaria of being “moved by sympathetic sentimentality and an affectation of humanitarianism.”) If we favor executing murderers it is not because we want to but because, however much we do not want to, we consider ourselves obliged to. Many Americans, of course, no longer feel that obligation. The death penalty is hard for us as a community above all because of our moral evasiveness. For at least a generation, we have urged one another to switch off our moral faculties. “Don’t be judgmental!” We have said it so many times, we are starting to believe it. The death penalty is a proclamation about absolute evil, but many of us are no longer sure that evil even exists. We define evil out of existence by calling it “illness”—a tendency Aldous Huxley anticipated in his novel Brave New World (1932) and Robert Nisbet wrote about in 1982: “America has lost the villain, the evil one, who has now become one of the sick, the disturbed. . . . America has lost the moral value of guilt, lost it to the sickroom.” Our refusal to look evil in the face is no casual notion; it is a powerful drive. Thus we have, (for example) the terrorist Theodore Kaczynski, who planned and carried out a hugely complex campaign of violence with a clear goal in mind. It was the goal most terrorists have: to get famous and not die. He wanted public attention for his ideas about technology; he figured he could get it by attacking people with bombs. He was right. His plan succeeded. It is hard to imagine a more compelling proof of mental competence than this planning and carrying out over decades of a complex, rational strategy. (Evil, yes; irrational, no; they are different things.) The man himself has said repeatedly that he is perfectly sane, knew what he was doing, and is proud of it. To call such a man insane seems to me like deliberate perversity. But many people do. Some of them insist that his thoughts about technology constitute “delusions,” though every terrorist holds strong beliefs that are wrong, and many nonterrorists do, too. Some insist that sending bombs through the mail is ipso facto proof of insanity—as if the twentieth century had not taught us that there is no limit to the bestiality of which sane men are capable. Where does this perversity come from? I said earlier that the community at large favors the death penalty, but intellectuals and the cultural elite tend to oppose it. This is not (I think) because they abhor killing more than other people do, but because the death penalty represents absolute speech from a position of moral certainty, and doubt is the black-lung disease of the intelligentsia—an occupational hazard now inflicted on the culture as a whole. American intellectuals have long differed from the broader community—particularly on religion, crime and punishment, education, family, the sexes, race relations, American history, taxes and public spending, the size

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and scope of government, art, the environment, and the military. (Otherwise, I suppose, they and the public have been in perfect accord.) But not until the late 60s and 70s were intellectuals finally in a position to act on their convictions. Whereupon they attacked the community’s moral certainties with the enthusiasm of guard dogs leaping at throats. The result is an American community smitten with the disease of intellectual doubt—or, in this case, self-doubt. The failure of our schools is a consequence of our self-doubt, of our inability to tell children that learning is not fun and they are required to master certain topics whether they want to or not. The tortured history of modern American race relations grows out of our self-doubt: we passed a civil-rights act in 1964, then lost confidence immediately in our ability to make a race-blind society work, racial preferences codify our refusal to believe in our own good faith. During the late stages of the cold war, many Americans laughed at the idea that the American way was morally superior or the Soviet Union was an “evil empire”; some are still laughing. Within their own community and the American community at large, doubting intellectuals have taken refuge (as doubters often do) in bullying, to the point where many of us are now so uncomfortable at the prospect of confronting evil that we turn away and change the subject. Returning then to the penitent woman and the impenitent man: the Karla Faye Tucker case is the harder of the two. We are told that she repented of the vicious murders she committed. If that is true, we would still have had no business forgiving her, or forgiving any murderer. As Dennis Prager has written apropos this case, only the victim is entitled to forgive, and the victim is silent. But showing mercy to penitents is part of our religious tradition, and I cannot imagine renouncing it categorically. Why was Cain not put to death, but condemned instead to wander the earth forever? Among the answers given by the rabbis in the Midrash is that he repented. The moral category of repentance is so important, they said, that it was created before the world itself. I would therefore consider myself morally obligated to think long and hard before executing a penitent. But a true penitent would have to have renounced (as Karla Faye Tucker did) all legal attempts to overturn the original conviction. If every legal avenue has been tried and has failed, the penitence window is closed. Of course, this still leaves the difficult problem of telling counterfeit penitence from the real thing, but everything associated with capital punishment is difficult. As for Kaczynski, the prosecutors who accepted the murderer’s plea-bargain say they got the best outcome they could, under the circumstances, and I believe them. But I also regard this failure to execute a cold-blooded impenitent terrorist murderer as a tragic abdication of moral responsibility. The tragedy lies in what, under our confused system, the prosecutors felt compelled to do. The community was called on to speak unambiguously. It flubbed its lines, shrugged its shoulders, and walked away. Which brings me back to our moral condition as a community. I can describe our plight better in artistic than in philosophical terms. The most vivid illustrations I know of self-doubt and its consequences are the paintings and sculptures of Alberto Giacometti (who died in 1966). Giacometti was an artist of great integrity; he was consumed by intellectual and moral self-doubt, which he set down faithfully. His sculpted figures show elongated, shriveled human beings who seem corroded by acid, eaten-up to the bone, hurt and weakened past fragility nearly to death. They are painful to look at. And they are natural emblems of modern America. We ought to stick one on top of the Capitol and think it over. In executing murderers, we declare that deliberate murder is absolutely evil and absolutely intolerable. This is a painfully difficult proclamation for a self-doubting community to make. But we dare not stop trying. Communities may exist in which capital punishment is no longer the necessary response to deliberate murder. America today is not one of them.

Journal/Discussion Questions ✍ Gelernter sees American society as plagued by self-doubt. Do you agree with this analysis? Discuss. 1. How would Gelernter reply to Sr. Helen Prejean’s objections to the death penalty? 2. How does Gelernter think we should react to murders who genuinely repent after the murder? Do you agree? Why?

Jeffrey H. Reiman

“Against the Death Penalty” About the Author: Jeffrey Reiman is professor of philosophy and justice at the American University in Washington, DC. He is the author of several books, including The Rich Get Richer and the Poor Get Prison and Justice and Modern Moral Philosophy. About the Article: This article stakes out an interesting position. In contrast to most abolitionists, Reiman admits that the death penalty may well be a just punishment for murder. However, he still argues against the death penalty in states such as ours, maintaining that abolition of the death penalty is part of the process of becoming more civilized. As You Read, Consider This: 1. Some critics of the death penalty maintain the death penalty is wrong because it is irrevocable. What reply does Reiman offer to this position? 2. According to Reiman, is the death penalty unjust? Explain. 3. What criticisms does Reiman offer of the deterrence argument? 4. What, according to Reiman, makes the death penalty so horrible? Should horribleness be part of some punishments? Why or why not?

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y position about the death penalty as punishment for murder can be summed up in the following four propositions:

1. though the death penalty is a just punishment for some murderers, it is not unjust to punish murderers less harshly (down to a certain limit); 2. though the death penalty would be justified if needed to deter future murders, we have no good reason to believe that it is needed to deter future murders; and 3. in refraining from imposing the death penalty, the state, by its vivid and impressive example, contributes to reducing our tolerance for cruelty and thereby fosters the advance of human civilization as we understand it. Taken together, these three propositions imply that we do no injustice to actual or potential murder victims, and we do some considerable good, in refraining from executing murderers. This conclusion will be reinforced by another argument, this one for the proposition: 4. though the death penalty is in principle a just penalty for murder, it is unjust in practice in America because it is applied in arbitrary and discriminatory ways, and this is likely to continue into the foreseeable future. This fourth proposition conjoined with the prior three imply the overall conclusion that it is good in principle to avoid the death penalty and bad in practice to impose it. In what follows, I shall state briefly the arguments for each of these propositions.1 For ease of identification, I shall number the first paragraph in which the argument for each proposition begins. Before showing that the death penalty is just punishment for some murders, it is useful to dispose of a number of popular but weak arguments against the death penalty. One such popular argument contends that, if murder is wrong, then death penalty is wrong as well. But this argument proves too much! It would work against all punishments since all are wrong if done by a regular citizen under normal circumstances. (If I imprison you in a little jail in my basement, I am guilty of kidnapping; if I am caught and convicted, the state will lock me up in jail and will not have committed the same wrong that I did.) The point here is that what is wrong about murder is not merely that it is killing per se, but the killing of a legally innocent person by a nonauthorized individual—and this doesn’t apply to executions that are the outcome of conviction and sentencing at a fair trial. Printed with the permission of the author.

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Another argument that some people think is decisive against capital punishment points to the irrevocability of the punishment. The idea here is that innocents are sometimes wrongly convicted and if they receive the death penalty there is no way to correct the wrong done to them. While there is some force to this claim, its force is at best a relative matter. To be sure, if someone is executed and later found to have been innocent, there is no way to give that him back the life that has been taken. But, if someone is sentenced to life in prison and is found to have been innocent, she can be set free and perhaps given money to make up for the years spent in prison—but those years cannot be given back. On the other hand, the innocent person who has been executed can at least be compensated in the form of money to his family and he can have his named cleared. So, it’s not that the death penalty is irrevocable and other punishments are revocable; rather, all punishments are irrevocable though the death penalty is, so to speak, relatively more irrevocable than the rest. In any event, this only makes a difference in cases of mistaken conviction of the innocent, and the evidence is that such mistakes—particularly in capital cases—are quite rare. And, further, since we accept the death of innocents elsewhere, on the highways, as a cost of progress, as a necessary accompaniment of military operations, and so on, it is not plausible to think that the execution of a small number of innocent persons is so terrible as to outweigh all other considerations, especially when every effort is made to make sure that it does not occur. Finally, it is sometimes argued that if we use the death penalty as a means to deter future murderers, we kill someone to protect others (from different people than the one we have executed), and thus we violate the Kantian prohibition against using individuals as means to the welfare of others. But the Kantian prohibition is not against using others as means, it is against using others as mere means (that is, in total disregard of their own desires and goals). Though you use the bus driver as a means to your getting home, you don’t use him as a mere means because the job pays him a living and thus promotes his desires and goals as it does yours. Now, if what deters criminals is the existence of an effective system of deterrence, then criminals punished as part of that system are not used as mere means since their desires and goals are also served, inasmuch as they have also benefited from deterrence of other criminals. Even criminals don’t want to be crime victims. Further, if there is a right to threaten punishment in self-defense, then a society has the right to threaten punishment to defend its members, and there is no more violation of the Kantian maxim in imposing such punishment then there is in carrying out any threat to defend oneself against unjust attack.2 1. One way to see that the death penalty is a just punishment for at least some murders (the cold-blooded, premeditated ones) is to reflect on the lex talionis, an eye for an eye, a tooth for a tooth, and all that. Some regard this as a primitive rule, but it has I think an undeniable element of justice. And many who think that the death penalty is just punishment for murder are responding to this element. To see what the element is consider how similar the lex talionis is to the Golden Rule. The Golden Rule tells us to do unto others what we would have others do unto us, and the lex talionis counsels that we do to others what they have done to us. Both of these reflect a belief in the equality of all human beings. Treating others as you would have them treat you means treating others as equal to you, because it implies that you count their suffering to be as great a calamity as your own suffering, that you count your right to impose suffering on them as no greater than their right to impose suffering on you, and so on. The Golden Rule would not make sense if it were applied to two people, one of whom was thought to be inherently more valuable than the other. Imposing a harm on the more valuable one would be worse than imposing the same harm on the less valuable one—and neither could judge her actions by what she would have the other do to her. Since lex talionis says that you are rightly paid back for the harm you have caused another with a similar harm, it implies that the value of what of you have done to another is the same as the value of having it done to you—which, again, would not be the case, if one of you were thought inherently more valuable than the other. Consequently, treating people according to the lex talionis (like treating them according to the Golden Rule) affirms the equality of all concerned—and this supports the idea that punishing according to lex talionis is just. Furthermore, on the Kantian assumption that a rational individual implicitly endorses the universal form of the intention that guides his action, a rational individual who kills another implicitly endorses the idea that he

may be killed, and thus, he authorizes his own execution thereby absolving his executioner of injustice. What’s more, much as above we saw that acting on lex talionis affirms the equality of criminal and victim, this Kantianinspired argument suggests that acting on lex talionis affirms the rationality of criminal and victim. The victim’s rationality is affirmed because the criminal only authorizes his own killing if he has intended to kill another rational being like himself—then, he implicitly endorses the universal version of that intention, thereby authorizing his own killing. A person who intentionally kills an animal does not implicitly endorse his own being killed; only someone who kills someone like himself authorizes his own killing. In this way, the Kantian argument also invokes the equality of criminal and victim. On the basis of arguments like this, I maintain that the idea that people deserve having done to them roughly what they have done (or attempted to do) to others affirms both the equality and rationality of human beings and for that reason is just. Kant has said: “no one has ever heard of anyone condemned to death on account of murder who complained that he was getting too much [punishment] and therefore was being treated unjustly; everyone would laugh in his face if he were to make such a statement.”3 If Kant is right, then even murderers recognize the inherent justice of the death penalty. However, while the justice of the lex talionis implies the justice of executing some murderers, it does not imply that punishing less harshly is automatically unjust. We can see this by noting that the justice of the lex talionis implies also the justice of torturing torturers and raping rapists. I am certain and I assume my reader is as well that we need not impose these latter punishments to do justice (even if there were no other way of equaling the harm done or attempted by the criminal). Otherwise the price of doing justice would be matching the cruelty of the worst criminals, and that would effectively price justice out of the moral market. It follows that justice can be served with lesser punishments. Now, I think that there are two ways that punishing less harshly than the lex talionis could be unjust: it could be unjust to the actual victim of murder or to the future victims of potential murderers. It would be unjust to the actual victim if the punishment we mete out instead of execution were so slight that it trivialized the harm that the murderer did. This would make a sham out of implicit affirmation of equality that underlies the justice of the lex talionis. However, life imprisonment, or even a lengthy prison sentence—say, twenty years or more without parole—is a very grave punishment and not one that trivializes the harm done by the murderer. Punishment would be unjust to future victims if it is so mild that it fails to be a reasonable deterrent to potential murderers. Thus, refraining from executing murderers could be wrong if executions were needed to deter future murderers. In the following section, I shall say why there is no reason to think that this is so. 2. I grant that, if the death penalty were needed to deter future murderers, that would be a strong reason in favor of using the death penalty, since otherwise we would be sacrificing the future victims of potential murderers whom we could have deterred. And I think that this is a real injustice to those future victims, since the “we” in question is the state. Because the state claims a monopoly on the use of force, it owes its citizens protection, and thus does them injustice when it fails to provide the level of protection it reasonably could provide. However, there is no reason to believe that we need the death penalty to deter future murderers. The evidence we have strongly supports the idea that we get the same level of deterrence from life imprisonment, and even from substantial prison terms, such as twenty years without parole. Before 1975, the most important work on the comparative deterrent impact of the capital punishment versus life in prison was that of Thorsten Sellin. He compared the homicide rates in states with the death penalty to the rates in similar states without the death penalty, and found no greater incidence of homicide in states without the death penalty than in similar states with it. In 1975, Isaac Ehrlich, a University of Chicago econometrician, reported the results of a statistical study which he claimed proved that, in the period from 1933 to 1969, each execution deterred as many as eight murders. This finding was, however, widely challenged. Ehrlich found a deterrent impact of executions in the period from 1933 to 1969, which includes the period of 1963 to 1969, a time when hardly any executions were carried out and crime rates rose for reasons that are arguably independent of the existence or nonexistence of capital punishment. When the 1963–1969 period is excluded, no significant deterrent effect shows. This is a very serious problem since the period from 1933 through to the end of the 1930s

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was one in which executions were carried out at the highest rate in American history—before or after. That no deterrent effect turns up when the study is limited to 1933 to 1962 almost seems evidence against the deterrent effect of the death penalty! Consequently, in 1978, after Ehrlich’s study, the editors of a National Academy of Sciences’ study of the impact of punishment wrote: “In summary, the flaws in the earlier analyses (i.e., Sellin’s and others) and the sensitivity of the more recent analyses to minor variation in model specification and the serious temporal instability of the results lead the panel to conclude that the available studies provide no useful evidence on the deterrent effect of capital punishment.”4 Note that, while the deterrence research commented upon here generally compares the deterrent impact of capital punishment with that of life imprisonment, the failure to prove that capital punishment deters murder more than does incarceration goes beyond life in prison. A substantial proportion of people serving life sentences are released on parole before the end of their sentences. Since this is public knowledge, we should conclude from these studies that we have no evidence that capital punishment deters murder more effectively than prison sentences that are less than life, though still substantial, such as twenty years. Another version of the argument for the greater deterrence impact of capital punishment compared to lesser punishments is called the argument from common sense. It holds that, whatever the social science studies do or don’t show, it is only common sense that people will be more deterred by what they fear more, and since people fear death more than life in prison, they will be deterred more by execution than by a life sentence. This argument for the death penalty, however, assumes without argument or evidence that deterrence increases continuously and endlessly with the fearfulness of threatened punishment rather than leveling out at some threshold beyond which increases in fearfulness produce no additional increment of deterrence. That being tortured for a year is worse than being tortured for six months doesn’t imply that a year’s torture will deter you from actions that a half-year’s torture would not deter—since a half-year’s torture may be bad enough to deter you from all the actions that you can be deterred from doing. Likewise, though the death penalty may be worse than life in prison, that doesn’t imply that the death penalty will deter acts that a life sentence won’t because a life sentence may be bad enough to do all the deterring that can be done—and that is precisely what the social science studies seem to show. And, as I suggested above, what applies here to life sentences applies as well to substantial prison sentences. I take it then that there is no reason to believe that we save more innocent lives with the death penalty than with less harsh penalties such as life in prison or some lengthy sentence, such as twenty years without parole. But then we do no injustice to the future victims of potential murderers by refraining from the death penalty. And, in conjunction with the argument of the previous section, it follows that we do no injustice to actual or potential murder victims if we refrain from executing murderers and sentence them instead to life in prison or to some substantial sentence, say, twenty or more years in prison without parole. But it remains to be seen what good will be served by doing the latter instead of executing. 3. Here I want to suggest that, in refraining from imposing the death penalty, the state, by its vivid and impressive example, contributes to reducing our tolerance for cruelty and thereby fosters the advance of human civilization as we understand it. To see this, note first that it has long been acknowledged that the state, and particularly the criminal justice system, plays an educational role in society as a model of morally accepted conduct and an indicator of the line between morally permissible and impermissible actions. Now, consider the general repugnance that is attached to the use of torture—even as punishment for criminals who have tortured their victims. It seems to me that, by refraining from torturing even those who deserve it, our state plays a role in promoting that repugnance. That we will not torture even those who have earned it by their crimes conveys a message about the awfulness of torture, namely, that it is something that civilized people will not do even to give evil people their just desserts. Thus it seems to me that in this case the state advances the cause of human civilization by contributing to a reduction in people’s tolerance for cruelty. I think that the modern state is uniquely positioned to do this sort of thing because of its size (representing millions, even hundreds of millions of citizens) and its visibility (starting with the printing press that accompanied the birth of modern nations, increasing with radio, television and the other media of instantaneous communication). And because the state can do this, it should. Consequently, I contend that if the state were to put execution in the same category as torture, it would contribute

yet further to reducing our tolerance for cruelty and to advancing the cause of human civilization. And because it can do this, it should. To make this argument plausible, however, I must show that execution is horrible enough to warrant its inclusion alongside torture. I think that execution is horrible in a way similar to (though not identical with) the way in which torture is horrible. Torture is horrible because of two of its features, which also characterize execution: intense pain and the spectacle of one person being completely subject to the power of another.5 This latter is separate from the issue of pain, since it is something that offends people about unpainful things, such as slavery (even voluntarily entered) and prostitution (even voluntarily chosen as an occupation). Execution shares this separate feature. It enacts the total subjugation of one person to his fellows, whether the individual to be executed is strapped into an electric chair or bound like a laboratory animal on a hospital gurney awaiting lethal injection. Moreover, execution, even by physically painless means, is characterized by a special and intense psychological pain that distinguishes it from the loss of life that awaits us all. This is because execution involves the most psychologically painful features of death. We normally regard death from human causes as worse than death from natural causes, since a humanly caused shortening of life lacks the consolation of unavoidability. And we normally regard death whose coming is foreseen by its victim as worse than sudden death because a foreseen death adds to the loss of life the terrible consciousness of that impending loss. An execution combines the worst of both: Its coming is foreseen, in that its date is normally already set, and it lacks the consolation of unavoidability, in that it depends on the will of one’s fellow human beings not on natural forces beyond human control. It was on just such grounds that Albert Camus regarded the death penalty as itself a kind of torture: “As a general rule, a man is undone by waiting for capital punishment well before he dies. Two deaths are inflicted on him, the first being worse than the second, whereas he killed but once. Compared to such torture, the penalty of retaliation [the lex talionis] seems like a civilized law.”6 Consequently, if a civilizing message is conveyed about torture when the state refrains from torturing, I believe we can and should try to convey a similar message about killing by having the state refrain from killing even those who have earned killing by their evil deeds. Moreover, if I am right about this, then it implies further that refraining from executing murderers will have the effect of deterring murder in the long run and thereby make our society safer. This much then shows that it would be good in principle to refrain from imposing capital punishment. I want now to show why it would be good in practice as well. 4. However just in principle the death penalty may be, it is applied unjustly in practice in America and is likely to be so for the foreseeable future. The evidence for this conclusion comes from various sources. Numerous studies show that killers of whites are more likely to get the death penalty than killers of blacks, and that black killers of whites are far more likely to be sentenced to death than white killers of blacks. Moreover, just about everyone recognizes that poor people are more likely to be sentenced to death and to have those sentences carried out than well-off people. And these injustices persist even after all death penalty statutes were declared unconstitutional in 19727 and only those death penalty statutes with provisions for reducing arbitrariness in sentencing were admitted as constitutional in 1976.8 In short, injustice in the application of the death penalty persists even after legal reform, and this strongly suggests that it is so deep that it will not be corrected in the foreseeable future. It might be objected that discrimination is also found in the handing out of prison sentences and thus that this argument would prove that we should abolish prison as well as the death penalty. But I accept that we need some system of punishment to deter crime and mete out justice to criminals, and for that reason even a discriminatory punishment system is better than none. Then, the objection based on discrimination works only against those elements of the punishment system that are not needed either to deter crime or to do justice, and I have shown above that this is true of the death penalty. Needless to say we should also strive to eliminate discrimination in the parts of the criminal justice that we cannot do without. Other, more subtle, kinds of discrimination also affect the way the death penalty is actually carried out. There are many ways in which the actions of well-off people lead to death which are not counted as murder. For example, many more people die as a result of preventable occupational diseases (due to toxic chemicals, coal and

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textile dust, and the like, in the workplace) or preventable environmental pollution than die as a result of what is treated legally as homicide.9 So, in addition to all the legal advantages that money can buy a wealthy person accused of murder, the law also helps the wealthy by not defining as murder many of the ways in which the wealthy are responsible for the deaths of fellow human beings. Add to this that many of the killings that we do treat as murders, the ones done by the poor in our society, are the predictable outcome of remediable social injustice—the discrimination and exploitation that, for example, have helped to keep African Americans at the bottom of the economic ladder for centuries. Those who benefit from injustice and who could remedy it bear some of the responsibility for the crimes that are the predictable outcome of injustice—and that implies that plenty of well-off people share responsibility with many of our poor murderers. But since these more fortunate folks are not likely to be held responsible for murder, it is unfair to hold only the poor victims of injustice responsible—and wholly responsible to boot! Finally, we already saw that the French existentialist, Albert Camus, asserted famously that life on death row is a kind of torture. Recently, Robert Johnson has studied the psychological effects on condemned men on death row and confirmed Camus’s claim. In his book Condemned to Die, Johnson recounts the painful psychological deterioration suffered by a substantial majority of the death row prisoners he studied.10 Since the death row inmate faces execution, he is viewed as having nothing to lose and thus is treated as the most dangerous of criminals. As a result, his confinement and isolation are nearly total. Since he has no future for which to be rehabilitated, he receives the least and the worst of the prison’s facilities. Since his guards know they are essentially warehousing him until his death, they treat him as something less than human—and so he is brutalized, taunted, powerless and constantly reminded of it. The effect of this on the death row inmate, as Johnson reports it, is quite literally the breaking down of the structures of the ego—a process not unlike that caused by brainwashing. Since we do not reserve the term “torture” only for processes resulting in physical pain, but recognize processes that result in extreme psychological suffering as torture as well (consider sleep deprivation or the so-called Chinese water torture), Johnson’s and Camus’s application of this term to the conditions of death row confinement seems reasonable. It might be objected that some of the responsibility for the torturous life of death row inmates is the inmates’ own fault, since in pressing their legal appeals, they delay their executions and thus prolong their time on death row. Capital murder convictions and sentences, however, are reversed on appeal with great frequency, nearly ten times the rate of reversals in noncapital cases. This strongly supports the idea that such appeals are necessary to test the legality of murder convictions and death penalty sentences. To hold the inmate somehow responsible for the delays that result from his appeals, and thus for the (increased) torment he suffers as a consequence, is effectively to confront him with the choice of accepting execution before its legality is fully tested or suffering torture until it is. Since no just society should expect (or even want) a person to accept a sentence until its legal validity has been established, it is unjust to torture him until it has and perverse to assert that he has brought the torture on himself by his insistence that the legality of his sentence be fully tested before it is carried out. The worst features of death row might be ameliorated, but it is unlikely that its torturous nature will be eliminated, or even that it is possible to eliminate it. This is, in part, because it is linked to an understandable psychological strategy used by the guards in order to protect themselves against natural, painful, and ambivalent feelings of sympathy for a person awaiting a humanly inflicted death. Johnson writes: “I think it can also be argued . . . that humane death rows will not be achieved in practice because the purpose of death row confinement is to facilitate executions by dehumanizing both the prisoners and (to a lesser degree) their executioners and thus make it easier for both to conform to the etiquette of ritual killing.”11 If conditions on death row are and are likely to continue to be a real form of psychological torture, if Camus and Johnson are correct, then it must be admitted that the death penalty is in practice not merely a penalty of death—it is a penalty of torture until death. Then the sentence of death is more than the lex talionis allows as a just penalty for murder—and thus it is unjust in practice. I think that I have proven that it would be good in principle to refrain from imposing the death penalty and bad in practice to continue using it. And, I have proven this while accepting the two strongest claims made by defenders of capital punishment, namely, that death is just punishment for at least some murderers, and that, if the death penalty were a superior deterrent to murder than imprisonment that would justify using the death penalty.

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Notes 1. The full argument for these propositions, along with supporting data, references, and replies to objections is in Louis Pojman and Jeffrey Reiman, The Death Penalty: For and Against (Lanham, MD: Rowman & Littlefield Publishers, Inc., 1998), pp. 67–132, 151–163. That essay in turn is based upon and substantially revises my “Justice, Civilization, and the Death Penalty: Answering van den Haag,” Philosophy and Public Affairs 14, no. 2 (Spring 1985): 115–48, and my “The Justice of the Death Penalty in an Unjust World,” in Challenging Capital Punishment: Legal and Social Science Approaches, ed. K. Haas & J. Inciardi (Beverly Hills, CA: Sage, 1988), pp. 29–48. 2. Elsewhere I have argued at length that punishment needed to deter reasonable people is deserved by criminals. See Pojman and Reiman, The Death Penalty, pp. 79–85. 3. Immanuel Kant, “The Metaphysical Elements of Justice,” pt. 1 of The Metaphysics of Morals, trans. J. Ladd (Indianapolis, Ind.: Bobbs-Merrill, 1965; originally published 1797), p. 104, see also p. 133. 4. Alfred Blumstein, Jacqueline Cohen, and Daniel Nagin, eds., Deterrence and Incapacitation: Estimating the Effects of Criminal Sanctions on Crime Rates (Washington, DC: National Academy of Sciences, 1978), p. 9. 5. Hugo Bedau has developed this latter consideration at length with respect to the death penalty. See Hugo A. Bedau, “Thinking about the Death Penalty as a Cruel and Unusual Punishment,” U.C. Davis Law Review 18 (Summer 1985): 917ff. This article is reprinted in Hugo A. Bedau, Death Is Different: Studies in the Morality, Law, and Politics of Capital Punishment (Boston: Northeastern University Press, 1987); and Hugo A. Bedau, ed., The Death Penalty in America: Current Controversies (New York: Oxford University Press, 1997). 6. Albert Camus, “Reflections on the Guillotine,” in Albert Camus, Resistance, Rebellion, and Death (New York: Knopf, 1961), p. 205. 7. Furman v Georgia, 408 U.S. 238 (1972). 8. Gregg v Georgia, 428 U.S. 153 (1976). 9. Jeffrey Reiman, The Rich Get Richer and the Poor Get Prison: Ideology, Class, and Criminal Justice, 5th ed. (Needham Heights, MA: Allyn & Bacon, 1998), pp. 71–78, 81–87. 10. Robert Johnson, Condemned to Die: Life under Sentence of Death (New York: Elsevier, 1981), pp. 129ff. 11. Robert Johnson, personal correspondence to author.

Journal/Discussion Questions 1. Consider your reaction to the bombing of the Federal Building in Oklahoma City. To what extent does Reiman’s analysis shed light on your feelings? What shortcomings does his analysis have in light of your own experience? 2. To what extent does Reiman succeed in recognizing the legitimate claims of both advocates and critics of the death penalty? 3. Why, according to Reiman, are we not justified in arguing that the death penalty is wrong because it uses people as a means?

Concluding Discussion Questions Where Do You Stand Now?

Instructions You have already answered the following questions in your moral problems self-quiz at the beginning of this book. Now that you have studied the material in this section, take a moment to answer the same questions again. You can either enter your answers below or complete the survey on-line at http://ethics.sandiego.edu/surveys.

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Chapter 4: Punishment and the Dealth Penalty The purpose of punishment is primarily to pay back the offender. The purpose of punishment is primarily to deter the offender and others from committing future crimes. Capital punishment is always morally wrong. The principal moral consideration about capital punishment is the question of whether it is administered arbitrarily or not. The principal moral consideration about capital punishment is whether it really deters criminals.

Compare your answers to this self-quiz with the answers to the initial self-quiz. How, if at all, have your answers changed? How have the reasons for your answers changed?

Journal/Discussion Questions ✍ Imagine that you are on a jury. You have just found a young adult guilty of a particularly heinous rape/ torture/murder of a small child. The defendant appears to be unrepentant. Now you are being asked to consider sentencing. The prosecution is asking for the death penalty, while the defense is requesting a sentence of life imprisonment. How would you vote? What factors would you consider? What would be the major stumbling block to changing your mind and voting the other way? ✍ Given your answers to these questions, how does your position fit in with the positions and issues discussed in this chapter? 1. You have now read, thought, and discussed a number of aspects of punishment in general and the use of the death penalty in particular. How have your views changed and developed? Has your understanding of the reasons supporting other positions that are different from your own changed? If so, in what way(s)? What idea had the

greatest impact on your thinking about punishment? About the death penalty? Why? 2. Imagine that a close family member was murdered. How, if at all, would this affect your views on punishment? On capital punishment? Presuming that the murderer was caught, what would you like punishment to accomplish? 3. Imagine that you are a new member of the Senate, and that you have just been given an assignment to the Senate committee that is responsible for recommendations about criminal punishment on the state and local levels as well as nationally. Your committee is asked to determine (a) what aspects of our current punishment practices are in need of revision and (b) what changes you would recommend for the future. At the first meeting of the committee, the committee chair asks each member to state their initial general views on these two issues. What would your response be?

For Further Reading Web Resources For Web-based resources, including the major Supreme Court decisions on the death penalty, see the Punishment & Death Penalty page of Ethics

Updates (http://ethics.sandiego.edu). Among the resources are links to extensive statistical information about the use of the death penalty in America from the Department of Justice and from the Pew Center

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for the Study of the State, Gallup surveys of American attitudes toward the death penalty, John Stuart Mill’s speech in favor of capital punishment, John Rawls’ “Two Concepts of Rules,” and numerous works both for and against the death penalty. In addition, there are links to a number of free, web-based videos— including talks by Sr. Helen Prejean and Scott Turow—on punishment and the death penalty.

Journals In addition to the journals mentioned in the overview, on this topic also consult: • Criminal Justice Ethics, published out of the John Jay College of Criminal Justice, City University of New York. The premier source for articles relating to ethics and the criminal justice system. • Criminal Law and Philosophy: An International Journal for Philosophy of Crime, Criminal Law and Punishment • Journal of Legal and Social Philosophy • Law and Philosophy • Social Theory and Practice

Punishment Punishment and Ethics: New Perspectives, edited by Jesper Ryberg and J. Angelo Corlett (New York: Palgrave Macmillan, 2010) is an excellent introduction to recent philosophical work on punishment. David Boonin’s The Problem of Punishment (Cambridge: Cambridge University Press, 2008) is a nuanced argument against current systems of criminal punishment and a defense of an alternative approach involving victim restitution. J. Angelo Corlett’s Responsibility and Punishment (Dordrecht: Kluwer, 2004) ably defends a new version of retributivism. Mark R. Reiff’s Punishment, Compensation, and the Law: A Theory of Enforceability (Cambridge: Cambridge University Press, 2005) integrates issues of deterrence, retribution and compensation into an overarching theory of enforceability. The article on “Punishment” by Hugo Adam Bedau and Erin Kelly in the Stanford Encyclopedia of Philosophy is an excellent, free resource. The Oxford Handbook of Philosophy of Criminal Law edited by John Deigh and David Dolinko (New York: Oxford University Press, 2011) provides a number of relevant resources. For a thoughtful, highly readable reflection on the prison problem in the United States today, see Adam Gopnik, “The Caging of America,” The New Yorker, January 30, 2012 (http://www.newyorker.com/arts/

critics/atlarge/2012/01/30/120130crat_atlarge_ gopnik?currentPage=all).

Capital Punishment Among the many books and anthologies on the death penalty, see David Garland, Peculiar Institution: America’s Death Penalty in an Age of Abolition (Cambridge: Belknap Press of Harvard University Press, 2010 Debating the Death Penalty. Should America Have Capital Punishment? The Experts on Both Sides Make Their Best Case, edited by Hugo Adam Bedau and Paul G. Cassell (New York: Oxford University Press, 2004); the selections and exchanges in Hugo Adam Bedau, The Death Penalty in America (New York: Oxford University Press, 1998); and the classic Ernest van den Haag and John P. Conrad, The Death Penalty: A Debate (New York: Plenum Press, 1983). The Death Penalty: Opposing Viewpoints, edited by Diane Andrews Henningfeld (San Diego: Greenhaven Press, 2006) contains a good balance of short pieces. For an excellent debate between two first-rate philosophers on this issue, see Louis P. Pojman and Jeffrey Reiman, The Death Penalty: For and Against (Lanthan: Rowman & Littlefield, 1998). Also see Austin Sarat, When the State Kills: Capital Punishment and the American Condition (Princeton: Princeton University Press, 2002); The Killing State. Capital Punishment in Law, Politics, and Culture, edited by Austin Sarat (New York: Oxford University Press, 2001); Franklin E. Zimring, The Contradictions of American Capital Punishment (New York: Oxford University Press, 2003); Stuart Banner, The Death Penalty. An American History (Boston: Harvard University Press, 2003) and Is the Death Penalty Dying? European and American Perspectives, edited by Austin Sarat and Jurgen Martschukat (Cambridge: Cambridge University Press, 2011). For an insightful as well as beautifully written treatment of mistakes and the death penalty, see Scott Turow’s Ultimate Punishment. A Lawyer’s Reflections on Dealing with the Death Penalty (New York: Farrar, Straus, and Giroux, 2003); a former federal prosecutor and novelist, Turow was a member of the commission that studied the death penalty in Illinois. The work of Sister Helen Prejean, including Dead Man Walking (New York: Vintage, 1994) and her more recent The Death of Innocents: An Eyewitness Account of Wrongful Executions (New York: Vintage, 2005) are an eloquent plea to abolish the death penalty. For a more scholarly approach, see Raymond Paternoster, Robert Brame,

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and Sarah Bacon, The Death Penalty: America’s Experience with Capital Punishment (New York: Oxford University Press, 2007); and Frank R. Baumgartner, Suzanna L. De Boef, Amber E. Boydstun, The Decline of the Death Penalty and the Discovery of Innocence (New York: Cambridge University Press, 2008). Among the many helpful articles on capital punishment, see Hugo Adam Bedeau’s “Capital Punishment,” The Oxford Handbook of Practical Ethics, edited by Hugh LaFollette (Oxford: Oxford University Press, 2003), pp. 705–33; Stanley I. Benn, “Punishment,” The Encyclopedia of Philosophy vol. 7, edited by Paul Edwards (New York: Macmillan, 1967), p. 32 ff.; and Richard Wasserstrom, “Capital Punishment as Punishment: Some Theoretical Issues and Objections,” Midwest Studies in Philosophy, Vol. 7, pp. 473–502, who raises a number of objections to capital punishment, not because it is capital, but because it is punishment. On class bias in the criminal justice system, see especially Jeffrey Reiman and Paul Leighton, The Rich Get Richer and the Poor Get Prison, 9th ed. (Upper Saddle River, NJ: Prentice-Hall, 2009). Consistently Opposing Killing: From Abortion to Assisted Suicide, the Death Penalty, and War, edited by Rachel M. MacNair and Stephen Zunes (Westport, CN: Praeger Publishers, 2008) is an excellent presentation of the pro-life position. On the international dimensions of the death penalty, see William A. Schabas, The Abolition of the Death Penalty in International Law, 3rd ed. (New York: Cambridge University Press, 2002) and Roger Hood, The Death Penalty: A Worldwide Perspective, 3rd ed. (New York: Oxford University Press, 2003); and Capital Punishment: Strategies for Abolition, edited by Peter

Hodgkinson and William A. Schabas (New York: Cambridge University Press, 2004). On vengeance, mercy, and the death penalty, see Franklin E. Zimring, The Contradictions of American Capital Punishment (New York: oxford University Press, 2003); Kathleen Dean Moore, Pardons, Justice, Mercy, and the Public Interest (New York: Oxford, 1989); Jeffrie G. Murphy and Jean Hampton, Forgiveness and Mercy (New York: Cambridge University Press, 1994), as well as Murphy’s Getting Even: Forgiveness and Its Limits (New York: Oxford University Press, 2003). For a personal memoir about his decisions, see Edmund G. (Pat) Brown, with Dick Adler, Public Justice, Private Mercy: A Governor’s Education on Death Row (New York: Weidenfeld & Nicolson, 1989). On the relationship between retribution and mercy, see Marvin Henberg, Retribution: Evil for Evil in Ethics, Law, and Literature (Philadelphia: Temple University Press, 1990). Martha Minow’s Between Vengeance and Forgiveness: Facing History after Genocide and Mass Violence (Boston: Beacon, 1998) is an excellent consideration of these issues in a different context than our domestic one. Terry K. Aladjem, The Culture of Vengeance and the Fate of American Justice (New York: Cambridge University Press, 2008). On alternatives to punishment, see David C. Anderson, Sensible Justice: Alternatives to Prison (New York: The New Press, 1998) and Elliott Currie, Crime and Punishment in America (New York: Metropolitan Books, 1998); and Mark A. R. Kleiman, When Brute Force Fails: How to Have Less Crime and Less Punishment (Princeton: Princeton University Press, 2009).

MySearchLab Connections Sources OnLine READ AND REVIEW Study and Review: Chapter 4 The text explores moral issues surrounding the topic of punishment and the death penalty. These readings further explore that theme. 1. Principle of Utility by Jeremy Bentham Jeremy Bentham provides one of the first formulations of the doctrine known as utilitarianism. That doctrine draws a crucial connection between pleasure and pain on the one hand, and right and

wrong on the other. Bentham intended by means of his doctrine to demystify vexed questions about what is the right thing to do, both on the individual level and on the level of social policy. 2. On Crimes and Punishments by Cesare Beccaria Beccaria departs from and calls in to question the existent mode of justice. Beccaria’s work advances a number of primary assertions that were heretical to the status quo. Underlying his positions is the notion of equality amongst people and that people are driven by the calculus of punishment and reward in choosing, via free will, a course of

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action. Punishment that has as a goal a deterrent effect will thereby prevent crime, while punishing the wrongdoer. Beccaria felt that deterrence, while motivating human behavior, was not adequate to the task of justifying torture or capital punishment, both of which were very widely used but found to be abhorrent in Beccaria’s sense of justice. 3. The Metaphysical Elements of Justice by Immanuel Kant Kant offers an alternative to the utilitarian philosophy that law and social organization should be founded on “the good.” Kant begins his analysis of justice by distinguishing between the concepts of positive and negative freedoms as a necessary foundation for the establishment of civil liberties. He continues his analysis by looking at the concepts of duty as the foundational ideas for moral and judicial behavior that is distinguished according to internal and external incentives. Kant’s focus on the complete understanding of terms such as freedom, rights, justice and law establishes the requirements for a well-ordered society. He completes his work by discussing the duties

and limits of the different parts of government in terms of penalties, wars and the establishment of enduring peace.

RESEARCH AND EXPLORE Explore the following questions using the research tools available on www.mysearchlab.com. Explore on mythinkinglab.com

1. Describe different philosophical ideas about human motivation as it is impacted by pleasure and pain. What is the deterrence effect of punishment in this regard? How is punishment most effectively used to impact future behavior? 2. What are some of the philosophical views regarding the use of capital punishment to advance the notion of justice? Upon what are these views based? 3. What is the goal of punishment? Is it retribution, revenge, to make the world a better place, or something else? Provide philosophical support for your position.

5 War, Terrorism, and Counterterrorism

The Narrative 167 Nancy Sherman, “Soldiers’ Moral Wounds” 167 An Introduction to the Moral Issues 172 Just War: An Introduction to the Moral Issues 173 The History of Just War Theory 173 Jus ad bellum: When Is It Just to Enter Into a War? 174 Just Cause 174 The Right of Self-Defense 174 Right Intention 175 Public Declaration by Lawful Authority 175 Last Resort 177 Probability of Success 177 Proportionality 178 The Consent of the Governed 178 Jus in bello: The Just Conduct of War 178 Discrimination and the Question of Civilian Casualties 179 High-Altitude Bombing 179 Saddam Hussein’s Attacks Against the Kurds 179 Hiroshima and Nagasaki 179 The Principle of Double Effect 180 Asymmetrical Warfare and the Question of Uniforms 180 The Principle of Proportionality 181 “Shock and Awe” in “Guernica” 181 Total War 181 No Use of Means that are Evil in Themselves 181 From Mustard Gas to WMDs 181 Rape as an Instrument of War 182 166

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Genocide 182 Torture 183 Drones, Robots, and the Age of Electronic Warfare 186 Fair Treatment of Prisoners of War 187 Jus post bellum: Creating a Just Peace 188 Historical Examples 188 The Treaty of Versailles 188 The Civil War 188 World War II 188 The Conditions of a Just Peace 189 Proportionality and Publicity 189 Vindication of Rights 189 Discrimination and Punishment 189 Compensation 190 Rehabilitation 190 A Just Peace as the Guiding Principle of Just War Theory 190 Terrorism and the Limitations of Just War Theory 190 Who Is a Terrorist? 191 What Is Terrorism? 191 Implications for Just War Theory 191 Pacifism and Realpolitik: The Alternatives to Just War Theory 192 Pacifism 192 Realpolitik 193 The Arguments 195 Michael Walzer, “The Argument about Humanitarian Intervention” 195 Stephen L. Carter, “Torture Can Be Wrong and Still Work” 203 Alan M. Dershowitz, “Is There a Tortuous Road to Justice?” 204 Martin L. Cook, “Ethical Issues in Counterterrorism Warfare” 206 Concluding Discussion Questions 209 For Further Reading 210

Nancy Sherman

Soldiers’ Moral Wounds About the Author: Nancy Sherman is University Professor of Philosophy at Georgetown University. A specialist in ancient philosophy, she is the author of a number of books in ethics, including Stoic Warriors: The Ancient Philosophy behind the Military Mind (2006) and The Untold War: Inside the Hearts, Minds, and Souls of Our Soldiers (2010). She was also the first person to hold the Stockdale Chair in Ethics and Leadership at the U.S. Naval Academy. Nancy Sherman, “Soldiers’ Moral Wounds” 4/11/10, The Chronicle of Higher Education. Copyright © 2010 Nancy Sherman. Used with permission.

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About this Article: In this article that appeared in 2010, Sherman discusses some of the moral costs of war, what it does to the men and women who serve, and the guilt they often bear as a result of their experiences. She writes this article, not to criticize soldiers, but to help non-soldiers understand the moral cost of war and the burdens that many who have served bear in their daily lives. The risks and the harms, Sherman is suggesting, do not end when the battle is over. They continue, and often become more difficult, when the warrior returns home. As You Read This Article, Ask Yourself: 1. Why, according to Sherman, are the feelings of guilt and shame so common in war? 2. What does Sherman mean by the term “agent-regret?” Why does she think this term fails to capture the experience of many soldiers? 3. What does Sherman mean by “luck guilt?” How is it related to love and deep relationships? 4. What does she mean by “collateral-damage guilt?” in what way do children play a role in this type of guilt? 5. What, according to Sherman, is the connection between harsh self-judgment and empathy?

W

hat it feels like to put on a military uniform, deploy, and come home is still not really part of the public conversation about war. Even in philosophy or ethics classes in which war is the topic and some of our students are themselves about to go to war or have just come home, the inward war soldiers wage is often kept outside the classroom. As teachers, we tend to view it as a soldier’s private matter, not something to touch or probe, especially if we don’t wear the uniform. But what we miss in being afraid to talk about a soldier’s emotions is that psychological anguish in war is also moral anguish. Soldiers wrestle with what they see and do in uniform, even when their conflicts don’t rise to the level of acute psychological trauma. And they feel guilt and shame even when they do no wrong by war’s best standards. Some are in anguish about having interrogated detainees not by torture, but the proper way, by slowly and deliberately building intimacy only in order to exploit it. Others feel shame for going to war with a sense of revenge or for feeling it well up when a sniper guns down their buddy and their own survival depends on the raw desire to “get back.” They worry that their triumph in coming home alive is at the expense of buddies who didn’t make it. These feelings of guilt and shame are ubiquitous in war. They are not just responses to committing atrocities or war crimes. They are the feelings good soldiers bear, in part as testament to their moral humanity. And they are feelings critical to shaping soldiers’ future lives as civilians. We tend to worry about war desensitizing warriors, about soldiers getting used to killing and accepting how cheap life can be. That may happen to some. But it was not the prevalent theme I heard in the 40 interviews I conducted with soldiers who have fought in Iraq and Afghanistan (as well as Vietnam and World War II). They felt the tremendous weight of their actions and the consequences of those actions. Indeed, they often felt responsible even for what was far beyond their control. They were far more likely to say, “If only I hadn’t . . .” or “If only I could have . . .” than “It wasn’t my fault.” To hold themselves accountable, in a way that extends beyond strict culpability, was their way of imposing moral order on the hell of war. It was their way of reinserting a sense of moral accountability in the use of lethal force. And it was a way of acknowledging that they were inescapably agents of war’s carnage. In virtually all my interviews, guilt was the elephant in the room. It was a hard feeling for soldiers to articulate, but it filled their thoughts. It took three forms. The first I dubbed “accident guilt.” Some soldiers blamed themselves for mishaps in equipment that took the lives of their buddies or the lives of innocents, though there was no negligence or culpable ignorance for which they could be held morally or legally responsible. In one wrenching case, the gun on a tank misfired, blowing off most of the face of a private who was standing guard nearby. The Army officer in charge reconstructed the scene for me, narrating every detail, the way a person who has relived the scene over and over does: “It was as if an ice cream scoop just scooped out his face. . . . He survived the initial blast, if you can believe it. We were in the medic tent with him. It was one of the most traumatic things I have ever seen in my entire life. To literally see someone’s face completely scooped out, to see just the very bottom part of his jaw working. . . . He couldn’t see, couldn’t hear, couldn’t scream. . . . I mean, he had no eyes, obviously. No face. I can only imagine the

terror, the fear, the pain he was in. He obviously couldn’t breathe because he had no nose or mouth to take in air. . . . It was one of the few times in my life I’ve really cried—tears just streaming down my face because I’m watching 10 people work over this kid. . . . It was an unbelievable thing to see. . . . It is one of those images that will be in your head until you die.” He then turned to his feelings of responsibility: “I’m the one who placed the vehicles; I’m the one who set the security. [As with] most accidents, I’m not in jail right now. . . . I wasn’t egregiously responsible. . . . Any one of a dozen decisions made over the course of a two-month period and none of them really occurs to you at the time. Any one of those made differently may have saved his life. So I dealt with and still deal with the guilt of having cost him his life essentially. . . . There’s probably not a day that goes by that I don’t think about it, at least fleetingly.” In the philosophical literature, many have rushed to call this kind of feeling “agent-regret,” as the moral philosopher Bernard Williams labeled it, referring to the idea that one is “causally” implicated though not morally responsible “in virtue of something one intentionally did.” But regret doesn’t begin to capture what the soldier I talked with feels. It doesn’t capture the despair or depth of the feeling-the awful weight of self-indictment and the need to make moral repair in order to be allowed back into a community in which he feels he has somehow jeopardized his standing. When he says he doesn’t hold himself as “egregiously responsible,” he means that he knows he didn’t commit a careless blunder. But he still doesn’t think of himself as fully, morally cleared. Others I spoke with experienced “luck guilt,” a generalized form of “survivor guilt.” Marines I interviewed in Annapolis, shortly after their return from Baghdad, anguished about their undeserved luck at being in the scenic sailboat setting of the Naval Academy, far away from their brothers and sisters still at war. Soldiers I spoke with at Walter Reed Army Medical Center, themselves severely wounded, felt guilty for not suffering more, or as visibly, with limb loss or facial disfigurement. They felt that their relative good luck was a betrayal of those who were injured more severely. What they felt, at bottom, was deep, empathic distress of the sort Melanie Klein, the British object-relations psychoanalyst, wrote about-a guilt felt for the injury and harm of others that is inseparable from empathic love. (As Klein understands it, we preserve as residue from early childhood the anxiety that we have hurt and persecuted—even physically damaged—the very objects that we depend upon for sustenance and love.) In their own eyes, these soldiers felt that they had failed to take care of their buddies; they had broken a bond of solidarity and, even worse, failed to honor the duty of fidelity that enabled them to fight in the first place. One marine in Annapolis said that he was ready to go back to Afghanistan and that he was preparing his new wife for that reality: “You’ve got to prepare yourself for this because after sitting here in Annapolis for three years, after wonderful air conditioning in Annapolis, while my brothers and sisters have been out on their second and third tours.” As I listened to him, my thoughts wandered to another young officer, Siegfried Sassoon, the British World War I officer and poet. Against the wishes of his doctor, the eminent psychiatrist and anthropologist Capt. W.H.R. Rivers, Sassoon returned to the trenches out of a profound mix of love and guilt, as well as a sense of futility about his own protests against the war (inspired by meetings with Bertrand Russell). What he felt, separated from his troops, was nothing less than abandonment and banishment. To return to the front line might well be a kind of “death,” he wrote in his memoirs, but it was also “my only chance of peace.” In his poem “Banishment,” he wrote, “Love drives me back to grope with them through hell.” Another poem, “Sick Leave,” concludes with the noiseless dead whispering to Sassoon, “When are you going out to them again? Are they not still your brothers through our blood?” The most troubling kind of guilt I heard about had to do with accidental or unintended killing of innocentswhat I call “collateral-damage guilt.” One marine colonel who commanded a battalion just south of Baghdad during Operation Iraqi Freedom II told me how emotionally devastated his marines became when Iraqi children were injured or killed after cars ran the trigger lines at vehicle checkpoints. If the injuries or deaths were of adult men who they suspected were suicide bombers or women who might be concealing explosives under their burkhas, his marines would “generally fluff it off and justify it to themselves, rightly or wrongly.” But when children were involved, “there was a dramatic psychological difference.” In the case of a badly hurt child, “they would go out of their way to try calling in medevac aircraft to get the kid out to the hospital,” sometimes putting themselves and one another at risk. They couldn’t shake what they had done or justify the killing to themselves.

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It is worth thinking about this in terms of the troops currently in Afghanistan. They are under far more restrictive rules of engagement than the marines in Iraq were. The U.S. commanding general in Afghanistan, Stanley A. McChrystal, has made it clear that the preponderance of risk is to be on the troops, not on civilians. That is not just one commander’s rule; it is a cornerstone of just-war theory. Soldiers are trained and armed to take risks. Their job is to protect those who are not so trained. It is not enough for harm to civilians to be unintended, even if foreseen. Avishai Margalit and Michael Walzer have reformulated the point made some 30 years ago by Walzer in his book Just and Unjust Wars—then in the context of Vietnam, and restated now in the context of Israel’s war in Gaza: Soldiers must “intend not to kill civilians, and that active intention can be made manifest only through the risks the soldiers themselves accept in order to reduce the risks to civilians.” Still, it is not easy to accept restrictions on firepower when insurgents exploit them by fighting without uniforms and shielding themselves in civilian populations. As some U.S. soldiers have complained, the new rules require us to fight “with one arm tied behind our backs.” It is even harder to accept the restrictions when American lives are risked to win the hearts and minds of a population whose army may not itself be sharing adequately in the fight. But the rules are also in place to protect the hearts and minds of our own troops. U.S. marines and soldiers in Afghanistan are fighters, but also cops and community organizers, charged with building moral and civic order “in a box.” To fail to do that—or at least to seem to fail—in the face of a helpless child, not much younger than the boy warriors they are themselves, or, for more senior troops, a child who could be their own, is morally devastating. The image of that child’s face haunts a soldier for a lifetime. And he may feel unrelenting guilt, however irrationally. Nietzsche is the modern philosopher who understands that guilt so well: “Bad conscience” can become “torture without end,” undoing any prospects for happiness. This subjective guilt, he says, doesn’t grow in the soil where you would most expect it, such as in prisons where there are actually “guilty” parties who should feel remorse for wrongdoing. Rather it is often a “question of someone who . . . caused harm,” who causes a misfortune for which she is not really responsible. Nietzsche appeals here to the earlier philosopher Spinoza for support, who wrote: The “bite of conscience” has to do with an “offense” where “something has gone unexpectedly wrong”; it is not really a case of “I ought not to have done that.” Freud famously elaborates upon the theme: Enduring the recriminations of a harsh superego (“a bad conscience”) is the cost of civilization. Essentially these moderns document what ancients, like Seneca in De Ira, warned long ago about outward-facing rage. The fury of revenge can leave its possessor more tormented than satisfied. So too the fury of self-directed anger. We might think that Kant, too, would have much to say about the anguish of inner struggles of conscience. After all, Kant formalizes Socrates’ dictum to “know thyself ” into “the first command of all duties to oneself ”—a highestorder duty to “scrutinize and fathom” one’s heart. The spotlight is on me, on what I have done or failed to do, and not on others. The categorical imperative, the formula of the moral law for humans, is a stance of self-judgment. But despite his first-person stance, Kant does not stress in this moral phenomenology the bite of bad feelings. The absence is deliberate. Kant’s focus is on the mature conscience, and the attitude of that conscience is not punitive pain or fear but respect or reverence in the sense of attention and submission to our own authority as moral legislator. The idealized emotion we feel before genuine moral authority is dignified, not cowering. Indeed when the subject of repentance comes up, Kant warns against a morality that is “cheerless, morose, and surly,” a self-punishment that becomes “self-torture.” Beware of “hypocritical self-loathing” and the moral melancholy that detracts from the real work of morality, Kant intones, in a clear reaction against his Pietist upbringing. True virtue ought to be cheerful and soar with the sublimity of reverence for its law. But Kant doesn’t appreciate the fact that harsh self-judgment is not necessarily self-loathing or selfrighteousness. It can be inseparable from empathy for those we harm and a sense of responsibility and duty— the desire to make reparations—even when the harm is unintentional, or intentional and warranted but no less loathed, as in “just” killing in war. That self-judgment and sense of responsibility, even guilt, may even be redemptive, a way of reconnecting with one’s full humanity. The soldiers I spoke with longed for a way to feel whole, even if at the cost of their profound and acute feelings of guilt.

Montaigne famously warns about the high price of trying to stay whole. His own advice is often of moral insulation and compartmentalization: “The Mayor and Montaigne have always been separate,” he boasts. “I know some who transubstantiate and metamorphose themselves into as many new beings and forms as the dignities which they assume: they are prelates down to their guts and livers and uphold their offices on their lavatory-seat. I cannot make them see the difference between hats doffed to them and those doffed to their commissions, their retinue, or their mule.” The message applies to some moments of wearing the uniform. It is the uniform one salutes, not the person in it. Erving Goffman, the great sociologist of roles, writes powerfully about the “language and mask” of social interaction. Soldiers, more than others, inhabit a world of public ritual and demeanor. To walk on a base, stateside, is to take note of that world-the spit-polish shoes, the creased uniforms, the stolid demeanor and gaze, the stiff salute, the parades, the “yes, ma’am” and “yes, sir.” Even in death, there are the official photos that become the public faces of the fallen. But soldiering, and especially wartime soldiering, is never about just a uniform or outward decorum. It is about the internal change that goes with putting on the uniform and deploying. That requires a conversion, of the kind William James describes in The Varieties of Religious Experience. James is not talking about a prophetic encounter or a born-again moment. He has in mind a more ordinary kind of metamorphosis, in which the focus of life shifts and a new organizing principle takes hold. It is, as he put it, a “recrystallizing” of “central parts of consciousness,” a shifting of habit and attitude. The point is that in putting on a uniform and going to war, a soldier grows skin that he does not shed lightly. And even when it is time to slough that skin, after years of service, it does not come off easily. And yet, what moved me as I listened to soldiers, especially those recently returned, is how desperately they wanted to feel their old civilian selves. Or at least, they wanted to feel more-porous boundaries between being a soldier and a civilian—whether as a parent, a child, or a colleague in the work force; keeping their different selves fully separate was just too numbing. “We’re taught to suck it up and truck on,” a former Army major told me. “I’m tired of being stoic.” The image of the sergeant in The Hurt Locker, numbed when he returns home, was not one they wanted for themselves: They wanted to come home to a spouse and child and know that they could reciprocate their love. In that regard, even the awful guilt and shame they felt for doing well what war requires was a way of being alive to a fuller self. To bear the feelings of war, and to share them in their stories, was a start at making those feelings not just their private burdens. We in the teaching profession, on campuses where the military/civilian gap still yawns far too wide, have an obligation to help our students understand what soldiers go through and what our responsibility as citizens is to those whom we send to war. We owe soldiers not just public respect, but private respect. One way to give that respect is by understanding, empathically, the moral weight of war that they carry.

For Further Discussion 1. Sherman suggests that Immanuel Kant does not adequately grasp the anguish that many contemporary soldiers experience. If you have some familiarity with Kant’s philosophy, evaluate Sherman’s criticism. Is there anything unique about contemporary warfare that may exacerbate this problem? 2. Sherman discusses the difficulties soldiers often encounter in returning home. Talk about these problems, addressing specifically the moral questions that they raise.

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War, Peace, and Terrorism An Introduction to the Moral Issues

Just War: An Introduction to the Moral Issues 173 The History of Just War Theory 173 Jus ad bellum: When Is It Just to Enter Into a War? 174 Just Cause 174 The Right of Self-Defense 174 Right Intention 175 Public Declaration by Lawful Authority 175 Last Resort 177 Probability of Success 177 Proportionality 178 The Consent of the Governed 178 Jus in bello: The Just Conduct of War 178 Discrimination and the Question of Civilian Casualties 179 High-Altitude Bombing 179 Saddam Hussein’s Attacks Against the Kurds 179 Hiroshima and Nagasaki 179 The Principle of Double Effect 180 Asymmetrical Warfare and the Question of Uniforms 180 The Principle of Proportionality 181 “Shock and Awe” in Guernica 181 Total War 181 No Use of Means that are Evil in Themselves 181 From Mustard Gas to WMDs 181 Rape as an Instrument of War 182 Genocide 182 Torture 183 Drones, Robots, and the Age of Electronic Warfare 186 Fair Treatment of Prisoners of War 187

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Jus post bellum: Creating a Just Peace 188 Historical Examples 188 The Treaty of Versailles 188 The Civil War 188 World War II 188 The Conditions of a Just Peace 189 Proportionality and Publicity 189 Vindication of Rights 189 Discrimination and Punishment 189 Compensation 190 Rehabilitation 190 A Just Peace as the Guiding Principle of Just War Theory 190 Terrorism and the Limitations of Just War Theory 190 Who Is a Terrorist? 191 What Is Terrorism? 191 Implications for Just War Theory 191 Pacifism and Realpolitik: The Alternatives to Just War Theory 192 Pacifism 192 Realpolitik 193

Just War: An Introduction to the Moral Issues Until 2012, the United States was in one of the longest periods of war in our history, stretching back to Operation Enduring Freedom (OEF), which began on October 7, 2001. Military operations in Afghanistan, then Iraq, and Afghanistan again lasted for over ten years, far longer than our combined involvement in World Wars I and II. Many individuals and families have been touched deeply by the events of war. The ethical issues surrounding war are multiple, and in this introduction we can only consider some of the major ones. Our discussion will be divided into three principal areas.

1. What are the ethical constraints about going to war? 2. What are the ethical constraints about the conduct of war? 3. What are the ethical constraints about establishing a peace after the war? Each of these corresponds to a central area of what is called just war theory. Before turning to a consideration of each of these three questions, we will look briefly at the history of just war theory and then at the changing nature of war in the twenty-first century. The History of Just War Theory

“War,” the American Civil War General William Tecumseh Sherman once said, “is hell,” but even in hell there are rules. Ironically, General Sherman was one of the earliest advocates in the United States of the concept of total war, a concept that is fraught with moral difficulties. His infamous “March to the Sea” through the Georgia to Savannah in 1864 left the earth scorched, and was the first example on American soil of the concept of total war. We shall return to some of the ethical issues raised by total war in the discussion later.

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The idea that war has rules is an old one and in many ways a venerable one. Even in the hell of war, there are better and worse ways of doing things. The just war tradition represents the collective wisdom of the West to articulate those rules and put them into practice. This tradition began with theologians, stretching back at least to Sts. Ambrose and Augustine, who first articulated the problem of just war theory in regard to the possible justification for what today is called humanitarian intervention. The classical articulation of just war theory, however, would not occur until later, with St. Thomas Aquinas, the medieval theologian and philosopher, and later theologians and philosophers—notably Suarez and Grotius—further developed this tradition. In recent decades, the most influential figure in just war theory has been Michael Walzer, a political philosopher at the Institute for Advanced Study in Princeton. He literally wrote the book on it, Just and Unjust Wars (1977), which has been the point of departure for many scholars thereafter. In subsequent books and articles, Walzer has continued to develop and expand this tradition, applying it to the circumstances of contemporary warfare, terrorism, and humanitarian intervention. It is easy to think that this is a tradition that is found only in the dusty books of university libraries, neglected and insignificant in terms of its contemporary impact. Let me interject a personal note in this regard. I grew up with little interest in, or appreciation for the military. It was only much later in life that I began to have regular contact and interaction with the military, initially as a result of being involved in the development of an annual James Bond Stockdale Symposium at the University of San Diego. That and subsequent involvement with JSCOPE, the Joint Services Committee on Professional Ethics, and its successor ISME, the International Society of Military Ethics, as well as professional dialogue with ethics faculty at all three of the United States military academies, I discovered (to my surprise and delight) the depth of concern that military leaders have with just war theory. (Whether political leaders share this concern is another issue.) Just war theory is a principal concern for our military leaders and many aspects of it remain lively topics of on-going debate within the military.

Jus ad bellum: When Is It Just to Enter into a War? When are we justified in going to war? (The Latin name for this, “jus ad bellum,” is often used; it means “justice going into war.”) Just war theorists from Aquinas to Walzer list a number of conditions that must be met if entrance into a war is to be considered just. Following are some of those conditions:

1. The cause must be just. 2. We must have the right intention. 3. There must be a public declaration by a lawful authority. 4. It must be the last resort. 5. There must be a reasonable probability of success. I would add to this a sixth condition, which is appropriate to contemporary democracies: 6. The war should only be pursued with the consent of the governed. Let’s look briefly at each of these conditions. Just Cause

The Right of Self-Defense The first of these conditions is that there must be a just cause, and this usually means that you have been attacked. Typically, starting a war is never considered just. The underlying assumption here is that everyone has a right to self-defense and that countries that are attacked are entitled to defend themselves.

Chapter 5. War, Terrorism, and Counterterrorism

Two important questions have been raised about just cause. First, does a country actually have to allow itself to be attacked before it can defend itself? This is particularly an issue in the age of weapons of mass destruction, when the first attack could be massively destructive. To many, it seems unreasonable to prevent a country from defending itself against the imminent threat of attack and allowing an armed response only after a devastating attack. Yet the danger, in the eyes of many critics of preemptive attacks, is that once this door is open, much more is justified than is desirable. Many countries feel seriously threatened even when attack is not in fact imminent. If the notion of just cause includes permitting countries to launch pre-emptive attacks when they feel sufficiently threatened, then it would seem to justify too much. The second question here is this: are we justified in entering a war to defend, not ourselves, but someone else? This is the issue of humanitarian intervention, and it is discussed in more detail later. It has been a crucial issue in the Balkans, Africa, and the Middle East. Right Intention

The second condition of entering into a war is that the country must have the right intention, and in this context the right intention involves (a) self-defense and (b) the restoration of a just political order. Consider the entry of England and eventually the United States into World War II. This was largely a response to a series of invasions (or “annexations”) of European countries by Hitler. Clearly, Hitler did not have the right intention: his goal was to grab land for Germany and increase its influence and power internationally and, eventually, to advance his overall Nazi agenda relating to the building of a super race. England clearly entered into war to defend itself from attack. In the European theater, the United States entered in part to save England and in part to protect itself against an unchecked German war machine, which had already begun sinking American ships. In the Pacific theater, the United States responded to a clear act of aggression, the bombing of Pearl Harbor, by the Japanese. Thus in World War II, Germany and Japan both provided classic case studies in which is not right intention. The response of the United States in response to this aggression clearly passes the right intention test. We entered reluctantly, and only after being attacked. Our goal was not to annex territories, but to stop aggression and to help to restore a just peace in which individual nations could peacefully coexist without constant threat of attack. Our entry into several Middle East conflicts in recent years is far less clear-cut. The first invasion of Iraq was to protect an ally (Kuwait) that had been invaded by Saddam Hussein. The second invasion of Iraq, after the 9/11 attacks by Al Qaeda, does not seem to meet the criterion of right intention at all. Saddam, whatever his vices (and there were many), was not the aggressor behind the 9/11 attacks. It is even unclear whose intentions were the most important in this situation, the president’s or the vice-president’s. A hunt for the perpetrators behind the 9/11 attacks was certainly justified, although it’s unclear whether that would be anything more than a very focused strike force. Moreover, if right intention is related to restoring earlier boundaries or goals similar to this, it is unclear that this could be achieved by invading any country. The invasion of Afghanistan might have made sense immediately after the 9/11 attacks, but was less justifiable almost ten years later. It is important to note that having the right intention plays an important role in determining when a war is over and what constitutes a legitimate peace. In Europe after World War II, this was the restoration of previous borders and the establishment of a balance of powers that insured peace. The difficulty with our Middle East attacks was that we often created as many terrorists as we killed and generally fueled animosity toward the United States in the Arab world. We certainly and properly did not want to occupy these countries since the administration of them would prove a nightmare. Discussions about right intentions have a further benefit: they help to clarify for a country the precise reasons for going to war and, on the basis of those reasons, they will then have a clearer idea of when they have succeeded. Without clarity of intention, it is often difficult to determine whether success has been achieved. And without that, a just and lasting peace is often impossible. Public Declaration by Lawful Authority

The next condition for just entry into a war is that the war must be publicly declared by a lawful authority such as a head of state. Part of the rationale for this requirement is to prevent segments of a country (such as the

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military) from committing the nation to conflict without an adequate decision-making process. It also prevents pursuing wars in secret without the consent of the whole nation. (In the United States, President Ronald Reagan’s Contra war was a prime example of a small war effort conducted in secrecy from the American people.) The other side of this criterion is that, at least in most cases, the public declaration of war by a lawful authority will typically be preceded by a public discussion of the merits of going to war. Since war is typically a commitment of an entire nation, it is vitally important that the nation as a whole make this decision, since the nation as a whole will have to live (and die) with the consequences. Finally, it makes it clear to the world that a country, in declaring war, is responsible for the consequences of that decision. Again, World War II provides the model of public declarations of war. War was declared by individual countries at various times, and it was done through public declarations. The public, at least in the democracies involved, has a voice. Interestingly, in the United States there was significant reluctance to enter World War II and a strong strain of isolationism, something that became far less prominent after Pearl Harbor. When we look at United States history since World War II, we see that there has been no formal declaration of war by Congress, which according to the Constitution has the sole power to declare war. The Korean War did not involve a formal declaration of war, nor did the Vietnam War, nor any of the subsequent wars in the Middle East. There were various Senate and House joint resolutions and U. N. Security Council Resolutions, but there has not been a formal declaration of war by the Congress of the United States since 1942. There are three principal disadvantages to not having a formal declaration of war. First, such a declaration can be the occasion—at least under ideal circumstances, which in fact rarely prevail when countries are facing war—for a reasoned public debate about the merits and drawbacks of going to war. In a democracy, this is crucial to the democratic process. Without a formal declaration, such debate may never become focused and the decisions made by both citizens and political leaders may be less clearly visible. Second, typically going to war involves a decision of the entire country. Again, this was clear in World War II. There was nowhere you could go in the United States without feeling the presence of the war. It pervaded the very fabric of society. In Europe and Japan and other countries where the war was actually fought on their own soil, the awareness was much more acute. Moreover, such large wars typically have involved—until recently—a draft, and many of the best and the brightest young women and men may subsequently die in combat. This is a tremendous burden for a society to bear, and it is only fitting and moral that the society should fully and formally participate in the decision-making process. In recent decades, we have seen a change in the way in which wars are conducted by the United States. Public opinion eventually forced the end of the Vietnam War, and the crucial factors in the shaping of public opinion were twofold: (1) the draft, with the resultant involuntary loss of life that occurred when drafted soldiers were killed in combat, and (2) the public nature of the war with the advent of extensive television coverage. It is hard to believe that there was a time without television, but it really is a comparatively new invention, and television news coverage came into its own with the Vietnam War. For the first time, viewers were having dinner and watching firefights involving our soldiers in Vietnam, and before long, they were watching video of caskets being returned to the United States—over 58,000 caskets, along with over 300,000 wounded. One out of every ten Americans who served was a casualty. This had a tremendous public impact. In the last fifteen years, the United States has managed its wars far differently, and in important and subtle ways that has reduced the need for a public buy-in. First, images of returning caskets are now tightly controlled by the government and largely forbidden. Second, the military and the government have directly involved the media in the conduct of the war with embedded reporters and journalists and cameramen, and it is almost inevitable that those who go through a war together share loyalties with one another. Third, and perhaps most importantly, the draft has been abolished, and the United States has conducted wars with existing troops, reserves, and mercenaries. This has resulted in a significant decrease in political pressure on the government to demonstrate to the American people that a specific war is indeed worth fighting. Also, the line between the military and the CIA has blurred significantly, again avoiding the possible use of draftees. Finally, we have seen an increasing use of drones to substitute for soldiers on the ground. For American commanders, the lives of the men and women under their command weigh heavily on their souls, and anything that will spare an American

Chapter 5. War, Terrorism, and Counterterrorism

life is a good thing. And it is. The difficulty is that the use of drones, just like the use of mercenaries, has other consequences as well, and these are much more problematic. We will return to this topic later in the chapter. The net result of these factors is that a country such as the United States can be at war with its military stretched to its limits and yet not feel like a country at war in the way in which it did in both the World Wars. Third, without a formal declaration of war, there is no formal peace treaty. We don’t know for sure whether we’ve won or lost, or what we’ve won or lost. A peace treaty provides the final accounting on a war, the final tally. Indeed, the goal—and this goes back to proper intent—should be to reestablish the peace. We will say more about this later, when we discuss the notion of a just peace, but here’s the short version: the vision of a just peace ought to inform both the decision to go to war and the conduct of the war. Last Resort

The fourth condition for just entry into a war is that war must be the last resort. If it is possible to achieve your just ends by other means such as blockades or embargoes or diplomatic pressures, then it is unjust to resort to war. The argument in support of this criterion depends on something that military personnel know all too well: war is a horror. At its core, it involves the killing and maiming of other human beings. We are justified in turning to war only when there is no alternative left. All things considered, this is probably a criterion that resonates with European countries more than with the United States. The crucial difference is this. Although both the United States and the European countries suffered terribly casualties, the United States did not have the experience of war on its own soil, whereas European lived through two world wars that were often literally at their doorsteps. At the end of the war, Americans could take their dead and wounded and go home; the European were already home, living in a battleground turned cemetery. The Dutch, for example, lost 300,000 persons to the war, about 3.45 percent of their population; about 284,000 of them were civilians. The British lost 450,000, including 67,000 civilians, just under 1 percent. The Soviet Union lost over 23,000,000, almost 14 percent of their population, more than half of whom were civilians. Germany lost over 8,500,000, about 10 percent of its population, and of these over 3,000,000 were civilian deaths, many of whom were German Jews killed by the Nazis. The United States lost 418,000, including about 1,700 civilians, just over 0.3 percent. The United States’ losses are not minor at all, but at least those Americans who survived the war had a home to which they could return, and the number of civilian deaths was quite low because the war was not on our own soil. These numbers, moreover, only scratch the surface. The legacy of war is often a generation of young men (now, some women) who bear both the physical and the psychological and spiritual scars of war. Nancy Sherman, a philosopher at Georgetown University and the first holder of the Distinguished Chair in Ethics and Leadership at the U. S. Naval Academy, has written both sympathetically and eloquently on the cost of war to our own soldiers, to those who survive but for whom every day is a struggle. These men and women deserve both our compassion (quite different from pity) and admiration and support, but they also deserve more: a military and civilian leadership and the citizenry at large that is deserving of their sacrifices. The last resort requirement is a reminder that their valor ought not to be squandered in vain. It is always easier to see clearly in hindsight, and in practice it may be difficult to decide when we have arrived at the point of last resort. Difficult though it may be to answer that question, it is clear that it is the right question to ask. A thoughtful answer involves, among other things, seeing the disadvantages of other options to war, such as trade embargoes, which often impose a burden only on the average citizen, not on a country’s leadership. Moreover, with embargoes and sanctions, foreign leaders are often able to blame economic hard times on American policies rather than on their own actions. Probability of Success

The fifth criterion is that there must be some probability of success before a country is justified in going to war. Here the rationale is simple: war is such an evil that it ought not to be undertaken if there is not some chance of bringing about a significant good. Better to live to fight another day.

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Proportionality

Sixth and finally in the standard list of conditions for going to war, there must be proportionality between the possible benefits of war and the amount of pain and suffering and death that the war will cause. A costly war fought for a small gain fails to meet this condition. The Consent of the Governed

To this standard list of conditions for the just entry into war, I would like to add a final constraint that is relevant to democracies: we should enter into a war only with the consent of the governed. If there is a formal and public declaration of war, presumably there is at least an implicit consent of the governed insofar as the declaration of war had been made by the people’s representatives. However, this situation has changed significantly over the past century. In World War I, about 20 million people were killed, and this hit all classes of society. Adam Hochschild has recounted those years in illuminating detail in his To End All Wars: A Story of Loyalty and Rebellion, 1914-1918. In England, for example, many of the sons of England’s ruling elite died in war. The officers, who often came from the upper class, led their men over the tops of trenches and often into withering machine gun fire. The Oxford class of 1913 lost 31 percent of its graduates to the war. Many highranking British government officials lost sons and other male relatives. Lord Salisbury, former British Prime Minister, lost five of his ten grandsons to the war. Similar stories could be related about the French and the Germans. In France, half of all French men aged between 20 and 32 were killed, with a large percentage of the rest having been seriously wounded. Since World War II, we have seen a steady decline in battlefield participation in wars by the elites of countries, and an increasing dependence on those of fewer means—social, political, and economic—to do the actual fighting. A special burden is placed on populations when wars are fought on their own soil. In World War II, for example, much of Europe was left in ruins from ground battles, artillery shelling, and aerial bombing and missiles. This was particularly true of the countries on the continent itself, but London too and several other cities suffered extensive damage from Nazi bombing campaigns. In contrast to this, although the United States suffered heavy casualties, its continental lands were not the scene of fighting or bombing. Since the Vietnam War in the United States, we have witnessed a number of ways in which the consent of the governed has been marginalized and the participation of the citizenry reduced to a purely monetary dimension. First, in recent times, there have been no formal declarations of war by Congress, and this alone reduces the level of consent insofar as it undermines the need for a national debate on whether or not to commit the country to war. Second, with the abolition of the draft at the end of the Vietnam War, the nature of consent changed. No longer did the government need a high enough level of consent to support the deaths of conscripted men. One could always claim that those who had fallen in battle had made a free choice to be there because they had enlisted. A much higher level of consent is necessary to justify the deaths of draftees. Third, the high cost of consent to those whose families lost loved ones or had them return home severely damaged was pushed from view with government restrictions prohibiting the video coverage of returning bodies, a haunting and powerful memory from the Vietnam War. Fourth, the direct burden of service was further reduced when the military turned to mercenaries or military contractors to handle not only logistics but also some of the combat duties. Fifth, the increasing participation of the CIA and other intelligence-gathering bodies in actual armed combat somewhat lessened the burden on the military as such. Finally, this burden is yet further reduced with the introduction of warfare by remote control, the use of drones, which has escalated significantly after President Barack Obama has taken office. All of these factors contribute to the minimization of genuine consent of the governed in regard to war.

Jus in bello: The Just Conduct of War Once a country has entered into a war justly, there still remain important moral considerations about how the war may be conducted. Despite the fact that war is considered horrible, there is nonetheless a recognition that some basic standards of human decency still apply to the ways in which we conduct ourselves during a war.

Chapter 5. War, Terrorism, and Counterterrorism

Let’s look at the conditions typically outlined as necessary for the just conduct of war. Following are four such conditions:

1. Discrimination and the question of civilian casualties 2. The principle of proportionality 3. No use of means that are mala in se 4. Fair treatment of prisoners of war Discrimination and the Question of Civilian Casualties

First, we must always conduct war in such a way that we discriminate between combatants and civilians. This is one of the most basic rules for conducting a war properly. Civilians cannot be targeted for attack, nor can they be used as human shields to deter enemy attacks. In its broadest interpretation, this criterion would also prohibit the establishment of military targets in civilian neighborhoods in order to thwart enemy attacks; in such cases, military leaders are using their own civilian populations as a mere means to military ends. Most just war theorists interpret this condition in such a way as to permit unavoidable collateral civilian casualties, although exactly where the line is to be drawn here becomes a contentious issue. Consider an example. In attacking an enemy, there is the least chance of civilian casualties if the attack is conducted by ground soldiers. If low-level air attacks are used, the chances of civilian casualties increase but casualties to one’s own forces usually go down. If high-level aerial bombing is used, the chances of civilian casualties become even greater but at the same time the safety of one’s own forces increases significantly. The question that then arises is this: in the conduct of war, to what extent is a country justified in trading off increased civilian casualties among the enemy for increased safety of its own military personnel?

High-Altitude Bombing We have, in fact, seen precisely this issue arise in regard to the use of airpower and bombing. During the Vietnam War, the United States—which basically dominated the skies over all of Vietnam once one was above anti-aircraft missile range—moved increasingly to the use of high-altitude bombing in order to avoid being shot down from the ground. The tradeoff is that the bombing becomes less accurate, but fewer American pilots and crews are lost. It is important to note that American pilots were not intentionally bombing civilians; they would have been happy to hit the target—and only the target—every time. The question relates to the moral math: how many civilian lives on the other side are we willing to sacrifice to save one American life? This is a very difficult question, but if we say that we are willing to sacrifice a potentially unlimited number of civilian lives on the other side to save the life of one American combatant, then we have denied the very distinction between combatants and civilians.

Saddam Hussein’s Attack Against the Kurds This criterion also clearly forbids the intentional and avoidable harming of civilians. Saddam Hussein’s multiple attacks against civilian populations in his own country (e.g., the Kurds), in Iran, and in Saudi Arabia all provide clear-cut examples of such behavior, behavior that is clearly forbidden by just war theory. Moreover, there is evidence that at times he ordered his soldiers to use civilians as shields, an action that would either force the enemy (including us) to kill civilians (a PR opportunity for Saddam) or to move back their troops (a military advantage for Saddam). These are not cases in which civilians were unintentionally but foreseeably killed as the side-effect of military action (so called “collateral damage”), but rather cases in which civilians were clear-cut targets or, in the case of using civilians as shields, clear-cut instances of using people merely as a means. The use of civilians in such situations is again clearly forbidden by this criterion.

Hiroshima and Nagasaki One of the more difficult cases in regard to civilian casualties was the United States’s use of atomic bombs on Hiroshima and, three days later, Nagasaki. Two issues are relevant to this discussion. First, although these targets had

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military significance, they were primarily civilian targets. Of course, any destruction of Japan’s civilian supply chain for military munitions and supplies would have military implications, but the bottom line remains that most of the casualties from both of these attacks were civilian. (Estimates of the total number of deaths in the two cities within the first four months from the bombings are 150,000–240,000, mostly civilians.) The rationale for the bombings was that they were necessary to force a Japanese surrender and thereby avoid a protracted island-by-island, even street-by-street, battle to conclude the war. The second issue is whether the use of atomic weapons is intrinsically bad, whether these types of weapons should be banned. In the decades after the war, the Japanese government adopted a parliamentary resolution (the Three Non-Nuclear Principles) that forbids Japanese possession or manufacture of nuclear weapons or bringing such weapons into their territory. Furthermore, the country committed itself to promoting the peaceful use of nuclear power and working toward the goal of global nuclear disarmament. It was, however, still willing to rely on the deterrent effect of American nuclear weapons in the region.

The Principle of Double Effect Just as we saw the application of the principle of double effect in regard to abortion and end-of-life decisions, so too this principle plays an important—and often contentious—role in the question of civilian casualties. Recall the four principal conditions of this principle: • The act itself: The act must be morally good or morally neutral; it cannot be an evil act in itself. • Means and ends: The good effects cannot be the result of the bad effect; in other words, you cannot do evil in order to accomplish good. • Intentions: Only the good effect can be intended, even though the bad effects will be foreseeable. • Proportionality: The value of the good effect must be equal to or greater than the value of the bad effects. Clearly the principle of double effect would preclude the intentional targeting of civilians, for that would qualify as an intrinsically evil action, even if good results (e.g., a surrender that saved lives on both sides) resulted. However, it does open the door to the possibility of attacks on military targets where it is known in advance that civilian casualties will also result. It also offers some guidance, especially in terms of the principle of proportionality, about how to deal with specific situations. It is important to realize, however, three points about the principle of double effect. First, it is contentious. Not everyone accepts it. In particular, in a consequentialist universe in which intentions are largely irrelevant, it has no place. Second, it is easy to be self-deceptive about one’s intentions. So its application requires a high degree of self-honesty. Third, in institutional contexts (including the institution of war), there are many decision-makers, and their intentions may not always coincide. For effective action, we only need agreement about what to do, not why we should do it.

Asymmetrical Warfare and the Question of Uniforms When the dividing line between combatants and civilians is clearly marked by military uniforms, the distinction between combatant and noncombatant is comparatively easy to implement. However, the last fifty years have been marked by numerous conflicts in which one side often was not in uniform—insurgents, guerrillas, freedom fighters, terrorists, and so forth. It then becomes difficult to distinguish between combatants and noncombatants, and guerrillas often depend on this as a form of concealment. This is one of the ways in which just war theory is a doctrine best suited to traditional military conflicts with soldiers in uniform on opposing sides shooting at each other. (Think of the American Civil War here.) In general, uniforms are a military necessity, allowing soldiers on one side to recognize others on their side. (In addition, they play many other important roles in socialization, training, etc.) Increasingly, in the twenty-first century we (i.e., the United States) are facing a new type of warfare: asymmetrical warfare where one side has far fewer traditional military resources than the other. Anyone who saw the Mel Gibson movie, The Patriot, can immediately understand asymmetrical warfare: facing superior firepower, numbers, and formal training, revolutionaries developed nontraditional methods for fighting the British. If we had lost that war, the revolutionaries would have been branded (in contemporary terms) as terrorists; since we won, they are called patriots and freedom fighters.

Chapter 5. War, Terrorism, and Counterterrorism

The United States is no longer in the position of being the weaker force. In almost all conflicts, we have vastly superior military and communications resources. Few enemies are stupid enough to line up for a battle of tanks on opposing sides, for example. During World War II, the outcome of a tank battle could be undecided in advance. Today, there is little doubt that any enemy that attempted to fight it out with our tanks (as an example) would simply lose, as the First Gulf War (Operation Desert Storm) showed so convincingly. The result of this is that wars involving the United States are increasingly asymmetrical wars, and these in turn challenge the paradigm developed for traditional warfare. The Principle of Proportionality

The second principle for the just conduct of war is the principle of proportionality in the conduct of war. Countries should only use as much force as is necessary achieving their just goals. This excludes massive attacks when the legitimate goals of the conflict are minor. Often, when this is ignored, we see local conflicts grow into much larger wars simply by their own momentum.

“Shock and Awe” in Guernica Again, this raises questions about the possible limits on countries with overwhelming military superiority. Hitler’s Blitzkrieg (“Lightening War”) was an example of this, and the Nazi pioneered the concept of “shock and awe,” a doctrine resurrected by Harlan Ullman and James Wade as part of the general doctrine of rapid dominance for the American military. The Luftwaffe’s massive bombing of the Spanish town of Guernica, immortalized in Pablo Picasso’s painting “Guernica,” was an example of the unimaginably destructive bombing campaigns that would follow in World War II and mapped out an approach that would be used later in coalition wars in the Middle East.

Total War The twentieth century was marked by two world wars, conflicts that involved many of the major nations of the world in extended alliances against one another. World War I left European soil drenched in blood, and yet within two decades, world war had broken out again. World War II was even bloodier, and it became the model of what the historian Gordon Wright named the Ordeal of Total War. Total war involves a massive mobilization of forces and, in support of this military might, a massive reorientation of industry toward the production of armaments and war materials. Because of this high level of civilian involvement in support of the war effort, the line between combatants and noncombatants becomes less distinct. Some were fighting in the trenches, others on the factory floor. The goals of total war often grow to match the magnitude of the effort, and the usual corollary of total war is unconditional surrender and total victory. The routine brutalization of the enemy quickly followed. Estimates place the World War II death toll at 15,000,000 combatants and 45,000,000 civilians. The concept of total war poses two key moral questions to us. First, to what extent does it blur the previously crucial distinction between combatant and noncombatant, a distinction that lies at the very heart of just war theory? If total war requires a total mobilization of the civilian population to support the war effort, aren’t they in effect part of the war effort as well? And if so, aren’t they open to attack in the same way that combatants are? This is the first line of reasoning that poses serious questions for just war theory. The second question we will simply note and postpone until later: to what extent does the concept of total war demand total victory, unconditional surrender, and to what extent does that conflict with the search for a just peace? This will be discussed later in the section on building a just peace. No Use of Means That Are Evil in Themselves

The third and final standard for the just conduct of war is the prohibition again means that are evil in themselves. This is sometimes referred to by its Latin name, mala in se, which means “things that are evil in themselves.”

From Mustard Gas to WMDs In World War I, there was a widespread use of poison gas, the worst of which was mustard gas. It left many soldiers blind, burned, and scarred as a result of exposure, and was extraordinarily painful. Sometimes it would

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take weeks before a soldier would die from the exposure, and those were weeks of horrible pain. Many more were left burned and scarred and severely disabled for the rest of their (often shortened) lives. Although the use of poison gas was initiated by the Germans in 1915, and the gas itself was produced by chemical giants such as BASF, Bayer, and IG Farben, its subsequent use was not confined to the Germans. It was eventually used during World War I by the French, the British, and the Americans as well as extensively by the Germans. It is estimated that about 100,000 people died from poison gas during World War I. Stockpiles of mustard gas remain a concern today, especially in countries in the Middle East. Since World War II, our terminology has changed significantly, but the moral issue remains constant. Now we talk about Weapons of Mass Destruction (WMDs). This, too, conjures up images of total war. At times, the term seems to refer to weapons that are expansive in terms of their effects, that is, weapons that result in mass destruction of large numbers of living beings, the environment, and the world created by human beings. Under this rubric, most nuclear weapons (except tactical ones) would clearly be weapons of mass destruction. At other times, it seems to refer to the type of weapon (chemical, biological, radiological, or nuclear, CBRN). Yet there is a third characteristic of WMDs that is the morally most salient one: WMDs typically fail to distinguish between combatants and noncombatants. They are indiscriminate, killing or maiming all that come in their path. This was true about mustard gas, which sometimes blew back on the very troops that were using it as a weapon. So, too, it was true about nuclear weapons, and as we saw at Hiroshima and Nagasaki, they killed countless civilians. It is the nature of these weapons that it is impossible to discriminate between soldier and civilian. This, not just their sheer magnitude, is the basis for the moral prohibition against them.

Rape as an Instrument of War Rape has always been present in warfare and is morally abhorrent in itself, but it has taken a particularly heinous turn in recent decades when it has been consciously and intentionally used as an instrument of war. In some conflicts in the Balkans and Africa, soldiers would capture a town (especially when the men were away fighting), kill many of the remaining men, old people, and children, and then rape the women. What made it particularly insidious is that they would then keep the women captive for a year or more until they not only became pregnant but also delivered a child. The rationale was that this would break the very backbone of the enemy’s society when the men, returning from war (if they did), would find that their wives had borne the children of their worst enemy. There is a calculated quality, an evil, about such policies that almost defies imagination. War may be hell, but clearly some hells are worse than others. In banning such practices, civilized nations affirm that, even if differences cannot be settled through peaceful means, there are at least some limits to the ways in which we conduct a just war against our enemies.

Genocide Although genocide had occurred before World War II, the Nazi attempt to eradicate the Jews (and other smaller groups, including the gypsies) mobilized world opinion in the years after World War II to firmly reject any systematic attempt by a government to wipe out a portion of its population. The Holocaust is estimated to have resulted in the death of approximately six million Jews, a staggering undertaking. Similar attempts at genocide continue in the twenty-first century, particularly in African countries such as Rwanda. One of the principal humanitarian justifications for entering into a just war is the prevention of genocide. In Rwanda in 1994, the Hutu government was responsible for the extermination of almost the entire Tutsi minority in that country, over 800,000 Tutsis in three months. In fact, many have argued that intervention in such circumstances is not only permissible, it is morally required of countries who are in a position to end the genocide. In some ways, the United States is in a better position than any other country to stop genocide, simply because it is militarily the most powerful country in the world. Some, such as Samantha Power in A Problem from Hell: America and the Age of Genocide, have argued that the United States has failed consistently and miserably in its responsibility to put a stop to genocide on the world stage, and she has argued forcefully for a change in U.S. policy that would result in a much stronger stance against such morally odious deeds. Others, including Daniel Goldhagen first in Hitler’s Willing Executioners and more recently in Worse than War: Genocide,

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Eliminationism, and the Ongoing Assault on Humanity, have argued the such atrocities are not the work of an isolated few leaders at the top of society, but rather that can only be accomplished because the population as a whole willingly supports such genocidal policies and practices. One of the (perhaps unintended) consequences of Goldhagen’s position is that the line between civilians and combatants once again becomes blurred, and that too opens the door to abuse. Let’s put the discussion of humanitarian intervention into the context of our earlier discussion of the justification for entering into a war in the first place. Among the criteria was the requirement that there be some chance of success. Several points should be noted here. The more powerful a country is, the greater the chance of creating a backlash, blowback, as a result of intervention. Typically, it must be done skillfully, and military intervention is truly the last resort. Second, the farther away a country is, the more likely its intervention will appear to local countries to be imperialist meddling. It is far better, in this context, for a superpower to play a supportive role in mustering the local countries and supporting them in their opposition to genocide rather than intervening on its own. Finally, it should be noted that the campaign against genocide occurs on many fronts—diplomatic, political, economic, educational, religious, and even artistic. (Think of the impact of Picasso’s Guernica in this regard.) The question of intervention ought not to be reduced simply to the question of military intervention; we should realize that we can intervene in a number of ways that may actually be more effective than military might. Again, military intervention is the option of last resort.

Torture Introduction. Prior to the terrorist attacks of 9/11, there was a worldwide consensus that torture was wrong and ought never to be used. This did not mean that torture never occurred—it certainly did, and sometimes under the direction of, or at least with the implicit approval of, national leaders in certain countries. It even happened sometimes in the United States. One of the more notorious cases involved the torture of suspects by police in a particular Chicago precinct under the command of a specific captain. Police would do things such as attaching electric wire to the testicles of prisoners in order to get them to confess. Prisoners often confessed to crimes they did not commit, and in some cases they were convicted of those crimes. Eventually (after over a decade), a number of them were freed when sufficient evidence of the abuse became public, and the police captain in charge was convicted of lying to a grand jury about the torture. (The statute of limitations had expired on the original crime.) So clearly, torture still happens, even in the United States. What was different is that, before 9/11 most people agreed that it was both immoral and illegal. The right not to be tortured was, interestingly, stronger even than the right to life. Under certain circumstances, the state had the right to kill somebody—for example, in a legal execution. But there were no circumstances under which the state was thought to have the right to torture someone.

9/11 and 24. The terrorist attacks of 9/11 changed many things, including Americans’ views about torture. An interesting yardstick of that change is the television show 24, with Kiefer Sutherland in the leading role as Jack Bauer. Several things are notable about this show. First, torture and brutality are used regularly by the good guys, which is a marked departure from what had been depicted in comparable television shows previously. Second, torture almost always works. That is, not only do the bad guys talk, but they usually tell the truth. In one episode, Bauer is threatening to use physical force on a former co-worker to get him to reveal a fiendish plot, and it becomes clear that the man will not break (at least in thirty seconds) under torture; so Bauer just quickly turns and shoots the guy’s wife in the knee. He quickly capitulates after that. The only exception to the success rule about torture turns out to be none other than Bauer himself, who is grabbed by a foreign power (apparently the Chinese), tortured for months, but he does not break. He returns as a mere shadow of his former self, a shell of a man, and it seems to take weeks for him to fully return to his former self. For anyone who has worked with torture victims or even read accounts such as that by the Argentinian publisher, Jacobo Timerman, in Prisoner Without a Name, Cell Without a Number, they will know this depiction of the aftermath of extensive torture is approximately as realistic as the sex depicted in pornographic videos. Third, torture is never viewed negatively by Bauer’s co-workers. It is certainly never depicted as a betrayal of American values, as a sign of the triumph of emotion over skill and thoughtfulness, or as an object of moral revulsion.

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Nor, might I add, is 24 the only show to glorify torture. To some extent this had already been an issue with the violence in The Sopranos, and it certainly emerged as an issue in The Shield. The starring detective Vic Mackey, played by Michael Chiklis, frequently crosses the line and, among other things, tortures suspects. However, in contrast to Jack Bauer in 24, Vic Mackey is portrayed as a morally ambiguous character. Other characters are sometimes, in fact often, morally repulsed by some of the things that Mackey does, and we see the high toll on his friends and family. He is a genuinely flawed hero, responsible in the end for not only his own downfall, but also for the suffering of many other people. From a moral point of view, this is a much more interesting and finely textured depiction of good and evil, torture and murder, and brutality. Most notably, the evil is depicted as evil (even when the main character is depicted positively) in a way that does not occur in 24. Popular television shows both provide an indicator of our changing values and sometimes themselves actually influence those changes. Interestingly, representatives from the Pentagon contacted the producers of 24 in an effort to convince them to tone down the torture and use of harsh tactics, since they felt this was sending a message to our own troops that this kind of behavior was permissible. The producers were unmoved until a new president assumed office, at which time the tenor of the show changed considerably.

What’s Wrong with Torture? What, if anything, is so objectionable about torture? After all, it’s not killing, although that may sometimes eventually follow torture. It’s not just the pain, since there are plenty of situations in which a person endures pain, sometimes even willingly. Childbirth is one example, but even think of pro football. After a tough NFL game, the locker room may look more like a triage room in the ER than a football dressing room. Even the same act has a different meaning, depending on context. Some of the tackles thrown in a pro football game would be clear cases of assault off the field. The meaning of the act for the person being hit will also be quite different, depending on the context. So the evilness of torture must be something more than, something different from mere pain. What is it?

Torture and Agency. The best answer to this question comes, I think, from David Sussman. Interestingly, this is an answer that deontological philosophers such as Immanuel Kant would appreciate. Torture makes us betray ourselves, makes us say and do things that violate our sense of who we are. Thus torture strikes at the very core of a person, splitting the person, forcing one side to betray the other. That’s what it means to “break” a person: to force them to betray themselves. Our faithfulness to ourselves is the core of who we are, and to lose that is to lose something of inestimable value. This is far different from simply being injured or harassed. Indeed, torture can be applied so skillfully today that it doesn’t even leave physical marks on the person, which is all the more humiliating because there is no visible sign of how terrible the torture was, no visible justification for why one cracked under the torture. Torture and National Identity. A second argument against torture centers around national identity. John McCain, who was tortured brutally for years as a prisoner of war during the Vietnam War, opposed torture in part because he found it inconsistent with our identity as a nation. The opposition to torture, he suggested, was one of the things that made us different from them. Moreover, it is also one of the characteristics of our military: it does— or at least should—not sink to the depths to which its enemies sink. To say that torture gives the United States the moral high ground may be true as well, but this to confuse the effect with the reason. We avoid torture because doing so is the right thing to do, and one of the by-products of that is that we retain the moral high ground. Notice that this is a deontological argument—a rule about our duty that is not primarily justified by its consequences but rather by the idea that it is the right thing to do. Furthermore, it is a specific kind of deontological argument that applies to a specific group—American citizens as well as the smaller group of American military personnel. To engage in torture is seen within this perspective as besmirching our honor, betraying our identity. These are, I think, interesting and important arguments that help to define the identity of a particular nation or group. We saw a similar type of argument when discussing physicians’ duties in regard to end-of-life decisions where the AMA defined passive euthanasia as consistent with a physician’s identity and active euthanasia as inconsistent with it. Some advocates of the use of torture begin with the premise of specific duties to our country, but reach a quite different conclusion by adding a premise that love of country entails doing anything—and this includes

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torturing in some circumstances—that protects the security of our country. Again, we see a parallel with the medical profession: those who focus on the physician’s duty to do no harm will be opposed to active euthanasia, while those who focus on the duty to alleviate suffering may find it morally permissible.

The Definition of Torture. One of the other effects of 9/11 was an attempt to redefine torture so narrowly that previously unacceptable practices would now be permitted under a new interpretation of the law. The Geneva Convention and the United Nations Convention Against Torture, and the UN Universal Declaration of Human Rights all forbid torture and provide definitions of it. Limitations of space prevent us from pursuing this in detail—and the detail can be extraordinarily specific—but let me say that the detail is important and that people’s lives depend on these details.

The Treaty Argument. Since World War II, the United States has ratified a number of treaties which, among other things, ban torture and, in the process, provide specific definitions of what counts as torture. The various Geneva Conventions are the most notable instances of this. The treaty argument, interestingly enough, can lead to different conclusions, depending on who has signed the treaty and what its specific wording is. On one interpretation, if a treaty bans torture and we sign that treaty, then we are bound not to torture. However, there is an ambiguity here. The treaty works like a type of social contract. It certainly obliges us to treat other members of signatory nations according to the treaty. Thus we may not, for example, torture French or British solders (or civilians, for that matter). How do we treat those who have not signed the treaty? Are they entitled to the same rights as those who did sign it? If so, they seem to have rights without corresponding duties. This is where the issue about just war theory and nation states comes into play. The framework works reasonably well for nations, but is less well suited for terrorist groups or non-nation groups that cannot sign a treaty. Although the suggestion that the Geneva Conventions did not apply to “enemy combatants” may have seemed (and been) a political move to justify policies, there seems to be genuine merit in the argument that those whose who have not agreed to our treaties ought not to enjoy their benefits. If they feel that is unjust, they can agree to the treaties and abide by them. Consequentialist Considerations. Consequentialism provides the grounds for both support of the use of torture and for opposition to its use. Let’s look at each. The classic consequentialist argument in favor of the use of torture is the ticking bomb argument. It argues that there are certain circumstances under which the evil or torture is so outweighed by the potential good result that it becomes morally justified. If you are certain that someone has planted a bomb that, say, will detonate during the Superbowl game, supporters of the permissibility of torture argue that it is morally permissible to torture the person who planted the bomb to find out where it is in order to disarm the bomb without creating a panic that would itself cost many lives. Indeed, if we think of these things solely within a consequentialist framework, it seems as though there would be at least some cases in which the numbers would work out in this way. One advocate of this position, Alan Dershowitz, argues that we should have torture warrants, modeled on wiretap warrants, that allow us to go to a judge and obtain judicial permission to torture an individual. Such an approach, he maintains, would prevent torture from getting out of hand. The response to this argument can be on several different levels. First, deontological responses will simply reject the appeal to consequences. Second, staying within a consequentialist framework, we can distinguish between act and rule consequentialism. Could we justify perhaps a once-in-a-lifetime instances of torture? Probably. Could we justify a rule permitting torture whenever necessary to preserve national security? Almost certainly not. Just as with the death penalty, the rule will be overused and misapplied. (This would be similar to Scott Turow’s position on the death penalty: yes, occasionally it may be justified, but it’s not possible in practice to have a system that applies it fairly.) Third, in some cases—especially involving the military—there may be good consequentialist reasons for not torturing. Overall, if we do not torture enemy combatants, it is less likely that our own forces will be tortured if captured. Thus professional military officers and commanders are often strongly opposed to the use of torture on consequentialist grounds, believing that such opposition is one of the principal ways to protect our own troops from torture at the hands of the enemy.

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Henry Shue on Torture in Dreamland. Henry Shue, a Professor of International Relations at the University of Oxford, has offered an interesting critique of the ticking bomb example. Advocates of the use of torture often advance a hypothetical “ticking bomb” example. In such examples, we are confronted with the following type of scenario. A terrorist (or some other evildoer) has planted a bomb that will go off soon and kill thousands, perhaps tens of thousands, of innocent people. No one knows the location of the bomb except the terrorist, and thus there is no way to disarm the bomb without getting information from the terrorist. Meanwhile, the bomb is ticking away, set to explode very soon. So there is no chance of mounting a large-scale search to try to find the bomb on our own. At least in a case like this, advocates of torture maintain, everyone would admit that we are morally justified in torturing the evil terrorist in order to save the lives of countless innocent individuals. In his critique of such argument, Shue argues that a hypothetical example such as this is deeply misleading. Think of some of the elements in the example that are rarely found individually in real life: • We are sure that the person we want to torture is the right person. • We have good reason to believe not only that the terrorist will talk under torture, but also that the terrorist will tell the truth quickly enough to allow us to disarm the bomb. • We are sure that this is a genuinely exceptional case and that torture will not become the general rule. • We possess the necessary skills to be able to apply torture effectively. Shue’s argument here is that in the real world, we will never encounter such a coincidence of perfect conditions. In developing his argument, Shue maintains that the proponents of torture are the ones that have their heads in the clouds, the ones that aren’t pretending that an idealized scenario will in fact apply to real-world situations. In the real world, Shue argues that we never encounter such a combination of unusual circumstances. In the real world, we are often not entirely certain that the person to be tortured has the information that we want—and if the alleged terrorist does not provide us with the information we want, what do we do? Torture the person some more? Move on to the next likely candidate? In the real world, we don’t have the kind of certitude found in these hypothetical examples, and this is one of the reasons why such examples are deeply misleading. The situation actually gets worse. How can we be certain that the terrorist will tell the truth under torture? It’s easy to imagine in real life that a terrorist would give false or misleading information, and that the bomb would explode before we discovered this. Indeed, the time-sensitive nature of this example actually serves to reduce the reliability of information obtained under torture, because the alleged terrorist would only have to hold out against the torturer for a short period of time. If it really is a ticking bomb case, torture is less likely to be effective, since the terrorist only has to maintain a plausible but false and misleading position for a short period of time, just long enough for the actual bomb to go off. Of course, we might suggest that seasoned interrogators would be able to distinguish between those who tell a lie and those who are telling the truth. But in order to have such seasoned interrogators, we would have to have torture as an institution, a regular part of our national security apparatus. Yet if that is the case, we are no longer dealing with an isolated ticking bomb but rather with a pattern of such activity, with torture as an institution– and such an institution is precisely what we want to reject. Thus the argument that Shue wants to advance is that supporters of torture are the ones who are not grounded in the real world, are the ones that are living in an imagined world where everything can be tailored to the needs of their hypothetical examples. In the real world, torture is much more uncertain, much messier, and certainly much more contagious: one instance quickly leads to multiple other instances. The country that tortures only occasionally and judiciously is, Shue maintains, like the alcoholic who is able to have only one drink. Such a person might exist in theory, but not in the real world. If you are a realist, you know there’s no such thing as just one drink for the alcoholic; similarly, you realize that there is no such thing as a single, isolated act of torture.

Drones, Robots, and the Age of Electronic Warfare Even a decade ago, we were not discussing the morality of drones and robots in a discussion of the morality of the conduct of a war. Such stuff was still in the domain of science fiction or, at most, a gleam in the eye of a DARPA program officer. Now, however, the United States finds itself increasingly using very high tech methods

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of video surveillance and remote attacks with the use of drone. P. W. Singer (not to be confused with the utilitarian philosopher, Peter Singer) has detailed this emerging technology in Wired for War, and we have seen in the Obama administration an increasingly frequent use of drones and remote air strikes. By some counts, the number of drone attacks by the middle of President Obama’s presidency exceeded the total number during President George Bush’s presidency. These present interesting ethical issues. One of the skills most helpful in becoming a drone pilot is the ability to play video games well. Traditionally, in the military there has been a culture of aviators, beginning with the requirement that they be officers. This is no longer a requirement for drone pilots. In other words, a significant amount of the socialization that military aviators usually receive may not occur with drone pilots. There is another disturbing issue here. We have already discussed asymmetrical warfare, and in this case we have an extraordinarily asymmetrical situation in which a drone operator may be flying a drone and firing missiles half way around the world, completely removed from the theater of combat. What happens when you have the power of life and death and the worst that the other person can do to you is to make your screen go blank? The current situation is simply the next step in a continuing line of developments that separate those doing the killing from those they kill. This began with long range artillery in World War I and high-altitude bombing beginning in World War II, a type of bombing that became more effective in Vietnam. We have thus seen a growing asymmetry between the level of danger to opposing forces and the level of danger to our own forces. Killing another human being is an extraordinarily serious thing, but how does it change us when we can kill with no danger to ourselves? There is also a consequentialist consideration here. What kind of “blowback” does such warfare have? If our only consideration is to kill enemy combatants, we might get one picture. If, however, our concern is with winning a war and establishing a just peace, we may find that this tactic is less conductive to our ends. Moreover— and this too is a consequentialist concern—the absence of loss of life among our own personnel may lead politicians to use this option more frequently. This may add to issues discussed earlier in regard to the participation of a nation in going to war. When it becomes possible to do so at little risk to the lives of one’s own military personnel, then the political likelihood of war may well increase. This concludes our discussion of the morality of conducting a war. Let’s now turn to the question of achieving peace with justice. Fair Treatment of Prisoners of War

Oddly, the treatment of prisoners is a topic sometimes neglected by traditional just war theory, presumably because it presupposed that those who surrendered had already forfeited their life and thus had few if any rights. However, the Geneva Convention has clearly articulated the rights of prisoners of war and, even when its standards have not been observed, it has been influential in setting the standard to which civilized nations should aspire. Considerations about treatment of prisoners, if they were incorporated into the just war tradition, would seem relevant in two places. First, as part of the jus in bello considerations, the just treatment of prisoners would seem to be integral to the just conduct of war. One of the principal reasons for this is simply enlightened selfinterest: if we want our captured military personnel to be treated humanely, then we will do well to treat those prisoners we hold with respect as well. Prisoners are in a particularly vulnerable position, easily subject to abuse against which they usually cannot defend themselves. Second, considerations of jus post bellum (explained in the next section) are also relevant here, and we see this particularly in regard to the pictures that emerged from the American mistreatment of Iraqi prisoners of war as well as torture of detainees at the Guantánamo Bay detention camp. Some of these detained include minors1 and Taliban and Al Qaeda fighters detained as part of the war against terror, although most of those captured are termed “unlawful combatants” rather than prisoners. There has been considerable criticism and fierce debate about the legal status and treatment of detainees, with many rights organizations such as the International Red Cross and the Amnesty International believing that these detainees should be accorded prisoners of war status.2 Mistreatment of prisoners creates bitterness and hatred, and these in turn make a lasting peace more difficult.

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Jus post bellum: Creating a Just Peace Historical Examples

The Treaty of Versailles After World War I in Europe, the continent was in shambles. Germany had not only been defeated, it had been crushed, both militarily and with war reparations beyond its ability to repay. The Treaty of Versailles in 1919 signified the formal ending of the World War I, but it can just as easily be seen as the first step in a chain of events that led to World War II. Historians can debate the details, but the general principle is clear: if we have an unjust peace, eventually we will have another war. It’s simply easier to get it right the first time. The peace after World War I stands in marked contrast to two other wars: the American Civil War and World War II. Let’s consider each in turn.

The Civil War Although he did not live to shepherd the nation through the post-war period, President Abraham Lincoln did much to ensure that the end of the civil war would be followed by reconciliation. It was an extraordinarily bitter and bloody conflict. Over 50,000 soldiers died at Gettysburg alone, with almost 160,000 casualties. What Lincoln attempted to do was to treat those who lost with dignity and reconciliation, rather than as traitors deserving of on-going punishment. Some actions, especially Sherman’s notorious march to the sea at a time when the outcome of the war was no longer in doubt, made this difficult, but Lincoln himself provided the same kind of leadership we would see much later with Nelson Mandela. Although tensions certainly remained, the fact that there has never been another civil war is some indication of the success of this effort. Although typically the discussion of justice and war has been limited to jus ad bellum and jus in bello, the classical sources also contain a discussion of a third type of justice: justice in peace, jus post bellum. According to Brian Orend, whose work has done much to highlight the notion of a just peace, there are five conditions for a just peace: (1) just cause for termination; (2) right intention; (3) public declaration and legitimate authority; (4) discrimination; and (5) proportionality. A just cause for peace exists when the rights that were originally violated are now restored. The right intention excludes motives of revenge against the defeated and both victors and vanquished must be subjected to the same laws and punishments. This precludes, for example, holding the defeated accountable for war crimes but not doing the same thing for yourself and your allies. Whatever punishment is exacted must discriminate appropriately between general citizens and military personnel and, within the military, between those responsible for prosecuting the war and those not in leadership positions. Finally, a just peace is marked by proportionality, where punishments exacted are proportional to the severity of the offense. One of the most intriguing aspects of the notion of a just peace is that it can guide the conduct of a war. Faced with difficult decisions, national leaders can ask themselves which alternative will increase the possibility of just peace at the end of the conflict. In the American Civil War, we saw the way in which certain actions, such as Sherman’s march through Georgia, left a bitter legacy that endangered the prospects of a just peace. On the other hand, the leadership that Lincoln showed, including his generous terms of surrender, promoted the possibility of a just peace. Wise leaders are able to conduct war in a way that maximizes the possibility of creating a just and lasting peace. Similarly, Allied policies toward Germany after World War II were consciously and effectively designed to produce a just peace, to promote healing rather than retribution. American military and political leaders today struggle with the question of how to conduct military operations in the Middle East in such a way as to prepare the ground for a just peace.

World War II The peace at the end of the World War II also left us with lasting peace, although much of it was in the form of a balance of power between Soviet and Allied interests. In particular, America’s peace with Germany stands out as an example of a just peace. Key figures were held responsible at Nuremberg and elsewhere for their role in the

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war, and Germany was forced to repudiate its agenda and to give back the lands it had occupied during the war, but thirty years later there was probably less bitterness between Americans and Germans than there was between Northerners and Southerners in the United States. That was principally because of the Marshall Plan and the Berlin airlift, which brought supplies into West Berlin and basically saved it from being taken over by the Soviet Union. The result has been a surprising high level of good feeling on the part of Germans toward the United States. Again, the measure of the strength of the peace is the fact that this war did not break out again. The Conditions of a Just Peace

Although the notion of a just peace is present in Aquinas and others, the philosopher most responsible for bringing this notion clearly into focus is Orend. In his online article on “War” in the Stanford Encyclopedia of Philosophy, he proposes the following conditions for a just peace:

1. Proportionality and publicity 2. Rights vindication 3. Discrimination 4. Punishment of leaders of the aggressor country 5. Punishment of combatants on all sides of the conflict if they have committed war crimes 6. Compensation 7. Rehabilitation Let’s examine each of these conditions. For the sake of brevity, I will compress principles 3, 4, and 5 into one and amend it slightly. Proportionality and Publicity

Just as a war needs to be publicly declared by a proper authority, so too the end of conflict must be publicly declared and recognized. This is important for a variety of reasons, not least of which is that it allows the countries involved to achieve an agreement on what has been achieved, what has been won and lost. Moreover, it is important that this agreement be public, letting the citizens of the involved countries know the terms of the peace (for which they may have sacrificed much), and the world at large can then recognize the new relationships that emerge from the peace treaty. The proportionality requirement demands that the victor not exceed the demands of justice in the treatment of the defeated. This generally precludes unconditional surrender. Moreover, if often involves ensuring that the losers are treated with respect and allowed to retain their dignity, as long as this does not directly conflict with other requirements discussed later. Clearly, the aggressor has to acknowledge being wrong, and appropriate punishments have to be given. However, it is still possible to do this without stripping the defeated of their dignity and self-respect. President Lincoln was a model in this regard. Vindication of Rights

Presumably the war itself involved the violation of someone’s rights, probably through acts of aggression by the country that started the war. A just peace is one that ensures that the proper rights are reestablished. These might be rights to life, rights to self-determination, rights to specific territory, and such. This is the very core of the peace treaty. Discrimination and Punishment

As has been the case throughout this discussion, it is crucial to distinguish among (a) political leaders and military leaders who have a policy role, (b) combatants, and (c) civilians. As a rule, civilian populations should not be punished either directly or indirectly through the use of such things as economic sanctions. Combatants who have violated the laws of war or committed crimes against humanity should be punished for those offenses. This includes not only enemy combatants, but also combatants on one’s own side. The heaviest burden should fall on

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the shoulders of those directly responsible for instigating the war. In World War II, for example, the Allies conducted war trial in Nuremberg, holding German leaders (both political and military) responsible for the their decisions and actions, and in some cases holding specific lower-ranking military personnel responsible for crimes against humanity. In Japan, the Allies followed a similar policy, in one case even executing a Japanese general for torturing American soldiers with waterboarding and other techniques. In the recent wars in the Middle East, the United States has occasionally held its own military soldiers responsible for offenses. Compensation

Defeated countries may be ordered to pay financial restitution to help to defray the cost of the damage that they have done. Those financial debts cannot be so great as to be crushing, since that would probably perpetuate the instability that a just peace seeks to overcome. Rehabilitation

The period following a war is often a good moment to seek structural changes in the aggressor nation. Institutions that led to the war in the first place might be in need of reform, and presumably some within the defeated nation would share these sentiments and be advocates of reform from within. The more that this can be done in a collaborative way, the greater the chance of achieving lasting reform. A Just Peace as the Guiding Principle of Just War Theory

We can begin to seek a just peace at the conclusion of hostilities, but I would like to suggest a far greater relevance of this vision of a just peace: it should guide both our decision to go to war and the way in which we conduct ourselves during the war. Rather than be an afterthought, the vision of a just peace should be the guiding principle of just war theory overall. We certainly see glimpses of this, both historically and in our contemporary world. As mentioned earlier, President Lincoln seems to have been guided by a vision of a genuine peace between North and South that shaped many of his individual decisions. On the other hand, actions such as General Sherman’s devastating march to the sea, which originally the president opposed, certainly detracted from the possibility of reconciliation and healing between North and South. In more recent times, we have seen traces of this concern in United States discussion of “winning hearts and minds” in its interventions in the Middle East. Conversely, we have seen criticisms that are based on the same principle. Those who argue that the United States is creating more terrorists than it is eliminating through its military operations are in part envisioning what society will be like once the hostilities have ended. The vision of a just peace, I would argue, should guide both the decision to go to war and the conduct of a war. If we are unable to envision of path to a just peace, then that should be a serious reason against going to war in the first place. This criterion, it should be noted, is very different from the question about having an “exit strategy.”

Terrorism and the Limitations of Just War Theory Although we will return later in the chapter with a detailed discussion of the challenges to just war theory, let me mention at the outset one of its limitations: it was designed to articulate the constraints of justice in regard to conflicts among nations or, in some cases, political communities on their way toward nationhood. So, for example, it would apply straightforwardly to World War II, which was essentially a contest among opposing groups of nations. It would also cover the American War of Independence, which was a conflict between a nation (England) and a political community on its way toward nationhood (the thirteen colonies, which eventually became the United States). Just war theory is not, however, particularly well designed—at least in its original version—to cover conflict between a nation (such as the United States) and a terrorist organization (such as Al Qaeda). Let’s look at some of the reasons this is the case.

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Who Is a Terrorist?

We often begin with a stereotype, with preconceptions about what terrorism is—and it is helpful to examine those assumptions. Let’s begin with the apparently simple question: who is a terrorist? The answer, of course, is that it depends—depends on where and when you live. If you lived in Spain twenty years ago, when you hear the word “terrorist,” you probably thought of ETA (Euskadi Ta Askatasuna), supporters of a Basque homeland separate from Spain. ETA has been responsible for the deaths of hundreds of people, many of them civilians, since its founding in 1959. If you lived in England twenty years ago, when you heard the word “terrorist,” you probably thought of a member of the IRA, the Irish Republican Army, or one of its offshoots such as Sinn Féin. If you lived in France in the middle of the twentieth century, when you heard the word “terrorist,” you might have thought of an Algerian. If you heard the word in Germany in the 1960s or later, you may well have thought of a German—a member of the Baader-Meinhof Gruppe or the Rote Armee Fraktion. Terrorism, in other words, has many faces, depending on time and place. What Is Terrorism?

Although terror is not an exclusively modern phenomenon, the concept of terrorism first gained prominence in European thought during the Reign of Terror in France from 1793 to 1794. Robespierre, a leader of this movement in France, saw it as positive, as the instrument by which the state could inculcate virtue into the average citizen and at the same time root out the remaining vestiges of the previous regime. For Robespierre, terror and virtue were closely linked. The excesses of the French Reign of Terror helped to give terrorism its negative connotation, a connotation it retains to this day. The key focus of terrorism is the creation of fear, particularly fear among the civilian population. This fear becomes the means of reshaping their behavior. The relationship between terrorism and the state has two major types. After the French Revolution, we saw terror used as an instrument of the state, as something that the government consciously uses to impose its will and its values on citizens. There have certainly been other, state-sponsored reigns of terror in modern times: Pol Pot’s reign in Cambodia resulted in the killing of well over two million people by the Khmer Rouge and could well be understood as a reign of terror. This is state-sponsored terrorism directed toward the state’s own citizenry. The other type of terrorism occurs within the context of a conflict between a small but dedicated (perhaps obsessive) minority who seek to overthrow the dominant regime. Here terrorism is often directed against the civilian population in order to demonstrate that the current government cannot protect them. Moreover, terrorism of this type is also partially structured by the deep asymmetry between the levels of armament between the two parties. Typically, the state will have extensive military and police resources, and would inevitably win in any ordinary face-to-face battle. Terrorism often becomes the preferred means chosen by the less powerful because straightforward conflict would inevitably lead to their defeat. Typically, this kind of terrorist fights without a uniform, without identification. This heightens the impact of terrorism: insofar as the average citizen can never know who the terrorist is or when the terrorist will strike next, uncertainty and fear rise quickly. This picture is somewhat more complex because terrorism does not necessarily have to be directed against one’s own population. Indeed, it is typical that terrorist groups will affiliate in some way with other like-minded groups in other countries, and the lines of authority and responsibility are quickly blurred. Implications for Just War Theory

Let’s leave state-sponsored terrorism to the side for the moment and look as what we will call nonstate actors as terrorists. These may be groups such as the Provisional IRA, ETA, or al Qaeda. Typically, they have far less military power than the countries they oppose. In some cases, they may attack civilians in order to spread terror through the country and thereby undermine the country’s government; in other cases, they may spread attack civilians because they believe that anyone not supportive. For them, everyone—both civilian and military—who is not affiliated with their movement is an enemy. This is the first area in which terrorism violates just war theory: typically, it refuses to accept the moral significance of the distinction between combatant and noncombatant, lumping them all together as the enemy and even in some cases taking noncombatants as the preferred target.

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The second area in which terrorism conflicts with just war theory is the other side of this coin: terrorists typically do not wear uniforms, do not distinguish themselves from the noncombatant populace. In doing so, they again blur the crucial principle of discrimination that is central to just war theory. The third area of conflict relates to command structures. By their nature, terrorist groups are less structured, less stable than nation states. If a terrorist group declares an end to violence (as, for example, ETA has done on several occasions), then splinter groups can easily arise that refuse to accept the ceasefire. Rarely is it possible to hold anyone responsible for the actions of others in the way in which we can in regard to nations. War crimes trials, for example, apportion responsibility for the transgressions of subordinates to national leaders, but it is highly unlikely anything like this would occur in a terrorist group. Similarly, terrorist leaders do not have the authority to negotiate peace agreements in the same way that leaders of nations do. Often, they cannot control their members and this is part of their nature as nonstate actors. Thus many of the structures that guarantee accountability and responsibility in the conduct of war are weakened or eliminated in terrorist groups, and this makes the model of just war theory much more difficult to apply. Without clear lines of responsibility and authority, nonstate actors are incapable of entering fully into the relationships at the heart of just war theory. In addition to these difficulties, we should note that terrorist groups do not sign treaties or agreements such as the Geneva conventions. Only countries do this. They simply do not have the structure to make such a signing possible—and even if it were possible, it would probably not be welcome. The members of terrorist groups as well as their leaders would reject the substance of just war theory as well as the groups lack the structure to endorse it.

Pacifism and Realpolitik: The Alternatives to Just War Theory Just war theory represents a middle position between two extremes: pacifism and Realpolitik. Let’s look at these two extremes, noting in advance that calling them “extremes” is not in any way intended to suggest that they are not valid. Pacifism

War and killing seem to stretch back into the mist of the beginnings of human history. To many they seem not only a longstanding part of the human condition, but also one that cannot (and perhaps should not) be eliminated. Some, however, have stood against this position and rejected killing and warfare as legitimate ways of resolving human conflicts. These are pacifists, individuals who believe that it is always wrong to kill other human beings. In the twentieth century, we witnessed several extraordinary pacifist leaders. Gandhi’s pacifism, his nonviolent resistance to British rule of India, was a stunning example of the power of pacifism, and his nonviolent campaigns were probably more successful against the British than any attempt at violent resistance could have been. Martin Luther King’s nonviolent resistance to segregation in the United States again provided a model of moral leadership of tremendous power. Pacifism is often deeply rooted in religious traditions. In France during World War II, the pacifist village of Le Chambon was responsible for saving the lives of several thousand Jews, mostly children, and doing so in a way that never shed blood. (Phillip Hallie has chronicled this in his beautiful book, Lest Innocent Blood Be Shed.) Amish, Mennonite, and Quaker traditions often reject all forms of violence. In the Catholic tradition, Joseph Cardinal Bernardin articulated the “seamless garment” doctrine of respect for human life that rejects killing in all its forms—abortion, euthanasia, capital punishment, and war—as well as the destructive conditions of poverty and racism that often were a form of violence against the poor and persons of color. The Dalai Lama has provided yet another powerful model of pacifism, in this case from a Buddhist tradition. Can pacifism be justified philosophically outside of a religious tradition? It seems that there are two main types of arguments that can be advanced in support of pacifism. The first of these is broadly utilitarian in

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structure and claims that killing other human beings never results in the best possible world. In other words, the path of nonviolence always produces a better world (less suffering, more happiness) than does the path of violence, killing, and war. Yet this surely must be false. We can easily imagine some situations in which killing a few (perhaps a few who are themselves quite evil) can save the lives of the many, who may in fact be quite good people. The passengers who overpowered the September 11th hijackers and crashed the plane in a corn field in Pennsylvania in all probability saved the lives of many persons who would have died if the hijacked plane had also crashed into a major target. Nevertheless, there may be a lot of truth in this position. It may well be the case that in many—perhaps most—situations, the path of violence, killing, and war produces more harm than good. All too often, violence and killing simply produce more of the same, and other ways of resolving differences may produce more overall good. However, it is an empirical matter—a tricky one, to be sure—to determine when this is the case. The other way of justifying pacifism is deontological. It claims that there are certain rules that we are never entitled to violate, even if doing so would produce greater overall utility. For example, we are never entitled to kill an innocent homeless person so that the lives of several other individuals might be saved through organ transplants. Similarly, many pacifists—Gandhi, for example— simply maintain that the rule “do not kill” is fundamental and binding irrespective of circumstances. The tradition of allowing individuals to be conscientious objectors recognized the validity of this option. Among those who do sometimes accept the possibility of killing and war as legitimate, the question is: When is it justified? Just war theory attempts to answer this question in regard to conflicts among nations. Realpolitik

Just as there is a long tradition of maintaining that there are certain moral rules that constrain entering into and conducting a war, so too there is a long tradition that maintains that morality has no place in politics, especially in international politics. Those who maintain this view argue that countries—especially their own—should act in their own self-interest and do so with a clarity of vision unclouded by moral sentiments. Thus they maintain a policy of what they consider to be clear-headed realism and pragmatism. Although the term Realpolitik goes back to nineteenth century Germany and the concept can be traced back two millennia to Thucydides’ History of the Peloponnesian War, it gained currency in the United States during President Richard Nixon’s administration, when Henry Kissinger was his secretary of state. Realism, not idealism, should govern American policy in Kissinger’s eyes. Moral constraints had little or no place in foreign policy. A country might refrain from acts of aggression, but it does so in this worldview because it realizes that acts of aggression often bring more problems to the aggressor than they solve. It is interesting to see the ways in which this view can play itself out in history, and the Nixon presidency offers a good example. From the standpoint of many Americans during that time, the Soviet Union and China were The Evil Empire, and many opposed any kind of interaction with China, a country viewed as a moral pariah. Thus morality, as commonly understood at that time, opposed interaction with China. Kissinger and Nixon, on the other hand, espoused what they considered a more realistic and clear-headed approach to China, believing that it was necessary to normalize American diplomatic and trade relations with China. Thus Nixon and Kissinger were responsible for the normalization of relations with China, a policy for which they received much criticism from the right on moral grounds. There is a cluster of issues intertwined in this example, and in order to assess Realpolitik it is important to disentangle them. Let’s distinguish three versions of this thesis: • Strong version: In the name of Realpolitik, we should pursue our own self-interest without regard to moral constraints. • Intermediate version: In the name of Realpolitik, we should pursue our own self-interest without regard to moral constraints except insofar as those constraints are grounded in our national identity. • Weak version: In the name of Realpolitik, we should pursue our own self-interest without regard to false moral ideals or misinterpretations of morality.

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The weak version is a thesis that the just war theorist can live with, and indeed most moralists would accept this. It does, moreover, point out a key issue in foreign policy: the need to see situations clearly as they actually are, not as our moral preconceptions might lead us to see them. The strong version runs into problems that Kissinger himself eventually encountered. Richard Nixon became famous for, among other things, secretly taping all conversations that occurred in the Oval Office of the White House. Apparently during one of the private conversations between the president and Henry Kissinger, Kissinger said that “if they put Jews into gas chambers in the Soviet Union, it is not an American concern,” although he did acknowledge that it might be a humanitarian issue. If such a thing were to occur, many advocates of just war theory would maintain that it is not just morally permissible, but morally required that we intervene to prevent such atrocity. But the problem need not be confined to hypothetical examples. Samantha Power, who originally began her career as a journalist covering the wars in the western Balkans, published a riveting book on genocide entitled, A Problem from Hell: America in the Age of Genocide, which began as a paper she wrote for a course at Harvard Law School. In the last thirty years, the nations of the world have witnessed several examples of genocide and mass killing, the extinguishing of human life on a scale that would provoke moral outrage within almost any imaginable moral framework. The atrocities committed by Pol Pot in Cambodia, by Saddam Hussein against the Kurds in northern Iraq, by the Hutus against the Tutsi minority in Rwanda, by the government in Darfur against its non-Arab population have largely occurred without significant outside humanitarian intervention until well into the crisis stage. Former President Bill Clinton, reflecting on the eight years of his presidency, said his biggest regret was what he termed a “personal failure” to intervene in Rwanda to prevent the slaughter of 800,000 people. Samantha Power has been a harsh critique of the inaction of world and regional powers in regard to these atrocities, and was a significant voice in the Obama administration in support of United States active involvement in Libya to support those rebelling against Muammar Gaddafi. The intermediate version of this thesis is the most interesting one since it raises questions about whether specific countries stand committed to certain values and ideals beyond self-interest. In the United States, both the Declaration of Independence and the Constitution with its Bill of Rights constitute a statement of moral and political ideals relating to freedom and human dignity. Presumably these ideals and values do not apply solely within our national borders, and their wholesale violation should be a matter of deep concern to us even when such violations occur in other countries. Even if we do admit that moral concerns have a proper role in the conduct of international affairs, there may still be considerable debate about how best to intervene, how to intervene wisely. The conduct of foreign affairs is complex and subtle. Morality may tell us that we have to do something about an ongoing atrocity, but it rarely tells us with any specificity what in particular we ought to do or how we ought to do it.

Notes 1. Jo Becker, “The war on teen terror: The Bush administration’s treatment of juvenile prisonsers shipped to Guantánamo Bay defies logic as well as international law.” Human Rights Watch, Salon.com, June 24, 2008. 2. Pamela M. von Ness, “Guantanamo Bay detainees: National security or civil liberty.” U.S. Army War College Strategy Research Project. USAWC: Carlisle Barracks, PA, available at http://www.fas.org/man/ eprint/vonness.pdf [accessed April 26, 2012].

Discussion Questions 1. Just war theory behind the veil of ignorance. John Rawls talked about what called “the veil of ignorance.” He asked us to imagine ourselves behind this veil of ignorance, not knowing what our particular place would be in society: rich or poor, athletic or klutzy, smart or slow, funny or grim, beautiful or ugly, male or female, rich or poor, etc. Let’s add another dimension to this: imagine you do not know what kind of country you will live in—whether it be rich or poor, large or small, militarily well-defended or highly vulnerable, etc. How would this affect your view of just war theory?

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2. How to be a good victor? No one likes bad losers, but neither do we like certain kinds of winners, those who boast and gloat at their victory in ways that often obscure the human costs—to themselves as well as others—of their victory. When the United States killed Osama bin Laden, some Americans celebrated in the streets, jubilant that the mastermind of the 9/11 attacks was dead. Others outside the United States reacted quite negatively to the American jubilation. Should Americans have acted any differently? Why or why not? 3. The Effects of the Media. Our lives are often shaped, at least in part, by the media. Discuss the ways in which the media—and be specific here, talking about individual media such as movies or television or novels or some other source—have affected your understanding of the nature of war. 4. Saving Private Ryan. Steven Spielberg’s movie Saving Private Ryan provides a glimpse into the conduct of war. There are numerous scenes showing ethical issues, not the least of which is the utilitarian calculation of sending a whole company of men out to bring one American soldier back safely. The concluding scene shows Ryan, now an old man, talking about trying to be worthy of the lives that were sacrificed to save him. 5. The “Glory” of War. In the Civil War movie Glory, we see a young, idealistic Union officer hide in cowardice during the heat of battle, only gradually returning to redeem himself by leading his Black regiment into a battle that he knew would be a slaughter. Discuss the many ethical issues that are raised by this movie.

The Arguments

The Argument about Humanitarian Intervention About the Author: Michael Walzer is a political philosopher at the Institute for Advanced Studies, Princeton. He specializes in issues of war, peace, and justice. His books include Just and Unjust Wars, On Toleration, and Spheres of Justice; he is the co-editor of the quarterly magazine Dissent. About the Article: In this article, Walzer examines some of the difficult ethical and political arguments about humanitarian intervention. As You Read, Consider This: 1. According to Walzer, what are the legitimate occasions when humanitarian intervention is justified? 2. Who should be the preferred agents of humanitarian intervention? 3. How should agents act in intervening from humanitarian motives? 4. When should humanitarian intervention end?

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here is nothing new about human disasters caused by human beings. We have always been, if not our own, certainly each other’s worst enemies. From the Assyrians in ancient Israel and the Romans in Carthage to the Belgians in the Congo and the Turks in Armenia, history is a bloody and barbaric tale. Still, in this regard, the twentieth century was an age of innovation, first—and most important—in the way disasters were planned and organized and then, more recently, in the way they were publicized. I want to begin with the second of these innovations—the product of an extraordinary speedup in both travel and communication. It may be possible to kill people on a very large scale more efficiently than ever before, but it is much harder to kill them in secret. In the contemporary world there is very little that happens far away, out of sight, or behind the scenes; the camera

Michael Walzer, “The Argument about Humanitarian Intervention,” Dissent, Vol. 49, No. 1 (Winter 2002). Copyright © 2002. Reprinted by permission. Reprinted with permission of the University of Pennsylvania Press.

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crews arrive faster than rigor mortis. We are instant spectators of every atrocity; we sit in our living rooms and see the murdered children, the desperate refugees. Perhaps horrific crimes are still committed in dark places, but not many; contemporary horrors are well-lit. And so a question is posed that has never been posed before— at least never with such immediacy, never so inescapably: What is our responsibility? What should we do? In the old days, “humanitarian intervention” was a lawyer’s doctrine, a way of justifying a very limited set of exceptions to the principles of national sovereignty and territorial integrity. It is a good doctrine, because exceptions are always necessary, principles are never absolute. But we need to rethink it today, as the exceptions become less and less exceptional. The “acts that shock the conscience of humankind”—and, according to the nineteenth-century law books, justify humanitarian intervention—are probably no more frequent these days than they were in the past, but they are more shocking, because we are more intimately engaged by them and with them. Cases multiply in the world and in the media: Somalia, Bosnia, Rwanda, East Timor, Liberia, Sierra Leone, and Kosovo in only the past decade. The last of these has dominated recent political debates, but it isn’t the most illuminating case. I want to step back a bit, reach for a wider range of examples, and try to answer four questions about humanitarian intervention: First, what are its occasions? Second, who are its preferred agents? Third, how should the agents act to meet the occasions? And fourth, when is it time to end the intervention? Occasions

The occasions have to be extreme if they are to justify, perhaps even require, the use of force across an international boundary. Every violation of human rights isn’t a justification. The common brutalities of authoritarian politics, the daily oppressiveness of traditional social practices—these are not occasions for intervention; they have to be dealt with locally, by the people who know the politics, who enact or resist the practices. The fact that these people can’t easily or quickly reduce the incidence of brutality and oppression isn’t a sufficient reason for foreigners to invade their country. Foreign politicians and soldiers are too likely to misread the situation, or to underestimate the force required to change it, or to stimulate a “patriotic” reaction in defense of the brutal politics and the oppressive practices. Social change is best achieved from within. I want to insist on this point; I don’t mean to describe a continuum that begins with common nastiness and ends with genocide, but rather a radical break, a chasm, with nastiness on one side and genocide on the other. We should not allow ourselves to approach genocide by degrees. Still, on this side of the chasm, we can mark out a continuum of brutality and oppression, and somewhere along this continuum an international response (short of military force) is necessary. Diplomatic pressure and economic sanctions, for example, are useful means of engagement with tyrannical regimes. The sanctions might be imposed by some free-form coalition of interested states. Or perhaps we should work toward a more established regional or global authority that could regulate the imposition, carefully matching the severity of the sanctions to the severity of the oppression. But these are still external acts; they are efforts to prompt but not to preempt an internal response. They still assume the value, and hold open the possibility, of domestic politics. The interested states or the regional or global authorities bring pressure to bear, so to speak, at the border; and then they wait for something to happen on the other side. But when what is going on is the “ethnic cleansing” of a province or country or the systematic massacre of a religious or national community, it doesn’t seem possible to wait for a local response. Now we are on the other side of the chasm. The stakes are too high, the suffering already too great. Perhaps there is no capacity to respond among the people directly at risk and no will to respond among their fellow citizens. The victims are weak and vulnerable; their enemies are cruel; their neighbors indifferent. The rest of us watch and are shocked. This is the occasion for intervention. We will need to argue, of course, about each case, but the list I’ve already provided seems a fairly obvious one. These days the intervening army will claim to be enforcing human rights, and that was a plausible and fully comprehensible claim in each of the cases on my list (or would have been, since interventions weren’t attempted in all of them). We are best served, I think, by a stark and minimalist version of human rights here: it is life and liberty that are at stake. With regard to these two, the language of rights is readily available and sufficiently understood across the globe. Still, we could as easily say that what is being enforced, and what should be enforced, is simple decency.

In practice, even with a minimalist understanding of human rights, even with a commitment to nothing more than decency, there are more occasions for intervention than there are actual interventions. When the oppressors are too powerful, they are rarely challenged, however shocking the oppression. This obvious truth about international society is often used as an argument against the interventions that do take place. It is hypocritical, critics say to the “humanitarian” politicians or soldiers, to intervene in this case when you didn’t intervene in that one—as if, having declined to challenge China in Tibet, say, the United Nations should have stayed out of East Timor for the sake of moral consistency. But consistency isn’t an issue here. We can’t meet all our occasions; we rightly calculate the risks in each one. We need to ask what the costs of intervention will be for the people being rescued, for the rescuers, and for everyone else. And then, we can only do what we can do. The standard cases have a standard form: a government, an army, a police force, tyrannically controlled, attacks its own people or some subset of its own people, a vulnerable minority, say, territorially based or dispersed throughout the country. (We might think of these attacks as examples of state terrorism and then consider forceful humanitarian responses, such as the NATO campaign in Kosovo, as instances of the “war against terrorism,” avant la lettre. But I won’t pursue this line of argument here.) The attack takes place within the country’s borders; it doesn’t require any boundary crossings; it is an exercise of sovereign power. There is no aggression, no invading army to resist and beat back. Instead, the rescuing forces are the invaders; they are the ones who, in the strict sense of international law, begin the war. But they come into a situation where the moral stakes are clear: the oppressors or, better, the state agents of oppression are readily identifiable; their victims are plain to see. Even in the list with which I started, however, there are some nonstandard cases—Sierra Leone is the clearest example—where the state apparatus isn’t the villain, where what we might think of as the administration of brutality is decentralized, anarchic, almost random. It isn’t the power of the oppressors that interventionists have to worry about, but the amorphousness of the oppression. I won’t have much to say about cases like this. Intervention is clearly justifiable but, right now at least, it’s radically unclear how it should be undertaken. Perhaps there is not much to do beyond what the Nigerians did in Sierra Leone: they reduced the number of killings, the scope of the barbarism. Agents

“We can only do what we can do.” Who is this “we”? The Kosovo debate focused on the United States, NATO, and the UN as agents of military intervention. These are indeed three political collectives capable of agency, but by no means the only three. The United States and NATO generate suspicion among the sorts of people who are called “idealists” because of their readiness to act unilaterally and their presumed imperial ambitions; the UN generates skepticism among the sorts of people who are called “realists” because of its political weakness and military ineffectiveness. The arguments here are overdetermined; I am not going to join them. We are more likely to understand the problem of agency if we start with other agents. The most successful interventions in the last thirty years have been acts of war by neighboring states: Vietnam in Cambodia, India in East Pakistan (now Bangladesh), Tanzania in Uganda. These are useful examples for testing our ideas about intervention because they don’t involve extraneous issues such as the new (or old) world order; they don’t require us to consult Lenin’s, or anyone else’s, theory of imperialism. In each of these cases, there were horrifying acts that should have been stopped and agents who succeeded, more or less, in stopping them. So let’s use these cases to address the two questions most commonly posed by critics of the Kosovo war: Does it matter that the agents acted alone? Does it matter that their motives were not wholly (or even chiefly) altruistic? In the history of humanitarian intervention, unilateralism is far more common than its opposite. One reason for this is obvious: the great reluctance of most states to cede the direction of their armed forces to an organization they don’t control. But unilateralism may also follow from the need for an immediate response to “acts that shock.” Imagine a case where the shock doesn’t have anything to do with human evildoing: a fire in a neighbor’s house in a new town where there is no fire department. It wouldn’t make much sense to call a meeting of the block association, while the house is burning, and vote on whether or not to help (and it would make even less sense to give a veto on helping to the three richest families on the block). I don’t think that the case would be all that different if, instead of a fire, there was a brutal husband, no police department, and screams for help in

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the night. Here too, the block association is of little use; neighborly unilateralism seems entirely justified. In cases like these, anyone who can help should help. And that sounds like a plausible maxim for humanitarian intervention also: who can, should. But now let’s imagine a block association or an international organization that planned in advance for the fire, or the scream in the night, or the mass murder. Then there would be particular people or specially recruited military forces delegated to act in a crisis, and the definition of “crisis” could be determined—as best it can be— in advance, in exactly the kind of meeting that seems so implausible, so morally inappropriate, at the moment when immediate action is necessary. The person who rushes into a neighbor’s house in my domestic example and the political or military commanders of the invading forces in the international cases would still have to act on their own understanding of the events unfolding in front of them and on their own interpretation of the responsibility they have been given. But now they act under specified constraints, and they can call on the help of those in whose name they are acting. This is the form that multilateral intervention is most likely to take, if the UN, say, were ever to authorize it in advance of a particular crisis. It seems preferable to the different unilateral alternatives, because it involves some kind of prior warning, an agreed-upon description of the occasions for intervention, and the prospect of overwhelming force. But is it preferable in fact, right now, given the UN as it actually is? What makes police forces effective in domestic society, when they are effective, is their commitment to the entire body of citizens from which they are drawn and the (relative) trust of the citizens in that commitment. But the UN’s General Assembly and Security Council, so far, give very little evidence of being so committed, and there can’t be many people in the world today who would willingly entrust their lives to UN police. So if, in any of my examples, the UN’s authorized agents or their domestic equivalents decide not to intervene, and the fire is still burning, the screams can still be heard, the murders go on—then unilateralist rights and obligations are instantly restored. Collective decisions to act may well exclude unilateral action, but collective decisions not to act don’t have the same effect. In this sense, unilateralism is the dominant response when the common conscience is shocked. If there is no collective response, anyone can respond. If no one is acting, act. In the Cambodia, East Pakistan, and Uganda cases, there were no prior arrangements and no authorized agents. Had the UN’s Security Council or General Assembly been called into session, it would almost certainly have decided against intervention, probably by majority vote, in any case because of great-power opposition. So, anyone acting to shut down the Khmer Rouge killing fields or to stem the tide of Bengalese refugees or to stop Idi Amin’s butchery would have to act unilaterally. Everything depended on the political decision of a single state. Do these singular agents have a right to act or do they have an obligation? I have been using both words, but they don’t always go together: there can be rights where there are no obligations. In “good Samaritan” cases in domestic society, we commonly say that passersby are bound to respond (to the injured stranger by the side of the road, to the cry of a child drowning in the lake); they are not, however, bound to risk their lives. If the risks are clear, they have a right to respond; responding is certainly a good thing and possibly the right thing to do; still, they are not morally bound to do it. But military interventions across international boundaries always impose risks on the intervening forces. So perhaps there is no obligation here either; perhaps there is a right to intervene but also a right to refuse the risks, to maintain a kind of neutrality—even between murderers and their victims. Or perhaps humanitarian intervention is an example of what philosophers call an “imperfect” duty: someone should stop the awfulness, but it isn’t possible to give that someone a proper name, to point a finger, say, at a particular country. The problem of imperfect duty yields best to multilateral solutions; we simply assign responsibility in advance through some commonly accepted decision procedure. But perhaps, again, these descriptions are too weak: I am inclined to say that intervention is more than a right and more than an imperfect duty. After all, the survival of the intervening state is not at risk. And then why shouldn’t the obligation simply fall on the most capable state, the nearest or the strongest, as in the maxim I have already suggested: Who can, should? Nonintervention in the face of mass murder or ethnic cleansing is not the same as neutrality in time of war. The moral urgencies are different; we are usually unsure of the consequences of a war, but we know very well the consequences of a massacre. Still, if we follow the logic of the argument so far, it will be necessary to recruit volunteers for humanitarian interventions; the “who” who can and should is

only the state, not any particular man or woman; for individuals the duty remains imperfect. Deciding whether to volunteer, they may choose to apply the same test to themselves—who can, should—but the choice is theirs. The dominance that I have ascribed to unilateralism might be questioned—commonly is questioned— because of a fear of the motives of single states acting alone. Won’t they act in their own interests rather than in the interests of humanity? Yes, they probably will or, better, they will act in their own interests as well as in the interests of humanity; I don’t think that it is particularly insightful, merely cynical, to suggest that those larger interests have no hold at all (surely the balance of interest and morality among interventionists is no different than it is among noninterventionists). In any case, how would humanity be better served by multilateral decision-making? Wouldn’t each state involved in the decision process also act in its own interests? And then the outcome would be determined by bargaining among the interested parties—and humanity, obviously, would not be one of the parties. We might hope that particular interests would cancel each other out, leaving some kind of general interest (this is in fact Rousseau’s account, or one of his accounts, of how citizens arrive at a “general will”). But it is equally possible that the bargain will reflect only a mix of particular interests, which may or may not be better for humanity than the interests of a single party. Anyway, political motivations are always mixed, whether the actors are one or many. A pure moral will doesn’t exist in political life, and it shouldn’t be necessary to pretend to that kind of purity. The leaders of states have a right, indeed, they have an obligation, to consider the interests of their own people, even when they are acting to help other people. We should assume, then, that the Indians acted in their national interest when they assisted the secession of East Pakistan, and that Tanzania acted in its own interests when it moved troops into Idi Amin’s Uganda. But these interventions also served humanitarian purposes, and presumably were intended to do that too. The victims of massacre or “ethnic cleansing” disasters are very lucky if a neighboring state, or a coalition of states, has more than one reason to rescue them. It would be foolish to declare the multiplicity morally disabling. If the intervention is expanded beyond its necessary bounds because of some “ulterior” motive, then it should be criticized; within those bounds, mixed motives are a practical advantage. Means

When the agents act, how should they act? Humanitarian intervention involves the use of force, and it is crucial to its success that it be pursued forcefully; the aim is the defeat of the people, whoever they are, who are carrying out the massacres or the ethnic cleansing. If what is going on is awful enough to justify going in, then it is awful enough to justify the pursuit of military victory. But this simple proposition hasn’t found ready acceptance in international society. Most clearly in the Bosnian case, repeated efforts were made to deal with the disaster without fighting against its perpetrators. Force was taken, indeed, to be a “last” resort, but in an ongoing political conflict “lastness” never arrives; there is always something to be done before doing whatever it is that comes last. So military observers were sent into Bosnia to report on what was happening; and then UN forces brought humanitarian relief to the victims, and then they provided some degree of military protection for relief workers, and then they sought (unsuccessfully) to create a few “safe zones” for the Bosnians. But if soldiers do nothing more than these things, they are hardly an impediment to further killing; they may even be said to provide a kind of background support for it. They guard roads, defend doctors and nurses, deliver medical supplies and food to a growing number of victims and refugees—and the number keeps growing. Sometimes it is helpful to interpose soldiers as “peacekeepers” between the killers and their victims. But though that may work for a time, it doesn’t reduce the power of the killers, and so it is a formula for trouble later on. Peacekeeping is an honorable activity, but not if there is no peace. Sometimes, unhappily, it is better to make war. In Cambodia, East Pakistan, and Uganda, the interventions were carried out on the ground; this was oldfashioned war-making. The Kosovo war provides an alternative model: a war fought from the air, with technologies designed to reduce (almost to zero!) the risk of casualties to the intervening army. I won’t stop here to consider at any length the reasons for the alternative model, which have to do with the increasing inability of modern democracies to use the armies they recruit in ways that put soldiers at risk. There are no “lower orders,” no invisible, expendable citizens in democratic states today. And in the absence of a clear threat to the community itself, there is little willingness even among political elites to sacrifice for the sake of global law and order or, more particularly,

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for the sake of Rwandans or Kosovars. But the inability and the unwillingness, whatever their sources, make for moral problems. A war fought entirely from the air, and from far away, probably can’t be won without attacking civilian targets. These can be bridges and television stations, electric generators and water purification plants, rather than residential areas, but the attacks will endanger the lives of innocent men, women, and children nonetheless. The aim is to bring pressure to bear on a government acting barbarically toward a minority of its citizens by threatening to harm, or actually harming, the majority to which, presumably, the government is still committed. Obviously this isn’t a strategy that would have worked against the Khmer Rouge in Cambodia, but it’s probably not legitimate even where it might work—so long as there is the possibility of a more precise intervention against the forces actually engaged in the barbarous acts. The same rules apply here as in war generally: noncombatants are immune from direct attack and have to be protected as far as possible from “collateral damage”; soldiers have to accept risks to themselves in order to avoid imposing risks on the civilian population. Any country considering military intervention would obviously embrace technologies that were said to be risk-free for its own soldiers, and the embrace would be entirely justified so long as the same technologies were also risk-free for civilians on the other side. This is precisely the claim made on behalf of “smart bombs”: they can be delivered from great distances (safely), and they never miss. But the claim is, for the moment at least, greatly exaggerated. There is no technological fix currently available, and therefore no way of avoiding this simple truth: from the standpoint of justice, you cannot invade a foreign country, with all the consequences that has for other people, while insisting that your own soldiers can never be put at risk. Once the intervention has begun, it may become morally, even if it is not yet militarily, necessary to fight on the ground—in order to win more quickly and save many lives, for example, or to stop some particularly barbarous response to the intervention. That’s the moral argument against no-risk interventions, but there is also a prudential argument. Interventions will rarely be successful unless there is a visible willingness to fight and to take casualties. In the Kosovo case, if a NATO army had been in sight, so to speak, before the bombing of Serbia began, it is unlikely that the bombing would have been necessary; nor would there ever have been the tide of desperate and embittered refugees. Postwar Kosovo would look very different; the tasks of policing and reconstruction would be easier than they have been; the odds on success much better. Endings

Imagine the intervening army fully engaged. How should it understand the victory that it is aiming at? When is it time to go home? Should the army aim only at stopping the killings, or at destroying the military or paramilitary forces carrying them out, or at replacing the regime that employs these forces, or at punishing the leaders of the regime? Is intervention only a war or also an occupation? These are hard questions and I want to begin my own response by acknowledging that I have answered them differently at different times. The answer that best fits the original legal doctrine of humanitarian intervention, and that I defended in Just and Unjust Wars (1977), is that the aim of the intervening army is simply to stop the killing. Its leaders prove that their motives are primarily humanitarian, that they are not driven by imperial ambition, by moving in as quickly as possible to defeat the killers and rescue their victims and then by leaving as quickly as possible. Sorting things out afterward, dealing with the consequences of the awfulness, deciding what to do with its agents—that is not properly the work of foreigners. The people who have always lived there, wherever “there” is, have to be given a chance to reconstruct their common life. The crisis that they have just been through should not become an occasion for foreign domination. The principles of political sovereignty and territorial integrity require the “in and quickly out” rule. But there are three sorts of occasions when this rule seems impossible to apply. The first is perhaps best exemplified by the Cambodian killing fields, which were so extensive as to leave, at the end, no institutional base, and perhaps no human base, for reconstruction. I don’t say this to justify the Vietnamese establishment of a satellite regime, but rather to explain the need, years later, for the UN’s effort to create, from the outside, a locally legitimate political system. The UN couldn’t or wouldn’t stop the killing when it was actually taking place, but had it done so, the “in and quickly out” test would not have provided a plausible measure of its success; it would have had to deal, somehow, with the aftermath of the killing.

The second occasion is exemplified by all those countries—Uganda, Rwanda, Kosovo, and others—where the extent and depth of the ethnic divisions make it likely that the killings will resume as soon as the intervening forces withdraw. If the original killers don’t return to their work, then the revenge of their victims will prove equally deadly. Now “in and quickly out” is a kind of bad faith, a choice of legal virtue at the expense of political and moral effectiveness. If one accepts the risks of intervention in countries like these, one had better accept also the risks of occupation. The third occasion is the one I called nonstandard earlier on: where the state has simply disintegrated. It’s not that its army or police have been defeated; they simply don’t exist. The country is in the hand of paramilitary forces and warlords—gangs, really—who have been, let’s say, temporarily subdued. What is necessary now is to create a state, and the creation will have to be virtually ex nihilo. And that is not work for the short term. In 1995, in an article called “The Politics of Rescue,” published in these pages, I argued that leftist critics of protectorates and trusteeships needed to rethink their position, for arrangements of this sort might sometimes be the best outcome of a humanitarian intervention. The historical record makes it clear enough that protectors and trustees, under the old League of Nations, for example, again and again failed to fulfill their obligations; nor have these arrangements been as temporary as they were supposed to be. Still, their purpose can sometimes be a legitimate one: to open a span of time and to authorize a kind of political work between the “in” and the “out” of a humanitarian intervention. This purpose doesn’t cancel the requirement that the intervening forces get out. We need to think about better ways of making sure that the purpose is actually realized and the requirement finally met. Perhaps this is a place where multilateralism can play a more central role than it does, or has done, in the original interventions. For multilateral occupations are unlikely to serve the interests of any single state and so are unlikely to be sustained any longer than necessary. The greater danger is that they won’t be sustained long enough: each participating state will look for an excuse to pull its own forces out. An independent UN force, not bound or hindered by the political decisions of individual states, might be the most reliable protector and trustee—if we could be sure that it would protect the right people, in a timely way. Whenever that assurance doesn’t exist, unilateralism returns, again, as a justifiable option. Either way, we still need an equivalent of the “in and out” rule, a way of recognizing when these longstanding interventions reach their endpoint. The appropriate rule is best expressed by a phrase that I have already used: “local legitimacy.” The intervening forces should aim at finding or establishing a form of authority that fits or at least accommodates the local political culture, and a set of authorities, independent of themselves, who are capable of governing the country and who command sufficient popular support so that their government won’t be massively coercive. Once such authorities are in place, the intervening forces should withdraw: “in and finally out.” But this formula may be as quixotic as “in and quickly out.” Perhaps foreign forces can’t do the work that I’ve just described; they will only be dragged deeper and deeper into a conflict they will never be able to control, gradually becoming indistinguishable from the other parties. That prospect is surely a great disincentive to intervention; it will often override not only the benign intentions but even the imperial ambitions of potential interveners. In fact, most of the countries whose inhabitants (or some of them) desperately need to be rescued offer precious little political or economic reward to the states that attempt the rescue. One almost wishes that the impure motivations of such states had more plausible objects, the pursuit of which might hold them to their task. At the same time, however, it’s important to insist that the task is limited: once the massacres and ethnic cleansing are really over and the people in command are committed to avoiding their return, the intervention is finished. The new regime doesn’t have to be democratic or liberal or pluralist or (even) capitalist. It doesn’t have to be anything, except non-murderous. When intervention is understood in this minimalist fashion, it may be a little easier to see it through. As in the argument about occasions, minimalism in endings suggests that we should be careful in our use of human rights language. For if we pursue the legal logic of rights (at least as that logic is understood in the United States), it will be very difficult for the intervening forces to get out before they have brought the people who organized the massacres or the ethnic cleansing to trial and established a new regime committed to enforcing the full set of human rights. If those goals are actually within reach, then, of course, it is right to reach for them. But intervention is a political and military process, not a legal one, and it is subject to the compromises and tactical shifts that politics and war require. So we will often need to accept more minimal goals, in order to

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minimize the use of force and the time span over which it is used. I want to stress, however, that we need, and haven’t yet come close to, a clear understanding of what “minimum” really means. The intervening forces have to be prepared to use the weapons they carry, and they have to be prepared to stay what may be a long course. The international community needs to find ways of supporting these forces—and also, since what they are doing is dangerous and won’t always be done well, of supervising, regulating, and criticizing them. Conclusion

I have tried to answer possible objections to my argument as I went along, but there are a couple of common criticisms of the contemporary practice of humanitarian intervention that I want to single out and address more explicitly, even at the cost of repeating myself. A few repetitions, on key points, will make my conclusion. I am going to take Edward Luttwak’s critical review of Michael Ignatieff ’s Virtual War1 as a useful summary of the arguments to which I need to respond, since it is short, sharp, cogent, and typical. Ignatieff offers a stronger human rights justification of humanitarian warfare than I have provided, though he would certainly agree that not every rights violation “shocks the conscience of humankind” and justifies military intervention. In any case, Luttwak’s objections apply (or fail to apply) across the board—that is, to the arguments I’ve made here as well as to Ignatieff ’s book. First objection: the “prescription that X should fight Y whenever Y egregiously violates X’s moral and juridical norms would legitimize eternal war.” This claim seems somewhat inconsistent with Luttwak’s further claim (see subsequent paragraph) that the necessity of fighting not only forever but everywhere follows from the fact that there are so many violations of commonly recognized norms. But leave that aside for now. If we intervene only in extremity, only in order to stop mass murder and mass deportation, the idea that we are defending X’s norms and not Y’s is simply wrong. Possessive nouns don’t modify morality in such cases, and there isn’t a series of different moralities—the proof of this is the standard and singular lie told by all the killers and “cleansers”: they deny what they are doing; they don’t try to justify it by reference to a set of private norms. Second objection: “Even without civil wars, massacres, or mutilations, the perfectly normal, everyday, functioning of armies, police forces, and bureaucracies entails constant extortion, frequent robbery and rape, and pervasive oppression”—all of which, Luttwak claims, is ignored by the humanitarian interveners. So it is, and should be, or else we would indeed be fighting all the time and everywhere. But note that Luttwak assumes now that the wrongness of the extortion, robbery, rape, and oppression is not a matter of X’s or Y’s private norms but can be recognized by anyone. Maybe he goes too far here, because bureaucratic extortion, at least, has different meaning and valence in different times and places. But the main actions on his list are indeed awful, and commonly known to be awful; they just aren’t awful enough to justify a military invasion. I don’t think the point is all that difficult, even if we disagree about exactly where the line should be drawn. Pol Pot’s killing fields had to be shut down—and by a foreign army if necessary. The prisons of all the more ordinary dictators in the modern world should also be shut down-emptied and closed. But that is properly the work of their own subjects. Third objection: “What does it mean,” Luttwak asks, “for the morality of a supposedly moral rule when it is applied arbitrarily, against some but not others?” The answer to this question depends on what the word “arbitrarily” means here. Consider a domestic example. The police can’t stop every speeding car. If they go after only the ones they think they will be able to catch without endangering themselves or anyone else, their arrests will be “determined by choice or discretion,” which is one of the meanings of “arbitrary,” but surely that determination doesn’t undermine the justice of enforcing the speeding laws. On the other hand, if they only go after cars that have bumper stickers they don’t like, if they treat traffic control as nothing more than an opportunity to harass political “enemies,” then their actions “arise from will or caprice,” another definition of “arbitrary,” and are indeed unjust. It’s the first kind of “arbitrariness” that ought to qualify humanitarian interventions (and often does). They are indeed discretionary, and we have to hope that prudential calculations shape the decision to intervene or not. Hence, as I have already acknowledged, there won’t be an actual intervention every time the justifying conditions for it exist. But, to answer Luttwak’s question, that acknowledgment doesn’t do anything to the morality of the justifying rule. It’s not immoral to act, or decline to act, for prudential reasons. These three objections relate to the occasions for intervention, and rightly so. If no coherent account of the occasions is possible, then it isn’t necessary to answer the other questions that I have addressed. My own answers

to those other questions can certainly be contested. But the main point that I want to make is that the questions themselves cannot be avoided. Since there are in fact legitimate occasions for humanitarian intervention, since we know, roughly, what ought to be done, we have to argue about how to do it; we have to argue about agents, means, and endings. There are a lot of people around today who want to avoid these arguments and postpone indefinitely the kinds of action they might require. These people have all sorts of reasons, but none of them, it seems to me, are good or moral reasons.

Note 1. “No Score War,” Times Literary Supplement (July 14, 2000), p. 11. Dissent, Vol. 49, No. 1 (Winter 2002). A slightly different version of this article was given as the Theodore Mitan Lecture at Macalester College, St. Paul, Minnesota.

Journal/Discussion Questions 1. Walzer speaks of a “chasm.” What does he mean? Explain. 2. How does the framework Walzer provides here apply to the U.S. invasion of Iraq? Discuss. 3. What, according to Walzer, is the moral argument against no-risk interventions? Do you agree with his analysis? Explain.

Stephen L. Carter

“Torture Can Be Wrong and Still Work” About the Author: Stephen L. Carter is the William Nelson Cromwell Professor of Law at Yale, where he has taught since 1982. Included in his nonfiction books are The Culture of Disbelief (1993); Integrity (1996); Civility (1998); and God’s Name in Vain: The Wrongs and Rights of Religion in Politics (2000). His first novel, The Emperor of Ocean Park spent eleven weeks on The New York Times bestseller list. His twelfth book, The Violence of Peace: America’s Wars in the Age of Obama, was published in 2011. About the Article: Some critics of torture oppose it because they think that it does not work. In this article, Carter tells us that German authorities used beatings and threats of torture to get Magnus Gäfgen to confess to killing a child. Carter comments on why, if the goal is to obtain information, torture can work. As You Read, Consider This: 1. Sometimes we impose our moral beliefs on the empirical world, deciding in advance what is and is not possible. Does Carter’s article challenge any of your moral beliefs? In what ways? 2. If torture does work, does that affect your position on whether it is morally permissible or not? 3. Are there any morally significant ways in which this German example differs from torture carried out by the United States?

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nless you happen to follow the German press—or unless, as I did, you happen to have taught a German law student interested in the subject of torture—you might have missed the tale of Magnus Gäfgen, the convicted child murderer currently suing the Hesse police for beating him and threatening worse in order to extract a confession. The Gäfgen story seems quite apropos now that, in the wake of the killing of Osama bin Laden, our national debate over the use of torture has taken a bizarre turn, from whether torture is right or wrong to whether it ever works. “Torture Can Be Wrong and Still Work” by Stephen L. Carter, The Daily Beast, May 11, 2011. Copyright © 2011 Newsweek, Inc. Used with permission.

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Back in 2002, Gäfgen kidnapped an 11-year-old boy, Jakob von Metzler, whom he then murdered. Without disclosing that Jakob was dead, Gäfgen demanded a ransom of €1 million from the child’s wealthy parents. He collected the ransom, and was arrested soon after. The police, who thought Jakob was still alive, demanded to know where he was hidden. Gäfgen refused to say. According to Gäfgen’s lawsuit, they beat him, then told him a torture specialist was being flown in, a man whose training would enable him to “inflict more pain on me than I had ever experienced.” At that point he confessed, telling the police that the boy was dead and where his body could be found. Now, I am not endorsing what the authorities did in interrogating Gäfgen, but I do think it provides evidence—which should hardly be necessary—that, if the goal is to obtain information, torture sometimes works. Let me repeat that: If the goal is to obtain information, torture sometimes works. We know that information gained through enhanced interrogation has at times proved correct, and even useful. I am not saying that I like torture. I am not saying we should do it—I think we shouldn’t. But to rest the moral argument against torture on the proposition that it doesn’t work eventually starts to sound silly. We have created a peculiar cognitive dissonance, where we want all good things to be true at once: so our military forces and intelligence analysts are to be congratulated for their exemplary work in discovering the whereabouts of Osama bin Laden and dispatching him, while, at the same time, we insist that none of the so-called enhanced interrogation techniques had anything to do with producing any of the information that helped lead to his hiding place. But there is so much evidence to the contrary (including the words of Leon Panetta, the director of the Central Intelligence Agency) that this position is no longer seriously sustainable. Torture is wrong for all sorts of reasons, from its affront to basic human dignity to its violation of fundamental human rights. Making a moral case is not difficult. The puzzling part is that so many people insist on joining the moral case (torture is wrong) to the empirical case (torture never works) even though the empirical case is unpersuasive. We ought to be adult enough to accept the possibility that a tool might exist that is wrong despite the fact that it is useful. The claim that torture never works is a popular corruption of a more serious claim, made by many professional interrogators, that torture produces unreliable results. The unreliability argument rests on a simple, and surely accurate, assessment of probability: if the pain or horror is bad enough, the victim will say anything the torturer wants, just to make it stop. The victim will sign a confession, make up a story, do whatever it takes. “Yes, I robbed the bank,” the innocent man admits after half a day of beating, and he fills in whatever details the torturer supplies: the motive, the make of the getaway car, what have you. If the purpose of the torture is simply to extract a confession, and if the victim can be punished on the basis of the confession alone, there is no check on the accuracy of the story. The torturer will thus extract plenty of guilty pleas, many or most of them from the innocent.

Journal/Discussion Questions 1. Many have accused the United States of engaging in torture in the aftermath of the 9/11 attacks. Explain what is meant by torture. Is the United States guilty of condoning or using torture?

Alan M. Dershowitz

“Is There a Tortuous Road to Justice?” About the Author: Alan Dershowitz is the Felix Frankfurter Professor of Law at Harvard Law School. He writes extensively in the area of criminal law and rights. About the Article: In this op-ed piece, Dershowitz argues in favor of legalizing torture in exceptional cases—what he calls the “ticking bomb” cases—and ensuring that this not be abused by requiring torture warrants. Alan M. Dershowitz, “Is There a Tortuous Road to Justice?” Los Angeles Times, Nov 8, 2001. Copyright © Alan Dershowitz. Reprinted with permission.

As You Read, Consider This: 1. According to Dershowitz, do prisoners have a right to refuse truth serum? On what basis, if at all? 2. What is “use immunity?” Why is it important in Dershowitz’s argument? 3. Explain what Dershowitz means by a “ticking bomb” case.

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he FBI’s frustration over its inability to get material witnesses to talk has raised a disturbing question rarely debated in this country: When, if ever, is it justified to resort to unconventional techniques such as truth serum, moderate physical pressure and outright torture? The constitutional answer to this question may surprise people who are not familiar with the current U.S. Supreme Court interpretation of the 5th Amendment privilege against self-incrimination: Any interrogation technique, including the use of truth serum or even torture, is not prohibited. All that is prohibited is the introduction into evidence of the fruits of such techniques in a criminal trial against the person on whom the techniques were used. But the evidence could be used against that suspect in a non-criminal case—such as a deportation hearing—or against someone else. If a suspect is given “use immunity”—a judicial decree announcing in advance that nothing the defendant says (or its fruits) can be used against him in a criminal case—he can be compelled to answer all proper questions. The issue then becomes what sorts of pressures can constitutionally be used to implement that compulsion. We know that he can be imprisoned until he talks. But what if imprisonment is insufficient to compel him to do what he has a legal obligation to do? Can other techniques of compulsion be attempted? Let’s start with truth serum. What right would be violated if an immunized suspect who refused to comply with his legal obligation to answer questions truthfully were compelled to submit to an injection that made him do so? Not his privilege against self-incrimination, since he has no such privilege now that he has been given immunity. What about his right of bodily integrity? The involuntariness of the injection itself does not pose a constitutional barrier. No less a civil libertarian than Justice William J. Brennan rendered a decision that permitted an allegedly drunken driver to be involuntarily injected to remove blood for alcohol testing. Certainly there can be no constitutional distinction between an injection that removes a liquid and one that injects a liquid. What about the nature of the substance injected? If it is relatively benign and creates no significant health risk, the only issue would be that it compels the recipient to do something he doesn’t want to do. But he has a legal obligation to do precisely what the serum compels him to do: answer all questions truthfully. What if the truth serum doesn’t work? Could the judge issue a “torture warrant,” authorizing the FBI to employ specified forms of non-lethal physical pressure to compel the immunized suspect to talk? Here we run into another provision of the Constitution—the due process clause, which may include a general “shock the conscience” test. And torture in general certainly shocks the conscience of most civilized nations. But what if it were limited to the rare “ticking bomb” case—the situation in which a captured terrorist who knows of an imminent large-scale threat refuses to disclose it? Would torturing one guilty terrorist to prevent the deaths of a thousand innocent civilians shock the conscience of all decent people? To prove that it would not, consider a situation in which a kidnapped child had been buried in a box with two hours of oxygen. The kidnapper refuses to disclose its location. Should we not consider torture in that situation? All of that said, the argument for allowing torture as an approved technique, even in a narrowly specified range of cases, is very troubling. We know from experience that law enforcement personnel who are given limited authority to torture will expand its use. The cases that have generated the current debate over torture illustrate this problem. And, concerning the arrests made following the Sept. 11 attacks, there is no reason to believe that the detainees know about specific future terrorist targets. Yet there have been calls to torture these detainees.

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I have no doubt that if an actual ticking bomb situation were to arise, our law enforcement authorities would torture. The real debate is whether such torture should take place outside of our legal system or within it. The answer to this seems clear: If we are to have torture, it should be authorized by the law. Judges should have to issue a “torture warrant” in each case. Thus we would not be winking an eye of quiet approval at torture while publicly condemning it. Democracy requires accountability and transparency, especially when extraordinary steps are taken. Most important, it requires compliance with the rule of law. And such compliance is impossible when an extraordinary technique, such as torture, operates outside of the law.

Journal/Discussion Questions 1. One of the classic objections to Dershowitz’s argument is the “slippery slope argument”; that is, the claim that Dershowitz’s position, even if not objectionable in itself, would lead to far worse abuses that would certainly be objectionable. Critically evaluate this objection. 2. What type of ethical perspective—deontological, consequentialist, virtue—does Dershowitz’s position seem to exemplify? Does his position shed any light on the strengths and weaknesses of that ethical perspective?

Martin L. Cook

“Ethical Issues in Counterterrorism Warfare” About the Author: Martin Cook is a Professor of Philosophy at the United States Air Force Academy and, prior to that, was Elihu Root Professor of Military Studies and Professor of Ethics at the U.S. Army War College. About the Article: Cook examines emerging ethical issues relating to the changing nature of contemporary warfare and the rise of terrorism in the aftermath of the September 11th attacks. As You Read, Consider This: 1. Cook draws a distinction between jus ad bellum and jus in bello. Explain his distinction. 2. What constraints does the standard of just cause impose on us in regard to responding to the events of September 11, 2001? 3. What, according to Cook, is the “reasonable person” standard of proof? How does this apply to September 11th? 4. According to Cook, why does terrorism raise special difficulties in regard to the distinction between combatants and civilians?

Introduction

Much has been said and written about the changed nature of “warfare” as it pertains to responding to the attacks on the Pentagon and the World Trade Center. The fact that attacks of such vast scale were made directly on U.S. soil by non-state actors poses important new questions for military leaders and planners charged with conceiving an appropriate and effective response. The established moral and legal traditions of just war are similarly challenged. Forged almost entirely in the context of interstate war, those traditions are also pressed to adapt to the new and unforeseen character of a “war against terrorism.” This article is an effort to extrapolate and apply existing fundamental moral principles of just war theory to this novel military and political terrain.

Martin L. Cook, “Ethical Issues In Counterterrorism Warfare.” Reprinted with permission.

Fundamental Moral Principles

The theoretical framework of the just war tradition provides two separate moral assessments of uses of military force. The first, jus ad bellum (right or justice toward war) attempts to determine which sets of political and military circumstances are sufficiently grave to warrant a military response. It focuses on the “just cause” element of war and attempts to determine whether use of force to redress a given wrong has a reasonable hope of success and whether non-violent alternatives have been attempted (the “last resort” criterion) to redress the grievance. Given the horrendous loss of innocent American (and other) life in these recent attacks, it is without serious question that a just cause exists to use military force in response to those attacks. However, legitimate questions remain regarding reasonable hope of success given the difficult and diffuse nature of the perpetrators of these events. Indeed, the very definition of success in conflict of this sort is to some degree ambiguous. The second body of assessments concerns jus in bello, right conduct of military operations. The central ideas here concern discrimination (using force against those who are morally and legally responsible for the attack and not deliberately against others) and proportionality (a reasonable balance between the damage done in the responding attack and the military value of the targets destroyed). These fundamental moral principles continue to have force, even in the quite different “war” in which we are now engaged. Jus ad bellum Considerations The scale and nature of the terrorist attacks on the United States without question warrant a military response. The important questions about jus ad bellum are confined to the other questions the just war tradition requires us to ask regarding the ability to respond to those attacks with military force that will, in fact, respond to the attackers themselves and be effective in responding to the wrong received. Just cause requires that we identify with accuracy those responsible and hold them to be the sole objects of legitimate attack. Who are those agents? In the first instance, those directly responsible for funding and directing the activities of the now-deceased hijackers. There is a tremendous intelligence demand to identify those agents correctly. But, having identified them to a moral certainty (a standard far short of what would be required by legal criteria of proof, it should be noted), there is no moral objection to targeting them. Indeed, one of the benefits of framing these operations as “war” rather than “law enforcement” is that it does not require the ideal outcome to be the apprehension and trial of the perpetrators. Instead, it countenances their direct elimination by military means if possible. What of the claim that we may legitimately attack those who harbor terrorists, even if they are not directly involved in authorizing their activities? The justification for attacking them has two aspects: first, it holds them accountable for activities that they knew, or should have known, were being conducted in their territories and did nothing to stop; second, it serves as a deterrent to motivate other states and sponsors to be more vigilant and aware of the activities of such groups on their soil. How far ought the moral permission to attack parties not directly involved extend? I would propose application of a standard from American civil law: the “reasonable person” (or “reasonable man”) standard of proof. This standard asks not what an individual knew, as a matter of fact, about a given situation or set of facts. Instead, it asks what a reasonable and prudent person in a similar situation should know. Thus, even if a person or government truthfully asserts that they were unaware of the activities of a terrorist cell in their territory, this does not provide moral immunity from attack. This standard asks not what they did know, but what they ought to have known had they exercised the diligence and degree of inquiry a reasonable person/nation in their circumstance would have exercised. Also, legitimate targets include more than those who have carried out or are actively engaged in preparing to carry out attacks against U.S. citizens and forces. There will presumably be numerous individuals who, in various ways, assisted or harbored attackers, or who possessed knowledge of planned attacks. From a moral perspective, the circle of legitimate targets surely includes at least these individuals. A rough analog for the principle here is the civil law standard for criminal conspiracy: all those within the circle of the conspiracy are legitimate targets. The analogy is not perfect, but in general it justifies attacks on those who possessed information about the contemplated terrorist activity or who supplied weapons, training, funding, or safe harbor to the actors, even if they did not possess full knowledge of their intent.

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Jus in bello Considerations How do ethical considerations constrain the manner of attack against legitimate adversaries? The traditional requirements of just war continue to have application in this kind of war. Attacks must be discriminate and they must be proportionate. Discrimination requires that attacks be made on persons and military objects in ways that permit successful attack on them with a minimum of damage to innocent persons and objects. In practical terms, this requires as much precision as possible in determination of the location and nature of targets. Further, it requires choice of weapons and tactics that are most likely to hit the object of the attack accurately with a minimum of damage to surrounding areas and personnel. Proportionality imposes an essentially common-sense requirement that the damage done in the attack is in some reasonable relation to the value and nature of the target. To use a simple example: if the target is a small cell of individuals in a single building, the obliteration of the entire town in which the structure sits would be disproportionate. Obviously, many questions of proportionality are more subtle and difficult than this example, and in many cases, reasonable persons of good will may disagree regarding proportionality calculations. There are two important real world considerations that bear on this discussion. The first is military necessity. Military necessity permits actions that might otherwise be ethically questionable. For example, if there simply is no practical alternative means of attacking a legitimate target, weapons and tactics that are less than ideal in terms of their discrimination and proportionality may be acceptable. It is important not to confuse military necessity with military convenience. It is the obligation of military personnel to assume some risk in the effort to protect innocents. However, situations can certainly arise in which there simply is not time or any alternative means of attacking in a given situation. There, military necessity generates the permission to proceed with the attack. The other consideration is the tendency of adversaries of this type to colocate themselves and their military resources with civilians and civilian structures to gain some sense of protection from such human shields. Obviously, when possible, every effort should be made to separate legitimate targets from such shields. But when that is not possible, it is acceptable to proceed with the attack, foreseeing that innocent persons and property will be destroyed. The moral principle underlying this judgment is known as “double effect” and permits such actions insofar as the agent sincerely can claim (as would be the case here) that the destruction of the innocents was no part of the plan or intention, but merely an unavoidable by-product of legitimate military action. However, it is obviously important to take into account the strategic impact on the overall campaign that press coverage and public reaction to such killing of civilians will produce when one makes the proportionality calculation (i.e., the target must be very important to be willing to incur such inevitable criticism and its impact on the overall strategy). Furthermore, it is critical if such attacks are to be made that a clear strategic communication plan be developed well in advance to explain the military urgency of attacking the legitimate target. It is important to note, however, that there can be no just war justification for a response to in-discriminant terrorist attacks with attacks of a similar character on other societies. Not only would this constitute an unethical and illegal attack on innocent parties, it would almost certainly erode the moral “high ground” and widespread political support the U.S. currently enjoys. The Moral Status of the Adversary The individuals who initiated the terror attacks are clearly not “soldiers” in any moral or legal sense. They, and others who operate as they did from the cover of civilian identities, are not entitled to any of the protections of the war convention. This means that, if captured, they are not entitled to the benevolent quarantine of the POW convention or of domestic criminal law. For the purposes of effective response to these individuals, as well as future deterrence, it may be highly undesirable even if they are captured to carry out the extensive due process of criminal proceedings. If we can identify culpable individuals to a moral certainty, their swift and direct elimination by military means is morally acceptable and probably preferable in terms of the goals of the policy. However, as this conflict proceeds, whenever it evolves into something resembling war against fixed targets, one may foresee that individuals and groups may come to operate against U.S. forces as organized military units (as they did in Afghanistan). It is important to keep in mind that, no matter how horrific the origins of this conflict, if and when this occurs and such groups begin to behave as organized units, to carry

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weapons openly, and to wear some kind of distinctive dress or badge, they become assimilated to the war convention. At that point, close moral and legal analysis will be required to determine the degree to which they become entitled to the status of “combatant” and are given the Geneva Convention protection that status provides. The previous permission for swift elimination applies to the period in which they operate with civilian “cover.” Should elements of the adversary force eventually choose to operate as an organized military force, the long-term importance of universal respect for the Geneva Convention’s provision would make our treating them at that point as soldiers under the law the preferred course of action. A very real legal and ethical issue will arise, however, regarding how long one may detain al Qaeda representatives. The normal Geneva standard is “for the duration of the conflict.” Yet this conflict is unlikely ever to have a clear end-point and every al Qaeda member has a valid passport from some sovereign state. How we and their home countries will balance our desire to detain them as long as possible so as to keep them from becoming a threat again with the inevitable push states are likely to make to repatriate their own citizens will be a very difficult legal and moral challenge.

Journal/Discussion Questions 1. Responses to terrorist attacks can be under-either in terms of warfare or in terms police actions. What are the significant differences between these two frameworks? Which do you think is the better framework the September 11th attacks? 2. Cook writes: “For the purposes of effective response to these individuals, as well as future deterrence, it may be highly un-stood desirable even if they are captured to carry of out the extensive due process of criminal proceedings. If we can identify culpable individuals to a moral certainty, their swift for and direct elimination by military means is morally acceptable and probably prefer able in terms of the goals of the policy?” Do you agree or disagree? Why? Discuss.

Concluding Discussion Questions Where Do You Stand Now?

Instructions

Agree

Undecided

Disagree

Strongly Disagree

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Strongly Agree

You have already answered the following questions in your moral problems self-quiz at the beginning of this book. Now that you have studied the material in this section, take a moment to answer the same questions again. You can either enter your answers below or complete the survey on-line at http://ethics.sandiego.edu/surveys.

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Chapter 5: War, Terrorism, and Counterterrorism It is always morally wrong to strike first in a war. Captured terrorists should be treated like prisoners of war. Sometimes we must go to war to save innocent people from being killed. Terrorists should be hunted down and killed. Torture is always wrong and should be forbidden.

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Compare your answers to this self-quiz with the answers to the initial self-quiz. How, if at all, have your answers changed? How have the reasons for your answers changed?

Journal/Discussion Questions 1. In light of the readings in this chapter, how would you evaluate the United States’s war in Iraq? 2. Have the readings in this chapter promoted you to reconsider your views on any of these issues of war, peace, and terrorism?

3. How has terrorism transformed our understanding of warfare?

For Further Reading Web Resources For Web-based resources, see the War and Peace page of Ethics Updates (http://ethics.sandiego.edu). It contains numerous resources, including videos, relating to issues of war, peace, and terrorism.

Just War On just war theory, see the excellent overview by Brian D. Orend, “War,” in the Stanford Encyclopedia of Philosophy (http://plato.stanford.edu/entries/war/). Michael Walzer’s Just and Unjust Wars: A Moral Argument With Historical Illustrations, 4th ed. (New York: Basic Books, 2006) remains the classic text, while Jean B. Elshtain’s Just War Theory (New York: New York University Press, 1994) is an excellent anthology; her Just War against Terror: The Burden of American Power in a Violent World ( New York: Basic Books, 2004) is an interesting and provocative defense of just wars against terrorism. On Walzer, see Brian Orend, Michael Walzer on War and Justice (Montreal: McGillQueens University Press, 2001); also see his War and International Justice: A Kantian Perspective (Waterloo: Wilfrid Laurier University Press, 2001). For a discussion of just war theory and Barack Obama’s acceptance speech for the Nobel Peace Prize, see Stephen L. Carter, The Violence of Peace: America’s Wars in the Age of Obama (New York: Beast Books, 2011).

Humanitarian Intervention For an excellent history of humanitarian intervention, see the essays in Humanitarian Intervention: A History, edited by Brendan Simms and D. J. B. Trim (New York: Cambridge University Press, 2011). Aidan Hehir’s Humanitarian Intervention: An Introduction (New York: Palgrave, 2010) provides an excellent

starting point; J. L. Holzgrefe and Robert O. Keohane, eds., Humanitarian Intervention: Ethical, Legal and Political Dilemmas (Cambridge, England: Cambridge University Press, 2003); Simon Chesterman, Just War or Just Peace?: Humanitarian Intervention and International Law, Oxford Monographs in International Law (Oxford, England: Oxford University Press, 2001); Nicholas J. Wheeler, Saving Strangers: Humanitarian Intervention in International Society (Oxford, England: Oxford University Press, 2001). For a classic study, see Stanley Hoffmann, Duties Beyond Borders: On the Limits and Possibilities of Ethical International Politics (The Frank W. Abrams Lectures, Syracuse, NY: Syracuse University Press, 1981); for an excellent discussion of Hoffmann’s position, see Stanley Hoffmann, Robert C. Johansen, James P. Sterba, Raimo Vayrynen, The Ethics and Politics of Humanitarian Intervention (Notre Dame Studies on International Peace, South Bend, IN: University of Notre Dame Press, 1996). Also see George R. Lucas and Anthony C. Zinni, Perspectives on Humanitarian Military Intervention (Berkeley: University of California, Institute of Governmental Studies, 2001); Jonathan Moore, ed., Hard Choices: Moral Dilemmas in Humanitarian Intervention (Lanham, MD: Rowman & Littlefield, 1999); Robert L. Phillips and Duane L. Cady, Humanitarian Intervention: Just War vs. Pacifism (Lanham, MD: Rowman & Littlefield, 1995); Alexander Moseley and Richard Norman, eds., Human Rights and Military Intervention (Williston, VT: Ashgate Publishing, 2002). Bruno Coppieters and Nick Fotion, eds., Moral Constraints on War: Principles and Cases (Lanham, MD: Lexington Books, 2002). Samantha Power’s critique of the failures of American humanitarian intervention is to be found in her A Problem from Hell: America and the Age of Genocide (New York: Harper, 2007).

Chapter 5. War, Terrorism, and Counterterrorism

Terrorism For a short overview of the main issues, see Charles Townshend, Terrorism: A Very Short Introduction (New York: Oxford University Press, 2011); for the opposite of brief, see The Routledge Handbook of Terrorism Research (New York: Routledge, 2011). One of the best works on the 9/11 terrorists is Lawrence Wright, The Looming Tower: Al-Qaeda and the Road to 9?11 (New York: Vintage, 2007). Timothy Shanahan has done a very good study of Irish terrorism, The Provisional Irish Republican Army and the Morality of Terrorism (Edinburgh: Edingurgh University Press, 2009). For an interesting work by one of the more famous terrorists of the latter part of the twentieth century, see Ulrike Meinhof, Everybody Talks about the Weather…We Don’t (Westminster, MD: Seven Stories Press, 2008); Meinhof was one of the leaders of the Red Army Faction (RAF) along with Andreas Baader in the 1970s. In addition, see A. J. Coady, “War and Terrorism,” A Companion to Applied Ethics (Blackwell Companions to Philosophy), edited by R. G. Frey (Malden, MA: Blackwell, 2003), pp. 254–266. For philosophical analyses of terrorism, see Angelo Corlett, Terrorism: A Philosophical Analysis (Dordrecht: Kluwer Academic Publishers, 2003); James P. Sterba, ed., Terrorism and International Justice (Oxford, England: Oxford University Press, 2003) contains an excellent selection of articles; Trudy Govier, A Delicate Balance: What Philosophy Can Tell Us about Terrorism (Boulder, CO: Westview Press, 2002); also see the Winter 2003 issue of Hypatia, which is devoted to feminist analyses

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of terrorism. Paul Berman’s Terror and Liberalism (New York: W.W. Norton, April 2003) provides a very insightful account of Sayyid Qutb and militant Islamic fundamentalism and the challenges it presents to Western liberal democracies. Andrew Valls’ Ethics in International Affairs: Theories and Cases (Lanham, MD: Rowman & Littlefield, 2000) includes a number of case studies relating to terrorism. Stephen Nathanson, Terrorism and the Ethics of War (Cambridge: Cambridge University Press, 2010). For the view on three philosophers on terrorism, see Nicholas Fotion, Boris Kashnikov, and Joanne Lekea, Terrorism: The New World Disorder (New York: Continuum, 2007). Virginia Held’s How Terrorism Is Wrong: Morality and Political Violence (Oxford: Oxford University Press, 2008) provides a penetrating analysis of the ethical issues surrounding torture. Also see “Torture, Terrorism, and the Use of Violence,” Review Journal Philosophy, Vol. 6, Nos. 1 and 2 (Newcastle: Cambridge Scholars Press, 2008) for a recent collection of articles on this topic.

Treatment of Prisoners The most influential document in regard to the treatment of prisoners is the Geneva Convention. For the online text, see: http://www.icrc.org/eng/war-andlaw/treaties-customary-law/geneva-conventions/ index.jsp. Numerous other relevant documents are available on the Web site of the Office of the high Commissioner for Human Rights (http://www. unhchr.ch/).

MySearchLab Connections Sources OnLine READ AND REVIEW Study and Review: Chapter 1 The text explores moral issues surrounding the topic of war, terrorism, and counterterrorism. These readings further explore that theme. 1. On Free Choice of the Will by Saint Augustine On Free Choice contains Augustine’s arguments for the existence of God. The truths beyond the grasp of the senses, like the truths of mathematics, for example, are sufficient to ground the argument that those objects of those truths are themselves real. The existence of such truths and their objects

necessarily entails, on Augustine’s view, the existence of an entity that stands in a hierarchical relationship to Truth. In addition, the main problem that On Free Choice tackles is that of evil. Here, Augustine argues for an ontological status of evil that rejects the dualism of the Manicheans. 2. Summa Theologica by Saint Thomas Aquinas Saint Thomas Aquinas was a theologian who organized philosophical inquiry on the assumption that matters of faith, such as the existence of God, could be established by reason. His perception that the universe exhibited order and regularity implied the existence of one who orders and regulates, the being he called God who must be eternal since

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God, the Prime and Ultimate Cause, could not have been brought into being at a fixed point in time. 3. The Analects by Confucius Confucius offers a description of right behavior for both the individual and for society. In The Analects, Confucius offers a practical manual for achieving an ordered and well-functioning society beginning with the detailed account of the ordered and wellfunctioning individual. The emphasis of this work is on responsibility and ethics. RESEARCH AND EXPLORE Explore the following questions using the research tools available on www.mysearchlab.com. Explore on mythinkinglab.com

1. According to the text, the just war theory originated and was expanded upon by theologians

such as Sts. Amrose, Augustine and Aquinas. How is their position of a just war consistent with their theology? 2. The text states that one condition of entering a war is that the country must have right intentions, and then gives some examples. But who, or what, determines if an intention is right or wrong? 3. One standard for the just conduct of war, as brought by the text, is the prohibition against means that are evil in themselves. What is evil? How can the concept of evil be applied to a means, action, or tool?

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Chapter 6. Race and Ethnicity

PART TWO

Matters of Diversity and Equality Conceptualizing the Issues 214 A Framework for Analysis: Five Questions 214 What Would the Ideal Society Look Like in Regard to Each of These Issues? 215 What Would the Minimally Acceptable Society Look Like in Regard to Each of These Issues? 216 What is the Present Condition of Society in Regard to These Issues? 216 How Do We Best Get from the Actual Condition to the Minimally Acceptable Condition of Society? 217 Finally, How We Do Get from the Minimally Acceptable Stat of Society to the Ideal One? 217 Models of Distributive Justice 218 Distribution of Natural Resources 218 Theories of Distributive Justice 219 Egalitarian Theories 219 Libertarian Theories 219 Utilitarian Theories of Justice 220 Rawls and the Liberal Theory of Justice 220 Case Study: Economic Inequality and Justice 221 A Snapshot of Economic Inequality in the United States 221 Applying the Theories 221

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Theories of Rights 223 The Historical Impact of the Notion of Human Rights Rights as Trump Cards 223 What Specific Rights Do We Have? 224 The Right to Life 224 The Right to Liberty 224 The Right to Equal Treatment 224 The Right to Security 224 The Pursuit of Happiness 225 Negative and Positive Rights 225 The Libertarian Tradition of Negative Rights 225 The Liberal Tradition of Positive Rights 225 A Note on Two Currents in Conservatism 225 Is Health Care a Negative or a Positive Right? 226

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Conceptualizing the Issues We live in a world of great diversity, and one of the hard-won achievements of the last several decades has been a growing appreciation of the value of diversity, a celebration of difference that replaced an earlier attitude that set a high value on conformity and sameness. Diversity was always present, but in earlier times it has largely been below the surface, concealed, hidden from public view. The crucial shift was perhaps less of an increase in diversity and more of an increase in the visibility of diversity. Ethnic diversity, for example, is now celebrated and cherished in a way that would not have been common a generation earlier. In New York City, for example, some linguists estimate that as many as 800 languages are spoken; approximately 138 languages were listed on census forms in Queens alone. Many of these are in danger of dying out as native speakers get older. This diversity has become something we cherish and attempt to preserve. Not all diversity, however, is a matter to be celebrated. In New York City in 2010, unemployment among blacks was 5.6 percent higher than among whites and unemployment among Hispanics was about 4 percent higher. Until 2011, heterosexual couples were allowed to get married, but same-sex couples were not. Crimes committed against white victims are typically punished more severely than crimes against people of color. When is diversity no longer desirable? When does diversity become discrimination? In the following four chapters, a wide range of issues—hate crimes, harassment, stereotyping, hate speech, and gay marriage, to name but a few—are raised. These issues often cut across the boundaries of the four chapters, which deal with race, gender, and sexual orientation.

A Framework for Analysis: Five Questions It is possible to approach each of these issues separately, one at a time. In fact, the public discussion of these issues often occurs precisely in this fashion, with pundits and politicians singling out specific problems for comment. There is another way of approaching these issues that places the particular issues within a larger context. Let me suggest that we ask ourselves five questions.

Part Two: Matters of Diversity and Equality

What Would the Ideal Society Look Like in Regard to Each of These Issues?

Many of us have an idea of what the ideal society might be like. Recall Dr. Martin Luther King’s famous “I have a dream” speech. It was a powerful depiction of a future in which racial bigotry and hatred had disappeared, in which individuals were judged by “the content of their character” rather than the color of their skin. Yet this is not by any means the only possible ideal. Some may envision a society in which race has simply disappeared. In one version of this, it becomes as significant as eye color or hair color—perhaps interesting at an individual level, but not a basis for grouping people. In another version of this ideal, race simply disappears as a result of intermarriage, and we all become a beautiful shade of café au lait. These would be examples of an assimilationist model. One can also imagine other models. In the United States alone, there are countless separatist communities, the members of which choose to live apart from mainstream society. This may be on the basis of race, ethnicity, culture, religion, or other factors such as political beliefs. Sometimes this separation is total, but much more often it is partial. Some Pueblos in the southwest, such as the Acoma Pueblo or the Taos Pueblo, are closer to outsiders for a total of several months each year. In upstate New York, there are several ultra-Orthodox Jewish communities as well as some ashrams in which members live a separatist existence. Throughout the United States, there have been many utopian communities whose members pursue the realization of a set of moral and political ideals. The landscape is also dotted with cloistered monasteries and convents, some of which renounce contact with the outside world. There is a middle ground between these two extremes, which I will call the pluralist model. This model is often called multiculturalism, and the discussion of this issue often occurs under the rubric of “the politics of difference.” Many Western liberal democracies have sought to integrate diverse groups into a common national identity while still allowing them to retain much of their original ethnic, cultural, and political identity. This has proven to be a politically challenging goal that involves striking a balance between overarching national identity and recognition of the distinctiveness of particular groups. We certainly have seen this issue unfolding in the United States, which has a long assimilationist history. The typical pattern in the United States involves immigrants coming to our shores as adults, often fleeing economic hard times or political repression in their home county. In Chicago, where I grew up, this was a pattern for numerous immigrant groups, including Poles, Lithuanians, Greeks, Italians, Serbs, Russians, Croats, and many others. Typically, English is not their first language, and the adults speak it with some accent. As they become more established, they send for their parents, who may speak no English at all. They have children, who typically grow up fully bilingual and without an accent in either language. The children are able to talk with their grandparents, and many of the family’s memories may be embedded in their language of origin. Often they live in a neighborhood of other immigrants, and the grandparents can exist comfortably there without English. They can be understood at the neighborhood grocery store, pharmacy, doctor’s office, restaurant, neighborhood bar, and such, and there is often a local newspaper in their original language. As the children marry outside their ethnic group, there is a gradual family shift to English as the exclusive language. This is the sense in which the United States has been a melting pot in regard to immigration, with assimilation gradually leading to full integration. The two populations for whom this model did not work as well as it did for most immigrant groups are Native Americans and African Americans with a history stretching back to slavery. In both cases, these are groups that did not “sign up” for the American dream: they were drafted, as it were. Native Americans were often killed by invading groups and they had their land taken from them. Black Africans were brought to our shores as slaves, to be bought and sold as chattel. Neither group originally chose the American dream, and they are historically the two groups for whom the assimilationist character of American culture is least congruent. They are, moreover, the two groups that have benefited least from American culture, as measured by rates of poverty, illness, and many other indicators of well-being. Interestingly, Native American populations are often separatist in the United States in a way that is unique to them: they constitute individual nations within the United States, often with their own laws, courts, and the like. For example, the Iroquois government has issued passports to its members as an expression of its status as a sovereign nation.

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It is also important to note that the United States is not the only country dealing with these issues. In France, for example, there have been heated discussions of the extent and specific ways in which immigrants should show allegiance to the French state and its national identity. France banned any dress that covered the face in public, thus effectively eliminating the wearing of the burqa by Muslim women in French society. To what extent does a liberal democracy allow diversity and to what extent is it entitled to require uniformity (if not a uniform!)? The flip side of this controversy is that many black French men and women, typically of African descent, complain that they are looked upon as outsiders, even when their family has lived in France for several generations. Nor are we the only country dealing with issues of an indigenous population. Many colonial countries, such as Australia and New Zealand, grapple with issues of the proper place of indigenous peoples in a wider political context. What Would the Minimally Acceptable Society Look Like in Regard to Each of These Issues?

Again, consider race. Even if we were not able to achieve ideal racial conditions of harmony and understanding, we might still say that certain conditions must be met for a society to be morally acceptable at all. Hate crimes, for example, would have to be abolished, just as job discrimination on the basis of race should be eliminated. The minimally acceptable conditions for society can be established through laws and other coercive measures, whereas the ideal vision of a society may often be a matter of persuasion rather than coercion. Indeed, the minimally acceptable conditions of society are often articulated from a moral point of view through considerations about human rights and about justice. We will return to a discussion of these considerations later. Matters of the ideal society, on the contrary, are considerations about excellence, and this typically involves going far beyond the moral minimum. We may be able to achieve wide consensus about issues of the moral minimum, while issues about the ideal may be much more open to public debate. What is the Present Condition of Society in Regard to These Issues?

In order to understand the moral issues of diversity and consensus in this chapter, it is often necessary to have a firm grasp of the empirical world in which we live. This is a world studied most closely by the social sciences and economics. These are the disciplines that help us to see more clearly, to go beyond our naïve preconceptions about society, and to understand the interactions of various factors in society. This is crucial both for understanding how a particular moral problem emerged and for understanding the best ways to ameliorate that problem. Ethics, in other words, has to be firmly grounded in facts, in the empirical world. For example, when we consider issues about poverty and economic inequalities, it is crucial to understand the social, political, and economic forces that contributed to the creation and growth of poverty in the United States. Moreover, if we are seeking to remedy economic inequality, we need to understand how the economy works in order to judge which means will be effective and which may actually make the situation worse. We have all seen how good intentions are not enough. Consider the example of housing projects in the United States, public housing built at government expense in order to provide better, safer housing for the country’s poorest residents. The intentions may well have been good, but the actual results fell far short of the ideal. Old neighborhoods were demolished, uprooting residents and destroying the social networks of which they were a part. Although housing conditions were often poor and there were numerous dangers such as lead-based paint in old buildings, the level of community involvement was often quite high. Apartment buildings were likely to be only two or three stories high, and many were actually houses. Mothers and older siblings not only watched over their own family members; they also kept an eye out for other kids on the block as well. Both adults and children often went outside. In the summer evenings before the advent of air conditioning, many sat outside on the steps, talking and watching the kids. There was, in other words, a shared sense of community that extended far beyond the boundaries of individual families. When people were relocated to new twenty-story housing projects, much of this shared life was destroyed. Open spaces disappeared, becoming replaced by dark hallways and elevators. It became impossible for moms to watch over other kids in the neighborhood, simply because they could no longer look out the window or open the door and see what was going on. Moreover, although the buildings were new, they stripped their inhabitants of their individuality. The sameness of the dwellings threatened the uniqueness of the individuals living in them.

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Often built of flimsier material than the old houses, they quickly deteriorated. The shared lives of neighborhoods were replaced by encapsulated families, and television sets replaced people. None of this was the result of ill intentions, but rather the by-product of a lack of understanding of how neighborhoods and communities work. How Do We Best Get from the Actual Condition to the Minimally Acceptable Condition of Society?

This question presumes that, at least in some respects, the present situation does not meet minimal expectations—a safe assumption in a book that deals with moral problems. This question is also, at least in significant measure, an empirical question about what works, and about what is effective, in moving from one condition to another. Generally speaking, this is the realm of law, rights, and government-sponsored programs, the area of minimal requirements that must be guaranteed to all. It is also the area in which the least amount of compromise and tolerance is present. Consider a specific issue: inequalities in educational opportunities and outcomes. Some racial and ethnic groups do less well than others as measured by a whole range of indicators such as scores on standardized tests, graduation rates, college admissions, average GPA, and the like. The performance gap between, on the one hand, African Americans and Hispanics and, on the other hand, white Americans widens year-by-year as students move through K–12. In the eyes of many educators and political leaders, this educational inequality is both the result of deeper economic inequalities and one of the principal means of perpetuating those inequalities and even making them worse. Yet how do we rectify the situation? Indeed, going back to our first question, what is the goal we are trying to achieve? Is the ideal one that involves equal performance by all groups on all scales? What is minimally acceptable? If we look at college graduation rates by race and ethnicity, we see that Asian/Pacific Islanders have a 91 percent rate of graduation within four years of entering college; the rate for whites is 81 percent, for American Indians and for Hispanics 64 percent, and for blacks 61 percent. Thus there is currently a thirty-point spread between the highest and lowest groups. What would be the minimally acceptable spread? How would we achieve this? Simply spending more money on education does not seem to be sufficient. We need to determine how to spend the additional money effectively. More programs such as Head Start? More pre-school programs, since educational performance differences begin to appear even before kindergarten? These are genuinely difficult questions, yet they are precisely the questions that we must answer if our society is to flourish. Finally, How Do We Get from the Minimally Acceptable State of Society to the Ideal One?

Once we move beyond the moral minimum to a consideration of the ideals toward which we are striving, we realize two things. First, there is more room for legitimate differences in regard to ideals. Reasonable people of good-will can differ widely on these. Second, as a result of the first difference, the means of reaching the ideal state are generally persuasive rather than coercive. We seek to convince others of our ideals rather than to force them to comply. Public debate, education, and incentive programs are but a few of the possible means of getting to this ideal state. The following diagram will help visualize these five questions and their relationship to one another: Laws

The Present Condition

Incentives

The Minimally Acceptable Condition

The Ideal Condition

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In each chapter of this section, this general framework has been converted to a specific questionnaire to help you to conceptualize your own stance on these issues and also to help to bring into focus both the similarities and the differences between your vision of society and the vision of your classmates.

Models of Distributive Justice In addition to the questions discussed in earlier sections, the specific issues we will consider in the coming chapters center on a key question: How should the benefits and burdens of society be distributed? We will see certain questions and certain types of answers recur in the following chapters, applying in slightly different ways to each of the moral issues we are considering. This is the central issue of distributive justice. Distribution of Natural Resources

These theories develop as the answers to several questions. First, how do we distribute the natural resources of the world, the things that are already there before humans arrive on the scene? In the middle of the nineteenth century, gold was discovered in California, and the first of a series of gold rushes began, with prospectors—this group eventually became known as the “forty-niners”—eventually coming from around the world in the hope of striking it rich. Initially, there was no formal system for allocating land and the gold it held, and prospectors eventually began to “stake a claim” to a particular location, often guarding it with their lives if they were fortunate enough to discover significant amounts of gold. Thus we saw one way of distributing natural resources: first come, first served. Whoever staked a claim got the land. Of course, this is not the only possible way, and other ways were tried. Sometimes a lottery was used, distributing land on the basis of a drawing of numbers. Sometimes need was a factor. At other times, the ability to utilize the land was a consideration, and any specific individual could only claim as much land as he could actively cultivate. These issues remain contentious today, even if the emphasis has shifted from gold to black gold (oil). The government administers the rights for minerals and other natural resources, and there is a recognition that to some extent the fruits of public lands should be shared by all citizens, not just those who are able to immediately exploit them. Thus the government leases out rights to corporations, and—at least in theory—the government then uses the proceeds of those leases for the public good. Thus we strike, or attempt to strike, a balance between public and private. Of course, the story doesn’t end here. There is also labor, and we sell (or otherwise distribute) the products of our labor. How is that to be accomplished? Is it simply to be unconstrained competition, something analogous to the original chaos of the gold rush? Or is it to be limited or regulated in some way? How, in other words, are goods to be distributed? Perhaps each according to each person’s need, or according to the ability to pay, or in some mode of equal distribution to everyone? What of those who are incapacitated, unable to work, unable to buy? Children? The elderly? The disabled? The next chapter of the story relates to the distribution of burdens. To achieve a high and efficient standard of living, members of society have to cooperate on a number of things. They have to band together to provide some kind of common defense against aggressors. Certain basic services, such as transportation and utilities, are best supplied by some coordinated authority, rather than undertaken by each individual. The military draft, taxation, and other means are typically used to distribute these burdens in a fair and equitable manner. Finally, the citizenry has certain basic needs, some of which they are not always able to meet. Food, shelter, clothing, safety, and employment may depend on factors beyond individual control, at least in some cases. When individuals are not able to fulfill these needs themselves, what should happen? Should the state bear some of this burden? Or should it be left to each individual, and those who are unable to meet their own needs are simply left to perish? Our answers to these questions often depend on our views about two key philosophical questions: the nature and scope of distributive justice; and the scope of human rights. Let’s examine each of these issues briefly.

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Theories of Distributive Justice There are a number of distinct ways in which the benefits, burdens, and opportunities of society could be justly distributed. If we see justice as primarily a matter of treating everyone equally, then we get some kind of egalitarian theory; if we see justice as primarily a matter of insuring that each person receives what he or she deserves, then we have a desert-based theory; if we see justice as primarily a matter of maximizing the overall amount of utility, then we have a utility-based theory; if we see justice as simply being whatever the marketplace does (if unconstrained), then we have a libertarian theory of justice. It’s helpful to note here that systems of justice typically have both political elements (associated with a specific form of government) and economic elements (associated with a specific type of economy). Capitalism is a type of economic system; democracy is a type of government. Although in the United States and many other countries, the two are conjoined, this is not necessarily the case. Egalitarian Theories

We often see an egalitarian theory of justice at work in families: when the parents give a piece of candy to one child, then give the same amount to each of the other children. Thus everyone is treated equally, treated the same. So, too, the burdens of family life might be distributed in an egalitarian manner, with the expectation that each child will mow the lawn in successive weeks. Strictly egalitarian approaches to the distribution of certain kinds of burdens in society may gain widespread support. If the burden of serving in the armed forces is equally distributed to all citizens of a certain age, many would recognize this as fair. There have been periods in American history when we have had a draft, but only males were subject to the draft, and some men avoided the draft through deferments for college, and the like. Many saw this procedure as unfair, putting a disproportionate burden on the shoulders of the poor. A country may, for example, have two years of mandatory national service, allowing within limits for individuals to choose the manner of service most congenial to them. Taxation is another way in which burdens are distributed, yet this turns out to be a bit more complex than compulsory national service. Would an egalitarian tax be one where everyone pays the same amount, or one where everyone pays the same percentage? People may have differing intuitions on this, although probably almost everyone feels their sense of justice is violated when the very rich pay less than the poor. Egalitarianism may also apply to the income you receive, and in theory this is basically a communist model in which everyone receives the same wage. It is important to realize that this is communism in theory, but in practice there is rarely that same kind of equal distribution. Moreover, communism historically has been associated with totalitarian regimes such as the Soviet Union and China, but this too is an accidental marriage. There is no reason in principle why a genuinely egalitarian society could not also be genuinely democratic. Libertarian Theories

Let’s contrast this egalitarian approach to justice with one on the other end of the spectrum: the libertarian approach, which holds that as long as you have properly acquired your goods and properly transferred their ownership, there are no other constraints of justice. Justice demands very little of us in terms of our interactions with others, and individuals are free to maximize their self-interest, as long as they acknowledge that others have the same rights. Injustice occurs in the libertarian worldview when someone takes away from you some of your own property. What I acquire belongs to me, in the libertarian view, and no one else is entitled to take it away except under very specific and narrow circumstances. This basic principle makes it easy to understand the libertarian view of taxation: in most cases, taxation is simply theft. Libertarians find it morally outrageous—and unjust— when the government takes some of your property and then gives it to someone else, someone who did not earn it and is not entitled to it. Taxation is theft, pure and simple, except in those rare cases in which the taxes are being used to protect property rights.

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This view of the injustice of taxation is complemented by a bleak view of government effectiveness. Typically, libertarians will be mistrustful of the ability of government to solve real problems in a cost-effective manner, and they will be optimistic about the ability of an unfettered capitalist marketplace to do a much better job of meeting people’s needs. Libertarians disagree among themselves, however, in regard to the proper acquisition of original natural resources. Do natural resources belong to the population as a whole in some collective way, or do they simply belong to whoever manages to find and acquire them? Broadly speaking, libertarians are divided into two camps, depending on their answer to this question. Those who believe the natural resources originally belong to us collectively are known as left-libertarians, while those who believe they belong to whoever claims them are called right-libertarians. This is an issue that has far-reaching implications in regard to the corporate use of natural resources and also in regard to environmental ethics. Utilitarian Theories of Justice

Utilitarians believe that there is a single imperative that governs the moral life: act in such a way as to produce the greatest overall amount of utility, and this concept of maximizing utility provides the basis for its concept of justice. Justice consists in the maximization of utility. Consider again the issue of taxation. We are justified in imposing taxes, even uneven taxes, insofar as doing so will contribute to the benefit of everyone, insofar as doing so will maximize utility. Thus a graduated income tax may take a lot from the rich, but it may redistribute it in such a way that the lives of many (the poor) are enhanced and the lives of a few (the rich) are only slightly diminished. A utilitarian account of justice thus takes the maximization of utility as the yardstick for measuring the justness of an action or policy. It is also conceivable within a utilitarian conception of justice that it may, in certain circumstances, be morally permissible to violate the rights of a few in order to benefit the majority—and that there would be nothing unjust in doing this. The famous “ticking bomb” case may, for example, justify the use of torture in certain limited circumstances. If torture is the only way to obtain information that might save the lives of many innocent people, then it is morally justified to use torture for this purpose and there is nothing unjust in doing so. Rawls and the Liberal Theory of Justice

John Rawls’s A Theory of Justice appeared in 1971, and since then has been one of the most influential works in moral philosophy. Rawls was a professor of philosophy at Harvard for decades, and during the three decades following the publication of A Theory of Justice, he continued to refine his theory. Rawls’s theory is a classic example of a liberal approach to justice, one that allows individuals maximum freedom of choice among competing conceptions of the good life. Individuals should be free to pursue their life goals, constrained only at the points where doing so might impinge on others who are pursuing their own goals. Thus Rawls wants to give each individual the maximum amount of freedom consistent with such freedom being accorded to everyone. But Rawls recognizes that there will be situations in which justice actually requires that we treat some people differently. In his discussion of the difference principle, Rawls maintains that it is just to give some people an advantage if doing so would result in benefits for the least privileged members of society. This principle might, for example, justify giving higher pay to some workers if doing so would result overall in increased benefits for the poor and the disadvantaged. (This may be likened to a “trickle-down” theory of justice, although Rawls would probably have found such a description repellent.) Similarly, it might allow giving special treatment to those who have not been favored by the lottery of nature. Persons with physical disabilities, for example, may be given certain benefits that would level the playing field, making it more possible for them to successfully compete. In the process of developing and presenting his theory, Rawls introduces a very interesting and highly influential thought experiment. He asks us to imagine that we are at the beginning of society, first working out the basic rules that will govern society. This imaginary situation is what he calls the original position in which we imagine that we are free and equal persons who have come together to decide what the fundamental political and social rules should be for society. Moreover, he asks us to imagine that we do not know what role or position we will actually

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occupy in society—we are, in Rawls’s famous phrase, behind “a veil of ignorance” in regard to our particular place in society. We do not know if we will be talented or not, if we will be strong or weak, funny or sad, an artist or an accountant, a parent or a single person, a man or a woman, black or white, rich or poor. How, Rawls asks, would we construct the basic principles governing society if we did not know the particulars of our own identity? The power of this thought experiment is profound, and it forces us to set aside our particular circumstances and, bit by bit as we set these particularities aside, we assume the standpoint of an impartial agent, someone who is not aligned with the interest of any specific individual. And it is precisely this impartiality that is at the heart of justice in Rawls’s eyes. To be just is to be impartial, to refuse to weigh things in a manner that benefits us personally. Case Study: Economic Inequality and Justice

In recent years, many Americans have become increasingly conscious of the disparities in income and wealth between those at the top of the economic ladder and those near the bottom. There are several different facets of this issue which merit attention.

A Snapshot of Economic Inequality in the United States First, consider wealth, the total amount that a family or household is worth, including real estate. For many families at the lower end of the economic spectrum, their house is their primary source of wealth. Those families were particularly hard hit by the economic downturn of 2007–2009, and many of those families found that they actually owed more on their house than the current market value of the house. Yet this hardly scratches the surface. Over the course of the last generation (twenty-six years, 1983–2009), the overall amount of wealth in the economy as a whole increased significantly. The difficulty is that virtually all of that increase went to the rich. The entire increase in wealth was confined to the top 20 percent of the economy, with 40 percent going to the top 1 percent and another 40 percent going to the 95–99 percent group. The bottom fifty percent of the population actually experienced a decline in their wealth. The figures on income are equally startling. Using figures adjusted for inflation, we see that the median family income in 1947 was $23,400; in 1977 it was $47,400; in 2005, it rose to $58,400. So income for the average family went up almost triple from 1947 to 2005. For the top 0.01 percent, however, it increased almost tenfold. Ninety-eight percent of economic grown in those thirty years was captured by the richest ten percent of Americans. The inequality in Manhattan is even more staggering. In 2009, the average household income in Manhattan of people in the top 5 percent was $837,668; the average income for those in the bottom 20 percent was $10,328. In other words, Manhattanites in the top 5 percent make about 80 times more than those in the bottom 20 percent. Another revealing index is the ratio of the pay of the CEO in a corporation to the average pay of all employees in that corporation. A generation ago it was 42:1; now it is more than 300:1. If we just look at the salaries of some of the top executives, it’s even more stunning: in 2004, at least twenty-five hedge fund managers were making over $240 million apiece, with the highest making $1.7 billion. This in a city where the bottom 20 percent that year were making under $10,000 annually.

Applying the Theories Is this growing inequality in wealth and income necessarily unjust? Clearly if one holds some version of an egalitarian theory of the distribution of wealth, then this would be deeply morally offensive. Wealth is not being even remotely equally distributed, and in fact the discrepancies have just grown year by year, in both good times and bad. We seem to be moving toward a greater polarization of society, an ever-increasing gulf between the haves and the have-nots. Several theories of justice might, however, have reasonable replies to these initial criticisms. First of all, a libertarian account of justice would not find anything necessarily worrisome in these statistics, assuming that they simply reflect the operation of the market. There is no injustice involved in such high salaries or even in the discrepancy between those at the top and those at the bottom.

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For other theories of justice, a key question will be whether the $250 million salary of a hedge fund manager takes anything out of the pocket of the average worker with whom he is contrasted. It’s certainly possible that his wealth can spur the development of more wealth, and his spending can benefit others. Again, we come back to the “trickle-down” issue. The high salary of one might prove an economic stimulus to another— indeed, given the size of the salary of the one, it could be a stimulus to quite a few persons. After all, if someone receives $250 million in a year, he or she has to spend it on something. Thus there may be a positive economic ripple effect. Moreover, there is no reason to think that the large salary is necessarily coming out of the pockets of the average employees. If the hedge fund manager were paid less, would the company pay other employees at the bottom of the economic ladder more? It seems unlikely, even though they could certainly afford to do so. Now we arrive at a more interesting issue: is there an obligation in justice for companies to distribute the profits in some equitable manner? If so, precisely what does this involve? Some companies have profit-sharing plans, and they seem to embody some idea of proportional justice much more than those plans that give the profits only to those at the very top. Yet another possible argument can be advanced here. To what extent can any employee be said to deserve $250 million a year? If we think of justice as related to deserving something, then clearly we face an uphill battle in trying to make the case that any one individual deserves such a level of compensation. Moreover, if we advance such a principle, then presumably others may deserve proportionately less, but this would still be a large sum of money. Moreover, if we are adopting a principle of desert, then presumably we have to follow that principle in other cases as well; that is, if the person does not do something equally meritorious in the next pay period, then he loses a proportionate amount. In other words, if one appeals to a principle for determining pay, one cannot just discard the principle when it fails to provide the results one wants. Similar considerations might be advanced in regard to the larger national picture about inequality of wages and wealth. It may be true that if we tax the wealthiest at a higher rate, those who are poorer may be taxed at a lower rate. If this is the case, then there is a sense in which the high salary of the hedge fund manager does come out of the pockets of the average employee, at least in regard to taxes. There is yet another aspect of justice in this picture, an aspect that so far has been ignored, even though it is implicit in the mention of “households.” When we think of comparisons between wage earners, we think naturally of adults, persons responsible for their own lives. But children fall into another category. They do not choose to be born into a particular family. Even if their parents may be (in part) responsible for their own economic fate, it is clear that the children are not to be held accountable. And while not all the disadvantages of poverty can be cured by money, many can. Poverty diminishes nutrition, and well-funded childhood programs and nutrition can improve the physical well-being of children dramatically. Similarly in regard to health care, the excess millions that a hedge fund director receives can go a long way to improve infant and child health programs. The same goes for education, which can be improved dramatically with proper funding. In other words, these monies that currently fund an incredibly luxurious lifestyle can have a far-reaching positive impact on the most vulnerable in society. In addition, that investment pays off in the long run as well: if these children grow up to be productive and prosperous members of society, then everyone will gain. Their contribution will be amplified manyfold. One final issue should be mentioned here: a society such as the United States depends on social mobility, on the ability of individuals to move up the economic ladder. Historically, one of the strengths of the United States has been its ability to allow individuals and families to move up the economic ladder. However, in the previous three decades, we have seen a steady slowing of this trend toward upward economic mobility. When compared with comparable families in France, Canada, and Denmark, American families move out of poverty at a significantly slower rate. In one generation, French and Canadian and Danish families can move farther up the economic ladder than their American counterparts can do in two generations. This is turn has a profound impact on citizens’ views about their own country and the promise of democracy.

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Theories of Rights The Historical Impact of the Notion of Human Rights

More than any other philosophical notion, the concept of rights has changed the world, often radically altering societies and liberating people from oppression. It has been an instrument of change in a way that few other philosophical notions have been. The notion of rights is also a uniquely modern, Western notion. If you read Plato or Aristotle or even the medieval philosophers, you do not find discussions of human rights in their writings. Indeed, in ancient Greek there isn’t even a word for “human rights” as we use this concept today. Nor, if you turn to Eastern philosophy, do you find an articulated and developed notion of human rights as such in those traditions until recent times, even though concerns about human rights were discussed under different concepts. It is a truly modern and Western notion, emerging as an affirmation of the value of the individual in opposition to the king. Recall that in the modern European tradition, kings typically claimed to rule by divine authority. The divine right of kings overrode the rights of the people (the king’s subjects) and was unchallengeable. Although in its classical formulations, this divine right of kings imposed obligations on kings to rule their subjects properly and in accord with God’s will, there was no human court of appeal that could challenge the king’s decisions, even when they seemed harmful to the people. Two of the key documents in the history of human rights were the Bill of Rights (as well as the Declaration of Independence and the Constitution itself), which was passed by Congress in 1789 and ratified by the states and thus became effective in the United States in 1791, and the French Declaration of the Rights of Man and Citizen, adopted by the French National Constituent Assembly in 1789. Both of these documents limited what government could do and what each person was entitled to simply by virtue of being human (natural rights). Rights as Trump Cards

The notion of human rights, if it was to be effective vis-à-vis the absolute power of the king, had to be equally strong. For this reason, in its very origins the notion of human rights carries the claim to absoluteness. Human rights override or, as philosophers like to say, trump other considerations, including the wishes of the king. They had to be sufficiently strong to circumscribe or limit the divine power of the monarch, and to this day they still retain some of that claim to inviolability, to absoluteness. In our contemporary world, there are fewer kings to oppose, but the notion of human rights still figures as what we call a trump card. The term is used in card games to indicate a card or suit of cards that outranks other cards. The key notion here is that it overrides or outranks other cards. Analogously, human rights claims trump or override other considerations, including the dictates of the king. Kings are not all that common these days, but dictators still are all too plentiful, and governments abound. Fundamental human rights claims are intended to be strong enough to stand up to the demands of dictators, tyrants, and governments generally. To have a fundamental right is to be entitled to something that even governments cannot override. Think about the Arab Spring of 2011 that began in Tunisia in December 2010 with the self-immolation of a college-educated street vendor Mohammed Bouaziz in despair over corruption and joblessness. The domino effect fuelled citizen uprisings in a number of Arab countries in the Middle East and Northern Africa, which led to the overthrow of several long-time dictators and unelected heads of state, including Col. Muammar Gaddafi, the head of state in Libya. They did so in the name of basic human rights, rights long trampled by Gaddafi: freedom from arbitrary violence and death, freedom of assembly, freedom to choose one’s leaders, freedom of religious belief. This is what it means to have rights: to be entitled to be free from certain arbitrary interferences with one’s life. True to their historical antecedents, appeals to human rights are intended to limit the reach of government, to curb what government can do to the people.

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What Specific Rights Do We Have?

The debate about human rights originally centered on the right to liberty and the right to own property. Over time, the list of rights has proliferated, and in some recent statements, such as the United Nations Universal Declaration of Human Rights, they seem to go far beyond the basic rights of freedom and ownership. Let’s look at some of the most important rights.

The Right to Life For many, the right to life is the most fundamental of rights. Notice that it establishes limits to both what the government can do to you and what other people can do to you. The government cannot take your life, except in the United States in very specific circumstances involving capital punishment. In many countries around the world, including all European countries, the government cannot take your life through capital punishment. Similarly, other people are not entitled to kill you except in certain very specific circumstances, such as self-defense or warfare. Thus the right to life constrains both governments and other people from arbitrarily killing you. In some instances, the right to life is taken to include the right to the things necessary to life, such as nutrition, shelter, and the like. We will return to this issue later in our discussion of negative and positive rights.

The Right to Liberty There is near universal agreement that liberty is one of the most important of human rights, and it is easy to see the ways in which this right constrains what governments can do to people. Governments may not take away your freedom without a just cause and without due process—so governments cannot simply pluck you off the street and imprison you in secret. There has to be a charge, it has to be approved by a judge eventually, and you have to be given an opportunity to defend yourself against the charge. The right to liberty is not confined to issues about government arrest. Typically, it also means that we are free to do certain things that are essential to our humanity. We are free to worship (or not worship) in the way we choose. We are free to express ourselves in words in whatever way we choose. We are free to associate with people of our choosing. We are free to choose our own government. Liberty is the fundamental and foundational right upon which much else is built. There is, though, a key constraint built into the concept of liberty, namely, that its exercise be consistent with the exercise of liberty by all people. The boundaries of our freedom, in other words, are established in part by the freedom of other people.

The Right to Equal Treatment Obviously there are many ways in which we are not all equal: we look different, have different abilities, interests, and the like. But in one crucial respect we are equal: we are equal before the law, each entitled to the same rights and presumption of innocence. Rich and poor alike, at least in theory, are equal before the bench of justice. Even the rich and powerful are to be held accountable for their deeds—and their misdeeds. The right to equal treatment not only means that we are equal before the law; it also limits the ways in which other people may treat us. If I go to a restaurant, they cannot refuse to seat me because of the color of my skin. (They can, of course, refuse to seat me on the basis of my credit card, but more on that later.) Schools cannot refuse to admit me on the basis of my gender or race. (They can, of course, refuse to admit me if I cannot pay their tuition.) Real estate agents cannot refuse to show me property in a particular neighborhood because of my race or ethnicity or religion. The right to equal treatment, in other words, does not limit the government alone; it also limits in very specific ways the manner in which both corporations and other people can treat us.

The Right to Security Some theorists treat the right to security as a corollary of the right to life, but it is worth mentioning it here as a distinct right. We ought to be able to live a life in which we are free from threats and arbitrary violence. Of course, it is not always within the reach of government to be able to provide such security, particularly in wartime.

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The Pursuit of Happiness Before it was ever the title of a movie, “the pursuit of happiness” ranked with life and liberty in the United States Declaration of Independence as an inalienable right. Please notice that this does not include the right to actually be happy, merely to pursue happiness. There is no comparable clause in the French Declaration of the Rights of Man and Citizen. Negative and Positive Rights

One of the most important distinctions in the discussion of rights is the question of whether rights are negative or positive. Here’s the difference between the two. When you have a negative right, it entitles you to be free from interference by other people or by the government in your exercise of that right. If the right to life, for example, is construed purely as a negative right, then you are entitled not to be killed by either other people or the government. On the other hand, if you have a positive right, it entitles you assistance from others (perhaps individuals, perhaps the government) in the exercise of that right. If the right to life is construed as a positive right, then if you are starving it entitles you to assistance from others in obtaining food. The Libertarian Tradition of Negative Rights

Some theorists maintain that almost all rights are negative, that is, they possession of a right entitles us only to be free from outside interference in the exercise of that right. If, for example, the right to freedom of speech is construed as a purely negative right, then the government can make no laws that restrict my freedom to express my ideas publicly. However, if the right is merely negative, then no one—including the government—is obliged to give me a microphone, metaphorically speaking. More specifically, the government is not obliged to give me free airtime on cable TV or in any other way provide me with assistance in expressing my ideas. Lurking behind—sometimes not very far behind at all—this libertarian notion of rights as negative is a deep mistrust of government. As Ronald Regan once said, “Government is not the answer to our problems; government is the problem.” This mistrust of government dovetails nicely with the notion of rights as purely negative, since then the expectations about government are quite minimal. Government should be primarily concerned with making sure that our lives are free from interference. The Liberal Tradition of Positive Rights

At the other end of the political spectrum is the notion that rights are positive entitlements to assistance from others, whether in the form government or as individuals. If, for example, the right to life is a positive right, then if I am starving, other people or governments are obligated to provide me with food if I am unable to fend for myself. The liberal tradition of positive rights is closely associated with the notion of the welfare state. Indeed, positive rights are sometimes called welfare rights. If the libertarian tradition of negative rights is primarily concerned with protecting individuals from the government, the liberal tradition of positive rights is primarily concerned with protecting individual from the vicissitudes of the capitalist marketplace. For example, in times of economic recessions and depressions, the liberal tradition sees it as a responsibility of government to protect people from the negative impact of circumstances beyond their control. Unemployment benefits, aid to families with dependent children, head start education programs for poor children are all examples of welfare rights, positive rights guaranteed by the government and intended to provide the individual with an insulation against economic forces beyond their control.

A Note on Two Currents in Conservatism Let me insert a large parenthetical remark here, for these two traditions I have been discussing here do not map easily onto the conservative/liberal distinction in the United States, a distinction largely mirrored in the Republican/Democrat distinction. Conservatism in the United States is composed of two distinct streams which, from a conceptual (as opposed to political) point of view, have little in common. The libertarian tradition, which we have been discussing here,

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holds that we should try to maximize individual liberty and minimize government. The family values tradition, which we have not been discussing here, also plays a prominent role in conservative thought. Typically, representatives of this tradition stress the importance of such traditional value as the family (which is almost always heterosexual, and usually involves traditional gender-based roles), religion (which usually means Christianity, often in its more fundamentalist versions), and patriotism (which usually means the United States). Not only are these two traditions not logically allied with each other, often they are in conflict. The emphasis on individual liberty and distrust of government leads to a rejection of laws that attempt to enforce a specific morality. Libertarian conservatives, for example, would typically be opposed to laws banning pornography, whereas family values conservatives would typically be supportive of such laws. Libertarian conservatives would prefer the state to be silent on matters of religion, whereas family value conservatives often hope to hear the state speaking in a Christian voice. Let’s now turn back to our main topic, the contrast between negative and positive rights. Is Health Care a Negative or a Positive Right?

The issue of health care in the United States is a good example of what is at stake in these differing concepts of rights. All agree that health care is a negative right in the sense that no one is entitled to prevent you from receiving good health care on the basis of the color of your skin, you sex, or your religious beliefs. However, there is deep disagreement about whether individuals who cannot afford health care have a right to such care anyway. This has been, and promises to continue to be, a point of deep contention and division in the United States. The differing answers to this question reflect different conceptions of the nature of rights, but they reveal other differences as well. One additional key difference is this: the two positions see different evils and different answers. The libertarian conservative tradition sees the market as the answer to all our problems and depicts government as the source of those problems, as evil. The liberal welfare rights tradition takes the opposite stance, seeing the market as the danger (and thus evil) and government as the answer (and thus good). Interestingly, this is not a battle of the rich versus the poor. Many at the bottom of the economic ladder appear opposed to the notion of health care as a positive right, even though they would presumably directly benefit from such a right. The explanation of this apparent contradiction of self-interest may well be the mistrust of government discussed earlier. Such welfare rights, if they are a government product, may be viewed as empty promises. Once again, the moral place of children plays a significant role in this discussion. In one of the debates to help to determine the Republican nominee to run for the Presidency, one of the candidates was asked what he would do if someone failed to obtain health care and then became gravely ill. Would he simply let him die? The audience answered with an enthusiastic “yes” before the candidate could respond to the question, but the more difficult question is how we would react if someone’s child suffered a similar fate. Perhaps we can blame the adult for his negligence, but surely a child is not similarly culpable. Some have argued that, whatever our position on adult health care, that we should consider health care to be a positive right for children.

6 Race and Ethnicity

The Narrative 228 Gregory Velazco y Trianosky, “Beyond Mestizaje: The Future of Race in America” 228 An Introduction to the Moral Issues 239 An Introduction to the Moral Issues 239 Defining Race and Ethnicity 240 The Facts of Racism 241 “Racism” as Both Descriptive and Evaluative 241 Government-Sanctioned Racism 241 Institutional Racism 242 Racism and Economic Inequalities 242 Compensatory Programs 242 Ideals of the Place of Race and Ethnicity in Society 244 Separatist Models 244 Assimilationist Models 244 Pluralistic Models 245 Moving from the Actual to the Ideal 245 Equal Rights Approaches 246 Affirmative Action Programs 246 Four Senses of Affirmative Action 246 Affirmative Action, Justice as Fairness, and Rawls’s “Difference Principle” Affirmative Action in College Admissions 247 Special Protection Programs 248 Hate Speech 248 Market-Based Approaches 249 The Libertarian Approach 249 Taxation and the Redistribution of Wealth 249 The Liberal Approach 250 Common Ground 250

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The Arguments 250 Howard McGary, “Achieving Democratic Equality: Forgiveness, Reconciliation, and Reparations” 250 David A. Reidy, “Hate Crimes Laws: Progressive Politics or Balkanization?” 260 Concluding Discussion Questions 271 For Further Reading 271

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The Narrative Gregory Velazco y Trianosky

“Beyond Mestizaje: The Future of Race in America” About the Author: Gregory Velazco y Trianosky is a professor of philosophy at California State University at Northridge. He has published widely in the area of ethics, especially virtue ethics. About the Article: In this article, Velazco addresses the often-neglected question of mixed race in a society that often seems to force people to be either black or white. He argues against the assimilationist ideal that many immigrant groups (such as the Irish) accepted wholeheartedly. As You Read, Consider This: 1. What is a phenotype? Explain what is meant by racist assumptions about phenotypic differences. 2. What does Velazco mean by calling American racial identity “bipolar”? What role does the Nuevo Mestizaje play in this regard? 3. Velazco draws several implications from his “tale of two cultures” for the construction of culturally mixed identities. What are these implications?

S

ince its inception, the United States has been obsessed with the idea of race. Moreover, despite many subtle transformations and variations, our dominant racial ideology has remained bipolar. We have always conceived ourselves, in the well-known words of the Kerner Commission, as two nations, “one black, one white— separate and unequal” (National Advisory Commission on Civil Disorders, 1968; O’Brien, 1996; Schwarz, 1997). There are some who think that the increasing presence and visibility of Latino/as in our society will help to cure this “bipolar disorder.” In its more romantic versions, the thought is that somehow “brown” helps to bridge the gap between “black” and “white”: that our mere presence as a mestizo or mixed-race people can perhaps help Americans to see black and white as at best end-points on a continuum rather than as eternal and irreconcilable opposites. In this chapter I explore a less romanticized, more critical version of this thought primarily by examining the relationship between Latinos and the dominant Anglo culture in the United States. Mestizaje in Latin America

It is true that the central racial and cultural reality of Latino life is that everyone is mestizo. Most of us are mixed by blood: descendants of Spanish conquerors and either African slaves or American Indian peoples or both. George Velazco y Trianosky, “Beyond Mestizaje: The Future Race of America,” New Faces in a Changing America: Multiracial Identity in the 21st Century, eds. Loretta I. Winters and Herman L. DeBose, Sage Publications, 2002, pp. 176–88. Copyright © 2002 Sage Publications. Used with permission.

Even those who claim not to be mixed by blood are plainly mixed by culture; Latino cultures are clearly and fundamentally distinct from their Spanish ancestors. Even the newest immigrants to Latin America are mixed by language, for the Spanish that Latino/as speak always reflects, although not always honestly and without shame, the words, concepts, and accents of the three great cultural streams whose tragic and powerful comingtogether was la conquista, the Conquest, the birth of Latino peoples. It is important not to romanticize the racial ideologies of Latin America, however. Mestizaje in all its protean forms is a central reality; however, this does not mean it is an openly acknowledged reality. Many Latino/ as live in a curious state of “doublethink,” which Orwell described as the ability to believe something while simultaneously acknowledging the conditions that establish its falsehood. There is a well-known saying in Cuba and Puerto Rico: “El que no tiene de Congo es de Carabali; y para el que no sabe na’, to abuela ‘donde ‘sta?” Although my family has been in Puerto Rico at least since the 1500s, my mother always insisted that we were “Spanish, not Puerto Rican,” and she and my grandmother never went out in the sun without parasols, lest we “out” our Yoruba ancestry by a too-brown skin. Thus, in Latin America, the acknowledgment of our mestizo character frequently coexists with its denial, disarming its power to subvert our racialized understandings of ourselves. Mestizaje in the United States

Will our presence in the United States help to undermine racist ideology here? It is certainly true that Latino/as are an increasingly large part of the American population. Our birth rate is the highest of any ethnic and racial group in the United States, and by some estimates one third of the American population will have some Latino/a blood by the year 2040. The 2000 Census indicates that we may already constitute the largest minority in the United States, depending on how the final results are tabulated. As we thus move into the mainstream of American society, we become doubly mixed, doubly mestizo. We are mixed for the second time by culture, through our encounter with the dominant culture in this new land. We are mixed for the second time by race, as we inter-mingle with our new Anglo-European cousins. Thus, we become Puerto Rican-Americans, Mexican-Americans, Cuban-Americans. “Una mano pa’ ‘lante, y una mano pa”tras,” as Celia Cruz sings. This racial and cultural second mixing I call the Nuevo Mestizaje. Aurora Levins Morales describes it well: I am a child of the Americas, a light-skinned mestiza of the Caribbean, a child of many diaspora, born into this continent at a crossroads. I am a U.S. Puerto Rican Jew, a product of the ghettos of New York I have never known. An immigrant and the daughter and granddaughter of immigrants. I speak English with passion: it’s the tongue of my consciousness, a flashing knife blade of crystal, my tool, my craft. I am Caribena, island grown. Spanish is in my flesh,

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ripples from my tongue, lodges in my hips: the language of garlic and mangoes the singing in my poetry, the flying gestures of my hands. I am of Latinoamerica, rooted in the history of my continent: I speak from that body. I am not African. Africa is in me, but I cannot return. I am not Taina. Taino is in me, but there is no way Back. I am not European. Europe lives in me, but I have no home there. I am new. History made me. My first language was spanglish. I was born at the crossroads and I am whole.

—Aurora Levins Morales (1990) Of course, the Nuevo Mestizaje is only new for us Latino/as, because race mixing has always been widespread in the United States (see, e.g., Ball, 1998; Gordon-Reed, 1998; Piper, 1992). Nonetheless, the idea of mestizaje remains radical here. The American bipolar racial ideology continues to deny the reality of widespread race mixing between white and nonwhite; and America’s continuing fascination, if not obsession, with miscegenation reveals that conceptions of white racial purity remain a significant feature of American culture. Perhaps for this reason, in the 19th century, as immigrant groups that historically were conceived as nonwhite began to mix with earlier Anglo European settlers, racial categories flexed so that while these groups were slowly assimilated, the line between white and non-white remained relatively clear. Thus, the Irish, the Slavs, and the Italians (and southern Mediterraneans generally), who were typically not seen as white when they arrived, have “become white,” to use Noel Ignatiev’s vivid phrase. The color line in the United States is like the national boundary between the United States and Mexico. It has moved around, but no matter where it locates itself it almost always remains clearly defined. If this is right, however, then it is difficult to believe that either the mere presence of Latino/as in increasingly visible numbers or our continued mixing into the already-white population will yield any different result. We will, over time, simply become “white.” Failing that, we will be assigned to the “black” category. It follows that the Nuevo Mestizaje will not automatically provide a cure for America’s bipolar disorder. Nonetheless, perhaps a more critical deployment of the notion of mestizaje can accomplish this goal. Cultural Identity in a Strange Land

We can begin with a fundamental and widely recognized truth: Racial categories are socially constructed. This much should already have been suggested by the historical malleability of the concept of race. The

construction of racial categories in America in particular is typically organized around several familiar racist assumptions: • Putative, salient phenotypic differences are taken to signal underlying differences in “nature.” • Putative, salient differences in character and behavior (culture) are taken to signal under-lying differences in “nature.” • An essential, underlying difference in “nature” is posited between blacks and whites. Because of the emphasis that everyday racial epistemology places on phenotypic difference, it is easy to take it for granted that the first assumption is the most fundamental. In point of fact, however, it is the second assumption about culture and its relation to underlying nature that is the most powerful determinant of how racial categories are constructed in America. In fact, the first assumption, central as it is to our familiar racist epistemology, can even be discarded depending on how cultural differences are understood. For example, Noel Ignatiev (1996) quotes the well-known and vicious 19th-century American canard, “An Irishman is a nigger turned inside out.” On the surface, this intended slander against the Irish seems to involve discounting what to us are obvious phenotypic points of contrast between Irish immigrants and black Americans in favor of putative similarities in character and behavior. At a deeper level, however, this attempted slander puts pressure on the first assumption about racial categories, for the “inside-out” trope suggests that the alleged cultural similarities are rooted in biological isomorphisms that are obscured by mere phenotypic differences. “Inside” the trope implies, Irish immigrants are really the same as black Americans. Thus, because the perceived similarities in culture and behavior are reified—made to appear manifestations of a shared nature—the trope presses us to divest salient differences in phenotype of their familiar role as signs of divergent natures. Now it might seem as though what happens ultimately is that race follows phenotype, because despite their putatively shared inner nature, Irish immigrants were not placed in the same racial category as black Americans. This, in turn, might suggest that it is our (culturally intransigent) perceptions of phenotypic salience that always trump in the construction of race. However, this puts the emphasis in the wrong place. The touchstone of American racial ideology is always the distinction between whites and nonwhites. The point of the canard under discussion is not that the Irish are black but that they are not white. In short, I am suggesting that the key supposition in the racial ideology that divided Irish immigrants from whites in the late 19th century was the notion that the character and behavior that the former supposedly shared with black Americans revealed an underlying essential “nature” also shared with black Americans. Given this notion, then, the third assumption mentioned previously settles the matter: No group that shares the essential nature of black people could possibly be white. This is the deep insight suggested by the provocative title of Ignatiev’s well-known book, How the Irish Became White. Irish immigrants became white not by changing their appearance or phenotype—still less by changing whatever underlying nature one might think they possessed—but by redefining their relationship to the dominant culture. As a group, they internalized its racial attitudes, particularly toward black people, and they found places for themselves in the dominant culture as border guards along the racial divide: in unions, on police forces, in class-rooms, and in the church. Once their character and behavior had assimilated to the dominant culture in these and many other ways, however, it became possible for white society to reinterpret their phenotype, and their underlying nature, as simply another variation on the theme of whiteness. In this way, they came to be seen as phenotypically—and essentially—white. I conjecture that the same sort of story could be told about other immigrants to the United States who were initially categorized as nonwhite (e.g., Arabs, Greeks, Italians, and perhaps Slavs). They became white by a transmogrification of culture or patterns of character and behavior, and not by some objectively describable change in phenotype. Perhaps, therefore, we can understand the logic of mestizaje or mixedrace identities by exploring the logic of the mixed-cultural identities that define the experience of Latino/as and many other immigrants to the United States. For immigrants and other exiles, culture is mixed from the moment they arrive in this new world. The home culture is shared against the backdrop of a new, alien culture. However much “Little Italy” or “Mexicantown” is like the old country, it is almost always defined by a small space in comparison to the one staked out by the

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dominant culture. Moreover, that small space is almost inevitably one that, despite the best efforts of the elder generation, is pervaded by the influence of the new world that surrounds it. The contrast between the home culture of the ghetto or the barrio and the dominant alien culture is particularly acute for the children of immigrants in a mass-media society. In a strange land the home culture is characteristically transmitted by personal contact. It is the parish deacon who runs the Ukrainian-language school. It is the grandmother and her sisters who know how to make the traditional Syrian dishes or tell fortunes in the trails left by the coffee grounds in one’s cup. It is the corner grocer who will speak to the children only in Spanish or who corrects their too-casual, Americanized manners. Thus, in the first instance, the tie between the children of immigrants and the home culture is hardly ever abstract or impersonal. It typically consists of concrete memories of sights, sounds and smells, words and phrases, and the faces, the voices and the touch of the people we grew up with. This is why Mario Puzo, who grew up in Brooklyn, upon visiting his parents’ home town in Sicily for the first time when he was in his 30s, said that the faces, the accents, the gestures, and the actions of the people he met there seemed so very familiar to him. He was tied to them and so to the lived culture of that Sicilian town by the intensely personal experiences and emotions in the small space that was the center of his Brooklyn childhood. This explains why, for the immigrant child, a child of parents cast ashore in a strange land, our emotional attachment to the home culture is typically some function of our emotional attachments to those who brought it to us. Our relationship to the home culture is thus shot through with the feelings, neuroses, and ambivalence that define our relationships with those in whose lives we first intimately experienced that culture. In living with us, and so in living out their culture with us, they became its embodiment in our lives. It should not be surprising then that what we learn to love, hate, fear, and admire in the home culture are the ways of that culture as they are embodied in the people who bring it intimately to life for us. This is the lesson that Adrienne Rich’s father understood, perhaps instinctively but too well. Rich is the daughter of a Jewish father and an Anglo southern mother. In her powerful essay, “Split at the Root: An Essay on Jewish Identity,” Rich (1986) describes her embrace of a Jewish identity and heritage that her father had quite deliberately rejected both for himself and for his children. Her father’s emotional absence is one of the dominant themes in Rich’s descriptions of him. This absence is apparently the result of deliberate choice. Arnold Rich’s mother came from a Sephardic family that, it appears, had already become highly assimilated in Vicksburg, Mississippi. His father, however, was an Ashkenazic immigrant from Austria-Hungary. Arnold Rich, himself a professor of pathology at Johns Hopkins University, was driven by a commitment to assimilation. Perhaps, like so many children of immigrants, he had come to see his father’s home culture through the eyes of this new world, and so, having learned to be ashamed of it, did not wish to visit it on his children. Perhaps he thought more strategically, believing that taking on the traditions and manners of his father’s home culture would only serve to set his daughter apart from the Gentile world in which he expected her, like him, to make her way. In any case, he does not even mention his father or his father’s relatives. His Sephardic-Southern mother lives with them 6 months out of each year. However, she, Adrienne Rich says, “was a model of circumspect behavior . . . ladylike to an extreme,” and “always tuned down to some WASP level [that] my father believed, surely, would protect us all” (p. 111). Rich comments, “If you did not effectively deny [your Jewish] family and community, there would always be a remote cousin claiming kinship with you who was the ‘wrong kind’ of Jew . . . uneducated, aggressive, loud” (p. 112). To ensure that his daughter—and he himself—will be at home in the “tuned-down,” genteel, Gentile public world, Adrienne Rich’s father obscures the Jewish elements in his own upbringing and their natural expression in his day-to-day life. He cannot celebrate the High Holy Days or even acknowledge them in any fashion, however secularized. He cannot sing the songs, tell the jokes, or speak the languages he must have heard in his youth from his father or his father’s relatives. He cannot reminisce about the stories he probably heard from his own father about his grandparents or other relatives. He cannot share the books or the wisdom that one imagines his father shared with him. Emotional intimacy and attachment are characteristic and very powerful modes of the transmission of culture for the children of immigrants. For this reason, it is perhaps inevitable that to silence his Jewish heritage,

Rich’s father must silence himself. Perhaps it is only through the death of emotional intimacy with his daughter and his wife that he is able to suffocate the reproduction of his home culture in her life and the life of his household. Perhaps it is only through the effort to reconnect with the withheld culture that Rich can find an intimate emotional connection to the father, now deceased, in whose person it was withheld. The contrast between the modes of transmission of the home culture and of the dominant American culture for the children of immigrants is striking. The influence of the mass media is primary in the transmission of the dominant culture in the United States; and this influence is as impersonal as it is pervasive. Eritrean children learn about Teletubbies from the television show, and Korean children learn about McDonald’s from Ronald McDonald and the ubiquitous golden arches. The culture that is transmitted by personal means is always altered, often in minute and unpredictable ways, by the personal character of its transmission. It is constantly reinterpreted by those who embody it and police it for one another and for their children. The transmission of culture by personal means is like a highly complex, multivoiced version of the children’s party game of “Telephone,” in which each hears in an intimate whisper the substance of what the other has learned from those who went before. The end result is always a humorous surprise, precisely because it is recognizably a transmogrification—a morph, although usually a barely coherent one—of the message with which the game began. In contrast, the memories and impressions that enable mass culture to reproduce itself in the lives of immigrant communities are not idiosyncratic. They do not fade or get reinterpreted like personal memories. Instead, they are continually remanufactured, reproduced, and corrected in a uniform, mechanical (or electronic) way that is virtually impossible to duplicate through the everyday activities of ordinary people. This was Andy Warhol’s great insight into the nature of mainstream American culture. In mass culture, although there is constant change, there is also a constant, dunning repetition of literally the same lessons. Moreover, the work of correcting misinterpretations and managing people’s responses is almost automatic; consequently, our attachment to mass culture will in all probability lack the depth and emotional resonance of our attachments to a culture embodied primarily in the unique and idiosyncratic lives of those close to us. This simple tale of two cultures has several implications for the construction of culturally mixed identities. For us, the children of immigrant parents, the struggle over who we are is almost always a personal one. To embrace the home culture is to embrace the people who embodied it for you. On the other hand, to be angry or ambivalent toward those people is inevitably to experience the home culture with anger and ambivalence as well. For me as the child of a Nuyorican mother and Puerto Rican grandparents, for example, to embrace the culture and the heritage that my mother’s family gave me is to embrace her and the experiences that her presence framed for me. The defining memories of la cultura nuestra (our culture) for me will always be listening to the coquis (tree frogs) from the screen door of my grandmother’s house in Yauco, “el pueblito de cafe” (the town of coffee); encountering the sharp wit and the passionate, even melodramatic, gestures that accompanied the retelling of any event; smelling “cafe y pan” (coffee and bread) in the morning, with the underlying sweetness of heavily sugared, milky coffee; finding in a Miami schoolyard in the fall of 1963 that for the first time, I had peers who also spoke Spanish. When my mother died 16 years ago, I began to understand that if I continued to “pass,” speaking only English and living (as best I could) as a member of the dominant culture—if I put aside all of these powerful and intimate memories, burying them as nothing more than fragments of the past—then I would have lost her truly and completely. My resolution to reclaim the heritage and the language of my childhood—to own the cultural identity embodied in my childhood memories, and to endow it with positive significance—is a reconfiguration of my determination to keep her alive in my life. My love for the Spanish language, my pride in being part of La Raza, and my devotion to its children and its future are thus reconfigurations of my love, pride, and devotion to my mother and to her Puerto Rican family. Yet silence, ambivalence, and anger can constitute emotional attachments as powerful as love and respect. Richard Rodriguez’s father is for him the living agent of el machismo, the traditional culture of the Mexican man who is, as the old dicho (saying) quoted by Rodriguez (1983, p. 128) has it, “feo, fuerte y formal” (rugged, strong, and reserved). However, this understanding of who his father is takes a cruel twist for the young Rodriguez. When he is 7 or so, his parents accede to a request from his teachers that they speak only English at home.

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Suddenly deprived of the language in which intimacy has always been expressed, the child of 7 is “increasingly angry,” “pushed away,” “[his] throat twisted by unsounded grief ”: In an instant, they agreed to give up the language (the sounds) that had revealed and accentuated our family’s closeness. The moment after the [teachers] left, the change was observed. ‘Ahora, speak to us en ingles,’ my father and mother united to tell us. (Rodriguez, 1998, pp. 21–22) The hesitation and the silence that this reliance on an alien and poorly understood language introduced into a previously voluble and expressive household henceforth define much of his relationship to his father. Yet despite the title of his extended and perceptive narrative, Days of Obligation: An Argument with My Mexican Father, even there we are given only glimpses of the elder Rodriguez, and we are left to infer the character of his son’s relationship to him. Rodriguez is more forthcoming, however, in his expressions of contempt and hatred for the Mexico from which his father came. In one discussion of machismo, he says: In its male, in its public, in its city aspect, Mexico is an archtransvestite, a tragic buffoon. Dogs and babies cry when Mother Mexico walks abroad in the light of day. The policeman, the Marxist mayor— Mother Mexico doesn’t even bother to shave her mustachios. Swords and rifles and spurs and bags of money chink and clatter beneath her skirts. A chain of martyred priests dangles from her waist, for she is an austere, pious lady. Ay, how much—clutching her jangling bosoms; spilling cigars—how much she has suffered! (Rodriguez, 1992, p. 62) If this is how he sees Mexico when it is figured as a man, then what is he to make of his own father’s identity as a Mexican man, el Mexicano, el macho? On the one hand, Rodriguez himself is tied to this identity because of the power of the emotions that bind him so tightly to his father. Yet at the same time he himself is silenced in his discussion of his father, just as his father remains rugged, strong, and silent even with his own son. Even the betrayal of intimacy that occurred when the younger Rodriguez was 7—perhaps that most of all—cannot be discussed between father and son. The traditional identity by which they are both shaped in different ways, reinforced by the unnamed reality of that intimate betrayal that tore away the very language in which they could communicate intimacy, will not permit anything else between them. Perhaps it is the expressions of anger and resentment at this loss that are represented in his adult life as contempt and hatred for the culture that his father embodies, when that culture is imagined as a man. Perhaps it is such transmogrified anger and resentment that are expressed in Rodriguez’ felt distance from the culture of his parents, his near-neurotic inability even to pronounce Spanish words correctly, let alone speak the language (Rodriguez, 1983, p. 23), and in his insistent opposition to bilingual education programs that might preserve the language of his childhood. I suggest that for both Rodriguez and me, the depth and the character of our attachments to our home cultures—our identities as Chicano, boricua, Latino, Mexicano, Nuyorican—are a function of the emotional depth and the valence—positive or negative—that we find in our intimate relationships to those in whom this culture came alive for us: mother, father, grandmother, uncle, and aunt. The culture so learned is characteristically idiosyncratic, and never exclusionary. This is the second implication of our tale of two cultures. The idiosyncratic nature of the newly reproduced immigrant culture is a consequence of the disruptive force of emigration. This is particularly true if the first immigrants live in small, fragmentary communities. Here the reproduction of the home culture may well take place sans the policing or homogenizing function exercised by larger, more well-entrenched versions of the home culture. What is typical among the few families in a small, struggling community may turn out to be quite different from what was typical back home. For instance, traditional public rituals that require churches, large groups of people, and the use of public space may be absent, and in their absence, children may grow up without a life that revolves around the religiosity that such rituals confirm. To take another example, “dating outside one’s group” may be a much more viable option than it would ever have been “back home”; and the sense of identification with the romantic and marital values of one’s parents may be correspondingly weakened. Furthermore, in a mass culture like this one, even in large, comparatively stable immigrant communities, the character of the home culture as it is reproduced here is suffused with the tensions and ambiguities of the

ongoing negotiations between the new generation who is being taught the home culture, the older generation who is teaching it, and the dominant mass culture that now pervades all their lives. The transmission of culture from immigrants to their children is, of course, only one example of a tendency toward the chaotic and idiosyncratic that is characteristic of cultural reproduction during times of social, political, and economic upheaval. However, because change is the only constant, the character of a culture is almost constantly in flux. A culture is like a great river system. From its headwaters to the delta, there is not one major characteristic of the Amazon that does not vary as the river progresses: its rate of flow, its depth, its area, the habitats it forms, and the quantity and variety of life it sustains. Yet despite these profound transformations, it is always the Amazon. This metaphor for cultural identity should also suggest the nonexclusionary character of the home culture as reproduced in the new world, for two such river systems will not always be discrete. In South Carolina, for example, the Ashley and the Cooper Rivers share a mouth, the Quiganonsett Bay; and yet they remain two different rivers, each with its own origin and path. In the same way, no child of immigrant parents—and particularly no child living within the larger mass culture of the United States—can possibly belong only to the home culture. Every child of the Americas is, like Levins Morales, Rich, Rodriguez, myself, and all the millions of others who grew up here in immigrant families, a child of many cultural streams at once. Almost all Puerto Rican Americans, for instance, are part of a living and continually evolving Puerto Rican culture. Thus, almost every Puerto Rican American is, culturally speaking, a Latino. At the same time, we are the latest in a long line of inheritors of the dominant, mass Anglo culture. Thus, we are Latino/as and we are also Anglos. We, the children of immigrants, are, perforce, the Nuevos Mestizos. We live in a newly mixed culture that is continuous with two distinct cultural traditions. We have two cultural identities; or rather one identity that is at once a recognizable morph of two very different cultural inheritances. The Nuevo Mestizaje is constantly threatened by assimilation. Here is the third implication of my prior remarks. I have stressed that the Nuevo Mestizaje is not simply the offspring of the coming together of two cultures. For this reason the metaphor of the two streams is too simple. To vary the metaphor, the gravitational field of the mass culture that surrounds us exerts a constant and powerful pull. Thus, to take only one example, which elements of our home cultures are most easily preserved in a mass culture depends in part on which elements are most easily commodified at this particular historical juncture. After all, it is much easier to teach children to celebrate El Dia de los Muertos when it is front-page news in the “Style” section of the local paper every October and November. It is much easier to appreciate Frida Kahlo’s self-martyrdom when it resonates so facilely, if falsely, with a self-obsessed, self-mutilating mass culture. We learn about ourselves through the eyes of others; and quick, powerful lessons are learned when electronic eyes so tirelessly represent the saleable part of us to ourselves: We are creative, we are emotional; we are good gardeners, good dancers; our food has “zest” (that pallid English translation of “sabor”); we are loyal and family oriented. We are in constant danger of becoming nothing more than animated promos that sell CDs, Hallmark cards, and Pace Picante Sauce. The danger is particularly acute, however, when what we represent in the mass market are the fears and anxieties of the dominant culture. When the electronic eyes reflect back to us images of drug dealers, gangbangers, convicts, welfare mothers, lazy, dishonest workers, sex-crazed Romeos, and all the rest of the sorry litany of images of Latino/as that still fill the screens, we may too easily learn to become what we see, this time at great cost in human suffering. These images are sadly familiar. They are simple variations of the dominant culture’s entrenched and stereotyped portrayals of African American people. Thus, although this is not usually understood, they all invite one or another form of assimilation. After all, for us to assimilate is for us to come to define ourselves by some niche that is established for us by this New World in which we have come to labor and to live. We can assimilate by becoming white, or by becoming what the dominant culture represents as black, or by becoming Carmen Miranda and salsa picante. If we choose the third of these options, we find ourselves in danger of being engulfed by a mass culture that has been busily defining a place for people like us at least since the time of the MexicanAmerican War by making commodities out of caricatures of our culture. Perhaps the second of these options is even more obviously destructive; and the first may even seem innocuous by comparison. However, to vary the

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metaphor, all three describe forms of assimilation that herald the death of that branch of the home culture that was newly born here in America, and its reanimation as a zombie, a creature without a soul or will of its own. Race and Culture: Resistance Is Not Futile

The challenge of the Nuevo Mestizaje is the forging of a lived racial identity, the very terms of whose existence undercut the bipolar ideology of black and white. The key to meeting this challenge is to live out the conception of racial identity expressed in the rich, extended metaphor of the river. Thus, the new identity we negotiate in this new world must be, and represent itself as being, a part of several different streams, at once continuous with several distinct racialized identities. How does our discussion of the culture of immigrants help us do this? Let us return to the story of how culture triumphed over phenotype in the case of the Irish. The lesson here for us Latino/as, as for so many immigrant groups in the last 150 years, is that we can cross the color line by crossing the culture line. If we become acculturated to being in the world as Anglos are, then for us as for Sicilians and Neapolitans, for example, our phenotype will be reinterpreted as a variant of white. Thus, the color of our skins need constitute a racial barrier for us to no greater an extent than it did for them. It follows that for us, as for other immigrant groups that were originally seen as racially distinct, our racial identity as either white or nonwhite rests on a complex series of choices and responses that we negotiate between the dominant culture and our home culture. Here the contrast with the position of black people in America is profound; for black people as such cannot become white. As elastic as the American notion of whiteness has been, it has always been anchored in one firm and invariant truth: To be white is not to be black. Hence, no degree or variety of assimilation to Anglo culture can authorize the reinterpretation of black phenotypes as white. Black people in the United States cannot do what the Irish, the Italians, and various other immigrant groups have done, namely transform their racial identity by altering their behavior and character. In fact, for black people the constant struggle to define their own racial identity is constituted in no small measure by the struggle not to become the stereotype, assimilating to the degrading and dehumanizing roles set aside by the dominant culture for those of African descent. In short, our determined refusal as Latino/as to become white is the refusal to allow our home cultures to be drowned in the Ocean Sea of American mass culture. This refusal constitutes a decision to set ourselves apart, to define our racial identity as distinct from that of white people in a way that the Irish and the Italians and various other immigrants to the United States chose not to do. This refusal positions us with African Americans, facing “a common struggle,” to adapt DuBois’ famous phrase: the struggle to resist assimilation to the stereotypes of black character and behavior, and instead to define our own racial identity. This commonality of struggle with black people is more than just an alliance of disparate groups, however. Our mutual struggle to define ourselves against these stereotypes should remind us of the companion phrase that DuBois used: “a common history.” It should remind us that our own history as Latino/as is as much the history of Africans in the new world as it is of the Spanish. In the identity we define for ourselves here, therefore, we must not reproduce the characteristically Latin American misrepresentations, subordinations, and erasures of the African elements in our history and our culture. Our double refusal to either become white or become the black stereotypes should thus serve to affirm our intimate relationship to African American peoples. At the same time, this double refusal points to our potential to undermine America’s racial ideology of black and white. We do this by living out a new, nonexclusionary conception of race that expresses the notion that a people can be real and legitimate descendants of several distinct, racialized cultural streams at one and the same time. This is the conception of race embodied in the metaphor of the river. Thus, I have said that we must refuse to become white, thereby losing all but a nostalgic connection to our home cultures, and alleging our cultural and racial distance from peoples of African descent. On the other hand, we must also affirm that we are indeed among the new and legitimate inheritors of Anglo culture. As we negotiate our relationships with the dominant culture, we become part of the stream that defines it. As DuBois (1989) said in Souls of Black Folk: I sit with Shakespeare and he winces not. Across the color line I move arm in arm with Balzac and Dumas. . . . I summon Aristotle and Aurelius and what soul I will, and they come all graciously with no scorn nor condescension. (p. 76)

In the same way, I have said that we must refuse to become the stereotype by assimilating to the roles that Anglo culture defines for black (and Latino/a) people. However, we must at the same time acknowledge and embrace our status by birth, by culture, and by language as a part of the great stream of the African diaspora; and so our intimate relationship to the African diaspora communities of the United States. Finally, of course, we must weave these elements into an identity that is also a recognizable part of the Latino/a cultural stream. There is no one right way to live out a racial identity that is at once continuous with three distinct racialized streams. Nor is the prospect an easy one. Each of us must live out the challenge of weaving together multiple strands of identity in a world that always tries either to unravel them or to dye them all a single color. This is the site of the struggle and creative tension that Anzaldua (1987) describes so powerfully in Borderlands/La Frontera. Yet by living in this way, we embody a rejection of the idea of racial identities as mutually exclusive. By openly living out several racial identities at once, we can perhaps transform the character of each, so that black and white will no longer be mutually exclusive, polarized identities. Elements of Successful Resistance

Perhaps this will sound less utopian if I close with some very brief remarks about the conditions required for successful resistance to assimilation in all its forms, with particular attention to the risks of commodification. First, successful resistance to assimilation in all its forms requires recognizing the true nature of the conflict that defines our lives as nuevos mestizos. Our case is not the same as that of the Armenian refugees settling in early 20th-century Persia, for example, or the enslaved Yoruba brought to the Dahomey court in the early 19th century. The power of American mass culture to shape our understanding of ourselves, and thus our understanding of the cultures that we brought with us, is perhaps unequalled in human history. Bilingual education, Spanish-language newspapers, and our own foods will not suffice—although they may be necessary—to create a space in which we can nurture a genuinely new mestizo culture. We must also find ways to subvert mass culture or at least to shatter the flickering glamour it casts over us. Second, given the nature of the conflict, the constant renewal of strong, positively valenced, personal and emotional attachments to our home culture is essential. After all, if it is through the depth of our positive emotional attachments that we children and grandchildren of immigrants acquired our commitments to the home culture, then it is surely through nurturing and expanding these attachments that we can strengthen and renew them. It is for this reason that to “forget where we came from” is the surest path toward assimilation in some form and thus toward being co-opted by bipolar ideology rather than resisting it. Moreover, if our resistance is to have a real impact on the racist ideology that is America’s own bipolar disorder, then we Latinos/as must also prize, valorize, and constantly renew strong personal and emotional attachments to African American communities. If we allow the pressure to become white to divide us from our African American kin, we will have come here only to repeat the betrayals of our own past. Race ideology in America can only be destroyed if Latino/as and others like us confront directly the question of whether to leave African American people behind in our struggles to define who we are. Third, successful resistance requires finding ways to sustain endlessly creative responses to the endlessly creative lust of mass culture for commodification. There is no element of any home culture, however sacred or intimate, that cannot be commodified. This means that whenever some element of our home culture calls attention to itself, for instance by being wielded as an instrument of resistance, it is immediately in danger of commodification. This is one disturbing aspect of the increasingly widespread use of traditional images of la Virgen de Guadalupe as objets d’art (e.g., alongside pastel colors and Georgia O’Keefe prints in mass-marketed southwestern home fashion). Successful resistance requires constant, vigilant reinvention of the symbols of resistance, in the present example, for instance, through the kinds of creative reworkings of the image of la Virgencita found in the work of many contemporary Chicana/o artists. Finally, just as our resistance to assimilation and the racial ideology that informs it requires a new understanding of the fluidity of race, so also it requires a more subtle understanding of culture. To regard the changes in our traditions that are fomented by mass culture as a loss of authenticity is to misunderstand the nature of culture. There is no single form or morph of our culture that can claim to be more truly and essentially Latino/a than any other. Cultures are constantly altered by their interactions with each other. Indeed, to all outward

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appearances, a culture sometimes disappears entirely, continuing only as a current beneath the surface, like the great westerly streams in the Atlantic that brought Columbus across the Ocean Sea from the coasts of Africa to the new world of the Caribbean. The prospect of our cultures being swallowed up by a mass culture that engulfs us from every side is indeed a horrifying one. However, the horror is not that the result would be something ersatz, a mere simulacrum that is somehow less truly Latino/a than what preceded it. Instead, what makes the prospect of being engulfed by mass culture so disturbing is the threat it represents to the autonomy of our culture. Cultural change has always been proceeded by the endless elaboration of creative, individual responses to and interpretations of what has gone before. The evil of mass culture is that it straitjackets this creativity and dulls our individuality. This is what I meant by saying that our assimilation in any form would leave Latino/as in America only a zombie culture. It is precisely the fear that Latino/a/a culture will continue, its soul replaced by the animus of a dead racial ideology, that should mobilize our greatest and most noble efforts. The most beautiful word in the American language is Resist.

(Tyler, 1994) References Anzaldua, G. (1987). Borderlands/La Frontera: The new mestiza. San Francisco: Spinster/Aunt Lute Books. Ball, E. (1998). Slaves in the family. New York: Farrar, Strauss, & Giroux. Beltran, G. A. (1948–1949). Los Negros en Mexico [Blacks in Mexico]. Retrieved August 8, 2002, from www. folklorico.com/peoples/negros.html Burton, R. D. E. (1997). Afro-Creole: Power, opposition and play in the Caribbean. Ithaca, NY: Cornell University Press. DuBois, W. E. B. (1989). Of the training of black men. In W. E. B. DuBois (Ed.), Souls of black folk (p. 76). New York: Bantam Books. Esteva-Fabregat, C. (1995). Mestizaje in Ibero-America. Tucson: University of Arizona Press. Gordon-Reed, A. (1998). Thomas Jefferson and Sally Hemings: An American controversy. Charlottesville: University Press of Virginia. Hudlin, R. (Director). (1996). The great white hope. Los Angeles: Twentieth-Century Fox. Ignatiev, N. (1996). How the Irish became white. London: Routledge. McDonald, A. (1996). Turner diaries: A novel. Fort Lee, NJ: Barricade Books. Morales, A. L. (1990). Getting borne alive. Milford, CT: Firebrand Books. National Advisory Commission on Civil Disorders. (1968). Report of the National Advisory Commission on Civil Disorders. New York: Bantam Books. O’Brien, C. C. (1996). Thomas Jefferson: Radical and racist. Atlantic Monthly, 278, 53–74. Omi, M., & Winant, H. (1986). Racial formation in the United States: From the 1960s to the 1980s. New York: Routledge. Piper, A. M. S. (1992). Passing for white, passing for black. Transition, 58, 4–32. Rich, A. (1986). Split at the root: An essay on Jewish identity. In A. Rich (Ed.), Blood, bread, and poetry (pp. 100–123). New York: W. W. Norton. Rodriguez, R. (1983). Hunger of memory: The education of Richard Rodriguez. New York: Bantam Books. Rodriguez, R. (1992). Days of obligation: An argument with my Mexican father. New York: Penguin Books. Schwarz, B. (1997). What Jefferson helps to explain. Atlantic Monthly, 279, 60–72. Tyler, M. (1994). The most beautiful word in the American language. In M. Algarin & B. Holman (Eds.), Aloud! Voices from the Nuyorican Poets’ Cafe. New York: Owlet Books. Velazco y Trianosky, G. (2002). Radical race: Redefining our conception of race. Unpublished manuscript, available from the author.

Race and Ethnicity An Introduction to the Moral Issues

An Introduction to the Moral Issues 239 Defining Race and Ethnicity 240 The Facts of Racism 241 “Racism” as Both Descriptive and Evaluative 241 Government-Sanctioned Racism 241 Institutional Racism 242 Racism and Economic Inequalities 242 Compensatory Programs 242 Ideals of the Place of Race and Ethnicity in Society 244 Separatist Models 244 Assimilationist Models 244 Pluralistic Models 245 Moving from the Actual to the Ideal 245 Equal Rights Approaches 246 Affirmative Action Programs 246 Four Senses of Affirmative Action 246 Affirmative Action, Justice as Fairness, and Rawls’s “Difference Principle” Affirmative Action in College Admissions 247 Special Protection Programs 248 Hate Speech 248 Market-Based Approaches 249 The Libertarian Approach 249 Taxation and the Redistribution of Wealth 249 The Liberal Approach 250 Common Ground 250

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An Introduction to the Moral Issues The issues of racial and ethnic identity have always been central to American society, yet at the same time our American identity as a “melting pot” has in part been forged on the basis of denying this as the principal basis of our identity.

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Recall our fivefold structure for analyzing these issues: the current state of affairs, the minimally acceptable state, the ideal, and the means for going from the present situation to the morally minimum condition, and from there to the ideal. We begin by considering the facts concerning race in American society, turn to a consideration of the various ideals, and then discuss which means offer the most hope of moving us from actual situation to the minimally acceptable condition and, from there, to the ideal. But first, a few words about a basic distinction. Let’s begin by defining what we mean by “race” and “ethnicity,” and then turn to a quick survey of some of the empirical issues relating to racial differences in the United States.

Defining Race and Ethnicity

At first glance, the concept of race seems unproblematic. It’s so easy that it seems just black and white. Well, black and white and . . .? You start to see the problem immediately. The concepts of black and white anchor our everyday understanding of race, but they are certainly not exhaustive. We have to add at least one more category, perhaps two, to cover those of Asian descent and Pacific Islanders. In these cases, color words won’t necessarily do the job, although we sometimes use them. And we use other color words as well. Black, white, and . . . brown? To denote Hispanics in the United States? Well, this turns out to be controversial, since Hispanic is not a race. In earlier versions of the United States census, Hispanics were directed to check “white” for their race, then “other” for their ethnicity. Many, but certainly not all, Hispanics objected, maintaining that Hispanic should be a race as well. Of course, when we think about it, we realize the matter is more complex. What does it mean to be “Hispanic?” Many, but certainly not all, Hispanics are Spanish-speaking, and this reflects two historical facts: the Spaniards were the dominant conquerors in the American Southwest and Mexico, and Spanish is the language of those conquerors. Second, Hispanic often, especially in the Southwest, refers to people who come from Mexico. But of course this too is more complicated than it may first appear. Many of those who come from Mexico are indigenous, the Mexican counterpart of American Indians in the United States. Indeed, for many “Hispanics” from Mexico and Central America, Spanish is their second language, after their indigenous, tribal language. Thus for those who emigrate to the United States, English is often their third language. Race, it turns out, is a bit more complex than it appears on the surface. You might be tempted at this point to throw up your hands in despair, feeling hopeless about the possibility of an answer and perhaps wondering if it makes any difference anyway. Let me first comment on the ways in which it makes a difference. People understand themselves, construct their identity, in part through their concept of race. That concept helps to define who they are and, sometimes equally importantly, who they are not. Traces of the “who they are not” issue emerge continually in discussions of race, especially where one group wants to prove their purity, to establish their identity in opposition to some other racial group. This was evident in Nazi Germany, where the definition of the Aryan increasingly depended on the exclusion of Jews. First rejecting people who were half Jewish, the Nazis gradually upped the ante, stigmatizing those who were one quarter Jewish, one-eighth, and finally anyone who seemed to have a single drop of Jewish blood. A similar dynamic played itself at times in the United States, where whiteness was defined as the exclusion of blackness and even a drop of black blood threatened to undermine white identity. Often this is much more than a question of self-understanding: money, votes, and land may depend on  it. In the United States, neighborhoods were segregated by race, and it was imperative to know if a new arrival was of the correct race or not. Throughout the world, political power is often dependent on racial categories. Although distinct concepts, race and ethnicity are obviously related to one another, scientists generally see race as a physical characteristic. Some recognize the existence of three or four major racial groups: Black, White, Asian, and Pacific Islander. The U.S. Census Bureau, on the other hand, recognizes five races, adding Native Americans/Alaska Natives to this group and expanding Pacific Islanders to explicitly include Native Hawaiians. The question about Hispanic/Latino identity is asked as a separate question from the question about race. Eth-

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nicity, on the other hand, refers primarily to social and cultural forms of identification and self-identification. There are many more ethnic identities than racial ones. The English, French, Italians, Germans, and Poles all share a common race, but they consider themselves ethnically different. Several points should be noted about these concepts. First, race inevitably has a socially constituted meaning and it is at this point that the distinction between race and ethnicity is somewhat less clear-cut. Whatever race is, it isn’t just a physical characteristic. Second, although we have a clear term to denote discrimination based on race (viz., racism), we lack a corresponding term to indicate discrimination based on ethnicity. However, ethnically based discrimination (witness the atavistic conflicts of Eastern Europe) is often of the same structure as racism, and sometimes masquerades as racially based when it is actually ethnically grounded. Third, it is worth noting that, at least in the United States, we tend to think of racial categories as mutually exclusive. In forms asking about race, we are usually asked to “check one of the following: white, black, Asian, or American Indian.” However, many of us are either remotely (i.e., back at least two generations) or recently (i.e., our parents or grandparents) of mixed race. Forms that allow individuals to acknowledge the plurality of their racial and ethnic identities would not only be more accurate, but also less polarizing for society as a whole. One of the key changes in the 2010 Census is that it allowed individuals to check more than one race. Opponents of this change argued that it would dilute the potential power of minority races. The Facts of Racism

Racism has long been a pervasive and disturbing fact of American society. The very founding of the United States is inextricably bound up with the racism that characterized our treatment of Native Americans and, soon thereafter, with the racism that helped to make slavery possible. The legacy, and in some cases the continuing reality, of that racism is still with us today. Most Americans in their sixties and older grew up in a world where racial discrimination was still legally sanctioned. African Americans (and others as well) were legally denied access to schools, jobs, neighborhoods, churches, clubs, and the voting booth well into the middle 1960s. Although such discrimination continues to some extent today, it is no longer done under the sanction of law. “Racism” as Both Descriptive and Evaluative

The word racism is both descriptive and evaluative. As a descriptive term, it refers to certain attitudes and actions that (a) single out certain people on the basis of their racial—or, in some cases, ethnic—heritage and (b) disadvantage them in some way on this basis. (The second element, disadvantaging someone on the basis of race, has to be present or else simple categorization—such as one finds in a census—would be racist.) College admissions policies that exclude African Americans on the basis of their race would be a clear example of racism. Yet racism also has an evaluative element: it conveys a negative value judgment that racism is morally objectionable, evil. The evaluative element may refer primarily to the intention behind the practice or to the consequences of such a practice. Government-Sanctioned Racism

This distinction between intention and consequence also provides part of the foundation for a distinction between overt racism and institutional racism. Gertrude Ezorsky, for example, sees overt racist action as grounded in “the agent’s racial bias against the victim or in a willingness to oblige the racial prejudice of others” (Racism and Justice, p. 249). In the case of institutional racism, no negative value judgment is made about the agents’ intentions. Their actions might not be intended to harm a particular racial group at all, although this may be an unintended consequence. The negative value judgment is reserved primarily for the consequences of such actions and policies. It is important, both morally and politically, to distinguish between government-sanctioned racism and racism that occurs without such official endorsement. When our government enacts racist laws—such as separate schooling, housing—then it acts in our name as citizens, and it seems reasonable to argue that we as citizens are under an obligation to those who have been wronged. On the other hand, when an individual restaurant owner

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illegally discriminates against a potential patron on the basis of race, it does not seem that we as citizens are under the same kind of obligation to those who have been wronged because the restaurant owner was not acting in our names. Virtually all ethnic minorities have been subject to unfair treatment at one time or another in American history, but only a few—most notably, Native Americans, African Americans, and Japanese Americans— have been the object of governmentally sanctioned discrimination. The government would seem to have a special obligation in those cases in which groups have been wronged, not just by individuals, but by the government itself. Furthermore, we as citizens may be obligated to compensate wronged groups because such discrimination was done in our name. Institutional Racism

Some instances of racism are both blatant and individual. Imagine a scene in which an African American couple walks into a restaurant. The owner, seeing that they are black, refuses to seat them because he does not want to serve blacks in his restaurant. This kind of racism was common in the United States fifty years ago, but today is much less frequent and against the law. However, vestiges of such wrongs remain, with the shadow of racism against blacks and discrimination against indigenous people still looming over the United States. Other kinds of racism, however, are not directly the product of individual race-based intentions of discrimination. Think, for example, of the issue of racism in regard to public schooling. Many of the factors that reduce the chances that African Americans will receive an education comparable to their white counterparts are dependent on factors other than overt racism: school districts, geography, income differential between cities and suburbs, teachers’ preferences to teach in certain schools or school districts, and such. Many of these factors intensify racial inequalities, but there is no figure—comparable to the restaurant owner—who is directing the whole show in a racist manner. It is simply the way in which events unfold, given the larger context of a society in which race and socioeconomic status are closely related. Racism and Economic Inequalities

By almost all indicators of economic status—whether it be income, savings, wealth that includes real estate, whether by families or by individuals—we see that there are significant disparities between the economic status of whites and that of Hispanics, Native Americans, and African Americans. For example, median household income in 2010 for whites was approximately $52,000; for Hispanics, $38,000; for blacks, $34,000; for Asians, $65,000. We find similar disparities in regard to educational achievements across racial and ethnic lines, and the two factors seem to interact with each other, strengthening the differences and widening the gaps. What are we to make of these differences? In what ways, if any, should we be attempting to close these gaps? To what extent is a certain level of equality a matter of rights? In the United States, equality of opportunity is guaranteed, at least in theory, but there is no guarantee of equality of outcome.

Compensatory Programs How do we respond morally to the fact of racism in our society and the role that it has played in our history? More specifically, how do we respond to the wrongs that were perpetrated particularly on enslaved Africans and Native Americans tribes, wrongs that were often committed by our government and thus in our name? Native Americans were the original inhabitants of what eventually became the United States. They were often hunted down and killed, their lands were taken from them, survivors were often forcibly relocated to distant lands, strenuous efforts were made to eradicate their languages and their cultural heritage. Treaties were often broken, further punishing and disenfranchising Native Americans. To say that they were wronged would be an understatement. If we saw something like this happening elsewhere in the world today, we would want the leaders of that country tried for genocide, war crimes, and crimes against humanity. Similarly with slaves brought from Africa. They were brought to our shores against their will as slaves, forced to work against their will. The women were often raped by their owners. Their family and tribal structures

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were destroyed, their languages banished, every semblance of their previous way of life was extirpated. Again, it would be an understatement to say that they had been wronged. And once again, if we saw such behavior in another country across the world, we would condemn it as a crime against humanity. In both of these cases, we are dealing with vast wrongs committed against an entire people by our government and in our name. Do we simply say that those were difficult times but the past is past; let’s just forget about it and start anew. Such a response shows neither contrition nor compensation. Easy enough for the victor, but not so easy for the victims and their descendants, who may continue to feel the ripple effects of such massive wrongdoing. One response has been to suggest that we owe compensation to those who have been wronged. Compensatory programs, which seek to indemnify previously wronged individuals or groups, are essentially backwardlooking; they seek to determine who has been wronged in the past and to make up for it in the present and future. Here the issue of governmental sanction assumes special importance. Insofar as racist discrimination was legally required in the past, it was done in our name as citizens. Consequently, we as citizens have a debt to compensate such discrimination. We do not have the same debt in the case of illegal discriminatory acts by individuals. In those cases, racist individuals may owe a debt of compensation to those they have discriminated against, but because they did not discriminate in our name, we are not under the same compensatory debt merely as citizens. Presumably, compensatory programs are limited in scope to a repayment of the debt incurred by the wrong. There is a strong case, for example, that the United States as a whole owes a compensatory debt to many Native American tribes for the various ways in which those tribes have been mistreated by the United States government. Does the death of those who have been wronged nullify the compensatory debt? Advocates of compensation argue that it makes both moral and legal sense to compensate the descendants of those who have been wronged or the group as a whole, even if those who were originally wronged are now dead. Similarly, compensatory programs do not necessarily demand that the current recipients be in a negative condition. Consider, for example, the Japanese Americans who were wrongfully incarcerated during World War II. It is certainly possible that we might conclude that they should be compensated for the wrong imposed upon them by our government, even if they have subsequently achieved economic success. This is little different, some would argue, from repaying a debt: the obligation to repay is not diminished by the fact that the person to whom the debt is owed has just won the lottery. It is important to realize the morally symbolic value of such programs, which is often as important as any monetary value. When we commit ourselves as a country to compensate those who have been wronged by us as a country—the case of the indemnification of Japanese Americans interned in detention camps is an example of this—we are acknowledging our guilt as a country and stating our willingness to rectify the harm that we have caused. There is, as it were, a balancing of the public moral ledger that is often important in the process of moral reconciliation. When those who have been harmed feel that the perpetrators (a) genuinely recognize that they have done wrong and (b) are genuinely trying to make up for the actual harm they caused, then it becomes much easier for the victims to put the wrong behind them and heal the moral rift between themselves and the perpetrators. The underlying question here is one that is seldom asked: what would it take to be able to stamp “paid” once and for all on these debts? That is, when will compensation be enough? When would the wrong that had been perpetrated be eradicated, the stain washed clean? This is the pivotal question, yet so rarely asked. Its answer should then guide everything else, the gradual steps toward reconciliation and healing. Although the monetary component in any kind of compensatory program is important, the more important elements may relate to the American people themselves. We must, as a nation, admit that we have done wrong, profoundly wrong, in both of these cases. That admission provides the firm cornerstone on which a new society of equals can be built, but without that admission—almost a face-to-face admission—we can never achieve closure on this issue. Such compensatory programs are different, at least in their moral logic, from future-oriented programs— whether equal rights approaches or affirmative action programs—that seek to create some future goal of equality. Similarly, because compensatory programs are essentially backward-looking, differing ideals of the place of race and ethnicity in society are irrelevant to them. In future-oriented programs, on the other hand, the ideals

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we are striving to realize are of paramount importance. Let us now turn to a consideration of such future-oriented programs, beginning first with a consideration of the ideals that they may be striving to implement.

Ideals of the Place of Race and Ethnicity in Society What, precisely, is our ideal in regard to the place of race and ethnicity in our society? Several possible models suggest themselves, ranging from strongly separatist models to highly assimilationist ones. The ideal to which we are committed will have important implications for the means we choose for eradicating racism. Let’s briefly consider each type of ideal. Separatist Models

Despite claims about being a “melting pot,” the United States has a long history of racial—and, often, ethnic— separatism. Sometimes separatism is imposed from outside the group and sometimes it comes from within and even religious. Racial separatism was often imposed in laws against Native Americans, African Americans, and (during World War II) Japanese and Japanese Americans. The intent of such legislation was both to keep the races separate and to maintain the supremacy of the white race in particular. Separatism has often been a comparatively attractive option for small groups whose culture would easily be obliterated by the larger culture of the society if it were not protected in some way. Some Native American tribes (e.g., members of the Acoma Pueblo) have chosen to maintain a largely separate life, sheltered from the intrusions of outsiders, as a way of preserving their own identity. Separatist groups may be constituted along strictly ethnic lines—the major eastern cities of the United States often contained numerous ethnic neighborhoods in which residents could easily go about their day-to-day affairs without having to know English—and sometimes on the basis of religious commitments. The Amish and the Mennonites, for example, have long been committed to a largely separatist view of their place in American society as a whole, and many major religions exhibit a separatist current in monasteries, cloistered convents, and the like. Similarly, some utopian communities have preferred a separatist model of their place in society. Typically, most of these groups ask little from the larger world around them except to be left alone. Clearly, there is no moral justification for imposing separatism on others and such attempts are almost always conjoined with either overt or covert beliefs in the racial supremacy of those in control. Self-imposed separatism is a morally more ambiguous matter and key to its evaluation are the questions of what the proponents of separatism propose to preserve and why they want to preserve it. Moreover, we must recognize that separatism is usually a matter of degree. Only a few are at the far extreme of not wanting to share anything— language, products, and transportation—with the surrounding society. The strongest argument in support of self-imposed racial or ethnic separatism is what we can call the identity argument. It maintains that a firm sense of one’s race and ethnicity is a necessary component of one’s identity as a person and that this sense of racial and ethnic identity can be preserved only through separatism. These issues are often discussed under the heading of “the politics of identity” or “the politics of recognition” and this has been a principal concern for many racial and ethnic groups that fear their identities will be lost through immersion in the larger society. Critics of such separatist models maintain that, although some degree of separatism may be workable, strongly separatist models threaten to undermine the sense in which we have a national identity at all. Moreover, some argue that some separatists are inconsistent: they want both to be left alone by the larger society and at the same time be provided with the benefits of that larger society. Assimilationist Models

The “melting pot” metaphor of American society suggests a model of American society that is primarily assimilationist. Differences are largely obliterated, melted down, and the result is a homogeneous nation of citizens whose primary identity is as American citizens, although they may retain a secondary and peripheral identity tied

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to their country of origin. Indeed, this seems to have occurred with most immigrant groups from western and eastern Europe. Many whose ethnic background is European identify themselves primarily as American and only secondarily—and sometimes not at all—in terms of their ethnic European background. Traditional liberalism in the United States has been strongly committed to an assimilationist model, at least within the political realm. The tension between separatist and assimilationist models comes out in various areas of daily life and public policy. For example, one of the principal issues in publicly funded education is whether it should seek to encourage such assimilation or whether it should seek to encourage the preservation and development of racial and ethnic identity. This is particularly an issue in regard to the preservation of Native American tribal identities, which in earlier times the schools had actively attempted to obliterate. Pluralistic Models

Somewhere between these two extremes is a middle ground that both respects diversity and at the same time tries to establish the minimal conditions necessary to a common life—a shared political life even if not a shared community. The principal thrust of a pluralistic model is to suggest, first, that there are certain minimal conditions necessary to the establishment of a common life; second, that specific groups may maintain a partially separate identity without negating that common life; and, third, that the identity of any given individual is constituted through both participation in the common life and through identification with any number of specific groups. Pluralists do not even need to posit that different groups in society exhibit some fundamental agreement with one another. Consider an analogous issue: pacifism. I am not a pacifist. I do not believe that all killing of human beings is wrong, but I am glad that I live in a society in which some people are pacifists. Their presence reminds me of a truth, albeit a partial truth, that human life is of inestimable importance and ought not to be destroyed if that can be avoided. On the other hand, I am glad that I do not live in a society in which everyone is a pacifist. Not only would I feel morally lonely in such a world, but I would fear that it would lack the resilience to defend itself in the face of aggressive evil if faced with such a challenge. The tension between pacifists and nonpacifists is a good thing for our society as a whole and for each of us as individuals, and our lives would be diminished if we did not have one of these two opposing groups. Nor are these opposing groups without common ground. They both respect life—or, at least, most of both groups do most of the time. No one advocates indiscriminate killing and those who defend killing at all usually do so through an appeal to some core values, including the value of innocent life (which can be preserved through self-defense or whose loss can be avenged through capital punishment). So, too, with racial and ethnic pluralism. Our world is richer for the diversity of our traditions, and there is no need to make everyone be like us. Indeed, I can feel that our world is a better place precisely because there are people who are not like me. The diversity of racial and ethnic traditions is a source of richness for the society as a whole, providing a wealth of possibilities far beyond the scope of any single ethnic tradition. That wealth of possibilities becomes especially important whenever we need help and whenever we run out of possibilities dealing with a specific issue, for we can then turn to the wisdom of other ethnic traditions to discover new and potentially better ways of dealing with that issue. Finally, we should note that pluralism is multidimensional in the following sense. Pluralists would typically not only favor a diversity of ethnic traditions, but would also maintain that we as individuals are members of a wide range of communities, many of which may have little or nothing to do with race and ethnicity. There are many lines of affiliation in which ethnicity plays no role: computer hackers, smokers, people who hate to fly. Pluralists typically see a plurality of identities within the individual, not just within society as a whole.

Moving from the Actual to the Ideal Let’s imagine, simply for the sake of discussion, that we have general agreement about our actual situation and about the ideal condition toward which we are striving. The question that then presents itself is how we are to move from one to the other. In general, we can distinguish several kinds of approaches. First, equal rights

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approaches seek to ensure that previously discriminated against groups are henceforth treated in a scrupulously fair manner. Such approaches seek to eliminate discrimination in the future, but are often unable to significantly reduce the cumulative and continuing effects of past patterns of discrimination. Second, affirmative action approaches attempt to provide some kind of special support, consideration, or advantage to groups that have previously been discriminated against. These have the advantage of seeking to undo the residual effects of past discrimination, but they run the risk of being viewed as further discrimination. Next, special protection approaches provide selected groups with stronger-than-usual protection of the law in specific areas relating to their identity as a group. Regulations banning hate speech, for example, give extra protection of law to certain groups. Such approaches stand midway between equal rights approaches and affirmative action approaches, providing more than extra protection but less than affirmative action in protection of certain groups. Finally, market-based approaches maintain that the only reliable way to achieve long-term change is through the mechanisms of the free market. Let’s examine each of these approaches. Equal Rights Approaches

Since Brown v. Board of Education in 1954, the United States has increasingly committed itself to equal rights for all citizens, regardless of race. The Civil Rights Act of 1964 extended and deepened this commitment, and there are few today who would argue publicly that some citizens ought to be denied their civil rights on the basis of race or discriminated against because of race. Such a commitment was implicit in our Constitution and is increasingly central to our identity as a nation. It is important to note, however, that there is often a huge gulf between commitment to the general principle of equal rights and commitment to the specific means of ensuring such equality. This is particularly the case where there are existing, often deeply ingrained patterns of discrimination. To what extent does the government take an active role in (a) discouraging such attitudes of discrimination and (b) punishing acts of discrimination? Consider, for example, the issue of discrimination in housing. Is the cause of equal rights in this area adequately served by simply passing a law forbidding such discrimination? Should special enforcement agencies be established? Affirmative Action Programs

One of the key ways that the United States has attempted to correct the wrongs of the past and to build a more equal future society has been through affirmative action programs. Let’s turn now to an examination of these programs.

Four Senses of Affirmative Action Affirmative action is a notoriously slippery term, and it is important to define precisely what we mean when we use it. There are several possible senses of the term. If we consider it just within the context of hiring potential employees, we can distinguish four senses, two of which are weak, the other two of which are strong. Weak senses of affirmative action:

1. Encouraging the largest possible number of minority applications in the applicant pool, and then choosing the best candidates regardless of gender, race, and so on. 2. When the two best candidates are equally qualified and one is a minority candidate, choosing the minority candidate. Strong senses of affirmative action: 3. From a group of candidates, all of whom are qualified, choosing the minority candidate over betterqualified nonminority ones. 4. Choosing an unqualified minority candidate over a qualified nonminority one. The third and fourth alternatives involve choosing a minority candidate over a better-qualified non-minority one. Almost no one advocates the fourth alternative, although critics sometimes claim that support for the third

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alternative leads, in practice, to the fourth one. Many are willing to support the third alternative. Proponents of affirmative action often argue that the first two types of affirmative action, although commendable, are often insufficient to break the cycle of past discrimination and that a more active program—that is, the third type of program—is necessary if affirmative action is to achieve its goal. The weak senses of affirmative action are compatible with choosing the best-qualified candidate; they do not require picking a less qualified candidate over the more qualified ones. In this sense, they are compatible in principle with a principle of meritocracy that requires that selections be made on the basis of merit, and this principle in turn is grounded in a notion of justice as fairness. Supporters of the third sense of affirmative action deploy several arguments, including a critique of both the theory and the practice of meritocracy. We are not, they maintain, morally obligated to give a job (for example) to the most qualified candidate. Indeed, if we reflect on our own experience, many of us will realize that we got jobs for which we were not necessarily the best-qualified candidate. We might get a summer job, for example, through a friend working at the same place, through parents who know the owner, etc. None of this offends our sense of justice.

Affirmative Action, Justice as Fairness, and Rawls’s “Difference Principle” Some defenses of affirmative action make use of what John Rawls called the “difference principle.” In his A Theory of Justice, Rawls argues that certain kinds of inequalities are morally permissible if they benefit the least privileged in society, the most disadvantaged. Indeed, the very idea of a graduated income tax provides us with an example of this principle in operation: people pay taxes at uneven rates, with (in theory) the wealthier paying more (in both percentage as well as absolute dollars) than the poor. As one moves up the economic ladder, one pays an ever-increasing rate of taxes. The inequality, a Rawlsian would argue, is justified because that money (and the resources it provides) is then funneled back to the poor in ways that can assist them in bettering their own position. The temporary inequality, in other words, is justified as a means of reducing the overall amount of inequality and bringing the poorest in society up to a better economic level. A Rawlsian would not, however, find a justification for taxing the rich less than the poor, for such unequal treatment is not justified in reducing the income gap between rich and poor. So, too, in regard to affirmative action. The differential treatment—according some kind of advantage either to the poor or to racial groups that have been harmed by discrimination—is justified by the difference principle because it is done for the sake of overcoming overall inequality. Critics of this type of argument often advance three possible lines of argument. First, they argue a deontological case that the rules of fairness are violated. We cannot, they argue, be unfair because it will ultimately lead to greater fairness at a later date. Second, they argue that it is stigmatizing, that is, the beneficiaries of affirmative action programs are viewed by others as second-class citizens, as having their position on the basis of their race rather than their qualifications. (Supreme Court Justice Clarence Thomas has made this argument on several occasions.) Third, they argue that much of the discrimination took place generations ago, and the people who would be harmed today—by being passed over in favor of a minority candidate—are not the ones who committed the wrong in the first place. To harm them for something done by their ancestors is, so this reply goes, patently unfair.

Affirmative Action in College Admissions Supporters of strong affirmative action also criticize the standard notion of “best qualified.” It is, they argue, a construct, a comparatively recent invention that is far less impartial and precise than it appears at first glance. Consider college admissions. For well over a century, college admissions were often governed by the “old boys’ network.” Preference was openly given to sons (rarely daughters) of alums and to those who were part of an informal social, economic, and political elite. The introduction of national standardized testing was a conscious attempt to set aside the ways of the past, ways grounded in a life of privilege, and open the doors of colleges to all who possessed the ability to benefit from the experience and to select applicants on the basis of merit and academic potential rather than social and political connections. Although this approach is certainly compatible

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with a conception of justice as fairness, it was often embraced at the national level because it promised overall to provide a much better qualified workforce, something that the United States needed for economic growth. The justification, in other words, was primarily utilitarian, not deontological. Although these programs did succeed in opening the doors of academia to students whose knocks previously went unheard, they did not exactly solve the problem. Children of privilege—a shorthand term that I will use here to denote those that come from families with economic, social, and political standing—were quickly trained to meet the new standards, and their privileges often allowed them to score higher than their lessprivileged counterparts. Private schools with much smaller class size and more qualified teachers and a curriculum explicitly oriented toward college admissions, tutors, extensive travel, and internships with top-flight corporations were but a few of the privileges that allowed some students to excel over others of comparable initial ability. Critics of meritocracy further argue that the notion of “best qualified” is vague at best, and is often manipulated in ways that favor the privileged. The elasticity of this notion is evident in the ways in which some of our nation’s most prestigious college and universities seek to “shape” their incoming freshman class in ways that balance a variety of factors, including—but not limited to—factors of gender, ethnicity, and race. They may look for a balance between students interested in the sciences and those who are passionate about the arts. They may seek a geographical distribution, not only regionally in the United States, but also a balance between urban and rural applicant pools. They may seek a smattering of international students. They may want to insure that a number of their new students are talented athletes. Some colleges may value fluency in more than one language. In other words, admissions directors, working with deans and college presidents, shape an incoming class on the basis of a vision of institutional identity. Merit may be a necessary condition of admission, but is rarely sufficient. Special Protection Programs

In recent years, some attempts have been made to provide special protection to particular groups on the basis of race. Such programs do not qualify as affirmative action programs, but they clearly go beyond simple equal rights guarantees. Consider the example of hate speech laws.

Hate Speech Another area in which attempts at special protection have been made is hate speech. Advocates of such protection maintain that racist speech is often deeply damaging to minorities and that the government ought to provide special protection to them against such speech. This special protection has been criticized on three grounds. First, it severely limits the right of free speech, which has a very strong constitutional foundation in the United States. In the eyes of the critics of such restrictions, it is not clear that the possible benefits outweigh the accompanying loss of freedom. Second, such restrictions are usually framed in such a way as to protect minorities in particular from such speech, but in the interests of equality shouldn’t such protection be extended to all races and ethnicities? Yet in the past when they have existed, hate speech laws have typically been used to oppress racial minorities rather than protect them. Finally, there is a disturbingly large element of vagueness in such legislation. Precisely what counts as “hate speech” and what doesn’t? Interestingly, with its strong constitutional guarantee of freedom of speech that has been present since our nation’s founding, the United States stands in sharp contrast to many of its European counterparts in regard to the issue of hate speech. European laws restricting hate speech are much stronger. This has presented a challenge to search engine companies such as Google, who must tailor their results to conform to the censorship laws of particular countries. For example, a Google search for the word “Jew” in the United States typically returns several anti-Semitic websites on the first page of results. Not so in Europe. A search for the term “Juif ” on the French version of Google, which is Google.fr, has anti-Semitic sites screened out. Similarly for “Jude” on Google. de, the German site. This illustrates the increasing global dimension of these issues, issues that often have deep local roots but quickly stretch across borders. Legal attempts to curb hate speech also at times give rise to bizarre results. England, for example, has strong hate speech laws in regard to anti-Semitism. This has played itself out in an unusual way in regard to anti-Semitism and the denial of the Holocaust. The denial of the Holocaust is not, in itself, a crime in the U.K., and in a famous

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2008 case, the British government refused to extradite a Holocaust denier to Germany, where he was wanted for his denial of the Holocaust. The British court refused to extradite on the basis that this was not a crime in England, and thus the government could not cooperate by granting the extradition request. The contours of hate speech prohibitions in Europe and in the United States are quite different, not only because of the difference in constitutional guarantees of free speech, but also because of different national experience. Most hate speech legislation in Europe grew out of the post-World War II era, the Nuremberg war crimes trials and generally the experience of anti-Semitism. In the United States, the principal focus of debate was racist speech against African Americans. Market-Based Approaches

In the United States, we have seen a steadily growing mistrust of government and a steadily declining belief that government is able to solve society’s problems of inequality—or, for that matter, almost any problem at all, with the possible exception of criminal justice enforcement. This has been coupled with a growing belief that private enterprise and the free market are capable of solving these problems. Government, these critics argue, is bloated and inefficient; the free market, on the other hand, is immediately responsive to the pressures of supply and demand and is able—and motivated—to respond quickly to challenges in a way that government simply is not.

The Libertarian Approach This mistrust of government was summed up nicely by Ronald Reagan (in words quoted earlier) when he was President. “Government,” Reagan said, “is not the solution to our problems—it is the problem.” In other words, in the face of racial and ethnic and economic inequalities, we should not turn to government to provide the solutions to our problems. It is too weighted down by bureaucracy, too cumbersome and slow moving to be an effective agent of change in today’s society. The best thing that government can do, according to this position, is to get out of the way—and in the process, let people do what they do best: build a better world. The strongest representative of this position is the libertarian political tradition, which maintains that less government is better government. Indeed, it goes much further than this, arguing that the state should be minimized to those few, core functions—such as national defense—that require a national government, and all else should be eliminated.

Taxation and the Redistribution of Wealth The libertarian tradition is particularly critical of taxation as a means of redistributing wealth, and the contrast between libertarian models and traditional liberal models on this issue has profound implications for how we are going to respond to growing economic inequalities in the coming decades. Let’s look more closely at this. The libertarian model seeks, first of all, to strip government down to its bare essentials. National defense, for example, is one of those essentials that most libertarians consider a proper function of government. It is not something that can be done properly by individual states or by private business. Certain other things, such as the interstate highway system, may properly be national concerns best sustained by federal dollars. At one time, the mail was probably in this category, since the economic growth of the nation as a whole depended on communication, and private enterprise was not able to provide the range of services to the country as a whole that the postal service offered. In particular, it offered services to all, not just to the most profitable customers who were clustered together in urban centers. Today, however, it is far from clear—at least from a libertarian perspective— that this function cannot be handled with equal efficiency by private enterprise. One of the crucial questions about racial and ethnic inequalities, however, is whether the proper way to reduce these inequalities is through government or through the free market. This is both a moral and an empirical question. The empirical side of the question is simple to state, difficult to answer: does the free market overall reduce race-related inequalities or make them worse? The moral question is different: are such inequalities morally objectionable? If they are, then we need a clear answer to the empirical question in order to decide how best to reduce them.

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The Liberal Approach Classical liberalism in the United States sees the market as one of the ways in which injustices can be remedy, but it is much more likely to see the market as the source of injustices than as the solution to them. Most liberals today recognize that the answer to these large-scale moral problems in society must have a component that involves the market, but rarely do they see this as the sole answer to these problems. Liberals, for example, see inequalities in health care, as being the result of the “free market,” a market that seems to allow big pharmaceutical companies to maximize profit at the expense of ordinary citizens. So, too, in regard to racial inequalities, both in terms of economics and of education. In the case of economic inequalities, the liberal conception of the role of government is to see government as the agent of change, intervening in ways to help reduce the gap between the rich and the poor. Although the government is not a substitute for the market, in this view it deeply regulates the market, preventing it from excesses that would widen the income gap. The situation in regard to education is somewhat different, for here the government does play a more active role, even though the principal responsibility for education rests at the state and local levels. Government programs, stretching from Head Start to No Child Left Behind, are all instances of some kind of active intervention in the processes and institutions of education in order to bring about a lessening of both the gap between rich and poor and the gaps existing among the races in the United States. Common Ground

The elimination, or at least reduction, of inequalities caused by racial and ethnic discrimination is a complex matter, and here we find, even among people of good will who are committed to eradicating the legacy of racism in our society, there is deep disagreement about how this can best be accomplished. Certain programs, most notably strong affirmative action programs, have elicited great controversy and resentment. If there is a common ground here, it is probably to be found in searching for other means that promote the same goal with fewer liabilities.

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The Arguments Howard McGary

“Achieving Democratic Equality: Forgiveness, Reconciliation, and Reparations” About the Author: Howard McGary is a Professor of Philosophy at Rutgers University, where his current research centers around critique of liberal theories of distributive justice and an examination of the alleged connection between racial identification and moral and political theories. His books include Race and Social Justice (Blackwell, 1999) and an anthology Reparations for African Americans (forthcoming from Rowman and Littlefield). About the Article: In this article, McGary begins by providing an account of reparations in general, and then discusses the reasons why some African Americans believe they are entitled to reparations from the U.S. government. He argues that this claim of African Americans is plausible and, furthermore, that reparations might serve to heal the breech that is perceived by many African Americans to exist between themselves and their government.

Howard McGary, “Achieving Democratic Equality: Forgiveness, Reconciliation, and Reparations,” The Journal of Ethics 7: 93–113, 2003. © 2003 Kluwer. Used with permission.

As You Read, Consider This: 1. What does McGary mean by the assimilationist-separatist debate? 2. McGary distinguishes between the material and the psychological dimensions of reparations. Which does he think is more important? Why? 3. Why does McGary maintain that forgiveness is important for African Americans? For society as a whole? 4. According to McGary, what must wrongdoers do before genuine forgiveness and reconciliation are possible?

n Achieving Our Country: Leftist Thought in Twentieth Century America,1 Richard Rorty explores two passages from James Baldwin’s The Fire Next Time.2 One of the passages deals with the subject that is the title of Rorty’s book and the other addresses forgiveness:

I

This is the crime of which I accuse my country and my country men, and for which I nor time nor history will ever forgive them, that they have destroyed and are destroying hundreds and thousands of lives and do not know it and do not want to know it.3 If we—and now I mean the relatively conscious whites and the relatively conscious blacks, who must, like lovers, insist on, or create, the consciousness of the others—do not falter in our duty now, we may be able, the handful that we are, to end the racial nightmare. And achieve our country, and change the history of the world.4 Rorty uses Baldwin to raise two questions that have been a fundamental part of African American thought: Should African Americans forget and forgive the horrible legacy of Slavery and Jim Crow and affirm their U.S. citizenship? Or should they treat the U.S. as a false ideal that will never achieve its promise? Baldwin, of course, sides with people like Frederick Douglass5 and Martin Luther King Jr.6 who believed that the U.S. should be treated as an ideal in progress that can help us transform the present to a morally preferable future. Baldwin was optimistic about the possibility of achieving the U.S. ideal even though he believed that certain parts of U.S. history were unforgivable. The issue that Baldwin and Rorty worry about can be recast in terms of the assimilationist vs. the separatist debates in African American social and political thought. Howard Brotz7 does a good job of gathering writers on both sides of this debate. The separatists are doubtful that blacks and whites in the U.S. can work together to positively influence the consciousness of those people who would opt out of the U.S. ideal: one people, one nation. Assimilationists are more optimistic about what people of different races can achieve by cooperating with each other even against a background of a tragic history of slavery, Jim Crow, and racism. Some racial assimilationists in this group even believe that the way to achieve such cooperation is to do away with the very idea of races and move forward from this point under some version of a race-blind principle.8 However, others claim that we must still acknowledge racial identities, and the experiences that have accompanied those identities, though we should not let our painful memories prevent us from achieving a more inclusive and just U.S.9 But even some of the supporters of the assimilationist ideal are skeptical of the view that African Americans should forgive and forget their awful history. Like Baldwin they support working towards one U.S., but they reject the idea that Africans must forgive and give up their racial identities before they can engage in such a transformative effort. But before we can say whether African Americans should forgive and forget, we must have an adequate account of forgiveness. I have attempted to provide such an account in Between Slavery and Freedom: Philosophy and American Slavery.10 There I argue that the reasons for forgiving or failing to forgive are “self-pertaining” and that forgiving or refusing to forgive primarily involves the agent’s feeling about the elimination of her resentment that is caused by wrongdoing. Eliminating this resentment is often a way of getting on with one’s life and shaping a different future. On my account, it might make sense for African Americans to forgive those who have caused harmed to them individually and as a people. However, some ways of understanding forgiveness are such that in the case of certain wrongs that are so awful and far reaching that the victims should never forgive the wrongdoers. How we decide this question has an important bearing on achieving democratic equality?

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As we shall see, there are various proposals and ways of conceptualizing how we can move from our present situation to a more democratic society. Rorty’s neo-pragmatist way of understanding this transformative effort expresses a lack of interest in the usefulness of viewing this project in terms of knowledge and truth. He rejects any philosophical basis for assessing competing claims about how to understand and achieve genuine human flourishing. His strategy is to use the pragmatist tradition as a way of assisting intellectuals in places like Central and Eastern Europe who are struggling to shape the post-totalitarian democratic institutions and public policies. Judith Green11 has applauded Rorty’s efforts at revising American pragmatism, particularly the work of John Dewey, but she criticizes him for distorting Dewey’s message. In particular, she criticizes him for his swift dismissal of multicultural education and other related diversity efforts in the U.S. for promoting understanding across racial differences. However, it is not my purpose hear to evaluate Rorty’s neo-pragmatism or Green’s criticisms of it. I mention them only to point out that even amongst philosophers who believe that working towards an inclusive democracy is a laudable goal, there is serious disagreement over how this task should be conceptualized. Any viable account of how to achieve democratic equality in the U.S. must address group domination. And, I believe, any realistic account of group domination must be holistic. It cannot be explained only by reference to the attitudes or psychologies of the dominant group. Nor can it be explained by reference to economic forces. Nor can it be explained by reference only to the political structure. Nor can it be explained by reference only to culture. It is instead to be explained by the complex interplay of all of these determinants. Nonetheless, it is clear that the political structures and processes have played an important role in any viable explanation of why certain groups are dominated. Given the horrible legacy of U.S. slavery and Jim Crow, is it realistic to think that the U.S. can eliminate the vestige of racism without adopting policies and programs that give moral and legal significance to racial identities? This question is complicated by the fact that the vestige of racism still haunts us. I wish to explore some of the difficulties that racial assimilationist encounter as they attempt to move from the present reality to one that more clearly approximates a just society for all. Andrew Hacker has documented the disparities that continue to exist between the races in U.S. society.12 But it is important to note that these disparities do not fully explain the alienation that many African Americans report, irrespective of their socioeconomic circumstances. This alienation prevents many of them from fully embracing the idea of a race-blind society.13 They believe that abandoning racial identities at this time would be to “throw the baby out with the bath water.” According to these critics, before racial identities can be judged as insignificant or irrelevant, certain things need to be addressed, and these things cannot be addressed without giving some significance to race.14 Surveys reveal that African Americans feel strongly about the following concerns: (1) settling the historical debt of justice to the descendants of slavery and (2) changing the democratic process in a way to make it more responsive to the interests of African Americans.15 But can these two concerns be addressed while at the same time keeping us on the track towards the racially assimilated society? If reparations or a public apology for slavery and its aftermath are necessary for African Americans to truly put this horrible history behind them, will a society that is still divided along racial lines be able to make such an apology? On one reading, the role of a philosopher in the controversy over an apology or reparations for U.S. slavery should be to clarify the meaning and moral status of the concepts involved in the debate. The philosopher might also show how concepts are different from, but related to each other. This is all on the conceptual or theoretical level. However, the philosopher can also clarify and examine various arguments offered for and against specific demands for reparations. It is here where the philosopher moves into applied or practical normative discourse. I will begin with an account of reparations in general and then present briefly one explanation of why many present day African Americans believe they are entitled to reparations from the U.S. Government. This explanation should not be seen as a final justification, but only as an indication why the demand for reparations for African Americans might be seen a plausible. Next, if it is reasonable to assume that reparations to African Americans are plausible, I then go on to explain why reparations might be necessary to fill the breech that is perceived to exist between many African Americans and their government. This explanation will involve an examination of the relationship between three concepts: forgiveness, reconciliation, and reparations. Then I explore why an apology or reparations for slavery and Jim Crow might be necessary for reconciliation between

many African Americans and their government. Finally, I examine the contention that the legislative process can be used to obtain an apology or reparations from the government. An important part of this examination is a fairly close reading of Lani Guinier’s proposals for making the democratic process responsive to the perceived interests of African Americans as a group.16 I close with some skeptical remarks about the efficacy of using Guinier’s proposals to obtain an apology or reparations from the U.S. Government for the injustices of slavery and Jim Crow and about the likelihood that members of the majority will see the demand for reparations as something they can endorse. I

There are three ways that such an apology or black reparations might come about: (1) by executive order (2) by judicial decision and (3) through the legislative process. Former U.S. President Bill Clinton suggested the executive order route and met with great opposition.17 And a number of groups and individuals are trying to pursue reparation claims in the courts18 and some legislators19 have endorsed legislation that would address these concerns. But to date none of these efforts have been successful. Given the importance of the legislative process, I would like to spend some time discussing Guinier’s proposal for changing this process to make it more responsive to the perceived interests of African Americans. I will not attempt to give necessary and sufficient conditions for democratic equality. However, I will assume for the sake of argument that democratic equality has not been achieved when there is the existence of permanent minorities. A permanent minority exists when the majority is in agreement on all or most of the important issues and the minority disagree with the majority. And where the consequence is that the minority is unable to achieve its important ends through the political process. I will also assume that this can occur even when the minority is not denied its political or economic rights in a de jure sense. II

But before we turn to Guinier’s proposals, I want to say a few things about how the United States as a society has come to be where it is. For a country that is hundreds of years old, African Americans secured the right to vote only a few decades ago. And this right to vote did not come about because the majority saw it simply as the right thing to do. Quite to the contrary, it came about because of a process of political struggle and turmoil in which many people sacrificed their lives to obtain the right to vote. So even though there have been legal and economic changes for the better in U.S. society, many African Americans still believe that the U.S. owes them a debt of justice for what they and their ancestors have endured. The historic and present demand for black reparations is a call for the settling of this debt. Above I claimed that many African Americans believe that they cannot fully embrace the U.S. Government until these negative feelings and rightful resentment are addressed. As the title of this article suggests, forgiveness, reconciliation, and reparations are possible ways to overcome this resentment felt by many African Americans. But do present day African Americans have to receive reparations before they can forgive and reconcile with those who they deem to be responsible for the transgressions? Is forgiveness for slavery a necessary part of a program of reconciliation? Before we answer, let us briefly review the argument for black reparations. According to the argument for black reparations, African Americans are owed reparations because some transgression has occurred. And those who have a transgressed have a moral duty to repair the results of their transgressions. Unlike a compensation argument, the reparation argument depends upon identifying the wronged party and the wrongdoer. A principle of reparation is not a principle designed to promote social utility or promote an egalitarian outcome of economic goods. It is designed to rectify violations of people’s rights. For John Locke and other liberal political theorists to deny a person’s right to reparation amounts to a refusal to recognize the full moral status of the person.20 In fact, acknowledging a duty of reparation is good evidence that one views the wronged party as a bonafide member of the moral and political communities. According to Lockeans, a political morality is rights-based and the proper role of the legitimate state is to protect rights and address rights violations. Locke did not believe that the state should use its coercive powers to promote social utility if this involved violating people’s rights. It is clear that the political morality in the U.S. is strongly influenced

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by Lockean ideas. As U.S. citizens, African Americans also have strong Lockean intuitions. So they often frame their political concerns in Lockean rights-based terms. The demand for black reparations is no exception. Very few contemporary U.S. citizens would deny that U.S. slaves deserved reparations for slavery. The debate over reparations for slavery focuses on whether present day African Americans are entitled to reparations and on whom would be obliged to settle this debt; not on whether slaves were the victims of a terrible injustice. The critics question whether it would be just and wise for the U.S. Government to use tax dollars, tax exemptions or some other means to settle a debt of justice to present day African Americans. The thoughtful and sincere criticisms of reparations for African Americans rest on the complications involved in providing a compelling case. The critics of reparations question the legitimacy of the demand because all present day African Americans are not the descendants of chattel slaves. In fact, some are fairly recent immigrants. Critics argue that the call for reparations conflates the following groups: (1) the willing perpetrators of injustice, (2) the culpable beneficiaries of injustice, (3) the non-culpable beneficiaries, and (4) the innocent bystanders. Or put in another way, all African Americans are not victims and all white Americans are not perpetrators.21 I believe that these complications can be addressed and I have tried to address them in some of my other work.22 However, in this discussion, I do not wish to take up those issues. I want to focus on why the debt of justice, if owed to African Americans, ought to have some priority. As I have claimed elsewhere, a duty of reparations has two dimensions: a material and a psychological dimension. Both are important, but I wish to explore why reparations are very important and necessary. Perhaps too much attention has been given to the material aspects of the demand for reparations. The psychological aspect of reparations may be more important. The call for reparation can be seen in part as an apology for slavery and as a way of overcoming victimization and, in the minds of some supporters, as a way moving closer to the ideal of a racially assimilated society. If putting the victimization behind one is an indispensable first step in achieving forgiveness and reconciliation, a failure to do this may cause many African Americans to sit on the fence and not fully embrace their U.S. identity because the U.S. Government has not acknowledged in an official way its role in the victimization of African American people. This is not to say that African Americans have not served their country in times of need. Clearly they have supported the country in numerous ways, and they have fought and died in defense of U.S. ideals, but, nonetheless, many have remained ambivalent about fully identifying as U.S. citizens. Many African Americans believe that they still suffer because of the legacies of U.S. slavery and Jim Crow, but they realize that we live in political climate that stigmatizes black victimization. In fact, a prevalent view is that a person who sees herself as a victim of past discrimination is someone who is unwilling to take advantage of existing opportunities. Acknowledging black victimization is often described in pejorative terms as “playing the race card,”23 or as a “victim’s mentality.”24 And playing the race card is a practice that is taken to be at odds with the U.S. ideal of judging persons by their deeds rather than their racial identities. This practice is taken to be incompatible with genuinely working to achieve a racially assimilated society. There is not a logical or practical incompatibility between acknowledging a history of racial discrimination and working hard to be successful in life. However, because of their life circumstances, people deal with discrimination and injustice in different ways. Some people are able to succeed in spite of it while others may be broken by it. But success and failure is usually not an individual achievement—it often depends upon networks and support systems. African American children who live in poverty need to know that they bear no responsibility for being born into a family that lives in a poor black community with inadequate schools and other services. Acknowledging the historical conditions that contributed to the formulation of such communities is not to coddle these children. Nor does it blind them to real opportunities. In the debate over how to remedy the effects of past racial discrimination we find two approaches: backward-looking and forward-looking justifications. Reparations are an example of the former approach. Those who are called upon to give up holdings that they presently have in their possession because they have a duty of reparations are only asked to do so because they have been wrongdoers. And those who receive these holdings

are entitled to them only because they have been wronged. Supporters of black reparations want to change the status quo, but they do so for different reasons than egalitarians or utilitarians. III

Many of the supporters of reparations believe that the only way to achieve genuine reconciliation between the races is for the U.S. Government to acknowledge its debt of justice to African Americans. And a similar acknowledgement has been an important ingredient of reconciliation programs in Australia and South Africa.25 Furthermore, they believe that there cannot be any hope for forgiveness unless this debt is acknowledged. Therefore, it is extremely difficult for those who believe this debt has not been acknowledged to fully embrace the ideal of one nation and one people. They believe that there must be some truth and reconciliation before this ideal can be made real. But why do they believe that settling a debt of reparations is necessary for this truth and reconciliation to occur? In Australia and South Africa there are active movements to bring about reconciliation between the victims of state sanctioned racial discrimination and the beneficiaries of this institutional racism. Individuals and institutions in these countries have acknowledged the wrongness and the detrimental consequences of prolonged state sanctioned racism, and their guilt either by association or participation. We find letters of apology from white Australians and white South Africans that reveal in quite moving terms the regret that they feel for not actively opposing their country’s unjust policies and practices. These letters are nice, but, clearly by themselves, they do not constitute reconciliation. And a relevant questions that is often asked is “what more is needed?” The call for more than an apology is connected to the idea that there must be truth in the expression of regret and remorse, but it must also be true that there is an accurate accounting of what actually took place. In other words, the apology must be genuine and there should be no doubt about why the apology was necessary. Since we cannot see into the hearts and minds of others, we have to rely on less direct evidence to establish that an apology is genuine or that a person is truly regretful or remorseful for past wrongdoing. So, a pertinent question is “what are these other forms of evidence?” For minor wrongs or infractions mere words may be enough, but when serious wrongdoing has occurred, speech acts are not sufficient. Why not? It is common belief that it is easy to utter words of regret or remorse, but that some non-verbal demonstration of one’s sincerity give us greater assurance that our words are genuine. Sometimes the shedding of a tear, or our facial expressions can provide further evidence of a person’s sincerity. These things are useful, but in the case of serious wrongs, they are usually not enough to convince the victim that the apology is genuine. This is especially true when there has been some unjust enrichment as a result of the wrongdoing. In such cases, relinquishing the unjust gains is a further sign of one’s sincerity. To apologize, but not to offer to return one’s unfair benefits, cast doubt on one’s sincerity. Of course, I am not maintaining that an offer to return one’s ill-gotten gains entails that a person’s apology is genuine, but it can count as evidence. However, where the victim is entitled to reparation, this may be the best available evidence that the wrongdoer’s apology is genuine. So far we have discussed what can count as reliable evidence for the sincerity of a wrongdoer’s expression of remorse. Now I would like to turn to a related, but different concern: the requirement that the wrongdoer give a truthful account of what he did and why he did it. It is important for the victims of wrongdoing to know that the perpetrators realize what they have done and how the victims have been affected by their actions. This is why convicted criminals are given the opportunity to speak after the verdict in a criminal trial. They are given the opportunity to speak in order to show that they appreciate the gravity of what they have done. Their statements can influence the judge in the sentencing process. Reparations, when they are conceived properly, involve reassessment. The reassessment requires the alleged victims to examine their victimization, the alleged wrongdoers to come to grips with what they have done, and the victims and the wrongdoers to explore their relationship with one another. In a like manner, when a wrongdoer, be it the state or some other perpetrator, shows that there is an appreciation for the consequences of their wrongdoing, this helps to make reconciliation more likely. And reconciliation requires that the wronged and the wrongdoers be able to interact as moral equals. So reconciliation requires the parties to be as fully informed as possible.

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Given that we are focusing on reconciliation between the victims of U.S. slavery and Jim Crow and their transgressors, it is proper to see the wrongs as rights violations. However, it would be a mistake to assume that all cases of forgiveness and reconciliation are rights violations. For example, I may feel especially close to a person who has been wronged through a violation of his rights and thus I may feel that I have been wronged even though my rights have not been violated. And, as a consequence, I experience anger and resentment. This may be the case in the case of slavery. I may feel wronged by the institution of slavery because my ancestors who were held as slaves had their rights violated. If this is so, present-day African Americans may correctly feel that they are warranted in having negative feelings towards the perpetrators of past injustices even though they were not personally treated in these unjust ways. Of course, it is not my contention that each and every African American will respond to the injustice of slavery in this way. Some may not harbor negative feelings like anger or resentment, but instead feel hurt or disappointed. But in either case, it seems proper to say whether it is anger or hurt feelings, the wronged party has a grievance against the wrongdoers that needs to be overcome. But why should present day African Americans who have these feelings think that they are morally justified in having them? Following Jeffrey Murphy’s26 lead, one might argue that these negative feelings are morally justified because when they occur in response to wrongdoing they are tied to a healthy self-concept. Or, put in another way, people who do not have these feelings do not have the appropriate regard for their status as moral beings. Let us begin with the latter question. If forgiveness can be seen as the overcoming of negative feelings caused by wrongdoing, one might wonder what the proper relationship should be between forgiveness and reconciliation. Remember that both Australia and South Africa instituted reconciliation commissions. These commissions define “reconciliation” as overcoming a breech in a valued relationship where a person or group has been wronged by another person or group.27 In the case of Australia and South Africa, the valued relationship that was breeched was equal citizenship. Reconciliation occurs when the valued relationship is restored. So if there is a breech between present day African Americans and their government due to slavery and Jim Crow, must African Americans forgive their government before reconciliation can occur? Is forgiveness a necessary condition of reconciliation? Uma Narayan has argued that reconciliation can occur without forgiveness.28 If she is right, then perhaps African Americans and the U.S. Government can reconcile their differences without forgiveness. But is forgiveness a necessary part of reconciliation? Here is Narayan’s argument that it is not. She claims that through a process of resignation that people can resign themselves to a situation that they once resented by adopting lower expectations. She illustrates her point with the following example: A woman and a man are in a relationship where they both agree about what is expected of them in the relationship. But unfortunately, the man is repeatedly unable to keep his end of the bargain. The woman feels anger and resentment about his failings and this leads to a breech in their relationship. But on reflection, she comes to see that she values their relationship in spite of the shortcomings, so she lowers her expectations and once again restores and values her relationship and no longer resents her partner.29 Is Narayan correct in identifying this as an example of reconciliation? If she is, then this is not a case where one has eliminated or overcome one’s resentment, but rather case where one has resigned oneself to live with it. If forgiveness is the overcoming of righteous resentment, then we have a case where reconciliation has occurred without forgiveness. A crucial part of her example and point is that resignation through lowered expectations can occur without us holding the person who engages in this type of resignation in contempt or disgust. In other words, the resignation can be seen as morally appropriate. But even if Narayan is right about this case, it does not appear that African Americans who believe that they have been wronged as a result of slavery can lower their expectations about how the U.S. Government should act without raising serious questions about whether they have the proper regard for the demands of morality or themselves. Thus it does not appear that reconciliation can occur in this case without forgiveness. IV

If reparations for Africans are justified, and they have the psychological value that I have given to them, can the democratic process serve as a vehicle for giving African Americans reparations and the recognition and respect

that they feel they deserve? If reparations play the important role that I argued for earlier, can African Americans use the ballot box to obtain them? According to procedural democracy, rule by the majority is both necessary and sufficient for filling the requirements of a democracy. Or, put in another way, it is a fair procedure for determining which conflicting interests should be given priority. However, many African American authors have argued that this procedure is not fair to their group. They contend that focusing on procedural democracy rather than substantive democracy will not give the appropriate regard to their interests, and as a consequence, they are not in any substantive way true participants in the democratic process. Guinier gives clear articulation of this criticism.30 She argues that the present political democracy in the U.S. tyrannizes certain racial minority groups, in particular African Americans. Here is her argument in the first part of the book. P1: If a political system is to count as a genuine democracy, it must be responsive to the interests of all of it citizens. P2: If a political system is responsive to its citizens, it must (i) protect the interests of all its citizens, (ii) avoid the problem of perpetual losers in the democratic process, (iii) engender a sense of faith in the system by all of the citizens, and (iv) serve as a tool for self-determination for each and every citizen. P3: The political democracy in the United States has failed to be responsive to all citizens. C1: The political system in the U.S. is not a genuine democracy. Guinier’s support for P1 follows traditional thinking, but controversy arises in regards to P2. There is widespread disagreement about what constitutes responding to the interests of all of the citizens. Guinier believes that without authentic black leaders it is doubtful that African American interests will be considered. Guinier faces a dilemma shared by all racial assimilationists who provisionally adopt race-conscious policies in order to reach a race blind society. The dilemma is as follows: endorsing the moral ideal of a race-blind society, while at the same time maintaining that it will be necessary for a time to give significance to racial identity as a means to achieve the ideal of racial blindness. Many in the majority might innocently believe that slaves were wronged in grievous ways, but they also believe there must be some limit on the time that a person or group has for seeking redress, and clearly this time has passed in the case for African American reparations. They appeal to something like the statute of limitations principle to support their position. The purpose of the statute of limitations principle is “to require diligent prosecution of know claims, thereby providing finality and predictability in legal affairs and ensuring that claims will be resolved while evidence is reasonably available and fresh.”31 The statute of limitations principle has its most common application in the law, but the debate over reparations for slavery is thought to have some moral currency. Since this is a paper about the morality of reparations, I will briefly explore what this moral currency might be. In the law there are two basic reasons offered in support of the statute of limitations principle. One reason has to do with the reliability of the evidence that is at issue in a legal case and the other is the belief that people can change over time and that if we wait too long the person who committed a crime may not be the same person who is being prosecuted for the crime at some much later time. The idea is that the person at the later time is no longer the lawbreaker that committed the crime. However this rationale for the statute of limitations principle appears to depend upon a theory of punishment or compensation that focuses on the motives of the actor rather than outcomes. If we adopt this rationale, then people who have committed the most horrendous crimes could avoid punishment because they have managed to turn their lives around. This way of viewing things would be at odds with punishing because of its deterrence value. Most people in the controversy over reparations for slavery interpret the statute of limitations principle in a way that raises problems about the reliability of the evidence. For example, in a criminal trial the testimony of an eye-witness becomes less reliable over time because their memories fade. But with a greater reliance on things like DNA evidence, the passage of time becomes less relevant. However is the case of reparations for slavery, the

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critics believe that the passage of time does call into question the reliability of the evidence that is being used to make the case. This criticism is most forceful when the case for reparations is being brought against individual persons who are the heirs of slaveholders. But when the liable party is thought to be the U.S. Government, the passage of time is not as relevant. This is because we have a more comprehensive public record about the actions of the U.S. Government than we do about individual citizens. Therefore, the passage of time does not weaken our ability to know what happened. In fact, in some cases we actually know more about what the U.S. government did two hundred years ago than the persons who were alive at the time. So when all the evidence is presented, I do not think the people who refuse to vote for reparations can say that they are justified in doing so by appeal to this interpretation of the statute of limitations principle. But perhaps there is another interpretation of the principle that may better serve their purposes. Maybe the statute of limitations principle tells us that if we do not practice due diligence in bringing a case in a timely fashion, then we should not bring the case at all. For instance, in small claims court there is a specified period of time (usually two years) to bring a suit for damages. However, even if the critics use this interpretation of the statute of limitations principle, their argument cannot succeed. The present demand for reparations is not the first time African Americans have demanded reparations from their government for slavery. Through the years they have made such a demand, but it has always fallen on deaf ears.32 However, the present demand has created a public debate that did not accompany previous demands. Whether the supporters of reparations can convince the majority that their demand is a reasonable and worthy one is yet to be seen. On the merits, I think a strong case has been made. However, given the tendency by the majority to distort and misrepresent the facts when the subjects are black people,33 I am skeptical that even a quite compelling case for reparations will have sway. But hopefully the discussion in the pages of this journal, along with other thoughtful commentary on both sides of this issue, will help to give the demand by African Americans for reparations the public and legislative discussion that it deserves.

Notes 1. Richard Rorty, Achieving Our Country: Leftist Thought in Twentieth Century America (New York: Penguin Putnam, 1999), pp. 11–14. 2. James Baldwin, The Fire Next Time (New York: A Laurel Book, 1985). 3. Baldwin, The Fire Next Time, p. 15. 4. Baldwin, The Fire Next Time, p. 141. 5. See, for example, Frederick Douglass, “The Meaning of July Fourth for the Negro,” in Philip S. Foner (ed.), The Life and Writings of Frederick Douglass, Vol. 2 (New York: International Publishers, 1950–1975), pp. 181–204. 6. Martin Luther King, Jr., Why We Can’t Wait (New York: Mass Market Paperback/ NAL, 2002). 7. Howard Brotz (ed.), African American Social and Political Thought From 1850–1915 (New Brunswick: Transaction Books, 1991). 8. See K. Anthony Appiah and Amy Gutmann, Color Conscious: The Political Morality of Race (Princeton: Princeton University Press, 1996), pp. 30–74 and Richard Wasserstrom, “On Racism and Sexism,” in R. Wasserstrom (ed.), Philosophy and Social Issues (Notre Dame: Notre Dame University Press, 1980), pp. 11–50. 9. Lucius Outlaw, On Race and Philosophy (New York: Routledge, 1996) and Iris Young, Justice and the Politics of Difference (Princeton: Princeton University Press, 1990). 10. Howard McGary and Bill Lawson, Between Slavery and Freedom: Philosophy and American Slavery (Bloomington: Indiana University Press, 1992), Chapter 6. 11. Judith Green, Deep Democracy (Lanham: Rowman and Littlefield Publishers, 1999), pp. 149–152. 12. Andrew Hacker, Two Nations: Black and White, Separate, Hostile, Unequal (New York: Scribner’s, 1992).

13. Howard McGary, Race and Social Justice (London: Blackwell Publishers, 1999), Chapter 1. 14. See, for example, Outlaw, On Race and Philosophy. 15. Roy L. Brooks (ed.), When Sorry Isn’t Enough: The Controversy over Apologies and Reparations for Human Injustice (New York: New York University Press, 1999). 16. Lani Guinier, The Tyranny of the Majority: Fundamental Fairness in Representative Democracy (New York: The Free Press, 1994). 17. See The Source Magazine, October 1997. 18. Several lawyers have been assembled by Professor Charles Ogletree of Harvard University to prepare reparations litigation for African Americans. There have also been a number of recent articles published in law journals supporting the idea of reparations for African Americans, e.g., Robert Westley, “Many Billions Gone: Is It Time to Reconsider the Case for Black Reparations?,” Boston College Law Review 40 (1998), pp. 429–476. 19. Representative Tony Hall (D-Ohio) has introduced legislation calling for an official apology for slavery and representative John Conyers (D-Michigan) has consistently introduced legislation calling for reparations to African Americans. 10. John Locke, The Second Treatise of Government, ed. Thomas P. Peardon (New York: Bobbs-Merril, 1968), pp. 7–9. 21. David Horowitz, Uncivil Wars: The Controversy over Reparations for Slavery (New York: Encounter Books, 2001). 22. McGary, Race and Social Justice. 23. Tali Mendleberg, The Race Card (Princeton: Princeton University Press, 2001). 24. Shelby Steele, The Content of Our Character: A New Vision of Race in America (New York: Saint Martin’s Press, 1990), Chapters 3 and 4. 25. Timothy George Lobert Smith, Jr., A Mighty Long Journey: Reflections on Racial Reconciliation (New York: Broadman & Holman Publishers, 2000). 26. Jeffrey Murphy and Jean Hampton, Forgiveness and Mercy (Cambridge: Cambridge University Press, 1994). 27. See, e.g., “Words, Symbols and Actions: Reconciliation Report Card 2002,” A Report from the Reconciliation Australia Organization. 28. Uma Narayan, “Forgiveness, Moral Reassessment, and Reconciliation,” in Thomas Magnell (ed.), Explorations of Value (Amsterdam: Rodopi, 1997), pp. 169–179. 29. Narayan, “Forgiveness, Moral Reassessment, and Reconciliation,” p. 177. 30. Guinier, The Tyranny of the Majority. 31. Black’s Law Dictionary, 7th ed. (St. Paul: West Group, 1999), p. 1422. 32. Randall Robinson, The Debt: What America Owes to Blacks (New York: Dutton, 2000). 33. See Irving Thalberg, “Visceral Racism,” The Monist 56 (1972), pp. 43–63.

Journal/Discussion Questions 1. McGary asks whether “Given the horrible legacy of U.S. slavery and Jim Crow, is it realistic to think that the U.S. can eliminate the vestige of racism without adopting policies and programs that give moral and legal significance to racial identities?” What is your answer to this question? What implications for social policy follow from your answer? 2. Does reconciliation necessarily involve forgiveness? What is McGary’s position on this issue? What do you think? Why? 3. On what basis does Guinier maintain that the United States is not a genuine democracy? Do you agree with her? Why or why not? 4. How does McGary respond to the claim that there should be a statute of limitations on reparations, and that in the United States that time limit has been passed? Do you agree with McGary?

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David A. Reidy

“Hate Crimes Laws: Progressive Politics or Balkanization?” About the Author: David Reidy is an assistant professor at the University of Tennessee, where he teaches a course in the philosophy of law as well as ethics and social and political philosophy. He holds a degree in law as well as philosophy and has published widely in those areas. His recent work has centered on several different themes, including Rawls and international justice. About the Article: In this article, Reidy is interested in pursuing the question of the justification of hate crime laws. He argues that the standard attempts to justify these laws fail and explores an alternative justification that he feels is more promising. As You Read, Consider This: 1. Reidy identifies three main arguments in favor of hate crime laws. What are they? What flaws does he find in each? 2. Reidy presents and defends what he calls the argument from oppression. Briefly summarize that argument. How does it avoid the objections Reidy raises against the previous three arguments? 3. According to Reidy, in what ways does hate crime legislation threaten to be divisive in our society?

I. Introduction

In 1981 the Anti-Defamation League of B’nai B’rith published the model for what have now become known as hate crimes laws. Hate crimes laws are “penalty enhancement” laws. They enhance the penalties for a variety of crimes (most commonly assault, homicide, arson, trespass and vandalism) provided certain triggering conditions are met. Some hate crimes laws apply to specified crimes any time the perpetrator selects his victim because of her race, ethnicity, religion, sexual orientation or other specified characteristic. Others apply to specified crimes only if the perpetrator selects his victim out of a special animus toward a racial, ethnic, religious, or other specified group to which she belongs. So, a law of the first sort but not the second would apply to a criminal who commits one of the specified crimes against a Black victim not out of any particular hostility toward Blacks as a racial group, and not randomly, but because he believes the police less likely to investigate crimes committed against Blacks and thinks judges sentencing those convicted of such crimes less likely to impose harsh sentences. Hate crimes laws are now common in the United States; they have even worked their way into federal law. Notwithstanding significant public and academic support, these laws have been subject to strong, serious and persistent criticism. And much of it is well-deserved, for the arguments standardly made in favor of hate crimes laws are either unsound or weak. Demonstrating as much is the first aim of this paper. Its second aim, however, is to offer a non-standard argument for hate crimes laws that is neither unsound nor weak. This argument I call the argument from oppression. It captures and expresses better than any of the standard arguments the moral basis for the sentiments or intuitions many people have in favor of hate crimes laws, and the objections to the standard arguments do not apply to it. But one objection (or perhaps it is a family of objections) must still be addressed. This objection posits hate crimes laws (along with, perhaps, affirmative action policies, the expansion of sexual harassment laws, slavery reparations initiatives, and the like) as the balkanizing result of an identity or interest group politics of resentment inconsistent with progressive liberal democratic values. David A. Reidy, “Hate Crime Laws: Progressive Politics or Balkanization?” Civility and Its Discontents: Civic Virtue, Toleration, and Cultural Fragmentation, ed. Christine T. Sistare, University of Kansas Press, 2004. Copyright © 2004 University of Kansas Press. Used with permission.

II. The Standard Arguments

There are three standard arguments for hate crimes laws. The first is the argument from greater harm. The second is the argument from more culpable mental states. The third is the argument from liberal democratic values. Each of these arguments is either unsound or weak. A. The Argument from Greater Harm. Whether crimes satisfying the trigger conditions of hate crimes laws cause greater harm, physical or psychological, either to victims or non-victim third parties, than similar but non-hate crimes is, of course, an empirical question. This is often forgotten and a priori pronouncements regarding the greater harmfulness of hate crimes are not uncommon. Unhappily, as prima facie plausible as these pronouncements may be, they are not supported by the available empirical evidence. Crimes said to be hate crimes do often cause physical harm to their direct and immediate victims. But that is because they are very often assaults and homicides, not because they are committed by perpetrators who satisfy the relevant statutory trigger conditions for hate crimes penalty enhancements. As a class the crimes that satisfy these conditions are no more violent or physically harmful to their victims than the class that do not. And, in any event, existing laws already scale punishment to reflect the nature and degree of physical harm of assaults and homicides to victims. Because there is little evidence to support the claim that crimes falling within the scope of hate crimes laws are more physically harmful to victims (or, for that matter, to non-victim third parties) than those otherwise similar crimes that do not, the argument is often made that these crimes, those that fall within the scope of hate crimes laws, cause greater psychological harm to their direct and immediate victims, or to non-victim third parties, than those that do not. This greater psychological harm justifies, so the argument goes, the additional punishment imposed by hate crimes laws. Crimes said to be hate crimes do cause psychological harm both to their direct and immediate victims and to non-victim third parties. But so do virtually all crimes. The question is whether candidate hate crimes cause greater psychological harm than otherwise similar non-hate crimes. With respect to direct and immediate victims, the available empirical evidence suggests that they do not. Indeed, it suggests that candidate hate crimes may cause their direct and immediate victims marginally less psychological harm than similar crimes that would not count as hate crimes under typical hate crimes laws. This evidence is admittedly counter-intuitive. There is, consequently, a temptation to dismiss it in favor of arm chair psychological speculation. But the evidence ought not be dismissed (although pending further studies it ought to be regarded as tentative). Most candidate hate crimes are committed against persons belonging to historically oppressed groups: Blacks, gays, Jews, ethnic minorities and the like. It is not implausible to suppose that many of these victims will possess preferences and other psychological mechanisms adapted to their condition, and that these may mitigate their subjective experience of psychological distress when made victim to a candidate hate crime. It is also not implausible to suppose that the nature of many candidate hate crimes will make it clear to the victim that she was targeted because of her race, or sexual orientation, or religion, etc., thus giving her a way of making a kind of sense of the crime committed against her she would not be able to make were she randomly victimized. These suppositions, admittedly unconfirmed, are sufficiently plausible as explanations of the admittedly counter-intuitive empirical evidence regarding the psychological harm caused by candidate hate crimes to their direct and immediate victims that that evidence ought not be simply dismissed. As with direct and immediate victims, there is little evidence to support the claim that candidate hate crimes cause non-victim third parties greater psychological harm than similar crimes that fall outside the scope of hate crimes laws. The psychological harm of any crime to non-victim third parties is determined primarily by the proximity and visibility of the crime to such parties. This, of course, does not preclude additional psychological harms to non-victim third parties arising from the fact that the victim was selected because of or out of animosity toward her membership in a racial, religious, ethnic or other specified group. Or, at least it does not preclude such additional psychological harms when the crime visibly manifests an animosity toward a group with which the non-victim third parties strongly self-identify. While there is no substantial body of empirical evidence to confirm the claim that candidate hate crimes cause such harms to non-victim third parties, the claim (that obvious

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gay-bashings “terrorize” the gay community generally, etc.) is prima facie plausible. (Of course, even if there were empirical evidence confirming the claimed psychological harms, it would still be necessary to argue that those harms are serious enough to justify the relevant penalty enhancements.) It should not surprise, then, that this argument has been made to do much of the justificatory work in the case for hate crimes laws. Given the absence of compelling empirical evidence establishing the claimed psychological harms, however, it is at present a weak argument. It is also just the sort of argument that invites the characterization of hate crimes laws as the fruit of a balkanizing, identity group, politics of resentment. But that is a matter the discussion of which must be temporarily postponed in the interest of completing a review of the standard arguments. The upshot here is that the best version of the argument from greater harm is the argument from psychological harms to non-victim third parties, and that that argument is, as things stand, not very compelling. There is, however, an additional difficulty with the argument from psychological harms to non-victim third parties that bears mentioning here. And that is that when we think about the mechanism through which such psychological harms are said to arise, we can see that it is not the harms themselves that explain the moral intuition or sentiment in favor of enhanced penalties for hate crimes. It is rather the membership of the victim in an oppressed group, or, better, the special moral wrong done by targeting for criminal conduct persons already disproportionately vulnerable to harm, whether by virtue of belonging to an oppressed group or for some other reason. If hate crimes cause greater psychological harm to non-victim third parties than non-hate crimes, it is because they cause psychological harms (e.g., fear or terror) to persons who identify strongly through group membership with the victim and thus feel themselves to be vicariously targeted by the crime. This sort of selfidentification through group membership is not uncommon among members of oppressed groups. And thus it is not implausible to assert that paradigm hate crimes cause greater psychological harms to non-victim third parties, and that these harms justify enhancing the penalties for such crimes. After all, paradigm hate crimes are committed against members of oppressed groups. But the members of oppressed groups do not always self-identify through group membership. While selfidentification through group membership is common within oppressed groups, it is not necessary or inevitable. It is usually the contingent result of strategic political resistance to oppression. Only through concrete political efforts have Blacks, women and gays, for example, produced such a group-based self-identification as a political resource. There was a time when few members of each group would have identified themselves primarily through their group membership. Yet, Blacks, women and gays were each oppressed groups (and thus disproportionately vulnerable to certain social harms) prior to and independent of members self-identifying through group membership. And it is this deeper more basic fact about paradigm hate crimes, that they are selectively committed against members of oppressed groups, that generates the moral intuitions or sentiments in favor of penalty enhancements, not the contingent if often concomitant fact of psychological harm to nonvictim third parties. This can be seen by considering two alternative sorts of cases. The first involves crimes committed selectively against the members of a group who strongly self-identify through group membership but who are not oppressed and thus disproportionately vulnerable to social harm. Suppose (what may in fact be true) that many or most prostitutes self-identify with other prostitutes and that those who serially attack prostitutes specifically cause special psychological harms (e.g., fear and terror) to non-victim third party prostitutes. Do such crimes merit enhanced penalties as hate crimes? Few will have the intuition or feel the sentiment that they do. Or, suppose a criminal who serially and selectively attacks only Deadheads (the legendary followers of the Grateful Dead), a group the members of which strongly self-identify through group membership. Does he commit a hate crime? Again, few if any will think he does. In both cases it is likely that the crimes will cause special psychological harms to non-victim third parties. And these special harms may be noteworthy at the time of sentencing as an aggravating factor of some import. But they are not harms sufficient in moral weight to justify the non-discretionary legislative imposition of enhanced penalties through hate crimes laws. This is one important reason why hate crimes advocates do not propose statutory language covering such cases.

The second sort of case involves crimes committed selectively against members of a group disproportionately vulnerable to social harm but not oppressed who do not self-identify through group membership. Such crimes cannot cause the relevant special psychological harms to non-victim third parties. But like crimes committed selectively against members of oppressed groups they generate powerful intuitions or sentiments in favor of penalty enhancement. Consider, for example, crimes committed selectively against the cognitively impaired. Such crimes generate strong moral intuitions or sentiments in favor of penalty enhancement. But not because of psychological harms to non-victim third parties, but rather because of the disproportionate vulnerability to harm of the cognitively impaired and the additional moral wrong done by those who specifically target them for criminal conduct. In terms of the moral logic in favor of penalty enhancement, these cases present a closer analogy to paradigm hate crimes than do those selectively committed against the members of non-oppressed groups who nevertheless strongly self-identify through group-membership. Crimes committed selectively against Jews in the United States present an interesting difficulty here. Jews self-identify through group membership for both religious reasons and reasons rooted in resistance to a history of oppression. It is quite plausible to assert that crimes committed selectively against Jews in the United States cause greater psychological harm to non-victim third parties than similar crimes not so selectively committed. But there is a question as to whether we should assimilate such crimes to the class of crimes selectively committed against, say, Blacks and other groups currently oppressed (the members of which may or may not self-identify strongly through group membership) or to the class of crimes selectively committed against, say, DeadHeads and other groups the members of which self-identify through, but are not oppressed by virtue of, group-membership. This question turns, I think, on the empirical question of whether Jews constitute an oppressed group today in the United States. If they do, then crimes committed selectively against Jews belong in the same category as those committed selectively against Blacks. If they do not, then they belong in the same category as crimes committed against the members of other non-oppressed groups that nevertheless strongly self-identify through group membership. What these cases show, I think, is that even if, or where, paradigm hate crimes cause greater psychological harm to non-victim third parties, it is not the greater psychological harms that justifies the penalty enhancements imposed by hate crimes laws. It is rather the special moral wrong done by those who selectively target members of oppressed groups. But this argument must wait for further development. There are other more standard arguments still waiting to be examined first. B. The Argument from More Culpable Mental States. The criminal law in the United States already scales punishment according to whether an offender acts intentionally, knowingly, recklessly or negligently. Thus, if hate crimes laws are to be justified by appeal to the more culpable mental states of those who commit crimes satisfying their trigger conditions, it must be that those who commit such crimes act from a more culpable mental state than those who commit crimes otherwise identical but outside the scope of such laws. This is straightforwardly implausible with respect to those hate crimes laws that apply to perpetrators who simply select their victims because of their race, or religion, or ethnicity, or sexual orientation, etc. Recall that hate crimes laws of this sort would apply to a criminal who selects only Protestant victims because he believes only Protestants will in fact enjoy the sort of salvation that might redeem their suffering here on earth. He selects his victims because of their religion. But does he act from a mental state more culpable than the criminal who randomly selects his victims just because he likes the experience of anonymous power, or the criminal who carefully selects his victims based on who is most likely to suffer the greatest from his crime? Obviously not. To be sure, it may be that some criminals who commit crimes against victims selected because of their race, or religion, or ethnicity, etc., act from mental states more culpable than those who commit otherwise identical crimes against victims selected for other reasons. But this is not true of all criminals who commit crimes against victims selected for such reasons. It follows that where the mental state of a criminal who selects his victim because of her race, or religion, or ethnicity is in fact more culpable than it would be had he selected his victim for some other reason, the additional culpability must be a function of something beyond the fact that he selected his victim because of her race, or religion, or ethnicity, etc. What that something else is I will turn to

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later. For now, it is enough to note that the argument from more culpable mental states fails as an argument for those hate crimes laws that enhance penalties whenever the criminal selects his victim because of her race, or religion, or ethnicity, or sexual orientation, etc. The argument from more culpable mental states is perhaps more plausible as a justification for those hate crimes laws that apply to perpetrators who select their victims out of one or another specified group-based animosity. After all, to act from racist, anti-Semitic, homophobic, or xenophobic hatred or animosity is clearly to act from a very culpable mental state, indeed a mental state more culpable than many still significantly culpable alternatives. And this greater culpability can be explained by reference to the evil of targeting individuals solely out of a group-based animosity. But is it obvious that the mental state of a criminal who selects his victims out of racist animosity is more culpable than that of the criminal who selects his victims out of a desire to see the weak suffer, or to impose the greatest harm possible on a non-victim third party, or to display his superiority to the ordinary run of humanity, or to salve an ego all too easily bruised. That is less clear. Indeed, once adequate attention is given to the range of vicious and evil reasons that lead persons to commit crimes against others, it is not obvious that racist, anti-Semitic, homophobic or xenophobic reasons are significantly more vicious or evil than other familiar reasons criminals have for selecting victims which the law largely ignores when it comes to scaling punishment for crimes. In fact, the whole idea of correctly scaling criminal punishments to reflect the culpability of the reasons for which the criminal selected his victim looks to be beyond the reach of ordinary human abilities once the full range of reasons that lead people to commit crimes against particular victims is fully in view. It is, perhaps, no accident that for the most part the criminal law has limited its inquiry into the culpability of mental states to whether the act in question was done intentionally, knowingly, recklessly or negligently. Like the argument from psychological harms to non-victim third parties, the argument from the greater culpability of racist, anti-Semitic, homophobic, xenophobic or similar mental states has been pressed into active and regular service by proponents of hate crimes laws. But it too is a weak argument. The problem is not that an empirical premise remains unconfirmed, but rather that an axiological premise—that to select a victim out of racist animosity, say, is worse, ceteris paribus, than to select a victim for virtually any other reason—appears either dubious or unjustifiable through argument available to ordinary human intellect. And this weakness renders the argument from more culpable mental states vulnerable, like the argument from psychological harms to non-victim third parties, to the charge that it arises out of and affirms an undesirable balkanizing, identity group, politics of resentment. What else, the objectors ask, could explain the vigor and confidence with which proponents of this argument assert the greater culpability of selecting a victim because he’s Black, or gay, or Jewish, or Latino as compared to selecting a victim for any number of other reasons? This charge aside, the upshot here is that the argument from more culpable mental states is not a very compelling argument for either of the two sorts of hate crimes laws in force in the United States today. C. The Argument from Liberal Democratic Values. Hate crimes laws are sometimes defended on the grounds that they are needed to give adequate public and symbolic expression to the fundamental liberal democratic values of nondiscrimination and tolerance. Crimes committed against particular victims because of or out of a group-based animosity for their race, or religion, or ethnicity or sexual orientation violate these values in a manner and to a degree calling for special public condemnation. Or so the argument goes. There are many difficulties with this argument. The first is that it is weak as an argument for hate crimes laws that apply just in case the criminal selects his victim because of but not necessarily out of animosity toward her race, religion, ethnicity, etc. The criminal who decides just to assault Catholics, not because he has any group-based animosity toward them, but rather because he wants to systematize his victims in some fashion and attacking only Catholics enables him to do so, does not violate the liberal democratic values of nondiscrimination and tolerance in any significant way, or at least he violates those values no more so than does any other criminal guilty of assault. So, the argument is best taken as an argument for hate crimes laws that apply just in case the criminal selects his victim out of one or another specified group-based animosity.

But even so taken the argument is not strong. Even if a criminal who so selects his victim violates the liberal democratic values of nondiscrimination and tolerance, and even if that violation calls for a special and visible public condemnation, it does not follow that that condemnation must take the form of enhanced criminal penalties. A special concern with and condemnation of such conduct may be publicly and visibly expressed in a variety of ways within and through public political culture. Given the seriousness of enhancing criminal penalties (a limitation of liberty after all), the argument from liberal democratic values is weak as an argument for hate crimes laws unless it can be shown that enhancing penalties is the only or the best way publicly and visibly to express a special concern with and condemnation of such conduct. But suppose this can be shown. Is the argument from liberal democratic values then a strong argument for hate crimes laws, or at least those laws triggered when a victim is selected out of a specified group-based animosity? Well, yes and no. It all depends on what we mean when we speak of the liberal democratic values of nondiscrimination and tolerance. Suppose we mean that persons ought not impose avoidable harms on others for irrational, irrelevant or indefensible reasons. Employers ought not deny jobs to otherwise qualified persons solely because of their race. Children ought not exclude from their circle of friends perfectly kind and fun but very heavy or bespectacled peers. And the like. If this is what we mean when we speak of the values of nondiscrimination and tolerance, then the argument from liberal democratic values justifies hate crimes laws applicable not only to criminals who select their victims because they are Black or gay or Jewish, but also to criminals who select their victims because they are fat, or skinny, or ugly, or exceedingly beautiful, or socially awkward, or socially adept, and so on, including all irrational, irrelevant or indefensible reasons for which a criminal might select his victim. But if this is what we mean then it is hard to see how to limit hate crimes laws to any manageable list of specified group-based animosities the selecting of a victim from which will trigger the laws’ application. And if the list of group-based animosities triggering the application of hate crimes laws is to include hatred of the fat, the skinny, the ugly, the tattooed, the homeless, the socially awkward, the excessively wealthy, etc., then what is the point of having hate crimes laws? Why not simply enhance the penalties for all crimes of the targeted type, e.g., all assaults, all vandalisms? Suppose what we mean by the values of nondiscrimination and tolerance is instead that persons ought not impose avoidable harms on others because of some attribute or trait that either cannot be changed or can be changed only at an unreasonable cost. Employers, again, ought not deny jobs to otherwise qualified persons solely because of their race, or their religion, or ethnicity. And children, again, ought not exclude from their circle of friends perfectly kind and fun but very heavy or bespectacled peers. But, again, if this is what we mean by the values of nondiscrimination and tolerance, the list of specified group-based animosities the selecting of a victim from which will trigger the enhancing of criminal penalties will be long indeed. Those who target the tall, or the exceedingly intelligent, or the stutterers ought to be subject, on this understanding of nondiscrimination and tolerance values, to the penalty enhancements of hate crimes laws. If hate crimes laws of the sort proponents advocate are to be justified by the argument from liberal democratic values, then the values of nondiscrimination and tolerance must be tied specially to race, religion, ethnicity, sexual orientation and the like. After all, the sentiments and intuitions felt by the supporters of hate crimes laws are aroused by lynchings and cross-burnings, gay-bashings, vandalisms of Jewish businesses or cemeteries, arsons in Latino neighborhoods and the like. These are the paradigmatic hate crimes that call for enhanced penalties. Not attacks against the fat, the skinny, the tattooed, the shabbily dressed, the ugly, or the glamorous, even when they are specifically targeted out of a generalized animosity for such persons. So, suppose what we mean when we speak of the values of nondiscrimination and tolerance is just that persons ought not impose avoidable harms on others because of their race, religion, sexual orientation, ethnicity and the like. If this is what we mean, then we might be able to argue from these liberal democratic values to hate crimes laws of the typical sort. The question is whether this is what we do, or should, mean by these values. The advantage of this account of nondiscrimination and tolerance values, or at least of these values as they are invoked as part of a justification for hate crimes laws, is that it captures the idea that there is something special about race, ethnicity, religion, sexual orientation and the like and thus something special about imposing avoidable harms

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on others because of their race, or ethnicity, etc. If I refuse to date tall people or to purchase goods from persons who bear tattoos, I irrationally and indefensibly impose an avoidable harm on others, perhaps even because of a characteristic or trait that cannot be easily altered. But it would be a stretch at best to say that I violate the fundamental liberal democratic values of nondiscrimination and tolerance, at least insofar as we are talking about those values as violated by paradigmatic hate crimes. To be sure, my conduct may be rightly criticized, even perhaps morally criticized through a loose use of the language of nondiscrimination and tolerance. But the basis of that criticism cannot really be that I violate the values of nondiscrimination and tolerance insofar as we take those values to be essential to a just and stable liberal democratic order. But if we substitute Blacks for tall people or Jews for persons who bear tattoos, then the picture changes, at least for those of us living in the United States, with its history. It is tempting here to say that what the core values of nondiscrimination and tolerance demand is that we ignore race, religion, ethnicity or sexual orientation in our interactions with others. That we be color-blind, etc., when it comes to social life, even in our criminal conduct, should we endeavor such conduct. But this is a view that many if not most proponents of hate crimes laws will have reason to reject. It implies that there is no significant moral difference between a White criminal who selects his victims because they are Black and a Black criminal who selects his victims because they are White, or between a Protestant criminal who selects his victims because they are Jewish and a Jewish criminal who selects his victims because they are Protestant. But many if not most proponents of hate crimes laws begin with the intuition that there is a moral difference, even if there are also moral similarities, between these cases. In each example, the prior but not the latter case reflects, expresses and arguably serves to reconstitute existing historical patterns of structural, group-based oppression. To treat the two cases as if they are not morally distinct in any significant way is to fail to attend to the realities of longstanding, structural, group-based oppression at which hate crimes laws are aimed as a partial remedial social response. It is to view the issue of hate crimes from the point of view of the non-oppressed. It is racially motivated crimes against Blacks, not racially motivated crimes generally, religiously motivated crimes against non-Christians, not religiously motivated crimes generally, that generate the intuitions and sentiments many feel in favor of hate crimes laws. It is crimes against members of already oppressed groups precisely because they are members of already oppressed groups that call for enhanced penalties. Given the realities and history of structural, group-based oppression, a racially motivated murder committed by a Black man against a White man is, for the purposes of punishment, not very different from any other murder, or at least not very different from a murder motivated by a hatred of brunettes committed by a blonde. But a racially motivated murder committed by a White man against a Black man is different from other murders. It connects with those realities and presses that history forward in ways other murders cannot. At their core and as affirmed and protected by law, the values of nondiscrimination and tolerance must be understood in terms of race, religion, ethnicity, sexual orientation and the like. There is indeed something special, morally speaking, about these specific kinds of social groupings: they point us toward some of the most pressing historical cases of structural group-based oppression that call for a remedial social response. What we mean, then, when we speak of the fundamental values of nondiscrimination and tolerance is not that race, religion, ethnicity or sexual orientation ought always to be ignored in social life, but rather that social life ought to be reorganized so as to eliminate the real, specific, long-lived, structural group-based oppression of Blacks and other non-Whites, Jews and other non-Christians, gays, lesbians and other nonheterosexuals, and non-European ethnic groups. These are the great, structural and evil instances of discrimination and intolerance we want to end, not the more general fact that we notice and sometimes are moved in our social interactions by the race, religion, ethnicity or sexual orientation (or height, IQ, or handsomeness, for that matter) of others. The intuition or sentiment that racially motivated assaults on Blacks, for example, deserve more punishment than other assaults in the United States arises out of a strong desire to end a real, particular case of structural group-based oppression and an awareness of how such crimes affirms and threatens to reconstitute that very oppression. The argument from liberal democratic values, then, is strongest if the values of nondiscrimination and tolerance are understood not just to be specially connected and limited to race, religion, ethnicity, sexual orientation and the like, but to be so connected and limited in a particular way—proscribing the imposition of avoidable harms on Blacks because they are Black, or Jews because they are Jews, etc., where the imposition of those harms

reflects, expresses or serves to reconstitute the real, historical oppression of Blacks, Jews, etc. Of course, this version of the argument, like the strongest versions of the arguments from greater harm and from more culpable mental states, invites the objection that those who advocate hate crimes laws are engaging in a balkanizing, identity-group, politics of resentment. There is, consequently, a temptation to retreat to the position that while it is not true that a murder is always just a murder, it is true that a racially motivated murder is always just a racially motivated murder. All racially motivated murders violate the liberal democratic values of nondiscrimination and tolerance equally, and thus if any call for enhanced penalties, all call equally for the same enhanced penalties. This version of the argument from liberal democratic values is weak, however. It presupposes a basic social structure within which Blacks and Whites, gays and straights, non-Christians and Christians are situated or positioned symmetrically as groups. But this presupposition is false. Indeed, it is from an awareness that this presupposition is false that the moral intuitions and sentiments that most strongly favor hate crimes laws arise. Even if this presupposition were true, however, this version of the argument from liberal democratic values would still be weak insofar as it offers no account of why selecting a victim on the basis of her race, religion, ethnicity or sexual orientation is so bad as to merit enhanced penalties (rather than some other sort of special public condemnation) as compared to selecting a victim on the basis of her height, weight, IQ or occupation. Only one such account is plausible, of course, and that is that some of the most dramatic and damaging cases of oppression in the United States have involved race (Blacks and other non-Whites), religion (Jews and other non-Christians), ethnicity (non-European) and sexual orientation (gays, lesbians and other non-heterosexuals). But to admit this is to admit that not all racially motivated crimes, for example, are morally equal, for not all racially motivated crimes reflect, express or potentially reconstitute such oppression. Oppression is always asymmetric. So, racially motivated attacks by Whites on Blacks connect with historic and ongoing oppression in ways that racially motivated attacks by Blacks on Whites never could. The upshot then is two-fold. The strongest version of the argument from liberal democratic values invites the same balkanization objection as the strongest versions of the other standard arguments for hate crimes laws. And the strongest version of the argument from liberal democratic values rides piggy back on, indeed is perhaps best understood as an imperfect articulation of, a deeper argument from oppression. It is that argument to which we turn now. III. The Argument from Oppression

The argument from oppression goes like this: P1: Structural group-based oppression is a fact of history and contemporary life in the United States; P2: Those who belong to oppressed groups are disproportionately and systemically more vulnerable to a wide range of structurally and socially produced but avoidable harms; P3: Those who by virtue of their social positioning vis-à-vis the vulnerable members of an oppressed group enjoy a special capacity to protect them from the harms to which they are vulnerable, or to help to reorder social life so as to minimize (and eventually eliminate) their structurally produced, group-based vulnerability, have a special moral obligation to do so; P4: Those who intentionally select a member of an oppressed group, because they are a member of that group (but not necessarily out of a group-based animus), as their victim for a crime the harm of which reflects, expresses or contributes distinctively to the social reconstitution of the disproportionate vulnerabilities from which members of that group suffer, and who do so notwithstanding their being positioned socially such that they enjoy a special capacity to protect or aid the members of that group, fail to live up to a special moral obligation they owe to their victim; P5: It is the violation of this special moral obligation that makes paradigmatic hate crimes morally worse than otherwise similar crimes; P6: In general levels of criminal punishment should be scaled to reflect degrees of moral wrongfulness; C: The additional moral wrongfulness of paradigmatic hate crimes justifies the extra punishment imposed by hate crimes laws (of a suitably revised sort).

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This argument differs from the standard arguments in important ways. While it appeals to the place of hate crimes in a social order that systemically works a certain kind of harm on members of oppressed groups, it is not an argument from the greater harm caused by hate crimes to direct and immediate victims or non-victim third parties. And while it appeals to the greater moral culpability of hate crimes offenders, it is not an argument from the greater culpability of motives grounded in one or another group-based animosity. And finally, while it rests ultimately on and aims at the vindication of liberal democratic values, it casts itself fundamentally as an argument from structural group-based oppression, not from the values of nondiscrimination and tolerance as values applicable to interactions between individuals assumed to be symmetrically positioned as group members by and within their basic social structure. Central to the argument from oppression are the ideas of oppressed groups, disproportionate vulnerabilities, and special moral obligations to protect or aid. Explicating some of these ideas may help to avoid misunderstanding. And so it is to that task I turn now. Oppressed groups are first social groups. Social groups are more than mere aggregates. Insurance companies may aggregate persons with one or another genetic trait for actuarial purposes. But taken together persons so aggregated do not constitute a social group. To constitute a social group members must stand in determinate relations with one another constituted through their interactions with one another and with those at the margins or outside the group. There are many different kinds of social groups, including associations, cultural or identity groups, and structural groups. Oppressed groups are necessarily structural groups, although as such they sometimes overlap with cultural or identity groups, or with associations. Associations are social groups within which the determinate relations group members stand in with respect to themselves and to those at the margins or outside the group are a function of the group’s shared aims, purposes or ends (e.g., families, the Catholic Church). Cultural or identity groups are social groups within which the relevant relations are a function of how group members construct their identity or self-understanding at its most basic levels (e.g., Chicanos, Southerners). Cultural or identity groups need not share any aim, purpose or end, although sometimes they do. But they must share something by way of tradition, history, language, social practice or cultural forms, and the like sufficient for members to constitute themselves as an “us” or “we” to which they belong. Structural groups are social groups within which the determinate relations group members stand in with respect to themselves and those at the margins or outside the group are a function of how they are positioned by the basic social structure of their society when it comes to access to fundamental goods and resources. Structural groups are produced through the institutional mechanisms through which authority, power, labor and production, desire and sexuality, prestige and the like are socially constituted and organized. Oppressed groups are structural groups the members of which are systematically disadvantaged in the distribution of or their access to the basic goods and resources needed to develop and exercise capacities for self-expression, self-development, and self-determination. The members of oppressed groups (e.g., African Americans in the United States) are thus disproportionately vulnerable to a wide and serious range of socially produced and avoidable harms (among the most serious, poverty, illiteracy, economic marginalization, violence, incarceration, avoidable illness, early mortality, and the like). Describing accurately these disproportionate vulnerabilities and marking out the many and interrelated ways in which they arise out of a basic social structure that systematically disadvantages some but not others is a key task of oppression theory. The members of structural groups need share no common aim, purpose or end. And they need neither find nor construct their identity or self-understanding at basic levels through appeal to their membership in the group. Indeed, they may (and unhappily sometimes do) belong to the group without even knowing it. The existence of and membership within structural groups is a function of how persons are objectively positioned socially relative to one another within and through their basic social structure. The differentiation of structural groups is distinct, then, from the differentiation of associationist groups and cultural or identity groups, for in the latter cases group members must affirm their membership to be group members. In the United States, Blacks, gays, Jews and various ethnic groups, as well as women, have been and remain to various degrees oppressed structural groups. This social fact does not depend at all on whether Blacks, gays, Jews, etc., think of

themselves as a group. Of course, it also does not preclude them constituting associationist groups or cultural or identity groups more or less identical in terms of their membership. It bears emphasizing that the existence of and membership within structural groups generally, or oppressed groups more particularly, is a function of reiterated patterns of social relations and interactions over time. Three things follow from this. First, membership within structural groups is something that may come in degrees, depending on the degree to which one is, over time and in general, implicated structurally in a web of systematically advantageous or disadvantageous social relations. So, particular persons may be more or less Black with respect to their membership in the structural group called Blacks. Second, membership within, indeed the existence of, a structural group may change over time. So, membership within and even the existence of Jews as a structural group in the United States has and continues to undergo significant change. Third membership in a structural group is logically independent of membership in associationist groups and cultural or identity groups. So, a particular individual may be marginally (perhaps not even) Black with respect to Blacks as a structural group but be centrally Black with respect to Blacks as a cultural or identity group, or vice versa. Individual members of oppressed groups do not all suffer the same particular, individual socially produced and avoidable harms by virtue of their social positioning. But they are all disproportionately vulnerable to them. And for many, this vulnerability will itself constitute an actualized harm, a sort of psychological weight rooted in a deep sense of anxiety, insecurity, or powerlessness. To be vulnerable is to be in a distinctively or especially precarious position, to be exposed or at risk to an unusual degree to some injury or harm. To be vulnerable is not the same as simply belonging to a class the members of which merely satisfy some precondition for a particular harm. Only women get ovarian cancer. So, only women are at risk of ovarian cancer. It doesn’t follow that to be a woman is to be vulnerable to ovarian cancer. Similarly, only the employed can lose their jobs during an economic recession. It doesn’t follow that to be employed is to be vulnerable to unemployment during a recession. Vulnerabilities can arise from many sources. Some women are vulnerable to ovarian cancer by virtue of their genetic endowment. So, nature is one source of vulnerabilities. The disproportionate vulnerabilities that mark oppressed groups as oppressed groups arise from the “normal” functioning of the basic social structure of the society in which they exist. So, given the structure of labor markets and of authority within most employment contexts today, Blacks are more vulnerable to unemployment during an economic slowdown than are Whites. They are more likely to be laid off, and more likely to suffer adversely from being laid off. And given the historical exclusion of Blacks from political processes (something which continues informally today), Blacks are more vulnerable to the legislative sacrifice of their interests for the “common good.” They are more likely to have their interests ignored during ordinary legislative processes, and then to be accused of and marginalized for divisiveness for asserting their interests once ordinary legislative processes are complete. The multiplication of these disproportionate vulnerabilities, ranging across wide ranges of social life, produce what Marilyn Frye has called the “bird cage” effect: Blacks and other oppressed groups find themselves caged by an intersecting network of constraints arising out of the “normal” operation of the basic social structure that limit or undermine their self-development, self-expression and self-determination. Disproportionate vulnerabilities are commonly understood to impose special obligations on those especially well-placed to prevent harm to, to protect, or to aid the vulnerable, and these special obligations are often legally enforced. So, adults have various special obligations to children. Providers of various services have various special obligations to the elderly, as do providers of medical services to the terminally ill. Those not cognitively impaired have special obligations to those who are cognitively impaired. These obligations arise as moral obligations in each case out of the asymmetry of the respective parties’ social relationship or relative positionings. They are given legal backing because (although not exclusively because consequentialist considerations will have a role to play here) of the moral gravity of their violation. Similarly, the special obligations violated in paradigmatic hate crimes arise as moral obligations out of the asymmetry of the respective parties’ social relationship or positioning (their group-based relationship or positioning within or through the “normal” functioning

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of the basic social structure) and are given legal backing because (although, again, not exclusively because consequentialist considerations will again have a role to play here) of the moral gravity of their violation. The moral intuition or sentiment at work here in the case of paradigmatic hate crimes belongs to the same family as that at work when we judge that stealing from a blind man is morally worse, and thus deserving of or at least eligible for greater punishment, than stealing from a sighted man. A full defense of the argument from oppression would require much more than the foregoing. However, I hope the foregoing sufficient to give a clear enough sense of how the argument goes and how it differs from and improves on the standard arguments. V. Conclusion

Critics of hate crimes laws are correct about two things. First, the standard arguments given as justification for these laws are either unsound or weak. Second, these laws and the standard justifications given for them at least appear to arise out of and affirm a balkanizing, identity/interest-group politics of resentment. But the critics of hate crimes laws are incorrect in concluding that there is no compelling moral case for such laws. The argument from oppression is sufficiently compelling to constitute a prima facie justification for such laws. And hate crimes laws justified by appeal to and suitably revised in light of it cannot be saddled with the charge that they arise out of and affirm a balkanizing, identity/interest-group politics of resentment. Nevertheless, hate crimes laws and the politics from which they arise are undeniably divisive. But that is to be expected and by itself is unobjectionable; democratic initiatives aimed at responding to and remedying structural group-based oppression are almost always divisive. The question with all such initiatives is whether they are so divisive that their cost in terms of social unity outweighs whatever moral and political gains they promise. That is a complex question I have neither asked nor answered in this paper. But two points bear emphasizing, as a final thought, here. First, among the moral and political gains promised by hate crimes laws and the politics which surround them is a broader, deeper and more accurate understanding of social and political life. And that is a gain perhaps worth pursuing, even at the (one must hope temporary) cost of an increase in social tension and division between groups. Second, no proponent of hate crimes laws imagines them as a silver bullet capable of working significant social change by themselves. They are just one part of a broader set of social, political and legal initiatives aimed at responding to and remedying structural group-based oppression. Ultimately, their merits and demerits ought to be assessed within the context of that larger set of initiatives of which they are a part.

Journal/Discussion Questions 1. Have you had any experience with hate crimes at your school or university? How were these handled? Relate the response to such hate crimes to Reidy’s discussion. 2. Reidy tells us that “racially motivated attacks by Whites on Blacks connect with historic and ongoing oppression in ways that racially motivated attacks by Blacks on Whites never could.” What conclusions does he draw from this? Do you agree with him? Why or why not? 3. What are the principal objections to hate crimes laws? Critically assess the merits of those objections from your own standpoint.

Journal/Discussion Questions ✍ New Faces in a Changing America: Multiracial Identity in the 21st Century, edited by Loretta I. Winters and Herman L. DeBose (Thousand Oaks, CA: Sage Publications, 2002), pp. 176–88. 1. Discuss the ways in which your own experiences either resonate, or do not resonate, with the themes that Velazco y Trianosky is discussing. 2. Velazco writes, “For us, the children of immigrant parents, the struggle over who we are is almost always a personal one.” What does he mean by this? Do you agree? Discuss.

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Concluding Discussion Questions Where Do You Stand Now?

Instructions

Agree

Undecided

Disagree

Strongly Disagree

26. 27. 28. 29. 30.

Strongly Agree

You have already answered the following questions in your moral problems self-quiz at the beginning of this book. Now that you have studied the material in this section, take a moment to answer the same questions again. You can either enter your answers below or complete the survey on-line at http://ethics.sandiego.edu/surveys.

Chapter 6: Race and Ethnicity

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African Americans are still often discriminated against in employment. Affirmative action helps African Americans and other minorities. Racial separatism is wrong. Hate speech should be banned. We should encourage the development of racial and ethnic identity.

Compare your answers to this self-quiz with the answers to the initial self-quiz. How, if at all, have your answers changed? How have the reasons for your answers changed?

Journal/Discussion Questions ✍ In light of the readings in this chapter, would you change the way in which you understand any of your personal experiences in regard to issues of race or ethnicity? 1. Do you think that their racially based injustices still occur in our society? If so, how do you think these can best be rectified and eliminated in the future?

2. What is your vision of a future ideal society in the United States in regard to the issues of race and ethnicity? How does that ideal relate to some of the ideals we have seen in this chapter? How do you think we can best move toward your ideal? What are the greatest possible objections to your ideal?

For Further Reading Web Resources

Review Article

For Web-based resources, including the major Supreme Court decisions on race and affirmative action, see the Race and Ethnicity page of Ethics Updates (http://ethics.SanDiego.edu). In addition, there are several article in the on-line Stanford Encyclopedia of Philosophy (http://plato.stanford.edu) that are relevant here, including Michael James, “Race” and Robert Fullinwider, “Affirmative Action.”

Among the philosophically most interesting recent works are J. Angelo Corlett’s Race, Rights, and Justice (Dordrecht: Springer Netherlands, 2009) and his Race, Racism, and Reparations (Ithaca: Cornell University Press, 2003); Bernard Boxill, Race and Racism (New York: Oxford University Press, 2001); Berel Lang, Race and Racism in theory and Practice (Latham: Rowman & Littlefield, 2000); Joshua Glasgow, A Theory of Race

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(New York: Routledge, 2008); Naomi Zack, Thinking about Race, 2nd ed. (Wadsworth, 2005); the essays collected in Bernard Boxill’s Race and Racism (New York: Oxford University Press, 2001); Charles Mills and Carole Pateman, The Contract and Domination (Cambridge: Polity, 2007) continues the critique of contract theory begun in Pateman’s The Sexual Contract and Mills’s The Racial Contract about the limitations of social contract theory in dealing with gender and race; Michael Hardimon, “The Ordinary Concept of Race,” The Journal of Philosophy, Vol.100, (2003), 437-55; Lawrence Blum, I’m Not a Racist but … : The Moral Quandary of Race. (Ithaca, NY: Cornell University Press, 2002); and Philip Kitcher, “Does ‘Race’ Have a Future?” Philosophy & Public Affairs, 35/4 (November 2007), 293-317 pays particular attention to the issue of racebased medicine. The Fall, 2010 issue in the Journal of Social Philosophy is devoted to “New Thinking in Race Theory;” the April 2010 issue of The Monist (93/2) is also devoted to race, as is The Southern Journal of Philosophy, Vol. 47, Supplement (2009). Bernard R. Boxill’s “Racism and Related Issues,” Encyclopedia of Ethics, edited by Lawrence and Charlotte Becker (New York: Garland, 1992), Vol. II, pp. 1056–1059 provides an excellent overview of work on race and related issues. Naomi Zack’s Race and Mixed Race (Philadelphia: Temple University Press, 1993) and her American Mixed Race: The Culture of Diversity (Roman & Littlefield, 1995) offer a perceptive analysis of many of the issues surrounding mixed race in our society. Philosophers on Race: Critical Essays, edited by Julie Ward and Tommy L. Lott (Oxford: Blackwell Publishers, 2002); and George Yancy’s anthology, What White Looks Like: AfricanAmerican Philosophers on the Whiteness Question (New York: Routledge, 2004)also provide value perspectives.

Multiculturalism

Gutmann, “The Challenge of Multiculturalism in Political Ethics,” Philosophy and Public Affairs, Vol. 22, No. 3 (1993), pp. 176–206, and the essays in Defending Diversity: Contemporary Philosophical Perspectives on Pluralism and Multiculturalism, edited by Lawrence Foster and Patricia Herzog (Amherst, MA: University of Massachusetts Press, 1994). For a philosophically sophisticated account of the question of identity within this context, see Charles Taylor, Multiculturalism and “The Politics of Recognition,” with commentary by Amy Gutmann Steven C. Rockefeller, Michael Walzer, and Susan Wolf (Princeton: Princeton University Press, 1992). On the issue of identity, also see the papers by Anthony Appiah and others at the APA Symposium on Gender, Race, and Ethnicity, Journal of Philosophy, Vol. 87, No. 10 (October 1990), pp. 493–499. Also see the articles on multiculturalism and philosophy that appeared in Teaching Philosophy, Vol. 14, No. 2 (June 1991). See, more recently, Will Kymlicka, Multicultural Citizenship: A Liberal Theory of Minority Rights (New York: Oxford, 1995) and K. Anthony Appiah and Amy Gutmann, Color Conscious: The Political Morality of Race (Princeton, NJ: Princeton University Press, 1996).

Affirmative Action See especially Carl Cohen and James P. Sterba, Affirmative Action and Racial Preference: A Debate (New York: Oxford University Press, 2003); William G. Bowen and Derek Bok, The Shape of the River: LongTerm Consequences of Considering Race in College and University Admissions (Princeton, NJ: Princeton University Press, 1998); this book, by the former presidents of Princeton and Harvard, respectively, provides a strong empirical case for the benefits of affirmative action in higher education.

For an excellent discussion of the philosophical and political dimensions of multiculturalism, see Amy

MySearchLab Connections Sources OnLine READ AND REVIEW Study and Review: Chapter 6 The text explores moral issues surrounding the topic of race and ethnicity. These readings further explore that theme.

1. The Souls of Black Folk by William Edward Burghardt Du Bois (also, W.E.B. Du Bois) The work of W.E.B. Du Bois raises powerfully to consciousness that which the wider white community had ignored. Among these profoundly challenging insights were that “black folk” have a fundamentally

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different experience of the world in every way— emotionally, socially, politically, and such—in virtue of being black. He writes, the African-American cannot Africanize America, but neither can he “bleach” himself to fit into the dominant culture that systematically excludes those of color. 2. Letter from a Birmingham Jail by Martin Luther King, Jr. Martin Luther King, Jr. might be considered a moral philosopher in action. He developed a theory of justice that recognized that laws duly enacted by the legitimate justice system might be unjust when measured by philosophical theories of justice. When this conflict occurs he recognized his obligation to disobey those laws as a means to enable conformity of the legal system with objective principles of justice. 3. An Introduction to the Principles of Morality and Legislation by Jeremy Bentham Jeremy Bentham’s “Principles of Morals and Legislation,” which was first published in 1789, is a classical exposition of the basic principles of utilitarianism, with application in public policy and government.

RESEARCH AND EXPLORE Explore the following questions using the research tools available on www.mysearchlab.com. Explore on mythinkinglab.com

1. The consequentialist ethics of utilitarianism can be understood as seeking the greatest good for the greatest number of people. Make a case both for and against affirmative action from this perspective. What other philosophical view would provide a stronger argument in favor of affirmative action? A stronger argument opposed to it? 2. Under what circumstances would an individual or group have a moral obligation to disobey the law of the land? 3. The chapter attempted to define race and ethnicity, and also discussed the issue of separatism. What role do members of a specific group have in defining their own group, whether it be racial or ethnic? What rights do they have to preserve their group identity, through separatism or other means?

7 Gender

Introduction to the Moral Issues 275 Defining the Problem: Issues of Sexism 275 Overt and Institutional Sexism 275 Sexist Language 276 Sex Discrimination 277 Overt Job Discrimination and Unequal Pay 277 Comparable Worth 278 Legal Protection: Theory and Implementation 278 Sexual Harassment 278 Quid Pro Quo 278 The Hostile Work Environment 279 Models of the Place of Gender in Society 279 The Traditional Model 279 The Androgynous Model 280 The Maximal Choice Model 280 The Nature–Nurture Controversy 281 Gender Roles and the Family 281 The International Dimensions 281 Educational Opportunities for Women 282 Reproductive Freedom 282 Violence Against Women 282 Sexual Exploitation of Women 282 Human Trafficking 282 Amartya Sen and India’s Mission Women 283 The Rise of Sex Selection 283 Conclusion 283 The Arguments 284 Kathy Miriam, “Stopping the Traffic in Women” 284 274

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David Benatar, “The Second Sexism” 296 Susan Moller Okin, “Is Multiculturalism Bad for Women?” Concluding Discussion Questions 319 For Further Reading 320

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Introduction to the Moral Issues Gender matters. And it matters not just in the physical, mental, and emotional realms, but morally as well. As we turn to a consideration of the topic of gender, we discover that a wide array of moral issues come to the fore. Some have to do with equality and the various ways in which women have been denied equality in our society: sex discrimination, sexist language, sexual harassment, rape, pornography, hate speech, and reproductive rights. Others have to do with issues of diversity: not only diverse ideals of the place of gender in society but also the issue of whether women have a distinctive moral voice. In this introduction, we survey these issues, seeking to illuminate what is at stake in each of these areas and highlighting the questions each of us must answer in regard to this issue. Then we turn to a discussion of competing models of the place of gender in society and conclude with a discussion of the means of remedying some of the problems discussed here. First, however, let’s take a quick look at the ways in which the issue of gender is similar to, and different from, ethnicity.

Defining the Problems: Issues of Sexism Sexism is a notoriously difficult term to define precisely, but its overall elements are clear. It refers to both attitudes and behavior. Sexist attitudes are attitudes that see individuals, solely because of their gender, as being less than their male or female counterparts. For example, if despite equal competence, Jane is seen by her employer as less competent than her coworker John, the employer is exhibiting a sexist attitude. If the employer then goes ahead and, on the basis of this distorted perception, promotes John but not Jane, then the employer is behaving in a sexist manner. Sexist attitudes refer to our perceptions and feelings; sexist behavior refers to our actions. Overt and Institutional Sexism

Just as we did with racism, we can distinguish between overt and institutional sexism. Overt sexism is the intentional discrimination against a person because of that person’s gender. For example, if a person is denied a job because that person is a male or female, that is an act of overt sexism. In contrast to this, institutional sexism occurs when a person is (perhaps unintentionally) discriminated against because of factors that pertain to that person’s gender. For example, in some college sports such as basketball and football, women would be underrepresented if teams were open to both male and female applicants; if athletic scholarship money was given only to those who made the team, the indirect result would be that far fewer women than men would receive athletic scholarships. Although there may be no intent to discriminate in athletic scholarships against women, the net result might be precisely such institutional sexism. It is important to understand the ways in which gender-based expectations are woven into the fabric of everyday life, and it is also important to recognize the extent to which this has changed in little more than one generation in American life. Professional women in their fifties and sixties today remember many instances of a “first” for women: the first woman mayor, the first woman Supreme Court Justice, the first woman astronaut, the first woman general, the first woman to graduate first in her class in medical school, and such. Today those “firsts” are a matter of history—except, of course, no one yet remembers the first woman President of the United States, since that has not yet happened. Our character is often formed by the battles we have fought, and for the new generation it often seems as though the battles for gender equality were fought and won in the distant past. This calls for several comments.

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First, in many places throughout the world, the battles have not been won. In some societies, women are still stoned to death for adultery, and in some cases they are stoned to death for being raped, as though it were a choice they had made. Women continue to be bought and sold around the world, as are children of both sexes. Women find their path to education blocked in many countries, not just those controlled by the Taliban. Women around the world continue to bear children against their will, trapped in a context of domination that negates the possibility of free choice. Women continue to be put on display around the world as objects of sexual fantasy, and in many instances such displays are woven into the fabric of a market economy that depends on the objectification of women for selling everything from cars to coats. Second, the progress of women in countries such as the United States has come at a high cost. In contrast to many other countries, women in Western liberal democracies can choose to have a career. They can even choose to have a career and a family at the same time. However, in practice that often means that they have two fulltime jobs—one at the office and the other at home—while their husbands have only one. This is progress, to be sure, but it is progress bought at a high price, a price that is paid primarily by women, not men, in our society. Third, it is important to notice the small ways in which the position of women is often diminished in social interactions. Let me offer two examples from a university context, since this is the world I know best. Both examples come from women who were philosophy professors. One woman was talking about her years in graduate school and an experience that would recur all too often in graduate seminars. She would make a comment relating to that day’s topic. Typically it would be a good comment, on point, illuminating, and opening up new ways of looking at the issue under discussion. Later in the seminar, the professor would make a reference to the comment, but often attribute it to one of the other students in the class, inevitability a male. It was a small thing, but was important in illustrating the way in which women were often made invisible a generation ago. It was not an outrageous case of harassment or a humiliating act of demeaning the student; it was simply a subtle and unconscious way in which a woman was made to disappear, her contributions assigned to one of her male classmates. Another colleague of mine once explained why she always dressed well when at the university. If she was in the department office, she wanted to be sure that she would not be mistaken for the secretary. This is something that male faculty members never experience, but it is something that women recognize early in their careers. So, too, they learn early to say that they do not know how to type—so that they will not somehow be assigned typing jobs. Men who admitted that they knew how to type did not have to worry about that. Of course, these are small things. I have never seen statistics on the number of women in graduate school a generation ago who were propositioned by senior male professors, but I suspect the numbers would be startling. The harassment that Catharine MacKinnon brought out into the open through her book, Sexual Harassment of Working Women: A Case of Sex Discrimination, was pervasive, whether in academia, the world of medicine, science, the corporate world, the world of sales. And prior to Title VII and the Supreme Court decisions relating to it, there was no protection for women in such situations. The world that this new generation is growing up in has changed, and changed for the better. Sexist Language

One of the more contentious areas of discussion in regard to sexism is language. There are two distinct aspects to this issue: (a) the gendered structure of our language and (b) its specific vocabulary. In regard to linguistic structure, many have pointed out that English, like many other languages, is gendered; we often are forced by our language to identify a person as either male or female, even when we don’t know the person’s gender. Because the masculine gender is the default gender in cases where we don’t know, we usually supply the masculine pronouns and adjectives. It is very awkward to say, “The pioneer rode on his or her wagon.” Instead, we usually say, “The pioneer rode on his wagon,” thereby giving the false impression that the only pioneers were men. An even more revealing formulation is something such as, “The pioneers and their wives rode westward in their wagons,” which implies that only the men were actual pioneers. Advocates of a gender-neutral language have tried, with only partial success, to encourage us to use language in gender-neutral ways. This demands that we pay attention to our use of language, but that is usually something good. With some degree of care, it is usually possible to reformulate our language in gender-neutral ways.

Chapter 7. Gender

I have often used plural constructions in this book precisely for this reason, and tried in various ways to write in ways that do not involve gender stereotyping. Sexist vocabulary abounds in our language. Sometimes it is rooted in differential perceptions: a man is seen as “assertive,” a woman behaving in exactly the same way is perceived as “aggressive.” The two words describe the same conduct, but give quite different value-laden spins to each on the basis of gender. Sometimes specific words tell us a lot. One of the most striking analyses I have read occurred in an article by Robert Baker called, “Pricks and Chicks: A Plea for Persons.” Baker points out that obscene, transitive verbs describing sexual intercourse (e.g., “screw”) are usually used in such a way as to place women as the direct object and they are usually synonymous in English with “to harm or to hurt.” This suggests a view of sexual intercourse that few of us would commend, equating sexual intercourse with men harming women. It is a disturbing correlation that suggests a disquieting societal understanding of sexual relationships. Although it is easy to parody some attempts to eliminate sexist language, the point underlying such attempts is both clear and commendable. When we respect and care about someone, we speak both to them and about them in ways that manifest that respect and concern. In the final analysis, we try to avoid sexist language because we care about persons and respect them, and such language is incompatible with such caring and respect. If, on the other hand, we do not care for and respect others, our sexist language only solidifies and exacerbates that lack of caring and respect. The language is not the root problem, but the symptom of something deeper that has gone wrong. But just as it is valuable in medicine to reduce symptoms of disease, so too, there is a value in reducing sexist language, even though such reductions are far from a cure for the underlying ailment. Sex Discrimination

Discrimination based on gender has certainly diminished over the years, but it still remains an important issue in American society. Although the Equal Rights Amendment (ERA) was never ratified by the required number of states, there are a number of legal guarantees available to individuals, especially women, who are the objects of sex discrimination. Moreover, numerous affirmative action programs have helped increase the representation of women in places where they had previously been discriminated against.

Overt Job Discrimination and Unequal Pay Overt discrimination, where a woman is denied a job or promotion solely because she is a woman or is paid less than her male counterpart in the same job, has decreased significantly in recent years. In the 1960s, women made 59 cents for every dollar earned by men. In 1990, this figure was 72 cents, and, for younger women during that year, it was 80 cents. By 2010, it was about 82 cents. How much of this remaining discrepancy is due to discrimination and how much is due to other factors (women, on the average, work fewer hours per week than their male counterparts, many have fewer years of work experience than men of the same age, some leave the job force earlier when the family no longer needs the second income, etc.) is unclear, but it is clear that the relative position of women to men in the marketplace—although still subordinate—is definitely improving. Those who are discriminated against in these ways have legal recourse, even without the ERA, and there is an increasingly wide consensus in American society that we ought not to discriminate against people on the basis of gender. Although we may fail to live up to our ideals in this area, clearly equal pay for equal work has become one of our accepted ideals. The factors that contribute to this wage differential are often subtle but significant, and they may not be related to explicit sexism or intentional gender bias. Again, consider an example from the academic world. A couple, both Ph.D. students, gets married and decides to make the decisions in their marriage in a gender-neutral way. They decide, for example, that if they get job offers in two different cities, they will accept whichever offer is higher, irrespective of whether it is to the man or the woman. Gender-neutral, right? Well, almost. If they are like the average couple, she is probably 3-5 years younger than he is, and consequently she will have proportionately less work experience. Her job offer will probably be less than his, even if there is no gender discrimination. As their careers progress, if they have children, they may both work, but it is her research that will probably suffer as she tries to juggle teaching, research, a home, and children. She may defer applications for promotion by a few years, just to keep the pressure manageable. Again, no overt discrimination, but gradually a pattern emerges in which equal is not quite equal.

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Comparable Worth One of the more subtle ways in which sex discrimination occurs is when predominantly female occupations are less paying than comparable occupations with predominantly male employees. Examples come easily enough to mind: plumbers and truck drivers versus cleaning staff and secretaries. Although intuitively this seems true (at least to me), there are two significant problems in translating this intuition into something more concrete and effective. First, the notion of “comparable,” although intuitively plausible, is very difficult to make precise. Second, many (especially market conservatives) are very wary of intervening in the market to regulate wages. Legal protection: Theory and Implementation

Finally, it is important to note that it is often insufficient simply to pass legislation prohibiting something like sex discrimination unless there is a monitoring and enforcement structure to implement the legislation. Often, the impact of the legislation can be undermined if there is insufficient funding for its implementation. Again, opponents of big government may perceive regulation and monitoring as unwanted government intrusion. Rarely does it get perceived as government protection of those who are vulnerable. Rights in theory are of little significance if there is no enforcement mechanism in place to insure that these rights are actually observed. Sexual Harassment

Harassment in general consists of using undue and unwelcome means—usually short of outright violence—to pressure someone to some end, usually to do something that the harassed person does not want to do. Thus there are two crucial components of harassment: the means and the end. Workers might try to force a fellow worker to quit by pouring coffee in his locker, letting the air out of his car’s tires, or calling him on the phone repeatedly in the middle of the night. Such actions would be the means of harassment, while the end would be forcing the other worker to quit. Sexual harassment is usually sexual in two senses: (a) the end is usually to pressure someone (usually a woman) to have sexual intercourse (or some other kind of sexual activity) with the harasser and (b) the means to this end are usually things such as repeated sexual innuendoes, unwanted fondling, showing pictures, and so on. Sometimes, however, the means may be comparatively unrelated to sex: they may be threats about losing one’s job, a promotion, a raise, or something else that the harasser controls. Sometimes, too, the end may not even really be sexual: it may simply be about power. Often, male harassers were primarily concerned with establishing their own dominance. Several points need to be made about sexual harassment. First, most of us would agree that the less harassment in society, the better. This applies to all types of harassment, not just sexual harassment. Second, we are particularly wary of harassment of those who are most vulnerable to the intimidation of harassment: individuals of little power (usually women, often financially vulnerable) who have something (sex) that the harasser wants. Third, it is sometimes difficult to make judgments about incidents of harassment, especially when dealing with a single incident in isolation and without witnesses. However, in practice, harassment is often repeated and often done in front of other people. Fourth, sometimes appropriate expressions of sexual interest may cross the line into sexual harassment, due to either the insensitivity of the harasser or the oversensitivity of the harassed person. In MacKinnon’s original work, she noted two main types of sexual harassment, both of which—in significant measure because of MacKinnon’s efforts—were acknowledged as prohibited by Title VII of the Civil Rights Act of 1964: the quid pro quo situation and the hostile work environment.

Quid Pro Quo In Latin, this means “something for something,” and this is the heart of quid pro quo: something is exchanged for something else. Someone in a position of power—a boss, supervisor, teacher, department head—tells someone over whom they have power—an employee, a student, a patient—that they can get something they want—a promotion, a job, a good grade perhaps just not getting fired or not being given a failing grade—by trading sexual favors for the desired thing. John (the boss) tells Mary (one of John’s employees) that she can have a promotion if she has sex with him. The demand may be either explicit or implied. It may involve sexual intercourse or other sex-related activities.

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The Hostile Work Environment The second type of situation that came to count as sexual harassment was the hostile work environment. If employers or coworkers create an environment that interferes with the employee’s ability to work or that the employee experiences as “intimidating, hostile, or offensive,” then this counts as a violation of Title VII. So, for example, an employer who puts lewd photos of women all around the workplace and makes comments that have sexual undertones is creating what many women would experience as a hostile work environment, an environment in which they cannot be reasonably expected to do their job because of such interference. Whereas prior to 1964 and MacKinnon’s arguments in Meritor Savings Bank v. Vinson in 1986, women exposed to such working environments had no recourse, after the Supreme Court’s decision, there was at last something they could do. Male employers came to be held responsible for their conduct and for the working environment they established for their female employees. Sexual harassment was viewed as treating women differently than men and as unfairly stereotyping them, confining them to positions of inferiority. This was a fairly narrow and specific model of harassment, confined to a relationship between a man (the harasser) and a woman (the person harassed) and oriented toward sexual activity. But what of cases in which all parties are male heterosexuals and the harassment is sexual in innuendo but not oriented toward procuring sexual favors? What happens when some third party—for example, a vendor who visits the company periodically—experiences the workplace as hostile, even though the employer was not directing anything toward that third party? Imagine a traditionally conservative male Christian or Muslim vendor who, calling on the company once a week for orders, experiences the environment as morally offensive and finds it difficult to do his job (selling his product) in that environment. Do he have any recourse? Is this sexual harassment? It certainly does not fit the standard model. Given these general points about harassment, the central question facing us as a society in this regard is the extent to which we actively want to discourage sexual harassment, to provide special protection to those who may be victimized by it, and to punish those who harass. Sexual harassment can be discouraged through educational programs (beginning in schools, continuing on the job), the media, and the like. This is by no means limited to government initiatives; individuals can decide to provide appropriate models for dealing with harassment in their personal and public lives, in their business dealings, and so on. Potential victims can be afforded special protection through tough anti-harassment laws and through vigorous prosecution of those laws. Yet again, this is not simply a matter of legislation. Individuals can speak out against harassment when they witness it, even though it does not directly affect them. Companies can have strong internal policies against it, and it can be a serious factor in personnel decisions. Finally, we can pass strong legislation at various levels of government that discourages and punishes sexual harassment.

Models of the Place of Gender in Society Just as we saw that there was disagreement about the role of race in society, so too, we find that there is a significant degree of disagreement about precisely what the role of gender ought to be in society. The fundamental question that we face here is how we envision a future ideal society in regard to gender. Would it be one in which men and women occupy relatively traditional roles such as were common a generation ago? Is it one in which all references to gender have been banished, a unisex society? Is it one in which we still have some traditional roles but individuals—whether male or female—are free to choose whatever roles they want? Let’s turn to a closer consideration of each of these three models of the place of gender in society. The Traditional Model

Advocates of the traditional model of gender roles see the place of women as primarily in the home and the place of men as primarily in the workplace. Even within the home, the husband is seen as head of the family and the wife is viewed as subservient to him. For a man, his home is his castle; for his wife, the home is all too often something to be cleaned and a place of unpaid work, including cooking and child rearing. In the workplace, traditionalists usually—either explicitly in earlier times, or now implicitly—advocate a gender-based division of

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labor in which women occupy only low-paying (maids), menial (cleaning women), subservient (secretaries), and child-related (elementary school teachers) jobs that typically receive less pay than their male counterparts. Critics of the traditional model argue that it places women in an inferior position in the home and in the workplace as well. Women’s work in the home is unpaid and their labor in the workplace is underpaid. Moreover, women’s options are most severely limited in this model, and they are especially limited from jobs that bring wealth and power. Moreover, in an age when men are freer to divorce their wives in midlife and marry younger women after their family is grown, and in an age when all too many fathers ignore child support, women are especially vulnerable to financial abandonment in middle age. In a society that is reluctant to hire middle-aged people, especially those without a strong employment history, such women face great challenges when they try to return to the workforce. Some critics of this model add that the model is also injurious to men, forcing them into an emotionally constricting gender-based stereotype that denies them the joys of close relationships and places the burdens of financial support squarely on their shoulders. Defenders of the traditional model emphasize the necessity of this model for a strong family life and the importance of strong family life for society as a whole. Although talk about family values is often vague and misleading, there is clearly a sound point here: The most effective juncture for dealing with many widespread social problems is before they begin, and the best time to do this is when children are young and in the home. We return to a discussion of this topic later when we consider gender roles and the family. The Androgynous Model

At the other extreme from the traditional model, some have advocated a model of society in which gender would be as irrelevant as, for example, eye color presently is. Just as eye color makes no difference in job selection, salary, voting, child care, or anything else remotely similar, so, too—according to the androgynous model—gender should make no difference in these things either. Defenders of androgyny differ about how extensive the domain of the androgynous ought to be. The most extreme position, strong androgyny, maintains that sex- and genderbased distinctions ought to be eliminated whenever possible in all areas of life. Weak androgyny maintains that gender-based discrimination ought to be eliminated in the public realm (i.e., the workplace and the political realm), but in the private realm of personal relationships it may be unobjectionable. Among the objections raised to androgyny, three stand out. First, many argue that strong androgyny is impossible. There are simply too many differences between men and women for it to be possible to fit all into the same inevitably constricting mold. Indeed, recent research—which is quickly echoed in pop psychology and therapy—seems to suggest that there are many such differences, including areas such as communication styles. Trying to cram everyone into a single model would undo the progress we have made in understanding and appreciating our differences. The merit of this claim is discussed later in the section of the nature–nurture controversy. Second, many claim that, even if strong androgyny were possible, it is hardly desirable. Just as we seek to encourage diversity and difference in society as a whole, so too, such critics argue, we should try to encourage diversity and difference in the domain of gender. Finally, some have argued that strong androgyny is part of a larger view that sees men primarily as oppressors and women primarily as victims. Some defenders of strong androgyny reply to such criticisms by defending a weaker version of their position, which simply seeks to abolish sex-based stereotyping and prohibit, at least within the realm of work and politics, discrimination based on gender. At the juncture, androgyny comes increasingly close to the next model, which emphasizes the importance of freedom of choice for all persons. The Maximal Choice Model

Finally, many have argued in favor of a model that seeks to eliminate any gender-based restrictions on individual choice. In contrast to advocates of strict androgyny, supporters of the maximal choice model do not seek a unisex society. They are willing to accept that men and women may typically develop different personality traits and that there might even be typical differences in behavior. However, they stress the centrality of establishing a society that promotes freedom of choice, so that individuals can make whatever choices they want in both public and private life irrespective of their gender. Gender-based discrimination in the workplace and in the political

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realm would be abolished, and equally qualified men and women would have equal accessibility to any job, profession, or office they desire. Similarly, within the family, men and women would be equally free to occupy any combination of roles traditionally associated with either men or women. Criticisms of this model come from both sides. Traditionalists maintain that this model leads to great confusion in roles for everyone, and that social coherence is reduced as a result. Strong advocates of androgyny claim that, unless freedom of choice is reinforced with a strong restructuring of gender-based societal roles and expectations, the “freedom” is illusory: people will be subtly shifted into roles that correspond to the majority’s expectations. Only a more radical form of androgyny will establish the social order necessary to ensure genuine freedom of choice.

The Nature–Nurture Controversy Obviously, the choice of models in this realm will depend in part on the extent to which a choice is possible. Some have argued that choice is limited by human nature, and that nature fixes (at least to some extent) our gender roles. Others have claimed that these roles are established primarily (perhaps even exclusively) through nurture and are thus open to change. Advocates of change support the nurture side of this controversy, whereas advocates of the status quo (or, in some cases, an idealized version of it) support the nature side of the debate. Although this controversy obviously cannot be settled here, it is important to distinguish three questions when evaluating arguments in this area. First, to what extent do differences between the sexes actually exist? This is an empirical question best answered through careful research, especially in the natural and social sciences. Second, if differences do exist, what is their basis? Are they genetically based, “hard-wired” differences that remain unaffected by environmental changes or are they part of our “software” that can be reprogrammed through changes in child rearing, education, and the like? This is also an empirical question, but a more difficult one because it is asking about the causes of certain empirical conditions, not simply whether the empirical conditions exist. Third, whether there are differences or not, we must ask whether there ought to be differences and, if so, what those differences ought to be. Gender Roles and the Family

The place of gender in the family is one of the most difficult and controversial areas in which to seek common ground. As we indicated earlier in the discussion of the traditional model of gender roles, women pay a high price in their lives for their commitment to family—often a higher price than their male counterparts. As women have sought more equal access to the rewards of the workplace and more equal distribution of the responsibilities of home and family life, many men and women have been forced to rethink the ideal of the family and the way in which responsibilities have been apportioned by gender. As Susan Moller Okin shows in her book, Justice, Gender, and the Family, we would have to restructure the family significantly if we were to make the family a just institution. In particular, responsibilities for the home and for children would have to be distributed evenly, and this entails a significant redefinition of roles. Such restructuring need not conflict with important social values, but it certainly involves a significant reordering of priorities and responsibilities for men.

The International Dimension In the United States, we have seen significant progress toward gender equality. Other countries, particular European liberal democracies, have made significantly greater strides in this direction, particularly in providing social, economic, and political structures that are supportive of gender equality within the family. Men are much more likely to receive significant paid paternity leave, and women are often entitled to two or more years of paid maternity leave in European countries, with a guarantee that their job will be available to them when they decide to return to work. It is an interesting example of family values at work, family values that include a well-developed awareness of issues of justice within the family. So, without a doubt, there are countries that far exceed the United States in their support of gender equality within the family and that deeply respect the roles of women in society.

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Yet there are many more places in the world in which the place of women is much worse than it is in the United States. Under many governments, women are second-class citizens, forbidden from fully participating in the political and social and economic life of the nation. Several mechanisms contribute to this. Educational Opportunities for Women

The first and most effective barrier to such full participation is the denial of equal educational opportunity to women. In many societies, women are barred from universities, sometimes even from high school education. When they are allowed to participate, they are funneled into occupations specifically designated for women. They are encouraged to become nurses, not doctors; legal secretaries, not attorneys; cashiers and secretaries, not managers or directors. Reproductive Freedom

The second most effective barrier is the denial of reproductive freedom. As long as women can become pregnant against their will, without their consent, while their husbands cannot, a woman’s place will always be unequal, insecure in a world that, for their male counterparts, is secure. Birth control has become commonplace in many Western democracies, but there are countless countries around the world where women do not control their reproductive destinies, and this puts them at the mercy of their husbands. Violence Against Women

Violence and intimidation, the threat of violence, constitute the third major impediment to full gender equality for women. Sexism, sexual harassment, and sexual intimidation are all violations of the law in the United States and in western liberal democracies, but there are still many countries in which this is not the case, countries where women have little recourse to protect themselves from abuse and intimidation. In a number of countries throughout the world, women are the victims of so-called honor killings, often murdered by male members of their own family to avenge some perceived disgrace in the family. In countries where the “honor code” reigns, the normal protections of law no longer apply to girls and women thought to have violated family honor. Much of this centers on perceived sexual “contamination.” Women may be killed for an illicit kiss, a public declaration of affection—even for being the victim of rape. Their killers are almost never charged with a crime, and are often praised in male society as having upheld the family’s honor. Without a legal and political structure that guarantees equal rights and provides the enforcement mechanisms to insure such equality, women will constantly be vulnerable in a way that their male counterparts are not. Sexual Exploitation of Women

Women around the world—including in the United States—remain sexual objects to many of their male counterparts. In some cases, this sexual objectification is blatant, and the trafficking of women remains a major issue in our contemporary world. Women are bought and sold, used and discarded in the ways in which people use other disposable objects. In other cases, the objectification is just as pervasive, but more subtle. In the United States, pornography remains widespread, not because anyone is imposing it on our citizens, but because they choose it. Women are turned into objects in much of contemporary advertising, and this is not in any way confined to sleazy tabloids or the like. Look at the ads in the opening pages of the Sunday New York Times Magazine in virtually any issue, and the commodification of women will be display with amazing subtlety and refinement. Human Trafficking

To describe what happens to some girls and women around the world as exploitation would be to understate the case. Particularly in Asia, girls as young as ten years old are sold into slavery as prostitutes, often becoming part of a massive sex industry that serves both local and foreign sex tourists. In some cases, young boys are also sold into such bondage, but three factors put girls at a much greater risk of enslavement. First, the demand for girls is greater. Second, many families willingly sell daughters into bondage, since girls are far less important to many families than are sons. Third, because in many of these countries the marriage of a daughter involves giving a dowry, female offspring are actually an economic liability. This prejudice against females has far-reaching implications for women in developing countries.

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As Nicholas Kristof had documented so powerfully in his columns over the years in The New York Times, the harms against women have been massive. He estimates that, in the last five decades, more girls have been killed just because they were female than men were killed in all the wars of the twentieth century. He documents the ways in which, for example, girls sold into prostitution in Cambodia are shocked with cattle prods between customers to remind them to be pleasing to their customers. Amartya Sen and India’s Missing Women

Amartya Sen, the Nobel-prize winning economist and political philosopher who has held endowed chairs at both Oxford and Harvard, wrote a powerful article, “Missing Women,” in which he estimated that worldwide there were over one hundred million missing women, that is, women who would have been born and would have grown to maturity had they not be aborted, left to die after birth, malnourished to the point of death, neglected in terms of their health to the point where they died, and died in childbirth. In other words, if women were treated the same as men, there would have been one hundred million more of them than actually exist. We cannot even imagine a military attack that would leave one hundred million dead. It is all the more stunning to realize that such deaths have been largely invisible to us, at least until Sen’s groundbreaking work. The ratio of women to men in countries such as China, India, Pakistan, and Bangladesh shows clear evidence of this trend, especially among the younger age cohorts. In European countries and the United States, the ratio is about ninety-five girls per one hundred boys. (This appears to be the “natural” ratio which overall results in a gender balance in human populations.) In contrast, the ratio in Singapore is ninety-two girls per hundred boys; South Korea, eighty-eight; China, eighty-six. Such numbers are troubling for two reasons. First, they indicate a massive harm against females. As I said earlier, these figures would be staggering if they reflected the casualties of a military battle. They should be no less alarming because they occur silently and largely in secret. Second, no one knows what the long-term effects of such severe gender imbalance will be in countries such as China. How will it handle the surplus of men as they reach adulthood and find that there are not enough women to marry? Will some women be forced into prostitution? Will they emigrate in search of wives? Or, most frightening of all, will the Chinese government feel that it can wage a war with heavy casualties on their own side? Typically, countries try to avoid wars in which their young men will be killed. However, with such a surplus in the male population, this natural inhibition against war may disappear, to the detriment of everyone. The Rise of Sex Selection

Although infant health has improved in these Asian countries significantly, another factor has taken its place: sex-specific abortion of female fetuses. In the 2012 report of the World Bank on Gender Equality and Development, we find a detailed portrait of the status of women around the globe and a careful analysis of the barriers to gender equality that still exist in most countries throughout the globe. For decades, sex selection was thought to be a problem confined to Asia and Africa, but recent evidence suggests that that is changing. Until recently, in European countries and in the United States, couples have shown a slight preference for girls over boys in sex selection. That trend is changing, at least in Eastern European countries where the ratio in some countries is up to 111 boys per 100 girls. In Mara Hvistendahl’s recent book Unnatural Selection: Choosing Boys Over Girls, and the Consequences of a World Full of Men, she argues that sex selection and gender imbalance threaten to become a serious problem for Western democracies as well in the coming decades.

Conclusion When we think of the progress made by American women, we should pause to consider the situation of women around the world in order to realize that gender equality, and respect for women, is a distant ideal in many countries around the globe.

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The Arguments Kathy Miriam

Stopping the Traffic in Women: Power, Agency and Abolition in Feminist Debates over Sex-Trafficking About the Author: Kathy Miriam is an independent scholar who writes widely in the area of feminism and related issues. Her blog, “Dialectical Spin: Radical Feminism in Other-Land,” is available at http://kmiriam.wordpress.com/. About the Article: Traditional liberal approaches to the issue of prostitution argue in favor of allowing prostitution in those instances in which it is an un-coerced exchange of “sexual services” for money. Miriam’s article calls into question the underlying assumptions of this model of free exchange and maintains that a clear understanding of these relationships reveals the ways in which women do not just sell a service, but sell command over their bodies. As You Read, Consider This: 1. Miriam refers to the “sex wars.” What does she mean by this? In what way does Miriam’s article raise some of the questions previously debated in the sex wars? 2. Miriam’s work develops a radical feminist critique of the liberal political order. Explain what she means by the phrases “radical feminist critique” and “liberal political order.” 3. The focal point of Miriam’s argument is the notion of agency and, more specifically, her critique of the “contractual, liberal model of agency.” Explain what Miriam means by that phrase and why she thinks this view of agency is misleading. 4. What does it mean to “theorize power and agency outside a liberal framework?”

Introduction

In the 1980s, U.S. feminism fractured along political fault-lines defined by conflicting views of prostitution and pornography and related conceptions of power, agency, and sexuality.1 The “sex wars”—as they were unfortunately, popularly labeled—were apparently settled by the end of the decade, with “pro-sex” advocates declared the winners. The radical feminist anti-pornography and anti-prostitution position has been effectively marginalized—at least within the academy. Interestingly, the same cannot be said for debates around similar issues in a new transnational arena of feminist politics. Since the 1990s, numerous feminist nongovernmental agencies and grass-root groups across the hemispheres have been organizing to stop global trafficking in women and children.2 In this context, old feminist debates about prostitution have reconfigured themselves along familiar theoretical lines. The contours of the debate are largely defined by, on one side, activists who align themselves with a radical feminist and abolitionist approach that defines prostitution as an institution of male domination. On the other side, activists who are “pro-sex-work” aim to distinguish prostitution as voluntary “work” from “forced prostitution,” and to distinguish voluntary migration from (sex) trafficking.3 The radical feminist camp has largely prevailed in terms of how international protocol is currently formulated. The “UN Optional Protocol of Trafficking in Human Beings,” known widely as the “Palermo Protocol” was signed by 105 countries in 2002 and specifically does not construct a separate category for “forced” prostitution but rather, classifies prostitution (unmodified) as a major component of trafficking.4 Pro-sex-work advocates, however, continue to press for the distinction between “free” and “forced” prostitution. The feminist debate over trafficking offers a timely opportunity for feminists to revisit central philosophical questions concerning agency and “Stopping the Traffic in Women” by Kathy Miriam, Journal of Social Philosophy, Vol. 36 No. 1, Spring 2005, 1–17. Copyright © 2005. Used by permission.

power. Given the magnitude of the problem, namely, the vast numbers of women and children whose lives have been devastated by sex-trafficking under globalization, such questions reemerge with a new political urgency. In this paper, I address these questions in a defense of the abolitionist position. One primary source for my approach is the breakthrough work of Carole Pateman’s critique of “the sexual contract.”5 I argue that Pateman elaborates and advances radical feminism’s main contribution to political philosophy, namely, its disclosure of male dominance as the latter is embedded within and presupposed by a liberal political order. Following Pateman, the root question of an abolitionist approach to prostitution is not whether women “choose” prostitution or not, but why men have the right to “demand that women’s bodies are sold as commodities in the capitalist market.”6 The central premise of the abolitionist approach is that, “men create the demand; women are the supply.”7 In the sections that follow I first make explicit what I take to be the core elements of the radical feminist critique of liberalism, a critique that is central to the subsequent arguments of my paper. Secondly, I argue that the pro-sex-work approach depends on a contractual, liberal model of agency that both conceals and presupposes the demand side of the institution of prostitution. I will then directly address and clear up major points of intellectual confusion about the radical feminist conception of power at stake for the abolitionist argument. Finally, I conclude that if faced squarely, this theory of power does not, as is so often claimed, foreclose women’s agency, but rather radically challenges feminism to theorize power and agency outside a liberal framework. The Radical Feminist Critique of Liberalism

Briefly, liberalism continues to be the main philosophical and political philosophy in modern Western societies. For all the efforts to revise, contextualize, and update its classical statements, the result is still variations on certain central ontological themes. Most important for present purposes, liberalism still centrally values the “autonomy” of “individuals” and their rationality, and it continues to promote the idea of a universal equality in terms that conceive that equality as open to all individuals on the basis of this autonomy (“Just make the playing field level.”). It follows, of course, that liberalism is centrally concerned with the idea of “choice,” and construes “choice” as the exercise of the individual’s autonomous will. Disagreements among liberal theorists typically revolve around the question of the extent to which the state can justifiably limit individual “choice,” and the extent to which it must guarantee an individual’s “right” to make choices without interference. A liberal state’s concern with the distribution of rights is thus largely a function of the settlements made concerning these disagreements. Self-defined “liberal feminists” generally take the core conceptions just mentioned as uncontested starting points of political philosophy and then go on to argue that women have so far not been accorded the full autonomy promised by the philosophy.8 In contrast there has been a long tradition of critique, including (aspects of) radical feminism, Marxism and (at least in principle) poststructuralism that contests these very starting points. Most importantly for present purposes, this tradition contests liberalism’s core idea of an unsituated freedom and autonomy, or, in other words a view of individuals as, in principle, free of historical and social conditions. To be sure, such a stark individualist view is not held by all liberal political philosophers. However, even those philosophers who develop theories of situated autonomy/freedom, often implicitly construe individuals as having the power to have and be affected only by those aspects of that determinateness that an individual “decides” to accept.9 The radical critique of liberalism contests the definition of freedom as something in the head, in one’s “thoughts,” or as the physical/legal condition of “being let alone.” Feminists like Carole Pateman, following in the path cleared by Catharine MacKinnon, have elucidated a specifically gendered aspect of this unsituated autonomy. Pateman focuses particularly on the contractarian tradition of liberalism, a tradition in which the concept and practice of contracts is central. Pateman shows that contractarian liberalism has significant political and conceptual force in contemporary understandings of freedom, agency and power and how these understandings are presupposed and embedded in a range of institutions, including (post)modern forms of prostitution. For this reason, contractarian liberalism, and Pateman’s critique of it, will be central to my own criticisms of the pro-sex-work position. For Pateman, the social/sexual contract is an organizing “principle of social association.”10 In other words, although we think of contract as an “exchange” of pieces of (material) property between two parties, the kinds of contracts that interest Pateman are those that “create relationships (such as that between worker and employer, or wife and husband).”11 In these kinds of contracts (e.g., employment) what is exchanged is a special kind of property, namely,

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“property in the person.”12 Pateman argues that the core liberal notion of freedom—the freedom to be left alone—is derivative of, rather than preceding, the proprietary concept of the individual.13 In other words, freedom for the individual-as-owner-of-property-in-his-person includes the freedom to have this property left alone. As a principle of social association, contract structures those relations through which the property of one person/owner can be legitimately used by other individuals/owners without violating the individual’s basic freedom, that is, his/her freedom to own property in his person. The individual, defined as an owner of property in his person, is constructed as “free” to trade/sell his capacities through the contract relation in exchange for some benefit. Note that this “exchange” presupposes that a person’s capacities are separable, like pieces of (material) property, from the “self.”14 As Pateman notes, a powerful “political fiction” masks the fact that a person’s capacities are not separable from her self like pieces of property.15 In the context of the employment contract, for example, this political fiction is the fiction of “labor power” and allows for the story of employment as an “exchange”: according to this story, the worker sells her “labor power” in exchange for some recompense. As Pateman shows, this story of the employment contract masks the real transaction at stake in the contract which is not in fact an exchange but a practice of alienation. In turn, since the worker’s capacities cannot in fact be alienated from his person, what the worker is really offering (surrendering) to his/her employer, through the contract, is her/his (situated, embodied) autonomy.16 That is to say, the real transaction in this contract is defined by the worker’s freedom to be subordinated to an employer/boss. With respect to prostitution, the central political fiction of prostitution-as-an-exchange is the story that through the prostitution contract, a woman sells “sexual services” for money, as if sexuality were not actually embodied, as if there existed a subject who, magically, was capable of separating her physical/sexual capacities from her “self.” This “conjuring trick” (to use Pateman’s phrase) called “sexual services” obscures the real meaning of prostitution as “an institution which allows certain powers of command over one person’s body to be exercised by another.”17 Thus Julia O’Connell Davidson, closely following Pateman’s analysis here, describes the transaction: The client parts with money and/or other material benefits in order to secure powers over the prostitute’s person which he (or more rarely she) could not otherwise exercise. He pays in order that he may command the prostitute to make body orifices available to him, to smile, dance or dress up for him, to whip, spank, massage or masturbate him, to submit to being urinated upon, shackled or beaten by him, or otherwise submit to his wishes and desires.18 In sum, what is really sold in the prostitution or the employment contract is not some fictional “property,” but a relation of command: the prostitute/employee sells command over her body to the john/pimp/employer in exchange for some recompense. It is this fundamental relation of domination and subordination that is mystified, if not denied, by the pro-sex-work position on “free prostitution.” The “Agency” of “Sex Work”

The category of “free prostitution” depends on “the invention of sex work,” that is to say, it depends on the crafting of “sex work” as a new descriptive and normative category for theorizing prostitution as a form of “labor.”19 The pro-sexwork position is not theoretically or politically homogenous and is defended by a range of arguments. At its most persuasive, the argument for defining prostitution as a form of labor importantly undercuts the fallacious and misogynist notion of prostitution as either “easy money” and/or as evidence of women’s moral lassitude and “promiscuity.” By legitimizing the “labor” of prostitution, pro-sex-work advocates aim to restore dignity to those decisions that enable women to survive within the constraints of the current global economy.20 Given conditions of extreme poverty for women, pro-sex-work advocates claim that women choose prostitution to survive, and that recognition of this choice as a form of labor is essential to the goal of securing health and safety standards for women in an industry that otherwise remains unregulated and unprotected, leaving sex workers particularly vulnerable to such “work hazards” as violent assaults, rape, and sexually transmitted diseases. Following upon this goal, and against abolitionism, pro-sex-work activists advocate for political strategies of decriminalization, regulation, and/or unionization of sex-work-labor. For abolitionists, a sanitized, regulated sex industry begs the moral question of whether regulating men’s access to women is better than not regulating it. The strategy also begs the political question of whose interests are best or most served by such an approach.21 Since the pro-sex-work position depends on a definition of prostitution as work, one key philosophical issue for my defense of abolitionism concerns the very intelligibility of

the category “sex work”: What assumptions are required by the argument that prostitution is a form of work? What philosophically and politically has enabled the “invention of sex work”? While some philosophers have tackled the issue by comparing prostitution, unfavorably or favorably, to (other forms of) labor, my approach is somewhat different.22 My aim is limited to arguing that the category of “sex work” depends on a contractual model of agency and its central notion of the proprietary self, and thus a model that both presupposes and conceals the social relations of domination that obtain for prostitution. I see two variations of the contractual model of agency and of the proprietary notion of self that is assumed by the pro-sex-work argument although the same prostitutes’ rights advocates often oscillate between both variations. I call these the “economist” and “expressivist” models of agency. The economist approach to “sex work” begins from the empirically sound claim that many women sell their bodies as a way to secure means of subsistence for themselves and their children. However, the argument then shifts from this descriptive claim to a normative claim that therefore selling sex is or ought to be a legitimate economic choice for women. This economist view is advanced by a major player in the trafficking debate, namely the pro-sex-work Global Alliance Against Trafficking in Women (GAATW).23 In its description of the “causes and factors of trafficking,” GAATW lists “the desire for a better life, poverty, gender and other forms of discrimination, family disintegration, negative cultural and religious practices, and the substantial profits that can be made from the trade.”24 Strangely, although GAATW opposes trafficking, in this passage it fails to differentiate here between conditions of the emergence of traffickers and the trafficked—as if both parties, for example, made “substantial profits . . . from the trade.” The report also mutes the factor of gender, for example suggesting that “The low social value given to girls can contribute to trafficking as girls are often educated to [a] lower level than boys and have fewer work opportunities in skilled professions.”25 However, the gendered/sexual specificity of the “work opportunity” offered by trafficking is not given any more ethical or political weight than any other factors in the discourse. Most importantly and strangely, men’s demand for commodified sex is not even listed as one of the conditions of trafficking. GAATW’s distinction between coerced and free prostitution depends on a blind spot to the relation of demand undergirding prostitution, and seems to make the liberal assumption that freedom is essentially a state of being “left alone”— or the state of not being forced to do something. From this perspective, “free” prostitutes are economic agents like Kafui, a single mother and low income clerk from Togo who, according to GAATW voluntarily migrates to Lagos, Nigeria, to increase her income through work as a prostitute: “Kafui could freely choose her clients and where and when she wanted to work. She sent money home to her family. After one year Kafui had saved US$1000. She returned to Togo and used this money to buy her own home there.”26 Replete with such American-dream icons as home-ownership, a very Western, individualist script is super-imposed upon the practice of prostitution in this account. This script, I suggest, assumes a notion of the proprietary individual, the sex worker as an agent who strategically and instrumentally uses property in her person (e.g., her sexuality) to further her economic self-interest. The pro-sex-work camp, however, often ascribes a set of values to the economic choice of sex work that exceeds a purely economist view and aims at investing prostitution with new cultural—and feminist—meaning. One of the premises of this approach—advanced by writers such as Wendy Chapkis, Josephine Chuen-Juei HO and Kamala Kempadoo—is that the radical feminist view of prostitutes as victims is a distorting ideology rather than a social analysis, and as such, calls for new interpretations of the practice of prostitution. Thus Chapkis reinterprets prostitution as “erotic labor;” and claims that “like other forms of commodification and consumption, practices of prostitution can be seen as sites of ingenious resistance and cultural subversion.”27 In this light, “the prostitute cannot be reduced to one of a passive object used in male sexual practice, but instead it can be understood as a place of agency where the sex worker makes active use of the existing sexual order.”28 An interpretation of sex work as “active use” of the existing order requires that feminists see “sex work not only as ‘work’ but maybe even as a ‘profession’ (both in appearance and spirit),” an attitude that “could prove to be most useful and beneficial for sex workers.”29 Thus argues HO, emphasizing that the selling of sex to male customers requires enormous creativity on the part of prostitutes who, she also claims, often feel “professional pride” in their “work.”30 Theories of sex work advanced by writers like HO, Chapkis and Kempadoo presuppose an expressivist (in contrast to economist) model of individual freedom. I use Charles Taylor’s term “expressivist” to refer to a

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specific heritage of Western Romanticist thought that defines individual freedom in terms of a “poeisis,” an activity of self-creation.31 For expressivist/Romanticist philosophers, individual self-definition is a process that unfolds from within the deep interior of self, a process of both creating and discovering one’s authentic identity. Although essentially an idealist conception of freedom (freedom is in change of consciousness) inherited from Hegel, the expressivist model of the self-as-creative-activity did influence Marxist notions of work as (ideally) a form of self-actualization essential to human development.32 Through work, the laborer externalizes her/his “species-being” as human; alienation refers to the way in which this process of self-externalization is appropriated by capitalists. A similar expressivist model of work is applied by Kempadoo to sex work, although she omits the part about alienation and appropriation. Kempadoo includes prostitution under the category of “reproductive labor”: Like “reproductive labor,” sex work is interpreted as “human activity,” specifically “the way in which basic needs are met and human life produced and reproduced.”33 Sex work specifically involves “activities involving purely sexual elements of the body.” If we take out the word “purely,” this last point is uncontroversial. And I would not object to the point that “[S]exual energy should be considered vital to the fulfillment of basic human needs: for both procreation and bodily pleasure.”34 The leap in logic comes with the conclusion that because (1) sex work involves sex and (2) sex is or rather ought to be a vital activity then therefore (3) sex work itself is or ought to be considered vital to the fulfillment of human needs. But whose basic human needs are “fulfilled” by sex work? And is men’s demand for commercial sex any more a “basic human need” than, say, Americans’ “need” for SUVs? What is omitted is any critique of the power relations defining the practice of prostitution, in other words how women’s “sexual energy” is appropriated by johns, pimps and traffickers for the latter’s profit and pleasure, analogously (although not perfectly so) to the way in which (according to Marxist theory) the worker’s “energy” is appropriated by the capitalists for the latter’s profit. Without this critique of the actual material, power relations defining prostitution, it becomes possible to cast the “agency” of prostitution as no less than a form of self-actualization, a space for “ingenuity” and creativity. In this vein, HO can claim that sex workers “experiment with various cultural resources” that in turn “empowers” them as not only workers, but as sexual agents.35 The “freedom” implied by this view of sex work is an idealist and “expressivist” notion of freedom as existing in an interior process of self-definition and value-creation—”freedom” pictured as “in the head.” A main political strategy that follows from this expressivist conception of sex work is one that casts sex workers’ rights in terms of a politics of “recognition.” A politics of recognition pivots on “identity” as its moral/ political fulcrum and aims at redressing injuries to status, for example stigma and degradation, as a basic harm or injustice inflicted on certain identity-groups—Jews, Blacks, gays and lesbians, transgendered people, etc.36 Applied to prostitution, then, the stigmatization of prostitutes—rather than the structure of the practice itself— becomes the basic injustice to be redressed by pro-sex-work advocates who now construe prostitutes as “sexual minorities” to use Gayle Rubin’s now widely circulated term.37 With the identity-concept of the prostitute as a “sex minority” (as Rubin specifically argued), we have traveled full circle from the argument that as “work” prostitution has nothing to do with the prostitute’s own sexuality but is purely a means for a woman’s economic gain, to arrive at the notion that selling commercial sex is fundamentally an expression of an individual’s own style and desire. The circle is logical despite an apparent dissonance between notions of embodiment underlying the two models of sex work. The economist model assumes a starkly instrumental notion of the body and agency. To use Pateman’s description of the proprietary individual, this version pictures a disembodied, Cartesian subject who can stand in the same external relation to her body and capacities as she can to other (material) objects.38 In contrast, the claim for sex work as “expression,” namely as creative expression of identity and sexual agency, appears to affirm an embodied autonomy for the sex worker. But the contrast is deceptive. The expressivist model of sex work affirms a contract structure of sex work and its central fiction of exchangeable sexual services, a structure and fiction that precludes the conception it wants to affirm—of an expressive, situated, embodied subject. This expressivist model of sex work still presupposes the proprietary individual who can stand back, as an abstract self, from her “sexual energy” and from this abstract position alienate this “energy” as a “service” to circulate for customers in return for payment. Thus, the expressivist and economist models of the sex worker are two versions of the same contractual paradigm of disembodied agency.

The convergence of the expressivist and economist models of sex work is at once perfected and perfectly concealed by a postmodern theoretical approach to sex work that construes the latter as a purely discursive construction “produced” by modernity, and as such an “empty symbol.” Thus Shannon Bell, taking this approach, argues that “the referent, the flesh-and-blood female body engaged in some form of sexual interaction in exchange for some kind of payment, has no inherent meaning and is signified differently in different discourses.”39 Seen as contingent in meaning, prostitution is illimitably open to re-interpretation, including feminist reinterpretations of prostitution as empowering for women. Thus Bell affirms the emergence, in the United States, of new prostitute performance artists who have reinvented “the prostitute” as a “new social identity”: the “prostitute as sexual healer, goddess, teacher, political activist, and feminist.”40 From this vantage point, the body of the prostitute is infinitely “protean,” a text that accommodates “endlessly shifting, seemingly inexhaustible vantage points” of interpretation, and thus exemplifying what Susan Bordo criticizes (referring to what she considers to be a postmodern notion of the protean body) as a traditional, Cartesian “fantasy of transcendence” in its “new, postmodern configuration.”41 Rather than owner of property, singular, in one’s person, the protean postmodern self is owner of properties, plural, in one’s (fragmented) person.42 In this version, freedom is the ability to circulate among multiple “identifications,” allowing then, for an interpretation of prostitution that abstracts the institution from any particular, historical situatedness in patriarchal capitalism. However, the proprietary concept of the (unified) self, remains the hidden precondition of this semiotic free play of interpretation. What is still presupposed is the (invisible) liberal Cartesian standpoint of a “self ” free to stand back from its determinants and thus free to pick and choose those determinants it desires to be affected by and thus play with. But what is the real “identity” of this “double agent”? Is it coincidental that this is “a discourse about prostitution promoted by a handful of relatively privileged white American women as though it carries a weight equal to any other discourse” as O’Connell Davidson argues?43 The sex worker as postmodern text issues from an elite vantage point, the abstract intellectual projecting its own version of abstract individuality onto prostitutes in general, the vast majority of whom lack a fraction of the mobility enjoyed by the privileged group who craft the theory. I do not deny that women make real choices in some or many of the cases in which they enter prostitution for their economic survival. What I am contesting is a fantasy of “free” prostitution, insofar as this freedom is inscribed within expressivist and economist models of sex worker agency. For such “freedom” serves to mystify the actual conditions that determines this “economic” option, selling command over their bodies, as an option for women (and children) specifically, not for “any” (abstract and/or textual) body. The “sex work” model of agency occludes the reality that it is men’s demand that makes prostitution intelligible and legitimate as a means of survival for women in the first place. In my next section I turn directly to the issues of “demand,” the concept of domination at stake in the abolitionist critique of men’s demand, and questions of women’s agency and freedom raised by this conception of (male) power. The Radical Feminist Critique of Domination

The radical feminist theory of domination which underlies a feminist abolitionist stance on prostitution has been misconstrued by critics of the theory. These critics show two main points of confusion in this regard, namely confusion about the relation between power and domination, and confusion about the relation between domination and coercion. For example, the pro-sex-work distinction between “coerced” and “free” prostitution depends on a conflation of domination and coercion. Thus, pro-sex-work advocate Niki Adams, of the English Collective of Prostitutes, objects to legal measures that criminalize pimping in and of itself when, she argues, harms against prostitutes are already covered by laws against “rape, sexual assault, kidnapping, false imprisonment, coercion . . . theft, extortion [etc.].”44 The argument here, however, glosses over what both abolitionists and international protocol has defined as the inherent harms of pimping, prostitution, and trafficking—harms that are broader than coercive force. As Liz Kelly argues, the debate over whether prostitution is “forced” or “free” is the wrong debate. “The notion of ‘force’ being the definer of trafficking sits uneasily with the now widely accepted definition within the [Palermo Protocol]. Along with force, coercion and threat . . . the definition of trafficking include[s] deception and human rights abuses such as debt bondage, deprivation of liberty and lack of control over one’s labour.”45 In my view, Kelly is describing an institution defined by relations of domination and subordination. These rela-

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tions of domination and subordination enable a range of harmful and exploitative practices in trafficking and prostitution, practices that include but are not limited to use of coercive force. The question remains of how radical feminists theorize domination and the relation of domination to power. Amy Allen, in her discussion of debates over pornography, criticizes the radical feminist position as limiting its concept of power to domination and subordination—”power-over others.”46 Allen makes the valid point that feminism needs a conception of power as “power to,” or, in other words, the power to act with others for social change. While it is clear to me that the radical feminist position can and ought to be expanded to include this notion of collective agency, Allen draws a different conclusion. In her view, the radical feminist theory of power forecloses this new notion of agency, that is to say that its theory of power-over specifically “undercuts the very aim of feminism: the empowerment of women.”47 Yet, in my view, we cannot theorize “empowerment” without a radical critique—and demystification—of the meaning of “agency” in a liberal social culture. Therefore, contra Allen, the radical feminist critique of power-over is a precondition for conceiving “the empowerment of women” precisely because of its analysis of the inextricable relationship between female agency on the one hand, and male domination, on the other hand, in a liberal social order. Pateman’s work, for a striking example, affords us a unique insight into the contractual, liberal model of social relations as a structuring force of contemporary male dominance. In Pateman’s view, sex difference is a structure of modern liberal social orders, and is necessarily also a “political difference, namely, the difference between freedom and subjection” or more specifically, the difference between male mastery and female subjection.48 Male mastery and female subjection is a power relation structured into liberalism, and thus also into the organization of modern patriarchy. Pateman’s critics consistently misrepresent Pateman’s model of power in voluntarist and individualist terms, as if what Pateman was referring to was individual men’s coercive control over individual women. In this vein, Nancy Fraser represents Pateman’s model of male power as a “dyadic model” involving “the authoritative will of a superior,” a man, over his female subordinate(s).49 Allen applies the same argument to MacKinnon and suggests that a “dyadic” relation of power might have been applicable in earlier periods of patriarchy—when for example practices of coverture were pervasive, a legal doctrine that granted men control over his wife’s property and person in a myriad of ways. Today, however, Allen argues, “domination and subordination have taken more diffuse social and cultural forms.”50 Allen argues that we need to “broaden” our notion of domination “such that the focus of analysis shifts from the master/subject dyad to the background social and cultural conditions that shape dyadic relations.”51 If by “master/subject dyad” Allen is referring to individual relations between men and women then I agree that feminism needs to understand the background conditions of these relationships. However, it appears that with the term “dyadic model” Allen is conflating “men’s power over women” on the one hand, with individual men’s command over individual women on the other hand. If there are background conditions that “shape” relations between women and men, men’s power over women is itself a shaping element of these same conditions. Rather than shift our analysis away from men’s power over women we need to sharpen our focus on this relation in order to understand both new and old forms that women’s subordination takes today. To begin with, radical feminism emphasizes that men as a social group continue to have interests in diffuse forms of women’s subordination. R. W. Connell has theorized men’s interests as “the patriarchal dividend,” by which he means, the surplus that men as men continue to extract from women through a variety of modern practices of power.52 This “dividend” is tacitly legitimized by what Adrienne Rich first called “the law of male sex right over women,” meaning men’s tacit right of access to women’s emotional and physical capacities.53 Analysis of “sex right” is not a theory of men’s individual, coercive behaviors vis-à-vis women, nor is it a theory of men’s juridical rights to dominate women. On the contrary, sex right is part of the background understandings of gendered, unequal social relations that make, say, an individual man’s use of coercive force over a woman legitimate and intelligible even when explicit expressions of sex right (such as coverture) have been eliminated. “Sex right” is the invisible precondition of a liberalism that (still) works in men’s interests, a claim which does not preclude an analysis of how class and race interests and “rights” are also presupposed by the same political order. Radical feminist abolitionists conceptualize prostitution as an institution fundamentally based on men’s sex right, that is, men’s entitlement to demand sexual access to women. O’Connell Davidson (who is not pro-sex-work)

criticizes this conception of prostitution—for example in Pateman—as based upon a one-dimensional notion of patriarchal power. In other words, O’Connell Davidson thinks that this conception of prostitution reduces prostitution to one social/power relation: “Prostitute use becomes a straightforward expression of patriarchal domination (it is described as an act of aggression, of violence, and of rape)” and thus, for example, elides the difference between rape and prostitution.54 O’Connell Davidson argues that we must distinguish prostitution as a practice dependent on a contracted relation from rape as the act of “being taken by force.”55 She does concede that the contract in prostitution is “fictional” insofar as it suggests a voluntary exchange; but, she claims, it is a “fiction” that is important to the specific social relations that obtain in a prostitute’s relationship with a john, pimp, etc. Most importantly, the “fiction” is important to the degrees of agency that women exercise in this relationship, even if this agency means—to use O’Connell Davidson’s own telling description—degrees of control over one’s “unfreedom.”56 Even if O’Connell Davidson is right to argue for differentiating between, say, rape and prostitution, her own grounds for this distinction are debatable. For example, she claims that “[i]f prostitution is rape, then it is logical to define prostitutes as women who are publicly available to be raped, and this is precisely the position taken by many police officers, judges and jurists around the world who refuse to accept that a woman who works as a prostitute can ever be raped.”57 But we can see that it is logical, although cruelly unjust, that police, judges, jurists, etc. would view prostitutes as “unrapeable.” That is to say, if prostitution is an institution that entitles men to have sexual access to women, the view of prostitutes as unrapeable is an effect of the institution itself rather than a distorting view of the institution. From the epistemic and moral standpoint of the sexual contract, women who “willingly” sell themselves to men for sexual use are not intelligible “true as victims” of forced sex. (They are always asking for it.) Contra O’Connell Davidson, an analysis of prostitution as a form of rape does not require a view of power as one-dimensional. Rather, it depends on a critique of the way male dominance and female sexual agency are structured into the epistemic and moral/political order of liberalism. We can thus understand the (un)rapeability of prostitutes as due to specific relations of male domination that are themselves not reducible to sheer coercive force. I suggest that these relations of domination obtain for both rape and prostitution insofar as both rape and prostitution are constructed through the sexual contract. From this perspective, an examination of how rape is like prostitution, more than the reverse, might afford us deeper insight into the complexity (rather than one-dimensionality) of male domination within a political liberal order, and correspondingly, insight into the structure of female sexual agency that a pro-sex-work discourse is invested in. By “rape” I do not only refer to the discrete, isolated event—an event which is never truly discrete and isolated in terms of how it is interpreted and experienced (by both rapist and raped), or in terms of the power relations that contribute to the experience and its interpretations. I refer here also to how rape is currently adjudicated (or not). The legal interpretation and treatment of rape—how rape becomes intelligible as such—is a contributing factor to how sexual agency as well as violation is experienced within women’s contemporary social situation. First, consider the way that the definition of rape as “coerced” sex has been drawn in opposition to a woman’s “consent” to sex. To elaborate, as most feminists know, more times than not, a woman’s “normal” (hetero)sexual, gendered behavior is taken as presumptive evidence of her consent. A deeper point has not as often been recognized, namely that this “consent test” has not only served to undermine the credibility of women’s accounts of rape; it has also served to make women’s credibility irrelevant to the conviction of rapists. Thus legal theorist Katherine Baker argues that the “evidentiary problem of credibility” is not the main obstacle for securing rape convictions as is popularly believed; rather, the main obstacle is the “normative problem of desert.”58 In other words, juries and judges might believe the victim’s account that a rape took place but still believe that the victim somehow “asked for it.” From this epistemic and moral vantage point, even in cases where evidence of a brutal stranger rape has been established during a trial, a proven rapist may be judged as not deserving conviction, not if the victim, say, wore a lace miniskirt and no underwear as was the case in an actual 1991 Florida trial.59 From this same vantage point, the category of rape itself disappears, having subdivided beyond recognition into “consensual” vs. “nonconsensual” rape. In my view, the consent in the “consensual rape” presupposed by these kinds of legal practices, is consent as structured by contract relations, namely, as (following Pateman) consent to be subordinated. Consider, in this light,

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that the “consent” in this legal/common-sense paradigm of rape implies the proprietary concept of the individual. Now that a woman has been released from confinement within the private domain, she is hailed as an “abstract individual,” and thus “autonomous,” a sacrosanct “owner” of property in her own person—except, that is, if she wears a lace miniskirt and no underpants. No, rather, it is because she wears a lace miniskirt and no underpants: as an owner she is free to use property in her person as she chooses; this includes her choice of clothing and behavior, her intercourse with men. What do we have to assume about the very meaning of women’s sexual agency within an epistemic and moral framework that takes for granted women’s consent to sex/rape unless it can be proven that she physically resisted her assailant, was a virgin, wore plain, concealing clothing, or otherwise did not “provoke” her attacker? Following Pateman, I think we have to assume that within this framework, the meaning of a female sexual agent is the meaning of being a woman who has already contracted for men to have sexual access to her body. Women are told by a liberal political order that we too, like men, are abstract individuals within the public realm of civic society, indeed that we can shuck our gendered bodies as we enter into the social contract, only to have our very particular, sexualized “pound of flesh” returned to us by this same contract. Women are taught, precisely by rape and other forms of men’s (tacitly) legitimized sexual access to women, that entry into the public for women is only as sexed/gendered. When, in cases of dire poverty, the only or “best” means for women’s survival is to sell to men, command over their bodies, and when this selling of command is considered to exemplify these same women’s agency, the sexed/gendered specificity of women’s “individuality” in a liberal political order is at once thrown back at us and made to disappear before our very eyes. In sum, the invisible precondition of the (post)modern woman’s visible (public) sexual “agency” is men’s demand for sexual access to women. Conclusion: Beyond a Contractual Model of Agency and Freedom

In defense of a radical feminist abolitionist position, I have argued that coercion, consent and agency are intricately bound together in a shared paradigm of domination. Domination can be best described, not as coercion or force, but as a relation of access, a relation that is embedded within a range of institutions that tacitly presuppose the legitimacy of this relation. I refer specifically to men’s (and other dominant groups’) politically and tacitly legitimized demand to have physical, sexual and emotional access to the capacities and bodies of other (e.g., gendered) groups of people. As I see it, this legitimized and entrenched relation defined by men’s right to demand access to women is the central conception of male power at stake for the feminist movement to abolish prostitution. Moreover, this relation of power/access constitutes the hidden political conditions of women’s “sexual agency” as the latter is affirmed by the pro-sex-work position. I conclude that this view of male power, rather than foreclose female sexual agency or empowerment challenges feminism to conceive of agency and empowerment beyond a contractual model. Briefly, this involves, at the least, recognizing that victimization and agency are not mutually exclusive conditions. The pro-sex-work theory assumes that victimization and agency are mutually exclusive, and points to prostitutes’ ability to negotiate over aspects of their work conditions as evidence that prostitutes have agency. The expressivist version of this theory interprets prostitutes’ practice of negotiation as in and of itself constituting a creative reworking of the existing sexual order. But from this same theoretical vantage point, one aspect of the sexual order remains nonnegotiable and thus unworkable, namely, men’s right to be sexually serviced. There is a blind spot in the pro-sex-work theory where this “right” remains invisible as such, partly because male power is invisible to it as domination and only intelligible as coercive force. Thus blinkered, the theory construes sex workers as “free” unless forcibly coerced into prostitution: the theory argues that if prostitutes have this “freedom,” they cannot therefore be said to be “victims.” The pro-sex-work position assumes a contractual model of freedom: it construes the consent to be subordinated as exemplifying freedom. The abolitionist position that prostituted women are victims is not one that denies that these same women— any less than other victimized, oppressed, and/or enslaved peoples throughout history—have also employed numerous stratagems of resistance to their situation.60 Even if these stratagems amount to negotiating the terms of their unfreedom, many victims can also be said to have “agency.” Indeed, the question is not whether sex workers have agency. The question is, what is the meaning of an agency—and indeed “empowerment”—when these terms are defined as a capacity to negotiate within a situation that is itself taken for granted as inevitable?

It is only when we radically interrogate the meaning of “empowerment” in a social order structured through both liberalism and male dominance that we can conceive of power as power to, because it is only then that we can conceive of freedom—freedom beyond the sexual contract.61 To conceptualize freedom beyond the social/sexual contract requires that feminists first, demystify the expressivist model of sexual agency assumed by many proponents of the “sex work” model in order to expose its fundamentally contractarian liberal conception of the self and embodiment. Secondly, feminism should lay bare the ontological and political assumptions of contractarian liberalism that make the selling of sex legitimate and intelligible. Finally, and most importantly, radical feminism must be expanded to theorize freedom in terms of women’s collective political agency (power to): this task requires an understanding that freedom is not negotiating within a situation taken as inevitable, but rather, a capacity to radically transform and/or determine the situation itself. I am grateful to Barbara Houston for providing extensive, invaluable feedback on this manuscript. Maureen Sullivan, Robert Scharff and Charlotte Witt provided incisive comments on related incarnations of the manuscript that helped me to improve this version. I presented a closely related version of this paper as a talk for the Center for Humanities at the University of New Hampshire; I thank the Center and my spirited audience, which included my reliably provocative and stimulating colleagues in the Department of Philosophy. I also thank my anonymous reviewer for her or his constructive comments. Nancy J. Meyer’s brilliant work, and our conversations, informs all of my work. Finally, I owe so much to the fiery, amazingly smart young women and men feminist activists who are my students; they have infused my philosophical work with new meaning.

Notes 1. The so-called “pro-sex” (AKA “sex radical”) version of the debates is represented by Pleasure and Danger: Exploring Female Sexuality, 2nd ed., ed. Carole Vance (London: Pandora, 1992). The radical feminist antipornography version of the debates is well represented by The Sexual Liberals and the Attack on Feminism, ed. Dorchen Leidholdt and Janice G. Raymond (Tarrytown, NY: Pergamon Press, 1990). 2. For an overview see Andrea M. Bertone, “Transnational Activism to Combat Trafficking in Persons,” College Park Scholars International Studies 10, no. 1 (2004): 9–22. 3. For a good representation of both positions see Niki Adams (English Collective of Prostitutes), “Antitrafficking Legislation: Protection or Deportation?” and Liz Kelly, “The Wrong Debate: Reflections on Why Force Is Not The Key Issue with Respect to Trafficking in Women for Sexual Exploitation” in “Dialogue,” Feminist Review no. 73 (2003): 135–9. 4. For an overview and critique of the protocol see Barbara Sullivan, “Trafficking in Women: Feminism and New International Law,” International Feminist Journal of Politics 5, no. 1 (2003): 67–91. 5. See Carole Pateman, The Sexual Contract (Stanford: Stanford University Press, 1988) and Pateman, “SelfOwnership and Property in the Person: Democraticization and a Tale of Two Concepts,” The Journal of Political Philosophy 10, no. 1 (2002): 20–53. 6. Pateman, The Sexual Contract, 194. 7. Donna Hughes, “Men Create the Demand, Women Are the Supply,” Lecture on Sexual Exploitation, . 8. I’m following Alison Jaggar’s definition of “liberal feminism” in Feminist Politics and Human Nature (Totowa, NJ: Rowman and Allanheld, 1983). 9. I’m indebted to Robert Scharff for this point. Personal communication, Durham, New Hampshire, Spring 2004. 10. Pateman, The Sexual Contract, 5. 11. Pateman, “Self-Ownership,” 27, author’s emphasis. 12. Here Pateman follows C. B. MacPhereson’s Political Theory of Possessive Individualism from Hobbes to Locke (Oxford and New York: Oxford University Press, 1962). 13. In “Self-Ownership,” Pateman argues that contractarian liberals fail to see that the right to not be forced to do something is derivative of the “positive” right to voluntarily alienate one’s person, 27.

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14. 15. 16. 17. 18. 19.

20.

21.

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23. 24. 25. 26. 27. 28. 29. 30. 31. 32. 33. 34.

Ibid., 33. Ibid., 36. Ibid., 27. Julia O’Connell Davidson, Prostitution, Power and Freedom (Ann Arbor: University of Michigan Press, 1998), 9. Ibid., 9–10. Kamala Kempadoo attributes the “invention of sex work” as a category to Carol Leigh AKA Scarlet Harlot. Kempadoo, “Introduction: Globalizing Sex Workers’ Rights,” in Global Sex Workers: Rights, Resistance, and Redefinition, ed. Kempadoo and Jo Doezema (New York: Routledge, 1988), 8. Like abolitionists, many pro-sex-work advocates criticize this global economy, arguing that women and children have been the worst victims of neo-liberal policies in their impact on the developing world. For example, the World Bank and IMF have induced debtor-nations to make “structural adjustments” in economies—adjustments that include eviscerating indigenous, subsistence agricultural economies and/or drastically cutting social spending. A consequence has been the increasing pauperization of vast numbers of women and children in the developing world and in the Eastern Bloc countries. A good source for this kind of analysis of the global economy is Cynthia Enloe, Bananas, Beaches and Bases: Making Feminist Sense of International Politics, updated edition with a new preface (Berkeley: University of California Press, 2000). Laurie Shrage for example endorses regulation, an approach that entirely assumes the prostitution as “work” model: she argues specifically for a “progressive” system of regulation where prostitutes “would be licensed, much like other professionals,” and in this system, the “standards for licensing sex providers should be established by public boards or commissions made up of service providers, community leaders, educators, and legal and public health experts.” Moreover, “candidates for this license could be expected to complete some number of college-level courses on human sexuality from the perspectives of biology, psychology, history, medicine, and so on.” Shrage, Moral Dilemmas of Feminism (New York: Routledge, 1994), 159. As Julia O’Connell Davidson comments, “In the real world, it is absurd to imagine that women like Catalina or Maria [two prostitutes who O’Connell Davidson discusses] are going to complete a number of college level courses before entering into prostitution (if they were in a position to attend college rather than work they would not be prostituting themselves in the first place)” and, she continues, “Except for a small minority of people, prostitution is not a positive career choice like deciding to become a brain surgeon, or even an aromatherapist” (198). I will discuss the notion of prostitutes as “professionals” in further detail later. A trenchant argument for the distinction between prostitution and work, as well as an in-depth literature review of the issue, is provided by Scott A. Anderson, “Prostitution and Sexual Autonomy: Making Sense of the Prohibition of Prostitution,” Ethics 112, no. 4 (2002): 748–81. Anderson’s argument contrasts interestingly with my own as he defends the radical feminist position on the basis of what he considers to be a liberal view of sexual autonomy. See GAATW website (June 2002) (Accessed June 10, 2004). Ibid. Ibid. Ibid. Quoted in Kempadoo, “Introduction: Globalizing Sex Workers’ Rights,” 9. Ibid. Josephine Chuen-Juei HO, “Self-Empowerment, and ‘Professionalism’: Conversations with Taiwanese Sex Workers,” Inter-Asia Cultural Studies 1, no. 2 (2000): 283–99. Ibid., 287. Charles Taylor, “Aims of a New Epoch,” in Hegel (Cambridge: Cambridge University Press, 1977). This point is made by Seyla Benhabib, Critique, Norm and Utopia: Foundations of Critical Theory (New York: Columbia University Press, 1986). Kempadoo, “Introduction: Globalizing Sex Workers’ Rights,” 4. Ibid.

35. HO, “Self-Empowerment, and ‘Professionalism’: Conversations with Taiwanese Sex Workers,” 284. 36. I’m following Nancy Fraser’s formulation of a “politics of recognition.” “From Redistribution to Recognition?” in Justice Interruptus: Critical Reflections on the “PostSocialist” Condition (New York: Routledge, 1997). 37. Gayle Rubin, “Thinking Sex: Notes for a Radical Theory of the Politics of Sexuality,” in Pleasure and Danger: Exploring Female Sexuality. 38. Pateman, The Sexual Contract, 55. 39. Bell quoted in O’Connell Davidson, Prostitution, Power and Freedom, 110. 40. Ibid., 111. 41. Susan Bordo, “Feminism, Postmodernism, Gender Skepticism,” in Unbearable Weight: Feminism, Western Culture and the Body (Berkeley: University of California Press, 1993), 226. 42. I’m indebted to conversations with Bonnie J. Mann for this insight. Berkeley, CA, Spring, 1999. 43. O’Connell Davidson, Prostitution, Power and Freedom. 113. 44. Adams, “Anti-Trafficking Legislation: Protection or Deportation?” 141. 45. Kelly, “The Wrong Debate: Reflections on Why Force Is Not The Key Issue with Respect to Trafficking in Women for Sexual Exploitation,” 141. 46. Amy Allen, “Pornography and Power,” Journal of Social Philosophy 32 no. 1 (2001): 512–31. 47. Ibid., 515. Similar criticisms of MacKinnon have been made by Drucilla Cornell and Wendy Brown. See Cornell, Beyond Accommodation: Ethical Feminism, Deconstruction and the Law (New York: Routledge, 1991): 119–164 and Brown, States of Injury: Power and Freedom in Late Modernity (Princeton: Princeton University Press, 1995), chap. 4. 48. Pateman, The Sexual Contract, 6. 49. Fraser, “Beyond the Master Subject,” Justice Interruptus, 227. 50. Allen, “Pornography and Power,” 515. 51. Ibid., 523. 52. R. W. Connell, Masculinities (Berkeley and Los Angeles, California: University of California Press, 1995), 71. 53. Adrienne Rich, “Compulsory Heterosexuality and Lesbian Existence,” in Powers of Desire, ed. A. Snitow, C. Stansell and S. Thompson (New York: Monthly Review Press, 1983): 177–205. 54. O’Connell Davidson, Prostitution, Power and Freedom, 120–1. 55. Ibid., 121–2. 56. Ibid., 102. 57. Ibid., 122. 58. Katherine K. Baker, “Once a Rapist? Motivational Evidence and Relevancy in Rape Law,” Harvard Law Review 110: 563. 59. Baker refers to the following case: “Consider the remarks of a Florida jury foreman after acquitting a defendant who had been charged with knifing, beating with a rock, and twice raping a woman dressed in a lace miniskirt and wearing no underwear: ‘We felt she . . . asked for it for the way she was dressed. . . . The way she was dressed with that skirt, you could see everything she had. She was advertising for sex.’ The jury believed that the woman had been slashed with a knife, hit with a rock, and raped. They just did not care. Enhancing that woman’s credibility would have done no good.” 60. Kelly makes this argument in Surviving Sexual Violence (Cambridge: Polity Press, 1987). 61. Although she draws different conclusions than my own with respect to the radical feminist analysis of power, Allen proposes a reconceptualization of power that resonates with the notion of freedom I am arguing for. For example, she argues that feminists need to “modify our understandings of empowerment and resistance” (523) and she criticizes “sex radicals” who “conflate empowerment with resistance” (524). Especially important is her proposal that true resistance involves “power that we exercise with others in collective and social action” (527, author’s emphasis). However, she also concludes that, given her criteria for a new conception of power, transforming (rather than abolishing) pornography is possible—transformation of pornography is possible if it is undertaken through feminists’ collective action. In my view, however, she has not met the burden of showing why pornography is something that ought to be so redeemed in the first place.

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Questions for Discussion 1. Describe the disagreement between liberal views about prostitution and Miriam’s radical feminist view. If Miriam’s view is accepted, how would this change our society? 2. Miriam discusses the claim that prostitutes are “unrapeable.” What does she mean by this? What is her position on this issue? Do you agree or disagree? Why? 3. What is the connection between Miriam’s analysis of rape and her understanding of sexual agency? 4. The subtitle of Miriam’s article is “Power, Agency and Abolition in Feminist Debates over Sex-Trafficking.” Explain the mean of her two key terms, “power” and “agency.”

David Benatar

“The Second Sexism” About the Author: David Benatar is an Associate Professor in the Department of Philosophy at the University of Cape Town, South Africa. He has published widely in the area of moral and political philosophy. About the Article: In this article, Benatar challenges traditional beliefs about sexism, arguing that there is significant sex discrimination against men that is largely neglected, even by those who otherwise take sex discrimination seriously. This is an edited version; readers are referred to the original journal article for the full text, extensive footnotes, and several critical articles that respond to Benatar as well as a reply by the author As You Read, Consider This: 1. Benatar describes three underlying prejudicial attitudes toward males. What are those three attitudes? 2. What does Benatar mean by the “no-discrimination argument”? 3. Explain what Benatar means by the “distraction argument.” 4. Explain what Benatar means by the “inversion argument.” 5. Explain what Benatar means by the “cost of dominance argument.”

I

n societies in which sex discrimination has been recognized to be wrong, the assault on this form of discrimination has targeted those attitudes and practices that (directly) disadvantage women and girls. At the most, there has been only scant attention to those manifestations of sex discrimination of which the primary victims are men and boys. What little recognition there has been of discrimination against males has very rarely resulted in amelioration. For these reasons, we might refer to discrimination against males as the “second sexism,” to adapt Simone de Beauvoir’s famous phrase. The second sexism is the neglected sexism, the sexism that is not taken seriously even by most of those who oppose sex discrimination. This is regrettable not only because of its implications for ongoing unfair male disadvantage, but also, as I shall argue later, because discrimination against women cannot fully be addressed without attending to all forms of sexism. So unrecognized is the second sexism that the mere mention of it will appear laughable to some. For this reason, some examples of male disadvantage need to be provided. Although I think that all the examples I shall provide happen to be, to a considerable extent, either instances or consequences of sex discrimination, there is a conceptual and moral distinction to be drawn between disadvantage and discrimination. I shall follow the convention of understanding discrimination as the unfair disadvantaging of somebody on the basis of some morally irrelevant feature such as a person’s sex.

David Benatar, “The Second Sexism,” © Copyright 2003 by Social Theory and Practice, Vol. 29, No. 2 (April 2003), pp. 177–210. Reprinted by permission of the author and publisher.

Discrimination need not be intentional. It is the effect rather than the intent of a law, policy, convention, or expectation that is relevant to determining whether somebody is unfairly disadvantaged. Discrimination also need not be direct, as it is when one sex is explicitly prohibited from occupying some position. There are powerful social forces that shape the expectations or preferences of men and women so that significantly disproportionate numbers of men and women aspire to particular positions. Here indirect or subtle discrimination is operative. I shall not defend the claims that discrimination can be indirect and need not be intentional. These are accepted by many. Given that many other claims I shall make will be widely disputed, I shall focus on defending those more contentious claims. Given the distinction between discrimination and disadvantage, outlining the examples of male disadvantage below is, at least for some of the examples, only the first step in the argument. I shall later consider and reject the view that these examples are not instances of discrimination. Male Disadvantage

Perhaps the most obvious example of male disadvantage is the long history of social and legal pressures on men, but not on women, to enter the military and to fight in war, thereby risking their lives and bodily and psychological health. Where the pressure to join the military has taken the form of conscription, the costs of avoidance have been either self-imposed exile, imprisonment, or, in the most extreme circumstances, execution. At other times and places, where the pressures have been social rather than legal, the costs of not enlisting have been either shame or ostracism, inflicted not infrequently by women. Even in those few societies where women have been conscripted, they have almost invariably been spared the worst of military life—combat. Some have noted, quite correctly, that the definition of “combat” often changes, with the result that although women are often formally kept from combat conditions, they are sometimes effectively engaged in risky combat activity. Nevertheless, it remains true that in those relatively few situations in which women are permitted to take combat roles, it is a result of their choice rather than coercion and that even then women are kept as far as possible from the worst combat situations. Others have noted that the exclusion of women from combat roles has not resulted in universal protection for women in times of war. Where wars are fought on home territory, women are regularly amongst the casualties of the combat. It remains true, however, that such scenarios are viewed by societies as being a deviation from the “ideal” conflict in which (male) combatants fight at a distance from the women and children whom they are supposed to be protecting. A society attempts to protect its own women but not its men from the life-threatening risks of war. If we shift our attention from combat itself to military training, we find that women are generally not treated in the same demeaning ways reserved for males. Why, for instance, should female recruits not be subject to the same de-individualizing crewcuts as male recruits? There is nothing outside of traditional gender roles that suggests such allowances. If it is too degrading for a woman, it must be judged also to be too degrading for a man. That the same judgment is not made is testimony to a double standard. Permitting women longer hair as an expression of their “femininity” assumes a particular relationship between hair length and both “femininity” and “masculinity.” These special privileges simply reinforce traditional gender roles. Men are much more likely to be the targets of aggression and violence. Both men and women have been shown, in a majority of experimental studies, to behave more aggressively against men than toward women. Outside the laboratory, men are also more often the victims of violence. Consider some examples. Data from the U.S.A. show that nearly double the number of men than women are the victims of aggravated assault and more than three times more men than women are murdered. In the Kosovo conflict of 1998–99, according to one study, 90% of the war-related deaths were of men, and men constituted 96% of people reported missing. In South Africa, the Truth and Reconciliation Commission found that the overwhelming majority of victims of gross violations of human rights—killing, torture, abduction, and severe ill-treatment—during the Apartheid years (at the hands of both the government and its opponents) were males. Testimony received by the Commission suggests that the number of men who died was six times that of women. Non-fatal gross violations of rights were inflicted on more than twice the number of men than women. Nor can the Commission be accused of having ignored women and their testimony. The majority of the Commission’s deponents (55.3%) were female, and

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so sensitive was the Commission to the relatively small proportion of women amongst the victims of the most severe violations that it held a special hearing on women. The lives of men are more readily sacrificed in non-military and non-conflict contexts too. Where some lives must be endangered or lost, as a result of a disaster, men are the first to be sacrificed or put at risk. There is a long, but still thriving tradition (at least in Western societies) of “women and children first,” whereby the preservation of adult female lives is given priority over the preservation of adult male lives. Although corporal punishment has been inflicted on both males and females, it has been imposed, especially in recent times, on males much more readily than on females. Both mothers and fathers are more likely to hit sons than daughters. Where corporal punishment is permitted in schools, boys are hit much more often than girls are hit. Obvious sex role stereotypes explain at least some of the difference. These stereotypes also explain why, in some jurisdictions, physical punishment imposed by schools and courts has been restricted by law to male offenders. Sexual assault on men is also often taken less seriously than such assault on women. For instance, the extent of sexual abuse of males is routinely underestimated. Sexual assaults upon boys are less likely to be reported than are those upon girls. Moreover, while rape by a male of a female is a crime everywhere, there are only a few jurisdictions in which forcing a male to have sex is regarded as rape. In these latter jurisdictions it is only recently that the definition of rape has been broadened to include the possibility of rape of a male. Before that, nonconsensual sex with a man carried less severe penalties than non-consensual sex with a woman. In a divorce, men are less likely to gain custody of their children than are women. Mothers gain custody of children in 90% of cases. Some have suggested that this is because very few men want child custody. The evidence does indeed suggest that a smaller percentage of fathers than mothers want custody and that even fewer fathers actually request custody. However, even taking this into account, fathers fare worse than mothers with regard to child custody. In one study, for instance, in 90% of cases where there was an uncontested request for maternal physical custody of the children, the mother was awarded this custody. However, in only 75% of cases in which there was an uncontested request for paternal physical custody was the father awarded such custody. In cases of conflicting requests for physical custody, mothers’ requests were granted twice as often as fathers’ requests. Similarly, when children were residing with the father at the time of the separation the father was more likely to gain custody than when the children were living with the mother at the time of separation, but his chances were not as high as a mother with whom children were living at the time of separation. This study was undertaken in California, which is noted for its progressive legislation and attitudes about both men and women and is thus a state in which men are less likely to be disadvantaged. Fathers are not the only males to suffer disadvantage from post-divorce and other custodial arrangements. In one important study, divorced mothers showed their sons less affection than their daughters, “treated their sons more harshly and gave them more threatening commands—though they did not systematically enforce them . . .” “Even after two years . . . boys in . . . divorced families were. . . . more aggressive, more impulsive and more disobedient with their mothers than either girls in divorced families or children in intact families.” In another study, “a significant proportion of boys who developed serious coping problems in adolescence, had lived in families in which their father was absent temporarily, either because of family discord or work.” The same was not true of girls who grew up with an absent father. In short, boys tend to suffer more than girls as a result of divorce and of living with a single parent. This may be because children fare better when placed with the parent of their own sex, at least where that parent is amenable to having custody. Homosexual men suffer more discrimination than do lesbians. For instance, male homosexual sex has been and continues to be criminalized or otherwise negatively targeted in more jurisdictions than is lesbian sex. Male homosexuals have a harder time adopting children than do lesbians, even in those places where same sex couples are permitted to adopt. Male homosexuals are much more frequently the victims of “gaybashing” assaults than are lesbians. In addition to the above examples, for which the evidence is clear, there are also others for which there is only equivocal evidence. For instance, capital punishment is inflicted on men hundreds of times more often than it is inflicted on women. While it is true that men commit more capital crimes than women do, it is not

clear that this fully explains the vast disparity in the number of men and women executed. The sex of the criminal may itself influence whether a criminal is executed. Consider also the broader criminal justice system. There is at least some evidence that, controlling for the number and nature of offenses, men are convicted more often and punished more harshly than are women (or, at least, than those women who conform to gender stereotypes). Given that there is conflicting evidence about these latter examples, we cannot be sure that they really are examples of unfair male disadvantage. Nevertheless, they are worth mentioning at least as topics suitable for further investigation. Underlying Attitudes

These are not negligible forms of disadvantage. In seeking to explain how they arise, one can point to at least three related prejudicial attitudes about males. First, male life is often, but not always, valued less than female life. I do not mean by this that every society unequivocally values male lives less than female lives. This cannot be true, because there are some societies in which female infants are killed precisely because they are female. However, even in such societies, the lives of adult males seem to be valued less than those of adult females. The situation is less ambiguous in liberal democracies. It is not my claim that every single person in these societies values male life less, but that these societies generally do. Although, of course, there are countless examples in liberal democracies of fatal violence against women, this tends to be viewed as worse than the killing of men. If violence or tragedy takes the lives of “women and children,” that is thought to be worthy of special mention. We are told that X number of people died, including Y number of women and children. That betrays a special concern, the depravity of which would be more widely denounced if newsreaders, politicians, poets, and others commonly saw fit to note the number of “men and children” who had lost their lives in a tragedy. Sometimes the special concern for female lives is less overt and more sophisticated. Consider, for example, an argument of Amartya Sen and Jean Dreze, who have drawn attention to the number of female lives that have been lost as a result of advantages accorded men. They have spoken about the world’s 100 million “missing women.” To reach this figure they first observe that everywhere in the world there are around 105 boys born for every 100 girls. However, more males die at every age. For this reason, in Europe, North America, and other places where females enjoy basic nutrition and health care, the proportion of males and females inverts—around 105 females for every 100 males. Thus, the overall female-male ratio in these societies is 1.05. Amartya Sen and Jean Dreze observe, however, that in many countries the ratio falls to 0.94 or even lower. On this basis, they calculate the number of “missing women”—the number of women who have died because they have received less food or less care than their male counterparts. This is indeed an alarming and unacceptable inequity. It is interesting, however, that no mention is made of “missing men.” The implication is that there are only women who are missing. There are, however, millions of missing men, as should be most obvious from the greater number of men than women who die violently. However, there are other less obvious ways in which men become “missing.” To highlight these, consider how the figure of 100 million missing women is reached. Amartya Sen says that if we took an equal number of males and females as the baseline, then “the low ratio of 0.94 women to men in South Asia, West Asia and China would indicate a 6 percent deficit in women.” However, he thinks it is inappropriate to set the baseline as an equal number of males and females. He says that “since, in countries where men and women receive similar care the ratio is about 1.05, the real shortfall is about 11 percent.” This, he says, amounts to 100 million missing women. Now, I think it is extremely enlightening that the baseline is set as a female to male ratio of 1.05. Why start from that point rather than from the ratio that obtains at birth? The assumption is that the female-male ratio of 1.05 is the one that obtains in societies in which men and women are treated equally in the ways relevant to mortality—and these are taken to be basic nutrition and health care. But clearly males are not faring as well as females in those societies, so why not think that there are relevant inequalities, disadvantageous to males, operative in those societies? One answer might be biology—males seem to be not as resilient as females. I cannot see, however, why that would warrant setting the baseline at the female-male ratio of 1.05. Some distributive theories—those that claim that natural inequalities are undeserved—recommend distributing social resources in a way that compensates for natural inequalities. If males are biologically prone to die earlier, perhaps the ideal

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distribution is the one whereby the mortality imbalance is equalized (by funding research and medical practice that lowers the male mortality level to the female level). This certainly seems to be what feminists would advocate if biology disadvantaged women in the way it does men. If, for instance, 105 girls were born for every 100 boys, but various factors, including parturition, caused more females to die, there would be strong arguments for diverting resources to preventing those deaths. At the very least, the baseline for determining “missing people” would certainly not be thought to be set after the parturition deaths were excluded. If we accept the male-female sex ratio at birth—105 males for every 100 females—as a baseline, then at birth there is a female-male ratio of 0.95. From that baseline there are millions of missing men, at least in those societies in which the female-male ratio inverts to 1.05, who go unseen in the Sen-Dreze analysis. This analysis fails to take account of the connection between its baseline ratio and how our health resources are currently distributed. That the Sen-Dreze analysis highlights the missing women of the world, but notes nothing about the missing men, is extremely revealing. It is a sophisticated form of the view that lost female lives are more noteworthy than lost male lives. It might be suggested that the stronger concern to avoid female deaths rather than male deaths is best explained not by a greater valuing of women’s lives but by social and economic considerations. Since the reproduction of a population requires more women than it does men, a society can less afford to lose large numbers of women (in combat, for example). This explanation, however, is not at odds with the claim that female lives are valued more. In fact, it is a possible explanation of why female lives are valued more. Note, however, that this explanation does not excuse the differential treatment. If it did, then excluding women from work outside the home, where they might be tempted to delay or abandon procreative activities, could also be excused. The second prejudicial attitude underlying the examples I have given of male disadvantage is the greater social acceptance of non-fatal violence against males. This is not to deny the obvious truth that women are frequently the victims of such violence. Nor is it to deny that there are some ways in which violence against women is accepted. I suggest only that violence against men is much more socially accepted. At least one author has taken issue with the claim that violence against men is regarded as more acceptable. He has said that those who think it is so regarded “never offer a criterion for determining when a social practice is acceptable.” He says that “sometimes they slide from the fact that violence with men as victims is very widespread to the conclusion that it is acceptable.” He notes, quite correctly, that a practice can be widespread without its being deemed acceptable. He also thinks that the “penalties for violent acts, social instructions against violent acts, and moral codes prohibiting violent acts” constitute evidence that violence against men is not acceptable. It is doubtful that a single criterion of the greater acceptability of violence can be provided. However, there can be various kinds of evidence for such a claim. For instance, although violent acts against men do usually carry penalties (as do violent acts against women), the law does reveal bias. When the law prohibits physical punishment of women but permits such punishment of men, it indicates a level of greater societal acceptance of violence against men. Similarly, when the law does not punish male homosexual rape with the same severity as it punishes heterosexual rape of women, it sends a similar message. But the law is not the only evidence of societal bias. There are penalties for wifebatterers and for rape, yet this (appropriately) has not stopped feminists from showing how both legal and extra-legal factors can indicate societal tolerance of such activities. If, for instance, police do not take charges of wife-battery or rape seriously or if there are social impediments to the reporting of such crimes, this can sometimes constitute evidence of a societal complacency and therefore some implicit acceptance of such violence. If that can be true when women are the victims, why can it not be true when men are? There are differences in the way people view violence against men and women. For example, a man who strikes a woman is subject to much more disapproval than a man who strikes another man (even if the female victim is bigger and the male victim smaller than he is, which suggests that it is sex not size that counts). The third prejudicial attitude is the belief that the instances of male disadvantage to which I have pointed are fully explicable by men’s being naturally more aggressive, more violent, less caring, and less nurturing than women are. Some—perhaps most—people will take this to be not so much a prejudice as a truism. I shall assess this view shortly and will show that even if there are such natural behavioral differences between the sexes, the magnitude and significance of these differences is exaggerated. At the very least, those exaggerations constitute prejudices.

Responding to Objections

Some will recognize the value of attending to these prejudices and the forms of disadvantage to which they give rise. Among these people will be those feminists who acknowledge that opposition to instances of the second sexism, far from being incompatible with feminism, is an expression of feminism’s best impulses. This, for reasons I shall make clear, is the view that I think all those opposed to sex discrimination ought to adopt. Regrettably, however, there will be others who will oppose combating what I have called the second sexism. These will include conservatives who endorse traditional gender roles, but also those feminists who will regard attention to the second sexism as threatening. I shall now consider and respond to four possible objections to concern about the second sexism. The No-Discrimination Argument. What I call the no-discrimination argument suggests that the examples I have provided are not instances of discrimination (against men). The argument denies that there is a second sexism, by suggesting that it is not discrimination that accounts for these phenomena, but rather other factors. On this view, there may indeed be examples of male disadvantage, but these are not instances of unfair disadvantage. I cannot offer a detailed application of this argument to all of the examples of male disadvantage. Therefore, although my discussion will have relevance to a number of them, I shall focus on the unequal pressures on men and women with regard to entering the military and engaging in combat. Many feminists do not question such inequalities. If pressed to explain their silence, some (but not others) might argue that these inequalities are an inevitable consequence of males’ greater natural (rather than socially-produced) aggression. We might call this “the biological explanation.” Insofar as they do not offer a similar explanation of the disproportionate number of men in the legislature, in specific professions, and in senior academic or management positions, and instead decry these inequalities, they selectively invoke the biological explanation to the advantage of females. Such selectivity is itself a kind of sexism. A similar charge could be laid against those feminists who would attribute both inequalities that disadvantage men and those that disadvantage women to natural differences between the sexes, but who call for an end only to those that adversely affect women. The biological explanation does have a more consistent application in the hands of evolutionary psychologists and their followers. They argue that natural, evolutionarily explained differences between the sexes account, at least to a considerable extent, for social inequalities between men and women. They are careful to grant that environment also plays a role in psychological differences between the sexes and to acknowledge that no normative implications follow (directly) from the biological explanation. Notwithstanding such disclaimers, however, they regularly use the biological explanation to support conservative views that little if anything can or should be done to address sex inequalities, irrespective of which sex is disadvantaged. I shall now consider the common assumption that males are naturally more aggressive and then consider what implications this assumption, even if true, would really have for the sex inequalities I am considering. The first point to note is that although males do account for more aggression and violence than females, the difference is not as great as it is usually thought to be. This is borne out by some laboratory studies. In real life, we find that there are at least some circumstances, most notably within the family, in which women behave as aggressively and violently as men and sometimes even more so than men. A number of studies have shown that wives use violence against their husbands at least as much as husbands use violence against their wives. Given the counter-intuitive and controversial nature of these findings, at least one well-known author (who shared the prevailing prejudices prior to his quantitative research) examined the data in multiple ways in order to determine whether these could be reconciled with common views. On almost every score, women were as violent as men. It was found that half the violence is mutual, and in the remaining half there were an equal number of female and male aggressors. When a distinction was drawn between “normal violence” (pushing, shoving, slapping, and throwing things) and “severe violence” (kicking, biting, punching, hitting with an object, “beating-up,” and attacking the spouse with a knife or gun), the rate of mutual violence dropped to a third, the rate of violence by only the husband remained the same, but the rate of violence by only the wife increased. Wives have been shown to initiate violence as often as husbands do. At least some studies have suggested that there is a higher

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rate of wives assaulting husbands than husbands assaulting wives and most studies of dating violence show higher rates of female-inflicted violence. Most authors agree that the effects of spousal violence are not equivalent for husbands and wives. Husbands, probably because they are generally bigger and stronger, cause more damage than wives. This is an important observation, of course, but in determining whether women are less violent than men are, it would be a mistake to point to the lesser effectiveness of their violence. Recognizing that the sex differences in aggression and violence are less marked than commonly thought is important for the following reason. Any attempt to explain a phenomenon must be preceded by an accurate understanding of the phenomenon that is to be explained. To the extent that the sex differences in aggression are exaggerated, the posited explanations will be misdirected. Because there are different possible explanations of the actual (that is, unexaggerated) sex differences in aggression, we need to consider next the evidence for the biological explanation of these differences. There are considerably divergent readings of the body of evidence on whether males are naturally more aggressive than females. The evolutionary psychologists understand the evidence clearly to support the biological explanation, while many feminists and others take the opposite view. Authoritatively assessing which of these interpretations is correct is too large a task to undertake here. Fortunately, for reasons I shall explain later, it is not necessary to do so. Nevertheless, for those who think that the evidence for the biological explanation is stronger than it really is, I shall first show that at the very least there is considerable room for doubt. Consider first the alleged connections between aggression and circulating androgens, particularly testosterone. The administering of antiandrogens (and the resultant reduction of circulating testosterone levels) has been successful in curbing compulsive paraphilic sexual thoughts and impulsive and violent sexual behaviors. However, the drugs were not very effective in reducing non-sexual violence. Increasing testosterone levels in women or hypogonadal men to normal or supranormal levels has not been shown to increase aggression consistently. Lowering testosterone levels in men, by castration or antiandrogens, does not consistently decrease aggression. Some of those reviewing the literature have concluded that the evidence does not support a link between circulating testosterone and human aggression. Some authors claim that the inability to establish this link stands in striking contrast to the ease with which relations have been shown between testosterone and other phenomena, including sexual activity. In those few studies that do suggest connections between circulating testosterone and human aggression, the links are correlational and there is some reason to think that it is the aggressive and dominant behaviors that cause testosterone levels to rise, rather than vice versa. Now it might be argued that the evidence for androgenic causes of aggression is strongest not in the case of circulating androgens but in the case of prenatal androgen exposure. The suggestion is that exposure to androgens in utero causes the fetal brain to be organized in a way that causes increased aggression in the person that develops. On this view, since males are typically exposed to higher prenatal levels of androgens, they become naturally more aggressive. There are clearly moral constraints on experimentally altering the androgen levels to which fetuses and infants are exposed. As a result, one of the few ways of testing the above hypothesis is by examining girls with congenital adrenal hyperplasia (CAH), a condition causing them to be exposed to unusually high levels of androgens in utero and until diagnosis soon after birth. Some studies have indeed found CAH girls to be more aggressive than control females, but some found “the difference was not significant.” Other studies found no difference in aggression levels between CAH females and control females, even though affected females were, in other ways, found to be behaviorally similar to boys and unlike control females. The latter studies suggest that even if prenatal androgen exposure has other behavioral effects, an influence on aggression is not demonstrated. There is, in any event, a significant problem that plagues the CAH studies. Given that the external genitalia of CAH girls tend to become virilized to some degree and parents know of their daughters’ condition, one cannot discount social factors as a cause or partial cause of those behavioral differences that are found. One author has suggested that this objection can be rejected because normal children exposed prenatally to higher levels of testosterone have greater brain lateralization. However, unless cerebral lateralization can be shown to affect aggression, we cannot extrapolate from studies about the relationship between testosterone and lateralization to a relationship between testosterone and aggression.

None of this is to deny a biological basis for human aggression. It is possible, for example, that human aggression is rooted in some biological phenomenon other than androgens. There is some evidence that human aggression has many features in common with what is called “defensive aggression” (as distinct from “hormonedependent aggression”) in non-primate mammals and that this kind of aggression is rooted in the limbic system of the brain. One of the distinctive features of defensive aggression in non-primate mammals, however, is that it is quantitatively similar in males and females. It is also possible that there is a connection between androgens and aggression even though none has yet been demonstrated. One possible explanation for this is that the posited connection is a complex one. One obvious feature of this complexity is the interaction with environmental factors. Even those who argue that there are (proven) hormone-related differences in aggression between the sexes agree that the environment, including the social environment, plays a significant role. Evolutionary psychologists often ignore the importance of this in drawing normative conclusions. Even if human aggression were shown to be influenced by androgens, current inequalities (in conscription and combat, for example) would still be cause for concern. One reason for this is that at least some of the inequality would be attributable to social factors rather than to natural hormonal differences between the sexes. Any natural differences in aggression that might exist could give rise to, but would also be greatly exaggerated by, sex-role expectations and conventions. This is one reason why conservatism is not a fitting response to current inequalities even if one thinks that natural differences account for some of the inequality. Another reason is that even if men are naturally more aggressive than women, it does not follow that women are not aggressive enough for military purposes or that they cannot be subject to environmental influences that would make them so. Some feminists make much of how war is carried out by men, implying and sometimes even explicitly claiming that women are above this kind of behavior. But there are obvious social and gender role explanations that can account for why men become soldiers. Where women have had the opportunity to kill, torture, and perpetrate other cruel acts, they have proved very capable of doing so. There is a disingenuity in the arguments of those feminists who will discount the opportunity differentials between men and women for the violence of war, but who rush to explain the greater incidence of (non-sexual) child abuse by women as being a function of sexism. It is women, they correctly note, who have most contact with children and therefore have the greatest opportunity to abuse children. Moreover, we are told that female abusers of children “would probably not have become child abusers had the culture offered them viable alternatives to marriage and motherhood.” If this line of argument (contrary to my own view) is acceptable, why can a similar explanation for participation in war not be given for young men “whose culture does not offer them viable alternatives” to machismo and the military? Some feminists not only refuse to excuse men the violence of war (in the way they excuse women’s violence) but, unlike other feminists, they also resist the very changes which would make it a less male affair—namely, parity in enlistment of the sexes. They oppose conscription of women. Feminist defenders of women’s absence from combat assume that women are different and unsuited to war. They maintain that so long as there is (or must be) war, it is men who must wage it. There are a number of problems with this view. First, by seeking to preserve the status quo, they suppress the most effective test of whether men really are better suited to war. Notice how the real test of female competence to perform other tasks has been most unequivocally demonstrated by women actually performing those tasks. Whereas when there were almost no female lawyers people could have appealed to that fact to support claims of female unsuitability to the legal profession, that same line of argument is simply not available when there are vast numbers of successful female lawyers. Second, those who argue that women are ill-suited to war assume that men (unlike women) want to participate in war. Alternatively, male preferences on this score are a matter of indifference to them. The overwhelming majority of men do not wish to be part of the military. Were it otherwise, conscription would never be necessary. Why should these men be forced into the military, while women are not? It simply will not do, as I have explained, to justify this by saying that men are naturally more aggressive than women and thus more suitable to military activity. Nor will it do, as some have tried, to justify the female exemption-exclusion from combat in other ways. I do not have space here to consider and respond to all the arguments for female exclusion from combat, but I shall examine two by way of illustration. Some have claimed that because women have less strength, stamina, and

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muscle than men, they are less suited than men to the physical demands of ground combat. There are numerous problems with this argument. For instance, much combat activity, at least in our time, does not require strength. But even if it did, that would not be a reason for excluding all women. Some women are stronger than some men are. If strength were really what counted, that and not sex would be the appropriate criterion. Others have defended the combat exemption-exclusion as a way of protecting women from the greater risk of being raped which they would bear if captured by the enemy. It might be noted in response to this that it is far from clear that sexual abuse is not experienced by many male prisoners of war. Second, males may well stand a greater chance of being tortured in non-sexual ways than women. Why should there be such rigid (often paternalistic) exclusions of women from combat allegedly to protect them from rape, while men are not only not protected, but often forced into combat situations where they can face harms (including maiming and torture) that are arguably as traumatizing as rape? Finally, the argument that women should be exempted from combat because they need to be protected from rape (or because they are less aggressive or less strong) is one that feminists can advance only at their peril. If some such reason for exempting women were (thought to be) true, it could equally support the exclusion of women from functions they do wish to fulfill. Indeed, such reasons have been used regularly by the conservative defenders of traditional gender roles, including those who have sought to exclude from combat those women who do want such roles. The Distraction Argument. Not all those opposed to highlighting the second sexism will deny that men are sometimes the victims of sex discrimination. However, those who are willing to grant this may argue that attention to the second sexism will distract us from the much greater discrimination against women. On this view, until there is parity between the extent of disadvantage suffered by men and women, we must devote our attention and energies to opposing the greater discrimination—that experienced by females. This argument presupposes that the position of women is worse than that of men. I do not deny this, if it is a global claim that is being made. In most places, women are generally worse off than men. This is because the traditional gender roles for women are much more restrictive than those for men, and most of the world’s human population continues to live in societies that are characterized by traditional gender roles. But what about contemporary liberal democracies, from whose ranks most feminists are drawn and to which substantial (but not exclusive) feminist attention is devoted? In the light of the substantial inroads against sexism made in such societies, as well as the examples of the second sexism that I have outlined, are women worse off than men in such countries? Many people will confidently offer an affirmative answer. I cannot say that their answer is wrong. Nevertheless, the answer cannot be offered with confidence in a society that has viewed so lightly the serious forms of discrimination against men. The extent of discrimination against men is probably seriously underestimated and this makes fair comparison unlikely. Fortunately, I think that the question of which sex suffers the greater discrimination is simply irrelevant to the question of whether attention should be given to the second sexism. This brings me to my first response to the distraction argument. Sex discrimination is wrong, irrespective of the victim’s sex. It is not only the most severe manifestations of injustice that merit our attention. If it were wrong to focus on lesser forms of discrimination when greater forms were still being practiced, then we would have to attend to racial discrimination rather than sex discrimination, at least in those places in which racial discrimination is worse than sex discrimination. Moreover, where one opposed sex discrimination, one would have to ignore some forms of sex discrimination if one accepted the view that only the most serious injustices deserve our attention. Not all forms of sexism are equally severe. Using the word “man” to refer to people of both sexes, for example, is not as damaging as clitoridectomy or even as unfair as unequal pay. Feminists who think that we should devote our energies only to eliminating the worst forms of sex discrimination would be committed to a very restricted agenda. But if both major and minor forms of discrimination against women deserve attention, why should major forms of discrimination against men not be equally deserving of concern? How can it be acceptable to want an end to sexist speech while males die because of their sex? If one is opposed to injustice, then it is injustice that counts, not the sex of the victim. Even if it is the case that in general women are the greater victims of sex discrimination, it is still the case that some men suffer more from sex discrimination than some women. A young man on the Titanic who is denied a place

in a lifeboat because of his sex is worse off than the young woman whose life is saved because of her sex. A young man, conscripted and killed in battle, is worse off than his sister who is not. It does not matter here that had he survived, the man would have had greater access to higher education or could have earned more. If he is made to lose his life because of his sex and she has her life spared because of her sex, then this man is the greater victim of sex discrimination than this woman. Countering sex discrimination against men will remove some relative advantages that women enjoy, but that is fair in the same way that it is fair that countering sex discrimination against women removes relative advantages that men enjoy. There is a second important response to the distraction argument. Far from distracting one from those discriminatory practices that disadvantage females, confronting the second sexism can help undo discrimination against women. This is because ending discrimination against one sex is inseparable from ending discrimination against the other sex. One reason for this is that the same sets of stereotypes underlie both kinds of discrimination. For example, the very attitudes that prevent women from being conscripted and from being sent into combat, thereby discriminating against those males and protecting those women who have no wish to be part of the military, also favor those males but disadvantage those females who desire a military career and who do not want to be excluded from combat. Similarly, the stereotypes of men as aggressive and violent and of women as caring and gentle lead to only males’ being sent into battle but also entail assumptions that it is women who must bear primary responsibility for child-caring. Or consider the small proportion of women amongst the victims of gross human rights violations in South Africa. This is attributable to gender roles that discouraged women from engaging in political activity, especially dangerous political activity in which men were encouraged or expected to participate. Although these gender roles had beneficial effects for women in protecting them from the violence of adversaries, these same gender roles disadvantaged women in other regards. The “women and children first” mentality is another, related, example. It disadvantages men in life-anddeath situations but has obvious disadvantages for women in other circumstances. Women are protected, to be sure, but in the same way and for relics of the same reasons that children are—they are assumed to be weak and to be unable to look after themselves. Similarly, the battered woman syndrome defense, under which the criminal law (at least in the United States) allows evidence of abuse of women, but not of men, to constitute an excuse from criminal responsibility, has the effect of reaffirming prejudices about women as lacking the capacity for rational self control. The Inversion Argument. By the “inversion argument,” I mean the argument that what I have suggested are instances of discrimination against men are instead forms of discrimination against women. On this view, what I have called the second sexism is instead just another form of discrimination against women. Rarely is such an argument explicitly presented. That is to say, those employing this sort of argument do not argue that matters ought to be inverted. Rather they simply invert them. They do not argue that what might be thought to constitute discrimination against men is rather discrimination against women. Instead, they simply present the data as instances of anti-female bias. To this extent, my presentation of the inversion as an argument is a construction of an argument out of a practice. The absence of an explicit argument for inversion is understandable. Were an argument for inversion explicitly presented, its weakness would be much more apparent. Consider, for example, those authors who present attempts at excluding women from the military as forms of discrimination against women. They say, for instance, that the military, faced with an increase in the number of women soldiers, “seems to have an exaggerated need to pursue more and more refined measures of sexual difference in order to keep women in their place,” noting that Western armed forces “search for a difference which can justify women’s continued exclusion from the military’s ideological core—combat. If they can find this difference, they can also exclude women from the senior command promotions that are open only to officers who have seen combat.” As I have argued, excluding women from combat does indeed disadvantage some women. That it is a minority of women whom this exclusion disadvantages—those who seek combat opportunities and the career benefits that come with this in the military—does not alter the fact that these women are indeed the victims of sex discrimination. But to present the exclusion exclusively in terms of the negative effects it has on women is to ignore the much greater disadvantage suffered by vast numbers of men who are forced into

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combat against their wills. It is well and good to note, as I have done, how an instance of sex discrimination can cut both ways. It is quite another to present everything as disadvantaging only women. Even those with a more balanced approach tend to make much more of the negative impact on women of those discriminatory practices whose primary victims are men. Thus, one author who notes that war is “often awful and meaningless,” observes that there are advantages that combatants enjoy. She cites a prisoner of war graffito “freedom—a feeling the protected will never know” and “the feelings of unity, sacrifice and even ecstasy experienced by the combatant.” Moreover, she notes that women “who remain civilians will not receive the postwar benefits of veterans, and those [women] who don uniforms will be a protected, exempt-from-combat subset of the military. Their accomplishments will likely be forgotten.” Although true, the significance of these advantages is overdone—even to the point of depravity. Certainly, those who never experience its loss may not have the same acute appreciation of freedom, but that acute appreciation is, at most, a positive side effect of an immensely traumatic and damaging experience. Imagine how we would greet the observation that although paraplegia is “often awful and meaningless” it is only those who have lost the use of some limbs who can truly appreciate the value of having those limbs functional. Next, although veterans do have benefits denied to others, this is a form of compensation for sacrifice made. It is hardly unfair that compensation is not given to those to whom no compensation is due. People should be free, of course, to decide whether they want to accept the sacrifices of joining the military and the compensation that goes with it, but the absence of that choice is the disadvantage rather than the mere absence of the compensation. Finally, while the tasks of non-combatants are indeed less likely to be remembered, this observation grossly underplays the extent to which the tasks and sacrifices of most combatants are unremembered. Many of these who die in battle lie in unmarked graves or are memorialized in monuments to the “Unknown Soldier.” In exceptional cases, as with the Vietnam War Memorial, a deceased combatant’s memorial consists of an engraving of his name, along with thousands of others—hardly a remembrance proportionate to the sacrifice. Consider another example of the inversion argument. Males, I noted earlier in my discussion of the SenDreze argument, tend to die earlier than females. Although life expectancy has increased in developed countries over the last century, men have consistently lagged behind women. This suggests that the earlier death of males is (or, at least, was) not attributable to a biologically determined life-expectancy ceiling. As social conditions improved, men lived to be older, but never (on average) as old as women. If it were the case that men tended to live longer than women, we would be told that this inequality would need to be addressed by devoting more attention and resources to women’s health. By means of the inversion argument, the call for more attention and resources to women’s health is exactly what some people offer even though it is in fact men who die earlier. Such claims do not result from a belief that more is spent on the health care of men than women. A Canadian study on sex differences in the use of health care services showed that the “crude annual per capita use of health care resources (in Canadian dollars) was greater for female subjects ($1,164) than for male subjects ($918)” but that expenditures “for health care are similar for male and female subjects after differences in reproductive biology and higher age-specific mortality rates among men have been accounted for.” Accepting that there is indeed an equal distribution of health-care dollars between men and women, one practitioner of the inversion argument suggested that such expenditure was not equitable. This, we are told, is because the greater longevity (of females) is “associated with a greater lifetime risk of functional disability and chronic illness, including cancer, cardiovascular disease, and dementia, and a greater need for long-term care.” I shall assume that that is indeed so. Living longer does carry some costs, but on condition that those costs are not so great as to render the increased longevity a harm rather than a benefit, the infirmities that often accompany advanced age cannot be seen in isolation from the benefit of the longer life-span. An equitable distribution of health-care resources is not one that both favors a longer life-span for one sex and increases the quality of the additional years of that extra increment of life. Such a distribution would constitute a double favoring of one sex. A genuinely equitable distribution would be one that aimed at parity of life expectancy and the best quality of life for both sexes within that span of life. The proponents of the inversion argument, by contrast, are unsatisfied with any perceived trends that lessen the gap between men and the healthier sex. Thus we are told, disapprovingly, that at “a time when there have been improvements in the health status of men, the health status of women does not appear to be improving.”

Another example of inversion is the common argument that the educational system disadvantages girls. It is widely thought that girls fare worse than boys in school and university. This is just the message proclaimed by a report from the Wellesley College Center for Research on Women. Sponsored by the American Association of University Women, the report, entitled “How Schools Shortchange Girls,” has been widely cited. Indeed, there are some ways in which girls fare less well than boys in the educational system. For instance, boys tend to do better in mathematics and science tests and more doctoral degrees are awarded to men than to women. However, there are other ways in which boys are clearly at a disadvantage. In the U.S.A., girls outscore boys on reading and writing by a much greater margin than boys outscore girls in science and mathematics tests. And although boys do better on science and mathematics tests, girls get better class marks for these subjects. Some have suggested that this differential is to be explained by gender bias in the standardized tests. Christina Hoff Sommers suggests, however, that it could be better explained by a grading bias in schools against boys. Since Taiwanese and Korean girls score much higher than American boys on the same tests, it would seem that the gender-biased explanation of the standardized tests is not entirely satisfactory. Boys are educationally disadvantaged in other ways too. More boys miss classes, fail to do homework, have disciplinary problems, and drop out of school. The higher dropout rate for boys may partially explain the better average performance by boys on standardized tests. The academically weakest boys tend not to write. Boys are also “more likely to be robbed, threatened, and attacked in and out of school.” Females now constitute a majority of college graduates and M.A.s in the U.S.A. Only in doctoral degrees are men still in the majority, but now by a much smaller margin than before. Females are worse off in some ways, but these disadvantages are diminishing. The inverters, ignoring the serious ways in which males are disadvantaged, present the educational institutions as disadvantaging only girls and women. Sometimes the inversion argument or technique applies to a phenomenon that both discriminates against men and against women, but it presents the situation as discriminating only against women. We might call this a hemi-inversion argument. It inverts only that aspect that discriminates against men, thus presenting the phenomenon as disadvantaging only women. One example of this is the pair of authors who presented the exclusion of women in the sports media from male locker rooms after matches as an instance of blatant discrimination against those women. As they correctly observe, such sportswriters who “cannot get immediate access to athletes after a game . . . may miss deadlines and will likely be ‘scooped’ by the competition.” They entirely ignore the other side of the issue, however, and quote with disapproval the coach who stated “I will not allow women to walk in on 50 naked men.” Had it been a male sports writer seeking access to a locker room of 50 naked female athletes, we can be sure that a different tone would have been evident in feminist commentary on the matter. There are alternative solutions to such equity issues—such as denying all journalists, both male and female, from entering locker rooms. These authors ignore such options just as they ignore the invasion of privacy that would be experienced by the male athletes, who would surely be discriminated against if their female counterparts would not also be subject to such invasions. Instead, the authors view the matter entirely from the perspective of the female sports writers. I am fully aware that for other unfortunate reasons male sports draw more attention, and that female writers thus lose more in not having access to male locker rooms than male writers do in not having access to female locker rooms. However, if this is used to justify female access to male locker rooms but not male access to female locker rooms, then the intensity of the writer’s interest rather than the athlete’s privacy is taken to be the determining factor. And if that is so, then male journalists should be allowed to corner female politicians, actors, and other public personalities in female-only toilets and locker rooms if that is how they can scoop an important story. If this would not be acceptable, then neither is the intrusion by female sports writers on the privacy of male athletes, irrespective of the writers’ interests in getting a story. The inversion argument is a crass form of partiality. It presents all sex inequality as disadvantaging primarily or only women. This is unfair to those males who are the primary victims of some forms of sex discrimination. It also strategically compromises the case against those forms of discrimination that do in fact disadvantage women more than men. Unfairly presenting the relative disadvantages of different practices leads to one’s legitimate claims being taken less seriously.

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The Costs-of-Dominance Argument. A fourth kind of argument suggests that although there may indeed be costs to being a man, these are the costs of dominance—the costs that come with being the privileged sex. Unlike the inversion argument, the costs-of-dominance argument does not suggest that the costs of being a man are themselves actually advantages. Instead, this argument recognizes that they are indeed costs, but suggests that they should be seen merely as the by-products of a dominant position and thus not evidence of discrimination against males. In the words of one author, it “is a twist of logic to try to argue . . . that because there are costs in having power, one does not have power.” Clearly there are some situations in which the costs-of-dominance argument would be sound. Where a cost really is inseparable from one’s position of power or (overall) advantage, then it is true that the cost is not a cause for complaint on behalf of the power-holder. However, it does not follow from this that all the costs experienced by males really are connected to their having power or privilege. For example, although the exemption-exclusion of women from the military is the result of females’ perceived military incapacity, it is hardly obvious that male power would be impossible without this exemption-exclusion. For example, the rich have succeeded in preserving (even enhancing) their privilege while the poor, for various reasons, have endured a disproportionately heavy military burden. Thus, it need not be the case that those with the power in a society must be those who bear arms. Bearing arms is dirty work and there is no shortage of examples of underdogs being forced or enticed to do the dirty work. Similarly, it is far from clear that the higher rates of capital and corporal punishment of males is an inevitable by-product of male power. It is sometimes alleged that the higher rates of male suicide, the tendency of males to die younger than women, the greater chance that men have of being killed, becoming alcoholic, and so forth, are side-effects of the stresses that come with privilege. It might be argued in response that alleged privileges that have these consequences are not real privileges for those who succumb. Although some men may benefit, many others experience only the costs. However, even if it were true that these were costs of genuine privilege, it would not follow that these costs were inevitable results. Those with power can divert resources in order to combat such sideeffects of their power, thereby further improving their position. Moreover, it is curious that as male power has surely (and appropriately) diminished in western democracies, the costs of being male have (inappropriately) increased, not decreased. For example, whereas a century or more ago men were almost guaranteed, following divorce, to gain custody of their children, today they are at a distinct disadvantage. As custody practices were better for men when they really did enjoy more power than they do now, it is clear that the current custody biases are not inevitable by-products of male power. Thus, although it is true that the powerful cannot complain about having to bear the costs of that power, it does not follow that all disadvantages they suffer are such costs. Even if it is true that men in our society enjoy overall advantage—and I am not convinced that this is true any longer—it can still be true that they suffer genuine discrimination that is not an inevitable consequence of their privilege. Now some will ask why those who hold most positions of power in a society could be the victims of pervasive discrimination. Why would those with power allow themselves to be treated in this way? Although there are a number of possible answers, the most important one is that insofar as discrimination is indirect and nonintentional, those who hold positions of power may not recognize it for what it is. They might take their disadvantage to be inevitable, perhaps because they share the very prejudices that contribute to their own disadvantage. A captain and officers clearly hold the powerful positions on a ship. Yet when it sinks and they adhere to and enforce a policy of saving “women and children,” the social conventions lead them to use their power in a way that advantages women and disadvantages men (including themselves). Taking the Second Sexism Seriously

The fitting response to the second sexism is to oppose it in the same way that we oppose those sexist attitudes and practices of which women are the primary victims. To date, however, there has been an asymmetrical assault on sexism. Practices that disadvantage women have steadily been uprooted, while very few disadvantages of men have been confronted. Male disadvantage is thought hardly worthy of mention. When it is mentioned it is often excused even by those who purport to oppose sex discrimination. In academic research into gender issues,

the trend is to examine ways in which women are disadvantaged. Relatively little research examines the other side of the sexist coin. Because of this, we have every reason to think that the full extent of male disadvantage has not been revealed. If it has taken all the research it has to show the many facets of discrimination against women and girls, it surely will take as much to show the many ways in which men and boys suffer disadvantage. Recognition of the second sexism sheds some light on the claim that all societies are structured to the exclusive benefit of men and are thus “patriarchal.” So powerful is patriarchy, we are told, that women themselves internalize its values and serve its ends. Consider, for instance, female genital excision, which is widespread in some parts of the world. This ritual is almost always performed by women and many women are amongst the most vigorous defenders of the practice. Nevertheless, it is argued, entirely appropriately, that given how damaging the procedure is to the girls on whom it is performed, it cannot reasonably be claimed to serve the interests of women (except, perhaps, those few female performers of the ritual, as they may have a vested interest in it). What is curious, though, is that similar reasoning is not applied to the conscription of only males. Here some feminists are at pains to emphasize that it is men who make wars and men who conscript other men to fight them. This is true, but no less so than the claim that it is females who perform genital excision on little girls. Why is it not the case that the whole system of male-only conscription and combat serves women’s interests? Why are the female agents of genital excision serving the interests of men, while the male—and now also female—agents of government, the bureaucracy and the military who send men to war, are serving men’s interests? Why are women not complicit in and partly culpable for the perpetuation of gender role stereotypes that lead to male disadvantage? Once one recognizes the second sexism, claims about universal patriarchy become either absurd or unfalsifiable. The evidence suggests that not everything counts against women and in favor of men. Society often favors men, but it also sometimes (perhaps even often) favors women. To the extent that claims about the existence of patriarchy deny this and explain away any conceivable example of male disadvantage, they are unfalsifiable and accordingly unscientific. Understanding the second sexism also has consequences for the debate about affirmative action for women (qua women, rather than qua some other class of beings). For instance, one objection to strong affirmative action policies is that rather than redressing past disadvantage by making restitution to an identifiably disadvantaged person, such policies make restitution to a person who belongs to a class that has been disadvantaged. This, it is said, sometimes leads to somebody who has not been disadvantaged receiving the benefit of affirmative action. In response to this argument, defenders of affirmative action sometimes argue that given how society works, all women have been disadvantaged and thus an affirmative action policy favoring women cannot in practice favor somebody who has not been disadvantaged. What the second sexism shows is that this response will not work. It will sometimes—even often—be the case that a man has been more disadvantaged than a woman. This woman may not have had her career interrupted by childbearing and rearing, but this man may have had his career interrupted by a period of military service. This woman may have had every educational advantage during childhood schooling, while this man may have been one of the many who suffered educational disadvantage. Moreover, asymmetrical attention has been given to how sexist attitudes lead to lopsiding in social institutions. Feminists regularly tell us that anything less than proportionate representation of the sexes in government, the professions, and other socially desirable positions is an indication of discrimination (whether subtle or otherwise). Although there are relatively few female engineers, for example, despite formal equality of opportunity, we are told that this is due to subtle sexist influences that discourage young girls from aspiring to be engineers. Yet, this sort of reasoning is not used to explain why the vast majority of prisoners or soldiers are male. It is not said that sexist stereotypes dispose (or force) young males to enlist or to behave in ways that make them more susceptible to imprisonment. The proportion of male prisoners and soldiers, for example, is simply taken as natural in a way that the proportion of male engineers or legislators is not. If the under-representation of women in the academy, for example, must be redressed by affirmative action policies that ensure proportionality, why should similar policies not be used for the purposes of conscription and combat? Affirmative action conscription policies that aimed at enlisting equal numbers of males and females and insisted on sending equal numbers of men and women into battle would not only enforce the

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desired proportionality, it would also have an immense impact on the prejudicial views about gender roles. Similarly, notice that although women are now heavily represented in what were traditionally male jobs, men have not made comparable inroads into professions such as nursing, which (for about a century and a half) have traditionally been the preserve of women. Part of this is explicable by the lower status of traditionally female jobs, which makes them less attractive to men. But that, it seems to me, is just part of the sexist worldview that feminists are seeking to undo. If the aims of affirmative action include proportional representation of the sexes in each kind of work, and the overcoming of gender-linked jobs, then affirmative action has as much of a role to play in equalizing the nursing profession as it does in equalizing the sexes within the ranks of doctors. In fact, there is reason—including the actual success rates—to think that sexist stereotypes make it easier for women to enter traditionally male professions than for men to enter traditionally female professions. Accordingly, affirmative action policies, if justified, may be more needed in nursing than in medicine. I want to emphasize that I am not recommending affirmative action in the military, the nursing profession, and other such areas. My claim is only that the very arguments used to defend affirmative action in other contexts would apply equally here. To apply them selectively is disingenuous. Conclusion

When one considers how much has been written about discrimination against women, it is clear that no one paper can address all aspects of the second sexism. It has not been possible for me to search for and probe all instances of the second sexism, and it has not been possible to consider and respond to all objections to the claim that there is a second sexism. Such constraints on a single paper are innocuous in themselves. Unfortunately, however, the paucity of papers giving attention to discrimination against men leads to those few that there are being taken less seriously. The absence of an extensive academic literature about discrimination against men both results from and further entrenches the neglect of such discrimination. That is to say, it is at least partly because such discrimination is not taken seriously that so little research time and money is devoted to it. But because it is not the vogue to examine such discrimination, much less is known about it and this perpetuates the impression that is not worthy of detailed consideration. The lopsided information we have about sexism creates a climate in which the research bias is preserved and reinforced. This is dangerous. We have every reason to think that academic neglect of a problem is not an indication of its absence. For example, it was not long ago that sexual abuse of children was thought to be an extremely rare phenomenon. That issue has since become a popular academic and social cause, with the result that we now know much more about it and it is now widely recognized to be more common than was previously thought. But do (most) men feel as though they are victims of sexism? It has been noted that “women bent on escape from the female sphere do not usually run into hordes of oppressed men swarming in the opposite direction, trying to change places with their wives and secretaries” and that this is evidence for “where the real advantage lies.” Notice that one could embrace the conclusion that overall advantage lies with men, while still acknowledging that men do experience some significant sexist discrimination. In this paper I have sought only to highlight this discrimination and to argue that it should be opposed. I have not sought to claim that men are worse off than women. Nevertheless, the observation that men (generally) do not want to change places with women should not be invested with too much significance. If people’s satisfaction or dissatisfaction with their socially mandated roles were determinative (or even suggestive) of whether such roles were advantageous to their bearers, then a few conclusions that are unfortunate for feminists would follow. First, many women forced into traditional female roles could not be viewed as being the victims of sexism, so long as those roles were internalized by those women and found by them to be satisfying. Just such an attitude characterized most women until the dawn of the women’s movement, and it is an attitude that is still widespread among women in more traditional societies, if not with respect to every feature of their position then at least to many of its features. Second, the women most dissatisfied with their condition are to be found in disproportionately large numbers amongst women who are subject to the least sexist discrimination and restrictions. For instance, female feminist professors in Western societies are arguably the most liberated women in the world—the women least restricted or disadvantaged by sexism. Yet they are also more concerned about the disadvantages they do face than are many

less fortunate women. If the level of one’s satisfaction with one’s role is what determines the severity of the discrimination to which one is subjected, then the sexism experienced by contemporary Western feminists really is worse than that endured by those women in more traditional societies, past or present, who are satisfied with their position. Whether one takes that to be absurd will depend, at least in part, on what view one takes about such matters as adaptive preferences and false consciousness. It would be unwise to attempt to settle these issues here. All I wish to observe is that if men’s apparent contentment with their position is taken to be evidence that they are not the victims of discrimination, then from that follow some conclusions that should be unsettling to most feminists. If, by contrast, it is thought that somebody might be the victim of discrimination without realizing it, then the way is opened to recognizing that even if most men are content with their position they might nonetheless be victims of a second sexism.

Journal/Discussion Questions 1. In your own experience, what have you seen that confirms Benatar’s analysis of the second sexism? What have you seen that counts against his analysis? Overall, how would you assess the validity of his claims? 2. If Benatar is right, what conclusions follow for your own views about sexism in our society?

Susan Moller Okin

“Is Multiculturalism Bad for Women?” About the Author: Susan Moller Okin (1946–2004) was the Marta Sutton Weeks Professor of Ethics in Society and Professor of Political Science at Stanford University. Her books include Women in Western Political Thought and Justice, Gender, and the Family. About the Article: In this article, Okin explores some of the tensions that arise between acceptance of diversity (a key tenet of multiculturalism) and concern for the rights and well-being of women. The article was originally published in the Boston Review, October/November 1997 and reprinted in Is Multiculturalism Bad for Women? edited by Joshua Cohen, Matthew Howard, and Martha C. Nussbaum (Princeton: Princeton University Press, 1999). As You Read, Consider This: 1. “Feminism” and “multiculturalism” are two key terms in Okin’s article. How does she define each of these terms? 2. Why, according to Kymlicka, do certain minority groups deserve special group rights? 3. What is the liberal response to Okin’s critique? What rejoinder does Okin offer to this response?

U

ntil the past few decades, minority groups—immigrants as well as indigenous peoples—were typically expected to assimilate into majority cultures. This assimilationist expectation is now often considered oppressive, and many Western countries are seeking to devise new policies that are more responsive to persistent cultural differences. The appropriate policies vary with context: Countries such as England with established churches or state supported religious education find it hard to resist demands to extend state support to minority religious schools; countries such as France with traditions of strictly secular public education struggle over whether the clothing required by minority religions may be worn in the public schools. But one issue recurs across all contexts, though it has gone virtually unnoticed in current debate: What should be done when the claims of minority cultures or religions clash with the norm of gender equality that is at least formally endorsed by liberal states (however much they continue to violate it in their practice)?

Susan Moller Okin, Is Multiculturalism Bad for Women? Copyright © 1999 Princeton University Press. Reprinted by permission of Princeton University Press.

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In the late 1980s, for example, a sharp public controversy erupted in France about whether Magrbin girls could attend school wearing the traditional Muslim headscarves regarded as proper attire for postpubescent young women. Staunch defenders of secular education lined up with some feminists and far-right nationalists against the practice; much of the old left supported the multiculturalist demands for flexibility and respect for diversity, accusing opponents of racism or cultural imperialism. At the very same time, however, the public was virtually silent about a problem of vastly greater importance to many French Arab and African immigrant women: polygamy. During the 1980s, the French government quietly permitted immigrant men to bring multiple wives into the country, to the point where an estimated 200,000 families in Paris are now polygamous. Any suspicion that official concern over headscarves was motivated by an impulse toward gender equality is belied by the easy adoption of a permissive policy on polygamy, despite the burdens this practice imposes on women and the warnings issued by women from the relevant cultures. On this issue, no politically effective opposition galvanized. But once reporters finally got around to interviewing the wives, they discovered what the government could have learned years earlier: that the women affected by polygamy regarded it as an inescapable and barely tolerable institution in their African countries of origin, and an unbearable imposition in the French context. Overcrowded apartments and the lack of each wife’s private space lead to immense hostility, resentment, even violence both among the wives and against each other’s children. In part because of the strain on the welfare state caused by families with 20-30 members, the French government has recently decided to recognize only one wife and consider all the other marriages annulled. But what will happen to all the other wives and children? Having neglected women’s view on polygamy for so long, the government now seems to be abdicating its responsibility for the vulnerability that women and children incurred because of its rash policy. The French accommodation of polygamy illustrates a deep and growing tension between feminism and multiculturalist concerns to protect cultural diversity. I think we—especially those of us who consider ourselves politically progressive and opposed to all forms of oppression—have been too quick to assume that feminism and multiculturalism are both good things which are easily reconciled. I shall argue instead that there is considerable likelihood of tension between them—more precisely, between feminism and a multiculturalist commitment to group rights for minority cultures. A few words to explain the terms and focus of my argument. By “feminism,” I mean the belief that women should not be disadvantaged by their sex, that they should be recognized as having human dignity equally with men, and the opportunity to live as fulfilling and as freely chosen lives as men can. “Multiculturalism” is harder to pin down, but the particular aspect that concerns me here is the claim, made in the context of basically liberal democracies, that minority cultures or ways of life are not sufficiently protected by ensuring the individual rights of their members and as a consequence should also be protected with special group rights or privileges. In the French case, for example, the right to contract polygamous marriages clearly constituted a group right, not available to the rest of the population. In other cases, groups claim rights to govern themselves, have guaranteed political representation, or be exempt from generally applicable law. Demands for such group rights are growing—from indigenous native populations, minority ethnic or religious groups, and formerly colonized peoples (at least, when the latter immigrate to the former colonial state). These groups, it is argued, have their own “societal cultures” which—as Will Kymlicka, the foremost contemporary defender of cultural group rights, says—provide “members with meaningful ways of life across the full range of human activities, including social, educational, religious, recreational, and economic life, encompassing both public and private spheres.”1 Because societal cultures play so pervasive and fundamental a role in the lives of members, and because such cultures are threatened with extinction, minority cultures should be protected by special rights: That, in essence, is the case for group rights. Some proponents of group rights argue that even cultures that “flout the rights of [their individual members] in a liberal society”2 should be accorded group rights or privileges if their minority status endangers the culture’s continued existence. Others do not claim that all minority cultural groups should have special rights, but rather that such groups—even illiberal ones, that violate their individual members’ rights, requiring them to

conform to group beliefs or norms—have the right to be “let alone” in a liberal society.3 Both claims seem clearly inconsistent with the basic liberal value of individual freedom, which entails that group rights should not trump the individual rights of their members; thus, I will not address the problems they present for feminists here.4 But some defenders of multiculturalism largely confine their defense of group rights to groups that are internally liberal.5 Even with these restrictions, feminists—anyone, that is, who endorses the moral equality of men and women—should remain skeptical. So I will argue. Gender and Culture

Most cultures are suffused with practices and ideologies concerning gender. Suppose, then, that a culture endorses and facilitates the control of men over women in various ways (even if informally, in the private sphere of domestic life). Suppose, too, that there are fairly clear disparities of power between the sexes, such that the more powerful, male members are those who are generally in a position to determine and articulate the group’s beliefs, practices, and interests. Under such conditions, group rights are potentially, and in many cases actually, antifeminist. They substantially limit the capacities of women and girls of that culture to live with human dignity equal to that of men and boys, and to live as freely chosen lives as they can. Advocates of group rights for minorities within liberal states have not adequately addressed this simple critique of group rights, for at least two reasons. First, they tend to treat cultural groups as monoliths—to pay more attention to differences between and among groups than to differences within them. Specifically, they give little or no recognition to the fact that minority cultural groups, like the societies in which they exist (though to a greater or lesser extent), are themselves gendered, with substantial differences of power and advantage between men and women. Second, advocates of group rights pay no or little attention to the private sphere. Some of the best liberal defenses of group rights urge that individuals need “a culture of their own,” and that only within such a culture can people develop a sense of self-esteem or self-respect, or the capacity to decide what kind of life is good for them. But such arguments typically neglect both the different roles that cultural groups require of their members and the context in which persons’ senses of themselves and their capacities are first formed and in which culture is first transmitted—the realm of domestic or family life. When we correct for these deficiencies by paying attention to internal differences and to the private arena, two particularly important connections between culture and gender come into sharp relief, both of which underscore the force of the simple critique. First, the sphere of personal, sexual, and reproductive life provides a central focus of most cultures, a dominant theme in cultural practices and rules. Religious or cultural groups are often particularly concerned with “personal law”—the laws of marriage, divorce, child custody, division and control of family property, and inheritance. As a rule, then, the defense of “cultural practices” is likely to have much greater impact on the lives of women and girls than those of men and boys, since far more of women’s time and energy goes into preserving and maintaining the personal, familial, and reproductive side of life. Obviously culture is not only about domestic arrangements, but they do provide a major focus of most contemporary cultures. Home is, after all, where much of culture is practiced, preserved, and transmitted to the young. In turn, the distribution of responsibilities and power at home has a major impact on who can participate in and influence the more public parts of the cultural life, where rules and regulations about both public and private life are made. Second, most cultures have as one of their principal aims the control of women by men. Consider, for example, the founding myths of Greek and Roman antiquity, and of Judaism, Christianity, and Islam: they are rife with attempts to justify the control and subordination of women. These myths consist of a combination of denials of women’s role in reproduction, appropriations by men of the power to reproduce themselves, characterizations of women as overly emotional, untrustworthy, evil, or sexually dangerous, and refusals to acknowledge mothers’ rights over the disposition of their children. Think of Athena, sprung from the head of Zeus, and of Romulus and Remus, reared without a human mother. Or Adam, made by a male God, who then (at least according to one of the two biblical versions of the story) made Eve out of part of Adam. Consider Eve, whose weakness led Adam astray. Think of all those endless “begats” in Genesis, where women’s primary role in reproduction is completely ignored, or of the textual justifications for polygamy, once practiced in Judaism, still practiced in many parts of the Islamic world and (though illegally) by Mormons in some parts of the United States.

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Consider, too, the story of Abraham, a pivotal turning point in the development of monotheism. God commands Abraham to sacrifice “his” greatly loved son. Abraham prepares to do exactly what God asks of him, without even telling, much less asking, Isaac’s mother, Sarah. Abraham’s absolute obedience to God makes him the central, fundamental model of faith, for all three religions. While the powerful drive to control women—and to blame and punish them for men’s difficulty controlling their own sexual impulses—has been softened considerably in the more progressive, reformed versions of Judaism, Christianity, and Islam, it remains strong in their more orthodox or fundamentalist versions. Moreover, it is by no means confined to Western or monotheistic cultures. Many of the world’s traditions and cultures, including those practiced within formerly conquered or colonized nation states—certainly including most of the peoples of Africa, the Middle East, Latin America and Asia—are quite distinctly patriarchal. They too have elaborate patterns of socialization, rituals, matrimonial customs, and other cultural practices (including systems of property ownership and control of resources) aimed at bringing women’s sexuality and reproductive capabilities under men’s control. Many such practices make it virtually impossible for women to choose to live independently of men, to be celibate or lesbian, or not to have children. Those who practice some of the most controversial such customs—clitoridectomy, the marriage of children or marriages that are otherwise coerced, or polygamy—sometimes explicitly defend them as necessary for controlling women, and openly acknowledge that the customs persist at men’s insistence. In an interview with New York Times reporter Celia Dugger, practitioners of clitoridectomy in Côte d’Ivoire and Togo explained that the practice “helps insure a girl’s virginity before marriage and fidelity afterward by reducing sex to a marital obligation.” As a female exciser said, “[a] woman’s role in life is to care for her children, keep house and cook. If she has not been cut, [she] might think about her own sexual pleasure.”6 In Egypt, where a law banning female genital cutting was recently overturned by a court, supporters of the practice say it “curbs a girl’s sexual appetite and makes her more marriageable.”7 Moreover, in such contexts, many women have no economically viable alternative to marriage. Men in polygamous cultures, too, readily acknowledge that the practice accords with their selfinterest and is a means of controlling women. As a French immigrant from Mali said in a recent interview: “When my wife is sick and I don’t have another, who will care for me? . . . [O]ne wife on her own is trouble. When there are several, they are forced to be polite and well behaved. If they misbehave, you threaten that you’ll take another wife.” Women apparently see polygamy very differently. French African immigrant women deny that they like polygamy, and say not only that they are given “no choice” in the matter, but that their female forebears in Africa did not like it either.8 As for child or otherwise coerced marriage: this practice is clearly a way not only of controlling whom the girls or young women marry, but also of ensuring that they are virgins at the time of marriage and, often, enhancing the husband’s power by creating a significant age difference between husbands and wives. Consider, too, the practice—common in much of Latin America, rural South East Asia and parts of West Africa—of encouraging or even requiring a rape victim to marry the rapist. In many such cultures—including fourteen countries of Latin America—rapists are legally exonerated if they marry or (in some cases) even offer to marry their victims. Clearly, rape is not seen in these cultures primarily as a violent assault on the girl or woman herself, but rather as a serious injury to her family and its honor. By marrying his victim, the rapist can help restore the family’s honor and relieve it of a daughter who, as “damaged goods,” has become unmarriageable. In Peru, this barbaric law was amended for the worse in 1991: the co-defendants in a gang rape are now all exonerated if one of them offers to marry the victim (feminists are fighting to get the law repealed). As a Peruvian taxi driver explained: “Marriage is the right and proper thing to do after a rape. A raped woman is a used item. No one wants her. At least with this law the woman will get a husband.”9 It is hard to imagine a worse fate for a woman than being pressured into marrying the man who has raped her. But worse fates do exist in some cultures—notably in Pakistan and parts of the Arab Middle East, where women who bring rape charges are quite frequently charged with the serious Muslim offense of zina, or sex outside of marriage. Law allows for the whipping or imprisonment of such a woman, and culture condones the killing or pressuring into suicide of a raped woman by relatives concerned to restore the family’s honor.10 Thus, many culturally-based customs aim to control women and render them, especially sexually and reproductively, servile to men’s desires and interests. Sometimes, moreover, “culture” or “traditions” are so closely

linked with the control of women that they are virtually equated. In a recent news report about a small community of Orthodox Jews living in the mountains of Yemen—ironically, from a feminist point of view, the story was entitled “Yemen’s small Jewish community thrives on mixed traditions”—the elderly leader of this small polygamous sect is quoted as saying: “We are Orthodox Jews, very keen on our traditions. If we go to Israel, we will lose hold over our daughters, our wives and our sisters.” One of his sons added: “We are like Muslims, we do not allow our women to uncover their faces.”11 Thus the servitude of women is presented as virtually synonymous with “our traditions.” (Only blindness to sexual servitude can explain the title; it is inconceivable that the article would have carried such a title if it were about a community that practiced any kind of slavery but sexual slavery.) While virtually all of the world’s cultures have distinctly patriarchal pasts, some—mostly, though by no means exclusively, Western liberal cultures—have departed far further from them than others. Western cultures, of course, still practice many forms of sex discrimination. They place far more stress on beauty, thinness, and youth in females and on intellectual accomplishment, skill, and strength in males; they expect women to perform for no economic reward far more than half of the unpaid work of their families, whether or not they also work for wages; partly as a consequence of this and partly because of workplace discrimination, women are far more likely than men to become poor; girls and women are also subjected by men to a great deal of (illegal) violence, including sexual violence. But women in more liberal cultures are, at the same time, legally guaranteed many of the same freedoms and opportunities as men. In addition, most families in such cultures, with the exception of some religious fundamentalists, do not communicate to their daughters that they are of less value than boys, that their lives are to be confined to domesticity and service to men and children, and that the only positive value of their sexuality is that it be strictly confined to marriage, the service of men, and reproductive ends. This, as we have seen, is quite different from women’s situation in many of the world’s other cultures, including many of those from which immigrants to Europe and Northern America come. Group Rights?

Most cultures are patriarchal, then, and many (though not all) of the cultural minorities that claim group rights are more patriarchal than the surrounding cultures. So it is no surprise that the cultural importance of maintaining control over women shouts out to us in the examples given in the literature on cultural diversity and group rights within liberal states. Yet, though it shouts out, it is seldom explicitly addressed. A 1986 paper about the legal rights and culture-based claims of various immigrant groups and gypsies in contemporary Britain mentions the roles and status of women as “one very clear example” of the “clash of cultures.”12 In it, Sebastian Poulter discusses claims put forward by members of such groups for special legal treatment on account of their cultural differences. A few are non-gender-related claims: about a Muslim schoolteacher’s being allowed to be absent part of Friday afternoons in order to pray, and gypsy children having less stringent schooling requirements than others on account of their itinerant lifestyle. But the vast majority of the examples concern gender inequalities: child marriages, forced marriages, divorce systems biased against women, polygamy, and clitoridectomy. Almost all of the legal cases discussed stemmed from women’s or girls’ claims that their individual rights were being truncated or violated by the practices of their cultural groups. In a recent article by political philosopher Amy Gutmann, “The Challenge of Multiculturalism in Political Ethics,” fully half the examples have do with gender issues—polygamy, abortion, sexual harassment, clitoridectomy, and purdah.13 This is quite typical in the literature on subnational multicultural issues. Moreover, the same phenomenon occurs in practice in the international arena, where women’s human rights are often rejected by the leaders of countries or groups of countries as incompatible with their various cultures. Similarly, the overwhelming majority of “cultural defenses” that are increasingly being invoked in US criminal cases concerning members of cultural minorities are connected with gender—in particular with male control over women and children. Occasionally, cultural defenses come into play in explaining expectable violence among men, or the ritual sacrifice of animals. Much more common, however, is the argument that, in the defendant’s cultural group, women are not human beings of equal worth but subordinates whose primary (if not only) functions are to serve men sexually and domestically. Thus, the four types of case in which cultural defenses have been used most successfully are: kidnap and rape by Hmong men who claim

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that their actions are part of their cultural practice of zij poj niam or “marriage by capture”; wife-murder by immigrants from Asian and Middle Eastern countries whose wives have either committed adultery or treated their husbands in a servile way; mothers who have killed their children but failed to kill themselves, and claim that because of their Japanese or Chinese backgrounds the shame of their husbands’ infidelity drove them to the culturally condoned practice of mother-child suicide; and—in France, though not yet in the United States, in part because the practice was criminalized only in 1996—clitoridectomy. In a number of such cases, expert testimony about the accused’s or defendant’s cultural background has resulted in dropped or reduced charges, culturally-based assessments of mens rea, or significantly reduced sentences. In a wellknown recent case, an immigrant from rural Iraq married his two daughters, aged 13 and 14, to two of his friends, aged 28 and 34. Subsequently, when the older daughter ran away with her 20-year-old boyfriend, the father sought the help of the police in finding her. When they located her, they charged the father with child abuse, and the two husbands and boyfriend with statutory rape. The Iraqis’ defense is based in part, at least, on their cultural marriage practices. As these examples show, the defendants are not always male, nor the victims always female. Both a Chinese immigrant man in New York who battered his wife to death for committing adultery and a Japanese immigrant woman in California who drowned her children and tried to drown herself because her husband’s adultery had shamed the family, relied on cultural defenses to win reduced charges (from murder to second degree or involuntary manslaughter). It might seem, then, that cultural defense was biased toward the male in the first case, and the female in the second. But no such asymmetry exists. In both cases, the cultural message is similarly gender-biased: women (and children, in the second case) are ancillary to men, and should bear the blame and the shame for any departure from monogamy. Whoever is guilty of the infidelity, the wife suffers: in the first case, by being brutally killed on account of her husband’s rage at her shameful infidelity; in the second, by being so shamed and branded a failure by his infidelity that she is driven to kill herself and her children. Again, the idea that girls and women are first and foremost sexual servants of men whose virginity before marriage and fidelity within it are their preeminent virtues emerges in many of the statements made in defense of cultural practices. Western majority cultures, largely at the urging of feminists, have recently made substantial efforts to avoid or limit excuses for brutalizing women. Well within living memory, American men were routinely held less accountable for killing their wives if they explained their conduct as a crime of passion, driven by jealousy on account of the wife’s infidelity. Also not long ago, women who did not have completely celibate pasts or who did not struggle—even so as to endanger themselves—were routinely blamed when raped. Things have now changed to some extent, and doubts about the turn toward cultural defenses undoubtedly come in part from a concern to preserve recent advances. Another concern is that such defenses can distort perceptions of minority cultures by drawing excessive attention to negative aspects of them. But perhaps the primary concern is that, by failing to protect women and sometimes children of minority cultures from male and sometimes maternal violence, cultural defenses violate their rights to the equal protection of the laws. When a woman from a more patriarchal culture comes to the United States (or some other Western, basically liberal, state), why should she be less protected from male violence than other women are? Many women from minority cultures have protested the double standard that is being applied to their aggressors. Liberal Defense

Despite all this evidence of cultural practices that control and subordinate women, none of the prominent defenders of multicultural group rights has adequately or even directly addressed the troubling connections between gender and culture, or the conflicts that arise so commonly between multiculturalism and feminism. Will Kymlicka’s discussion is, in this respect, representative. Kymlicka’s arguments for group rights are based on the rights of individuals, and confine such privileges and protection to cultural groups that are internally liberal. Following John Rawls, Kymlicka emphasizes the fundamental importance of self-respect in a person’s life. He argues that membership in a “rich and secure cultural structure,”14 with its language and history, is essential both for the development of self-respect and for giving

persons a context in which they can develop the capacity to make choices about how to lead their lives. Cultural minorities need special rights, then, because their culture may otherwise be threatened with extinction, and cultural extinction would likely undermine the self-respect and freedom of group members. Special rights, in short, put minorities on a footing of equality with the majority. The value of freedom plays an important role in Kymlicka’s argument. As a result, except in rare circumstances of cultural vulnerability, a group that claims special rights must govern itself by recognizably liberal principles, neither infringing on the basic liberties of its own members by placing internal restrictions on them, nor discriminating among them on grounds of sex, race, or sexual preference. This requirement is of great importance to a consistently liberal justification for group rights, since a “closed” or discriminatory culture cannot provide the context for individual development that liberalism requires and because collective rights might otherwise result in subcultures of oppression within and aided by liberal societies. As Kymlicka says: “To inhibit people from questioning their inherited social roles can condemn them to unsatisfying, even oppressive lives.”15 As Kymlicka acknowledges, this requirement of internal liberalism rules out the justification of group rights for the “many fundamentalists of all political and religious stripes who think that the best community is one in which all but their preferred religious, sexual, or aesthetic practices are outlawed.” For the promotion and support of these cultures “undermines the very reason we had for being concerned with cultural membership—that it allows for meaningful individual choice.”16 But the examples I cited earlier suggest that far fewer minority cultures than Kymlicka seems to think will be able to claim group rights under his liberal justification. Though they may not impose their beliefs or practices on others, and though they may appear to respect the basic civil and political liberties of women and girls, many cultures do not, especially in the private sphere, treat them with anything like the same concern and respect as men and boys, or allow them to enjoy the same freedoms. Discrimination against and control of the freedom of females is practiced, to a greater or lesser extent, by virtually all cultures, past and present, but especially religious ones and those that look to the past—to ancient texts or revered traditions—for guidelines or rules about how to live in the contemporary world. Sometimes more patriarchal minority cultures exist in the context of less patriarchal majority cultures; sometimes the reverse is true. In either case, the degree to which each culture is patriarchal and its willingness to become less so should be crucial factors in considering justifications for group rights—once we take women’s equality seriously. Clearly, Kymlicka regards cultures that discriminate overtly and formally against women—by denying them education, or the right to vote or to hold office—as not deserving special rights. But sex discrimination is often far less overt. In many cultures, strict control of women is enforced in the private sphere by the authority of either actual or symbolic fathers, often acting through, or with the complicity of, the older women of the culture. In many cultures in which women’s basic civil rights and liberties are formally assured, discrimination practiced against women and girls within the household not only severely constrains their choices, but seriously threatens their well-being and even their lives. And such sex discrimination—whether severe or more mild—often has very powerful cultural roots. Although Kymlicka rightly objects to the granting of group rights to minority cultures that practice overt sex discrimination, then, his arguments for multiculturalism fail to register what he acknowledges elsewhere: that the subordination of women is often informal and private, and that virtually no culture in the world today, minority or majority, could pass his “no sex discrimination” test if it were applied in the private sphere.17 Those who defend group rights on liberal grounds need to address these very private, culturally reinforced kinds of discrimination. For surely self-respect and self-esteem require more than simple membership in a viable culture. Surely it is not enough, for one to be able to “question one’s inherited social roles” and to have the capacity to make choices about the life one wants to lead, that one’s culture be protected. At least as important to the development of self-respect and self-esteem is our place within our culture. And at least as important to our capacity to question our social roles is whether our culture instills in and enforces particular social roles on us. To the extent that their culture is patriarchal, in both these respects the healthy development of girls is endangered.

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Part of the Solution?

It is by no means clear, then, from a feminist point of view, that minority group rights are “part of the solution.” They may well exacerbate the problem. In the case of a more patriarchal minority culture in the context of a less patriarchal majority culture, no argument can be made on the basis of self-respect or freedom that the female members of the culture have a clear interest in its preservation. Indeed, they may be much better off if the culture into which they were born were either to become extinct (so that its members would become integrated into the less sexist surrounding culture) or, preferably, to be encouraged to alter itself so as to reinforce the equality of women—at least to the degree to which this is upheld in the majority culture. Other considerations would, of course, need to be taken into account, such as whether the minority group speaks a different language that requires protection, and whether the group suffers from prejudices such as racial discrimination. But it would take significant factors weighing in the other direction to counterbalance evidence that a culture severely constrained women’s choices or otherwise undermined their well-being. What some of the examples discussed above show us is how culturally endorsed practices that are oppressive to women can often remain hidden in the private or domestic sphere. In the Iraqi child marriage case mentioned above, if the father himself had not called in agents of the state, his daughters’ plight might well not have become public. And in 1996 when Congress passed a law criminalizing clitoridectomy, a number of US doctors objected to the law as unjustified, since it concerned a private matter which, as one said, “should be decided by a physician, the family, and the child.”18 It can take more or less extraordinary circumstances for such abuses of girls or women to become public or for the state to be able to intervene protectively. Thus it is clear that many instances of private sphere discrimination against women on cultural grounds are never likely to emerge in public, where courts can enforce their rights and political theorists can label such practices as illiberal and therefore unjustified violations of women’s physical or mental integrity. Establishing group rights to enable some minority cultures to preserve themselves may not be in the best interests of the girls and women of the culture, even if it benefits the men. When liberal arguments are made for the rights of groups, then, special care must be taken to look at withingroup inequalities. It is especially important to consider inequalities between the sexes, since they are likely to be less public, and less easily discernible. Moreover, policies aiming to respond to the needs and claims of cultural minority groups must take seriously the need for adequate representation of less powerful members of such groups. Since attention to the rights of minority cultural groups, if it is to be consistent with the fundamentals of liberalism, must be ultimately aimed at furthering the well-being of the members of these groups, there can be no justification for assuming that the groups’ self-proclaimed leaders—invariably mainly composed of their older and their male members—represent the interests of all of the groups’ members. Unless women—and, more specifically, young women, since older women often become co-opted into reinforcing gender inequality—are fully represented in negotiations about group rights, their interests may be harmed rather than promoted by the granting of such rights.

Journal/Discussion Questions 1. In your own experience, how have you seen the tension between women’s interests and multiculturalism play itself out (if at all)? 2. Critically evaluate Okin’s criticisms of multiculturalism.

References 1. Will Kymlicka, Multicultural Citizenship: A Liberal Theory of Minority Rights (Oxford: Oxford University Press, 1995), pp. 89, 76. See also Kymlicka, Liberalism, Community, and Culture (Oxford: The Clarendon Press, 1989). It should be noted that Kymlicka himself does not argue for extensive or permanent group rights for those who have voluntarily immigrated.

2. Avishai Margalit and Moshe Halbertal, “Liberalism and the Right to Culture,” Social Research 61, 3 (Fall, 1994): 491. 3. For example, Chandran Kukathas, “Are There any Cultural Rights?” Political Theory 20, 1 (1992): 105–39. 4. Okin, “Feminism and Multiculturalism: Some Tensions,” Ethics 108, 4 (1998): 661–684. 5. For example, Kymlicka, Liberalism, Community, and Culture and Multicultural Citizenship, especially chap. 8. Kymlicka does not apply his requirement that groups be internally liberal to those he terms “national minorities,” but I will not address this aspect of his theory here. 6. New York Times, 5 October 1996, A4. The role that older women in such cultures play in perpetuating them is important but complex, and cannot be addressed here. 7. New York Times, 26 June 1997, A9. 8. International Herald Tribune, 2 February 1997, News section. 9. New York Times, 12 March 1997, A8. 10. This practice is discussed in Henry S. Richardson, Practical Reasoning About Final Ends (Cambridge: Cambridge University Press, 1994), especially pp. 240–43, 262–63, 282–84. 11. Agence France Presse, 18 May 1997, International News section. 12. Sebastian Poulter, “Ethnic Minority Customs, English Law, and Human Rights,” International and Comparative Law Quarterly 36, 3 (1987): 589–615. 13. Amy Gutmann, “The Challenge of Multiculturalism in Political Ethics,” Philosophy and Public Affairs 22, 3 (Summer 1993): 171–204. . . . 14. Kymlicka, Liberalism, Community, and Culture, p. 165. 15. Kymlicka, Multicultural Citizenship, p. 92. 16. Kymlicka, Liberalism, Community, and Culture, pp. 171–72. 17. Will Kymlicka, Contemporary Political Philosophy: An Introduction (Oxford: The Clarendon Press, 1990), pp. 239–62. 18. New York Times, 12 October 1996, A6. Similar views were expressed on public radio.

Concluding Discussion Questions Where Do You Stand Now?

Instructions

Agree

Undecided

Disagree

Strongly Disagree

31. 32. 33. 34. 35.

Strongly Agree

You have already answered the following questions in your moral problems self-quiz at the beginning of this book. Now that you have studied the material in this section, take a moment to answer the same questions again. You can either enter your answers below or complete the survey on-line at http://ethics.sandiego.edu/surveys.

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Chapter 7: Gender Women’s moral voices are different from men’s. Women are still discriminated against in the workplace. Sexual harassment should be illegal. Affirmative action helps women. Genuine equality for women demands a restructuring of the traditional family.

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Compare your answers to this self-quiz with the answers to the initial self-quiz. How, if at all, have your answers changed? How have the reasons for your answers changed?

Journal/Discussion Questions ✍ Do you think the fact that you are a male or female has influenced your attitude toward any of the readings or ideas you encountered in this chapter? Discuss. 1. What do you see as the ideal role of sex and gender in society? What do you think are the greatest liabilities associated with your view? The greatest assets? How does your view of this ideal relate to the views of the authors in this section? 2. Do you think that women are still discriminated against in today’s society? Discuss the evidence

for your position. If discrimination still exists, how should we as a society respond to it? 3. The issue of raising children is a central concern to many people, and is particularly troublesome to those who want to ensure equality between the sexes. Discuss the potential conflict between child-raising and sex equality and explain how you think our society should deal with this issue. Relate your position to those presented in this chapter.

For Further Reading Web Resources

Anthologies, Articles, and Books

For Web-based resources, including the major Supreme Court decisions on gender issues, see the Gender and Sexism page of Ethics Updates (http:// ethics.sandiego.edu).

There are a number of excellent anthologies on feminism and ethics, including Carole R. McCann and Seung-Kyung Kim, eds., Feminist Theory Reader: Local and Global Perspectives (London: Routledge, 2002); Claudia Card’s Feminist Ethics and Politics (Lawrence, KS: University of Kansas Press, 1999); Eva Feder Kittay and Diana Meyer’s Women and Moral Theory (Savage, MD: Rowman & Littlefield, 1987); Feminism and Political Theory, edited by Cass R. Sunstein (Chicago: University of Chicago Press, 1990); Claudia Card’s Feminist Ethics (Lawrence, KS: University of Kansas Press, 1991), which contains an excellent bibliography; Explorations in Feminist Ethics, edited by Eva Browning Cole and Susan Coultrap-McQuin (Bloomington, IN: Indiana University Press, 1992), which also has an excellent bibliography; Ethics: A Feminist Reader, edited by Elizabeth Frazer, Jennifer Hornsby, and Sabina Lovibond (Oxford: Blackwell, 1992); also see Martha C. Nussbaum’s excellent Sex and Social Justice (New York: Oxford, 1999) as well as Women, Culture and Development: A Study of Human Capabilities, edited by Martha Nussbaum and Jonathan Glover (New York: Oxford, 1995). Laurie J. Shrage, Moral Dilemmas of Feminism: Prostitution, Adultery, and Abortion (New York: Routledge, 1994); Rita C. Manning, Speaking from the Heart: A Feminist Perspective on Ethics (Savage, MD: Rowman and Littlefield, 1992) is one of many excellent defenses of feminist perspectives in ethics. For a critical look at some elements in

Journals In addition to the standard journals in ethics discussed in the Appendix, there are several excellent journals devoted to issues of feminism. Signs is one of the oldest, and is a genuinely interdisciplinary journal devoted to issues relating to women; Hypatia is a philosophy journal created by members of the Society of Women in Philosophy (SWiP); also see Feminist Studies and Differences: A Journal of Feminist Cultural Studies.

Review Articles and Overviews For an excellent overview of feminist ethics, see Rosemarie Tong, Feminist Thought: A More Comprehensive Introduction, 3rd ed. (Westview Press, 2008); The Cambridge Companion to Feminism in Philosophy, edited by Miranda Fricker and Jennifer Hornsby (Cambridge: Cambridge University Press, 2000); A Companion to Feminist Philosophy, edited by Alison M. Jagger and Iris Marion Young (Oxford: WileyBlackwell, 2000). On language and gender, see The Handbook of Language and Gender, edited by Janet Holmes and Miriam Meyerhoff (Oxford: Blackwell, 2005).

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contemporary feminism, see Katie Roiphe, The Morning After: Sex, Fear, and Feminism (Boston: Little, Brown, 1993) and Christina Hoff Sommers, Who Stole Feminism? (New York: Simon and Schuster, 1994).

silences and subordinates women. Also see Catharine A. MacKinnon, “Sexuality, Pornography, and Method: ‘Pleasure under Patriarchy’,” Ethics, Vol. 99 (January, 1989), pp. 314–346.

Pornography and Hate Speech

Sexual Harassment

For a survey of the ethical issues surrounding pornography, see Lori Gruen, “Pornography and Censorship” in A Companion to Applied Ethics: Blackwell Companions to Philosophy, edited by R. G. Frey (Malden MA: Blackwell-Publishing, 2003), pp. 154–166 and Donald VanDeVeer, “Pornography,” Encyclopedia of Ethics, edited by Lawrence C. Becker and Charlotte B. Becker (New York: Garland Publishing, 1992), Vol. II, pp. 991–993. The philosophical issues surrounding pornography and censorship often take place within the context of a discussion of John Stuart Mill’s work. See David Dyzanhaus, “John Stuart Mill and the Harm of Pornography,” Ethics, Vol. 102, No. 3 (April 1992), pp. 534–551 and Robert Skipper, “Mill and Pornography,” Ethics, Vol. 103, No. 5 (July 1993), pp. 726–730; Richard Vernon, “John Stuart Mill and Pornography: Beyond the Harm Principle,” Ethics, Vol. 106, No. 3 (April 1996), pp. 621–632; Danny Scoccia, “Can Liberals Support a Ban on Violent Pornography?” Ethics, Vol. 106, No. 4 (July 1996), pp. 776–799. Rae Langton’s “Speech Acts and Unspeakable Acts,” Philosophy and Public Affairs, Vol. 22, No. 4 (Fall 1993), pp. 293–330, argues on the basis of speech act theory that pornography

For an superb overview of the literature on sexual harassment, see Elizabeth Andreson, “Recent Thinking about Sexual Harassment: A Review Essay,” Philosophy and Public Affairs, 34/3 (2006), pp. 284–311; Directions in Sexual Harassment Law, edited by Catharine MacKinnon and Reva Siegel (New Haven: Yale University Press, 2004). MacKinnon’s original work may be found in her Sexual Harassment of Working Women (New Haven: Yale University Press, 1979). Also see the review articles by Ann E. Cudd and Leslie E. Jones, “Sexism” in A Companion to Applied Ethics: Blackwell Companions to Philosophy, edited by R. G. Frey (Malden, MA: Blackwell Publishing, 2003), pp. 102–117; and “Sexual Abuse and Harassment” by Naomi Scheman in Encyclopedia of Ethics, edited by Lawrence C. Becker and Charlotte B. Becker (New York: Garland Publishing, 1992), Vol. II, pp. 1139–1141. For an excellent starting point, see Linda LeMoncheck and James P. Sterba, Sexual Harassment: Issues and Answers (New York: Oxford University Press, 2001) and LeMoncheck and Mane Hajdin,Sexual Harassment: A Debate (Lanham, MD: Rowman and Littlefield, 1997); and Sexual Harassment: Confrontations and Decisions, edited by Edmund Wall (Buffalo, NY: Prometheus Books, 1992).

MySearchLab Connections Sources OnLine READ AND REVIEW Study and Review: Chapter 7 The text explores moral issues surrounding the topic of gender. These readings further explore that theme. 1. How to Make Our Ideas Clear by Charles Sanders Peirce Peirce develops a doctrine known as pragmatism. According to this doctrine, the meaning of a philosophical theory cannot outrun its implications for action. Thus if two theories have the same implications for action, they cannot differ substantively. Peirce aims to use his pragmatism to

show some debates within philosophy to be empty, while clearing the way for substantive progress. 2. Philosophical Investigations b y L u d w i g Wittgenstein Wittgenstein complicates the simple notion that a word can stand for a thing in the way that the word “Fido” can stand for the dog Fido, and argues that language is a complex and essentially social activity. 3. Cratylus by Plato In this dialogue, Plato portrays a conversation among his teacher Socrates, the sophist Cratylus,

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and the young Hermogenes. The three embark on a discussion of how words get their meaning, with Socrates examining, and eventually undermining, a provocative answer to this question proffered by Cratylus. 4. An Essay On Man by Alexander Pope In the optimistic system that the poet describes, apparent evil is either misapprehended good or the result of disorder caused by humans’ efforts to usurp their allotted position in the Chain of Being. Using heroic couplets, Pope presents concise and memorable statements of generalizations as well as detailed specific examples to illustrate humanity’s place in nature, our own individual nature, our social nature, and our ultimate goal of happiness. Perhaps the greatest challenge for readers is to avoid the tendency to brush over these statements and ideas too quickly, falling into the rhythmic pattern of the phrasing without giving it sufficient thought.

RESEARCH AND EXPLORE Explore the following questions using the research tools available on www.mysearchlab.com. Explore on mythinkinglab.com

1. The text distinguishes between sexist attitudes and sexist behavior. If a sexist attitude is not translated into sexist behavior, is there anything wrong with it? Consider this question from a pragmatist viewpoint, which emphasizes the implications for action. 2. What does it mean to say that language is a social activity? What is the impact of gendered language? How can it lead to sexism? 3. The chapter presents several models of the place of gender in society. If given complete freedom of choice, as proposed by the maximal choice model, would each individual’s nature lead to choices that promote their own happiness? What are the flaws, if any, in that assumption?

8 Sexual Orientation

The Narrative 324 Hillary Rodham Clinton, “Remarks in Recognition of Human Rights Day” 324 An Introduction to the Moral Issues 329 Introduction 330 Defining Sexual Orientation 330 Sexual Orientation and Dichotomous Thinking 330 Sex and Gender: Some Preliminary Distinctions about LGBT 330 Sex 330 Gender 331 Sexual Orientation 332 Determining Sexual Orientation 332 The Ethical Issues 332 What’s Natural? Sexual Orientation and the Argument from Nature 332 Behavior and Identity 333 Guilt and Shame 333 Two Senses of “Unnatural” 333 Is Homosexuality Unnatural? 334 Is the Natural Always Good? 335 Discrimination Against Gays and Lesbians 335 Gays and Lesbians in the Military 336 Same-Sex Marriage 336 Models of the Place of Sexual Orientation in Society 338 The Conservative Model 338 The Liberal Model 339 Autonomy Arguments 339 Privacy Arguments 339 The Difference between Toleration, Acceptance, and Support 339 The Polymorphous Model 339 323

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Diversity and Consensus 339 The Arguments 340 Martha Nussbaum, “A Right to Marry? Same-Sex Marriage and Constitutional Law” James Q. Wilson, “Against Homosexual Marriage” 352 Concluding Discussion Questions 357 For Further Reading 358

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The Narrative Hillary Rodham Clinton

Remarks in Recognition of International Human Rights Day About the Author: The Secretary of State during President Obama’s administration, Hillary Rodham Clinton is a graduate of Yale Law School. She served as the United States Senator from New York from 2001 to 2008. About the Article: These remarks were delivered for International Human Rights Day before the Palais des Nations in Geneva, Switzerland on December 6, 2011. Clinton notes the historical significance of the U.N. Universal Declaration of Human Rights, the first worldwide attempt to articulate a consistent and uniform doctrine of human rights. In this speech, she concentrates on the issue of gay rights. As You Read This Article, Ask Yourself: 1. What would it mean to live in a world without human rights? What would be lost? 2. Clinton addresses five main questions about gay rights in her talk. What are these? What are her replies to each of these objections? 3. Some people feel there is a tension between respect for the integrity of individual cultures and a commitment to human rights. How does Clinton address this issue?

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ood evening, and let me express my deep honor and pleasure at being here. I want to thank Director General Tokayev and Ms. Wyden along with other ministers, ambassadors, excellencies, and UN partners. This weekend, we will celebrate Human Rights Day, the anniversary of one of the great accomplishments of the last century. Beginning in 1947, delegates from six continents devoted themselves to drafting a declaration that would enshrine the fundamental rights and freedoms of people everywhere. In the aftermath of World War II, many nations pressed for a statement of this kind to help ensure that we would prevent future atrocities and protect the inherent humanity and dignity of all people. And so the delegates went to work. They discussed, they wrote, they revisited, revised, rewrote, for thousands of hours. And they incorporated suggestions and revisions from governments, organizations, and individuals around the world. At three o’clock in the morning on December 10th, 1948, after nearly two years of drafting and one last long night of debate, the president of the UN General Assembly called for a vote on the final text. Forty-eight nations voted in favor; eight abstained; none dissented. And the Universal Declaration of Human Rights was adopted. It proclaims a simple, powerful idea: All human beings are born free and equal in dignity and rights. Hillary Rodham Clinton, “Remarks in Recognition of Human Rights Day,” remarks delivered at the Palais des Nations, Geneva, Switzerland, December 6, 2011; full remarks and video available at http://www.state.gov/secretary/rm/2011/12/178368.htm.

And with the declaration, it was made clear that rights are not conferred by government; they are the birthright of all people. It does not matter what country we live in, who our leaders are, or even who we are. Because we are human, we therefore have rights. And because we have rights, governments are bound to protect them. In the 63 years since the declaration was adopted, many nations have made great progress in making human rights a human reality. Step by step, barriers that once prevented people from enjoying the full measure of liberty, the full experience of dignity, and the full benefits of humanity have fallen away. In many places, racist laws have been repealed, legal and social practices that relegated women to second-class status have been abolished, the ability of religious minorities to practice their faith freely has been secured. In most cases, this progress was not easily won. People fought and organized and campaigned in public squares and private spaces to change not only laws, but hearts and minds. And thanks to that work of generations, for millions of individuals whose lives were once narrowed by injustice, they are now able to live more freely and to participate more fully in the political, economic, and social lives of their communities. Now, there is still, as you all know, much more to be done to secure that commitment, that reality, and progress for all people. Today, I want to talk about the work we have left to do to protect one group of people whose human rights are still denied in too many parts of the world today. In many ways, they are an invisible minority. They are arrested, beaten, terrorized, even executed. Many are treated with contempt and violence by their fellow citizens while authorities empowered to protect them look the other way or, too often, even join in the abuse. They are denied opportunities to work and learn, driven from their homes and countries, and forced to suppress or deny who they are to protect themselves from harm. I am talking about gay, lesbian, bisexual, and transgender people, human beings born free and given bestowed equality and dignity, who have a right to claim that, which is now one of the remaining human rights challenges of our time. I speak about this subject knowing that my own country’s record on human rights for gay people is far from perfect. Until 2003, it was still a crime in parts of our country. Many LGBT Americans have endured violence and harassment in their own lives, and for some, including many young people, bullying and exclusion are daily experiences. So we, like all nations, have more work to do to protect human rights at home. Now, raising this issue, I know, is sensitive for many people and that the obstacles standing in the way of protecting the human rights of LGBT people rest on deeply held personal, political, cultural, and religious beliefs. So I come here before you with respect, understanding, and humility. Even though progress on this front is not easy, we cannot delay acting. So in that spirit, I want to talk about the difficult and important issues we must address together to reach a global consensus that recognizes the human rights of LGBT citizens everywhere. The first issue goes to the heart of the matter. Some have suggested that gay rights and human rights are separate and distinct; but, in fact, they are one and the same. Now, of course, 60 years ago, the governments that drafted and passed the Universal Declaration of Human Rights were not thinking about how it applied to the LGBT community. They also weren’t thinking about how it applied to indigenous people or children or people with disabilities or other marginalized groups. Yet in the past 60 years, we have come to recognize that members of these groups are entitled to the full measure of dignity and rights, because, like all people, they share a common humanity. This recognition did not occur all at once. It evolved over time. And as it did, we understood that we were honoring rights that people always had, rather than creating new or special rights for them. Like being a woman, like being a racial, religious, tribal, or ethnic minority, being LGBT does not make you less human. And that is why gay rights are human rights, and human rights are gay rights. It is violation of human rights when people are beaten or killed because of their sexual orientation, or because they do not conform to cultural norms about how men and women should look or behave. It is a violation of human rights when governments declare it illegal to be gay, or allow those who harm gay people to go unpunished. It is a violation of human rights when lesbian or transgendered women are subjected to so-called corrective rape, or forcibly subjected to hormone treatments, or when people are murdered after public calls for violence toward gays, or when they are forced to flee their nations and seek asylum in other lands to save their lives. And it is a violation of human rights when life-saving care is withheld from people because they are gay, or equal access to justice is denied to people because they are gay, or public spaces are out of bounds to people because they are gay. No matter what we look like, where we come from, or who we are, we are all equally entitled to our human rights and dignity.

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The second issue is a question of whether homosexuality arises from a particular part of the world. Some seem to believe it is a Western phenomenon, and therefore people outside the West have grounds to reject it. Well, in reality, gay people are born into and belong to every society in the world. They are all ages, all races, all faiths; they are doctors and teachers, farmers and bankers, soldiers and athletes; and whether we know it, or whether we acknowledge it, they are our family, our friends, and our neighbors. Being gay is not a Western invention; it is a human reality. And protecting the human rights of all people, gay or straight, is not something that only Western governments do. South Africa’s constitution, written in the aftermath of Apartheid, protects the equality of all citizens, including gay people. In Colombia and Argentina, the rights of gays are also legally protected. In Nepal, the supreme court has ruled that equal rights apply to LGBT citizens. The Government of Mongolia has committed to pursue new legislation that will tackle anti-gay discrimination. Now, some worry that protecting the human rights of the LGBT community is a luxury that only wealthy nations can afford. But in fact, in all countries, there are costs to not protecting these rights, in both gay and straight lives lost to disease and violence, and the silencing of voices and views that would strengthen communities, in ideas never pursued by entrepreneurs who happen to be gay. Costs are incurred whenever any group is treated as lesser or the other, whether they are women, racial, or religious minorities, or the LGBT. Former President Mogae of Botswana pointed out recently that for as long as LGBT people are kept in the shadows, there cannot be an effective public health program to tackle HIV and AIDS. Well, that holds true for other challenges as well. The third, and perhaps most challenging, issue arises when people cite religious or cultural values as a reason to violate or not to protect the human rights of LGBT citizens. This is not unlike the justification offered for violent practices towards women like honor killings, widow burning, or female genital mutilation. Some people still defend those practices as part of a cultural tradition. But violence toward women isn’t cultural; it’s criminal. Likewise with slavery, what was once justified as sanctioned by God is now properly reviled as an unconscionable violation of human rights. In each of these cases, we came to learn that no practice or tradition trumps the human rights that belong to all of us. And this holds true for inflicting violence on LGBT people, criminalizing their status or behavior, expelling them from their families and communities, or tacitly or explicitly accepting their killing. Of course, it bears noting that rarely are cultural and religious traditions and teachings actually in conflict with the protection of human rights. Indeed, our religion and our culture are sources of compassion and inspiration toward our fellow human beings. It was not only those who’ve justified slavery who leaned on religion, it was also those who sought to abolish it. And let us keep in mind that our commitments to protect the freedom of religion and to defend the dignity of LGBT people emanate from a common source. For many of us, religious belief and practice is a vital source of meaning and identity, and fundamental to who we are as people. And likewise, for most of us, the bonds of love and family that we forge are also vital sources of meaning and identity. And caring for others is an expression of what it means to be fully human. It is because the human experience is universal that human rights are universal and cut across all religions and cultures. The fourth issue is what history teaches us about how we make progress towards rights for all. Progress starts with honest discussion. Now, there are some who say and believe that all gay people are pedophiles, that homosexuality is a disease that can be caught or cured, or that gays recruit others to become gay. Well, these notions are simply not true. They are also unlikely to disappear if those who promote or accept them are dismissed out of hand rather than invited to share their fears and concerns. No one has ever abandoned a belief because he was forced to do so. Universal human rights include freedom of expression and freedom of belief, even if our words or beliefs denigrate the humanity of others. Yet, while we are each free to believe whatever we choose, we cannot do whatever we choose, not in a world where we protect the human rights of all. Reaching understanding of these issues takes more than speech. It does take a conversation. In fact, it takes a constellation of conversations in places big and small. And it takes a willingness to see stark differences in belief as a reason to begin the conversation, not to avoid it. But progress comes from changes in laws. In many places, including my own country, legal protections have preceded, not followed, broader recognition of rights. Laws have a teaching effect. Laws that discriminate vali-

date other kinds of discrimination. Laws that require equal protections reinforce the moral imperative of equality. And practically speaking, it is often the case that laws must change before fears about change dissipate. Many in my country thought that President Truman was making a grave error when he ordered the racial desegregation of our military. They argued that it would undermine unit cohesion. And it wasn’t until he went ahead and did it that we saw how it strengthened our social fabric in ways even the supporters of the policy could not foresee. Likewise, some worried in my country that the repeal of “Don’t Ask, Don’t Tell” would have a negative effect on our armed forces. Now, the Marine Corps Commandant, who was one of the strongest voices against the repeal, says that his concerns were unfounded and that the Marines have embraced the change. Finally, progress comes from being willing to walk a mile in someone else’s shoes. We need to ask ourselves, “How would it feel if it were a crime to love the person I love? How would it feel to be discriminated against for something about myself that I cannot change?” This challenge applies to all of us as we reflect upon deeply held beliefs, as we work to embrace tolerance and respect for the dignity of all persons, and as we engage humbly with those with whom we disagree in the hope of creating greater understanding. A fifth and final question is how we do our part to bring the world to embrace human rights for all people including LGBT people. Yes, LGBT people must help lead this effort, as so many of you are. Their knowledge and experiences are invaluable and their courage inspirational. We know the names of brave LGBT activists who have literally given their lives for this cause, and there are many more whose names we will never know. But often those who are denied rights are least empowered to bring about the changes they seek. Acting alone, minorities can never achieve the majorities necessary for political change. So when any part of humanity is sidelined, the rest of us cannot sit on the sidelines. Every time a barrier to progress has fallen, it has taken a cooperative effort from those on both sides of the barrier. In the fight for women’s rights, the support of men remains crucial. The fight for racial equality has relied on contributions from people of all races. Combating Islamaphobia or anti-Semitism is a task for people of all faiths. And the same is true with this struggle for equality. Conversely, when we see denials and abuses of human rights and fail to act, that sends the message to those deniers and abusers that they won’t suffer any consequences for their actions, and so they carry on. But when we do act, we send a powerful moral message. Right here in Geneva, the international community acted this year to strengthen a global consensus around the human rights of LGBT people. At the Human Rights Council in March, 85 countries from all regions supported a statement calling for an end to criminalization and violence against people because of their sexual orientation and gender identity. At the following session of the Council in June, South Africa took the lead on a resolution about violence against LGBT people. The delegation from South Africa spoke eloquently about their own experience and struggle for human equality and its indivisibility. When the measure passed, it became the first-ever UN resolution recognizing the human rights of gay people worldwide. In the Organization of American States this year, the Inter-American Commission on Human Rights created a unit on the rights of LGBT people, a step toward what we hope will be the creation of a special rapporteur. Now, we must go further and work here and in every region of the world to galvanize more support for the human rights of the LGBT community. To the leaders of those countries where people are jailed, beaten, or executed for being gay, I ask you to consider this: Leadership, by definition, means being out in front of your people when it is called for. It means standing up for the dignity of all your citizens and persuading your people to do the same. It also means ensuring that all citizens are treated as equals under your laws, because let me be clear – I am not saying that gay people can’t or don’t commit crimes. They can and they do, just like straight people. And when they do, they should be held accountable, but it should never be a crime to be gay. And to people of all nations, I say supporting human rights is your responsibility too. The lives of gay people are shaped not only by laws, but by the treatment they receive every day from their families, from their neighbors. Eleanor Roosevelt, who did so much to advance human rights worldwide, said that these rights begin in the small places close to home – the streets where people live, the schools they attend, the factories, farms, and offices where they work. These places are your domain. The actions you take, the ideals that you advocate, can determine whether human rights flourish where you are.

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And finally, to LGBT men and women worldwide, let me say this: Wherever you live and whatever the circumstances of your life, whether you are connected to a network of support or feel isolated and vulnerable, please know that you are not alone. People around the globe are working hard to support you and to bring an end to the injustices and dangers you face. That is certainly true for my country. And you have an ally in the United States of America and you have millions of friends among the American people. The Obama Administration defends the human rights of LGBT people as part of our comprehensive human rights policy and as a priority of our foreign policy. In our embassies, our diplomats are raising concerns about specific cases and laws, and working with a range of partners to strengthen human rights protections for all. In Washington, we have created a task force at the State Department to support and coordinate this work. And in the coming months, we will provide every embassy with a toolkit to help improve their efforts. And we have created a program that offers emergency support to defenders of human rights for LGBT people. This morning, back in Washington, President Obama put into place the first U.S. Government strategy dedicated to combating human rights abuses against LGBT persons abroad. Building on efforts already underway at the State Department and across the government, the President has directed all U.S. Government agencies engaged overseas to combat the criminalization of LGBT status and conduct, to enhance efforts to protect vulnerable LGBT refugees and asylum seekers, to ensure that our foreign assistance promotes the protection of LGBT rights, to enlist international organizations in the fight against discrimination, and to respond swiftly to abuses against LGBT persons. I am also pleased to announce that we are launching a new Global Equality Fund that will support the work of civil society organizations working on these issues around the world. This fund will help them record facts so they can target their advocacy, learn how to use the law as a tool, manage their budgets, train their staffs, and forge partnerships with women’s organizations and other human rights groups. We have committed more than $3 million to start this fund, and we have hope that others will join us in supporting it. The women and men who advocate for human rights for the LGBT community in hostile places, some of whom are here today with us, are brave and dedicated, and deserve all the help we can give them. We know the road ahead will not be easy. A great deal of work lies before us. But many of us have seen firsthand how quickly change can come. In our lifetimes, attitudes toward gay people in many places have been transformed. Many people, including myself, have experienced a deepening of our own convictions on this topic over the years, as we have devoted more thought to it, engaged in dialogues and debates, and established personal and professional relationships with people who are gay. This evolution is evident in many places. To highlight one example, the Delhi High Court decriminalized homosexuality in India two years ago, writing, and I quote, “If there is one tenet that can be said to be an underlying theme of the Indian constitution, it is inclusiveness.” There is little doubt in my mind that support for LGBT human rights will continue to climb. Because for many young people, this is simple: All people deserve to be treated with dignity and have their human rights respected, no matter who they are or whom they love. There is a phrase that people in the United States invoke when urging others to support human rights: “Be on the right side of history.” The story of the United States is the story of a nation that has repeatedly grappled with intolerance and inequality. We fought a brutal civil war over slavery. People from coast to coast joined in campaigns to recognize the rights of women, indigenous peoples, racial minorities, children, people with disabilities, immigrants, workers, and on and on. And the march toward equality and justice has continued. Those who advocate for expanding the circle of human rights were and are on the right side of history, and history honors them. Those who tried to constrict human rights were wrong, and history reflects that as well. I know that the thoughts I’ve shared today involve questions on which opinions are still evolving. As it has happened so many times before, opinion will converge once again with the truth, the immutable truth, that all persons are created free and equal in dignity and rights. We are called once more to make real the words of the Universal Declaration. Let us answer that call. Let us be on the right side of history, for our people, our nations, and future generations, whose lives will be shaped by the work we do today. I come before you with great hope and confidence that no matter how long the road ahead, we will travel it successfully together. Thank you very much. (Applause.)

An Introduction to the Moral Issues

Introduction 330 Defining Sexual Orientation 330 Sexual Orientation and Dichotomous Thinking 330 Sex and Gender: Some Preliminary Distinctions about LGBT 330 Sex 330 Gender 331 Sexual Orientation 332 Determining Sexual Orientation 332 The Ethical Issues 332 What’s Natural? Sexual Orientation and the Argument from Nature 332 Behavior and Identity 333 Guilt and Shame 333 Two Senses of “Unnatural” 333 The Religious Sense of Nature and the “Unnatural” 333 The Scientific Concept of Nature and the “Unnatural” 334 The Fact-Value Distinction and the Naturalistic Fallacy 334 Religion, Science, and the Debate about Sexual Orientation 334 Is Homosexuality Unnatural? 334 Is the Natural Always Good? 335 Discrimination Against Gays and Lesbians 335 Gays and Lesbians in the Military 336 Same-Sex Marriage 336 Models of the Place of Sexual Orientation in Society 338 The Conservative Model 338 The Liberal Model 339 Autonomy Arguments 339 Privacy Arguments 339 329

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The Difference Between Toleration, Acceptance, and Support 339 The Polymorphous Model 339 Diversity and Consensus 339

Introduction In the Bronx in 2009, a student went to what he thought was a party one Sunday night, and found instead a trap: he was whipped with a chain, burned, and sodomized with a baseball bat. In Oxnard, California in 2008, a fourteen-year-old boy shot a fifteen-year-old student twice in the back of the head in the middle school’s computer lab. In 1998, Matthew Shepard, a student at the University of Wyoming, was brutally tortured and murdered near Laramie. They were all gay. Violence against gays and lesbians continues to make headlines, at least in the most egregious cases, but violence is not the only issue. Citizens, school principals, legislators, jurists, political leaders, and even generals argue back and forth about a range of issues including gay marriage, violence and discrimination against gays and lesbians, and the military’s stance toward its gay and lesbian members. Let’s see if we can bring some order to this range of issues. Defining Sexual Orientation

The first step in this process is to ask exactly what we are talking about. This actually is more complex than one might originally think. Sexual Orientation and Dichotomous Thinking

When we see a baby for the first time, our first question is usually, “Is it a boy or a girl?” Not only do social mores require this, even our language forces us to do so. The classic documentary, “The Pinks and the Blues,” shows some of the ways in which this dichotomy is part of the very fabric of our social reality. We think of gender as dichotomous either male or female. So, too, with sexual orientation. We typically tend to think about sexual orientation as binary: gay or straight. Thus we have two binaries: male/female and gay/straight. Combining the two dichotomies in everyday language, we get four possibilities: gay men, straight men, lesbian women, and straight women. Let’s see why this falls short of the mark. Sex and Gender: Some Preliminary Distinctions about LGBT

Typically we now distinguish between sex and gender, taking one to refer to the biological characteristics and the other (gender) to refer to the social roles typically associated with being male or female in a given society. Of course, “sex” also refers to sexual intercourse, but that meaning we can leave aside for the purposes of this discussion.

Sex Sex, as the set of biological characteristics determining whether someone is male or female, would seem to be obvious and unproblematic. Often this is true, but certainly not always. Even in terms of biological characteristics, there may be several different types of characteristics upon which we can focus, most notably genitalia, hormones, and chromosomes. Even here we have matters of degree. It is probably more accurate to think of biological sexual identity as something stretched out along a continuum, with many clear-cut cases of females on one end and males on the other. But there is also an area in between: intersexual persons (previously called hermaphrodites)

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that possess both male and female physical characteristics. Thus sex may be better understood on a continuum instead of as a dichotomy, in which male and female are at opposite ends of a continuum and intersexual people comprising a small percentage in the center. An even more accurate way of understanding of the biology would, I think, involve mapping male and female physical characteristics on two independent axes. Intersexual people would thus be high on both axes, most individuals would be high on one or the other axis, and a few would be low on both axes. Not only is the question of who is male and who is female more complex, so too is the question of sexual orientation. Is sexual orientation a matter of attraction or behavior? How do we classify, for example, those who engage in same-sex sexual behavior as a matter of convenience when customary opposite sex partners are not available? Or those who are attracted to same-sex individuals but do not act on it? Or those who are attracted to both men and women? (Recent scientific studies seem to confirm that some individuals are genuinely bisexual not only in their behavior, but also in their both physiological arousal feelings and their subjective accounts of those feelings.) In other words, we get at least three categories of sexual orientation, with gradations of strength in each: gay, straight, and bisexual. We have now covered three of the four letters at the beginning of this section: GLB. Let’s turn to the final letter, T: transsexual/transgender. Transsexual individuals are typically persons who have undergone sex reassignment surgery and/or hormone replacement therapy in order to change their sex; transgender persons are individuals who have changed their gender role, which may or may not involve changing gender. Sex reassignment surgery has been occurring for decades, and is one type of surgery that has become quite controversial. Some infants are born with both male and female external sex characteristics, and it was not uncommon for parents to choose gender-reassignment surgery in order to make the child definitively into either a male or a female. It’s quite possible that in some cases, when these children reach adulthood, they might sometimes feel that they were wronged, that their identity had been tampered with in a profound and inappropriate way. Some individuals change sex as adults after years of feeling that they are simply in the wrong body—or, more precisely, in a body that does not correspond to their subjective sense of their own sexuality. Such a change is a gradual process that involves hormone therapy as well as surgical procedures, and is usually accompanied by an extensive period of talk therapy. So, “gay” and “straight” just doesn’t suffice anymore. We live in a much richer, more complex world than we realized. With the exception of sex reassignment surgery, it’s not that the world has changed. People presumably have always been this diverse. What has changed is our understanding of the world. Our increasingly nuanced vocabulary allows for two things. First, it allows us to see more clearly and in a more clearly defined way, to see people as they actually are rather than lumping everyone together into two categories. You might see this as analogous to referring to someone as “Thai” rather than “Asian.” In those cases where categories are wrong, not just too general, it might be likened to the difference between calling someone “Guatemalan” instead of “South American.” Second, this vocabulary gives individuals a public identity that they did not have before. It’s as though you lived in a region that was not yet a country, that didn’t have a name. Macedonia, for example, used to be part of Yugoslavia. It became independent in 1991 and was recognized by the United Nations in 1993 and by the United States a year later. Previously, a person from Macedonia had to say that he or she was a Yugoslavian; now that individual can say, “I am a Macedonian.” Thus, the expansion of vocabulary allows a kind of selfidentification that had previously been impossible.

Gender If sex refers primarily to the biological characteristics of an individual, gender refers to the social construction of that identity as a male or female. In the chapter on gender (Chapter 7), we discussed some of the issues surrounding the construction of gender. There appear to be interesting parallels between the sex/gender distinction and the race/ethnicity distinction, but this is a conceptually intricate issue. Race, if it refers to anything at all, purports to refer to a biological phenomenon, although we have seen numerous difficulties with that claim. Ethnicity refers to something that, at least on the surface, has a much greater element of social and cultural construction.

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Sexual Orientation Sexual orientation is also a mixture of the physical and the social, and it too presents its own set of complexities. What, exactly, do we mean by sexual orientation? Is it physical, psychological, or social—or all three? Is it fixed or can it be changed or chosen? Is it natural? Good or bad? Can individuals be attracted to members of both sexes or only to one sex? Let’s now turn to look more closely at these issues. Determining Sexual Orientation

What percentage of the population is gay or lesbian? Such a simple question proves to be very difficult for several reasons. Some of those reasons have to do with how we define sexual orientation, a topic we will consider in the following paragraphs of this section. An additional reason relates to potential distrust of researchers asking questions about sexual orientation. People often feel questions about sexual orientation invade a zone of privacy, and those who are gay or lesbian may have an additional concern that such information could be used for malicious purposes. How can we decide what a person’s sexual orientation is? Indeed, how can people decide what their own sexual orientation is? The straightforward answer is: look at the persons to whom an individual is sexually attracted. If they are the same sex, the person is gay or lesbian; if they are the opposite sex, they are straight or heterosexual. End of story. Almost. Some people deceive others about their feelings of attraction. Some people even deceive themselves about their own feelings of attraction, especially when there is a social, familial, political, religious stigma attached to having such feelings. People “pass” as having a different, more acceptable sexual orientation. Is it possible to cut through layers of deceit and self-deception? For over a decade, researchers have been working to find the so-called gay gene but most scientists believe that sexual orientation is not a matter of a single gene. It appears that it is very likely that it has a strong genetic component and is probably a combination of genes and an interaction with other factors as well. So we cannot currently determine sexual orientation through a genetic test. However, it is possible to measure an individual’s state of sexual arousal, and this can provide very strong evidence about an individual’s sexual orientation. Originally these studies in men involved physiological measures of penile arousal. Increasingly, researchers are using MRI, fMRI (functional MRI, which provide a view of brain activity over a period of time), and PET scans. These allow researchers to observe, among other things, brain activity while a person is being shown sexually explicit materials, etc. But sexual orientation is not simply a matter of physiological arousal. It is also part of a social identity, and we can easily see ways in which sexual orientation can be constructed. As a society, we can sanction the construction of social identities that make LGBT persons “outsiders” in a variety of ways. For example, we can establish rules that prohibit LGBT persons from participating in certain professions (such as the military) or institutions (such as marriage). Doing so establishes them a priori (in advance) as outsiders, sometimes as outlaws. Their public identity becomes split between a public self and a private, hidden self. They cannot be publicly proud of who they are, of their hidden identity. One of the ethical questions is to ask whether it is morally acceptable to do this. Let’s look at the arguments.

The Ethical Issues A number of arguments have been advanced over the decades relating to gay and lesbian issues. Let’s begin with one of the issues most frequently raised: homosexuality is unnatural. What’s Natural? Sexual Orientation and the Argument from Nature

Although it is advanced in many variations, the argument from nature against homosexuality is clear enough in its general structure: First premise: Second premise: Conclusion

Homosexuality is unnatural. Whatever is unnatural is evil. Homosexuality is evil.

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Here “homosexuality” refers to both males and females. In its broad sense, it may include both homosexual feelings and tendencies as well as same-sex sexual activity; in its narrow sense, it is confined just to same-sex sexual activity. Thus some religious traditions, for example, have banned homosexual behavior, but not the orientation and feelings that usually accompany such behavior. Let’s begin by addressing this issue.

Behavior and Identity In grappling with the issue of gays and lesbians in their congregations, some churches have advanced what they see as a compromise position. Gays and lesbians are welcome to become part of the church, but they must not participate in same-sex sexual activity. A number of Christian churches have adopted this position in order to avoid completely pushing gays and lesbians out of their ranks. It harkens back to some traditional dictums such as, “Love the sinner, hate the sin,” that draw a distinction between the person and the person’s actions. The distinction is sometimes drawn because of an underlying belief that sexual orientation is not a matter of choice and cannot be (completely) changed but that behavior can be regulated. Here the issue, as seen from the perspective of the churches, is how to provide a path to salvation (or church membership, which some take as the same thing) for everyone. If sexual orientation is not a matter of choice, and if a homosexual sexual orientation is not permitted, then those who are gay and lesbian are automatically barred from the church and from salvation. Same-sex sexual behavior, on the other hand, seems to be something that people can choose to engage in or not. Those who condemn a homosexual sexual orientation (not just behavior) often hold as a corollary that sexual orientation can be changed. Those who advocate this position often see homosexuality as a pathology that can be reversed through intensive therapy.

Guilt and Shame The distinction between behavior and identity is crucial in another respect. Psychologists often distinguish between guilt and shame. Guilt, they maintain, is centered on particular actions. For example, I might steal a book from a store and subsequently feel guilty about it. I don’t, however, constitute my identity around this single act. I don’t, in other words, say “I am a thief.” Shame, in contrast, is a set of negative feelings about who you are, not just about some specific action. It is about identity rather than just behavior. While guilt—if appropriate— can play a very important formative role in the moral life, shame can often be toxic, leading to self-destructive behavior. Insofar as the condemnation of sexual orientation leads to shame, it may be particularly harmful. There is another dimension to the distinction between guilt and shame that is relevant to the moral life. Typically, there are ways in which we can expiate or wipe away our guilt. For example, if I stole a book, I could return it and make restitution. I could, in other words, do specific things that would erase my guilt and put the whole thing behind me. On the other hand, if I am ashamed of who I am in some way, I can only get rid of that shame by changing who I am. However, if the element of my identity is central to who I am, then change may not be possible or desirable. Thus the guilt/shame distinction depends on the distinction between what is changeable and what is not.

Two Senses of “Unnatural” The argument from nature needs further clarification. What does it mean to say that something is “unnatural?” There are at least two senses of this term, one of these a scientific concept and the other ultimately religious in its origins. Let’s begin with the religious sense.

The Religious Sense of Nature and the Unnatural. In arguments relating to homosexuality, the terms “natural” and “unnatural” often have a theological underpinning, a foundation in a religious view of the world that holds that nature is something created by God, something that incorporates a divine plan, and something that has a final goal that is ordained by God. Thus what is natural is good precisely because it is part of God’s plan for the universe and it has been structured by God. (I am leaving aside many important theological details for the sake of clarity here.) With this view of nature, it is to see how the “unnatural” becomes bad or evil. The unnatural is something that goes against God’s plan for our lives.

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There is an added dimension to this view: God’s plan involves orienting sexual intercourse toward a final goal or purpose, the creation of offspring. Thus, within this worldview, human sexual intercourse has as its natural purpose the propagation of the species. Thus unnatural (and thus morally objectionable) acts are any sexual actions that are not oriented toward procreation. Not only is homosexuality condemned, but some forms of sexual behavior engaged in by heterosexual couples are condemned as well. Indeed, in some religions, this extends to a ban on virtually all forms of contraception as well. Thus within this type of religious worldview, the terms “natural” and “unnatural” are not merely descriptive terms; they are imbued with value, saturated with value judgments about what is good and evil. The natural is good, and the unnatural is bad or evil—and the guarantee for those value judgments is God’s creative will. To act unnaturally is to disobey God’s will.

The Scientific Concept of Nature and the “Unnatural.” In the language of modern science, the terms “natural” and “unnatural” have no value significance attached to them. To say that something is “natural,” insofar as scientists would use this vocabulary at all, is simply to express a statistical probability, to say that it occurs frequently. If scientists were to say that something is unnatural, they would simply mean that it doesn’t occur frequently. The scientific conception of nature, in other words, contains no implicit value judgments about good and evil. The natural world just is; it is neither good nor evil in itself. The Fact-Value Distinction and the Naturalistic Fallacy. In the context of the modern scientific view of the world, which has been the framework within which scientific thought has operated for the last several centuries, it is seen as impossible to go from statements of facts (including facts about what is natural) to value judgments (such as concluding that it is wrong to act in a particular way). Attempts to do so, most philosophers claim, commit what is called the naturalistic fallacy, that is, drawing a value judgment from a set of purely factual premises. Defenders of the argument from nature against homosexuality support a different concept of nature than we find in modern science, a value-laden concept in which the natural is seen as good.

Religion, Science, and the Debate about Sexual Orientation. We can see how arguments about homosexuality involve larger disagreements about the meaning of the term “nature,” and how this in turn leads to a much wider debate about the relationship between religion and science. We have shown how this is true at the conceptual level, and one can simply turn to the world around us to see how it also plays itself out at the political level. All other things being equal, I suspect that those who are unmoved by the argument from nature tend to turn to science as their authority, while those who advocate this argument tend to turn to religion as their authority. The divide between religion and science is not the only factor in this debate, but it certainly is a highly significant one. Is Homosexuality Unnatural?

Recognizing the two possible meanings of the term “unnatural,” let’s now turn to the question of whether homosexuality is unnatural in humans. Clearly, in the statistical sense, homosexuality is unnatural in the sense that it does not occur nearly as frequently as heterosexuality. But notice two points here. First, this does not carry a value judgment. Second, it applies to the population as a whole, not to individuals. If we look at each individual as an individual rather than the group as a whole, we may get a different answer. It may be the case that most individuals have a heterosexual orientation, and that some individuals have a homosexual orientation—and that this is what is “natural” for each. Typically, gay and straight individuals tend to describe the developing awareness of their own sexuality is roughly the same way with one exception to be discussed shortly. They become immediately aware of their attraction to one sex or the other. Typically, they do not think about it first, they do not choose it, or anything like that: it is simply there as a structure of their way

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of perceiving the world. In other words, in this sense of “natural,” it is just as natural for gay people to be attracted to people of the same sex as it is natural for straight people to be attracted to members of the opposite sex. In this sense, both heterosexuality and homosexuality are natural. Now let me add the proviso to this description. If gays are in an environment that condemns homosexuality, their discovery of their own sexuality is more complicated. There is external pressure not to publicly avow one’s gay sexual identity, and then the possibilities for both deception and self-deception emerge. Their sexual identity thus becomes more complicated. Is the Natural Always Good?

There is another dimension to the argument from nature that is worth considering. It implies that the natural is good and that the unnatural is evil. If we grant the theological underpinning sketched out earlier, this is still a problematic claim. Consider aggression, violence, rape, and war. Are they natural? When we look at human history, they seem to be disconcertingly constant and pervasive. Does that mean that they are good? Clearly not. We may indeed find that some things that are natural are not necessarily good. So, too, we can imagine good actions that hardly appear to be natural in any significant sense. Individuals can altruistically sacrifice their lives to help total strangers, but we would hardly label such behavior “natural.” So, too, martyrs may give up their lives to avoid betraying their religious convictions or dishonoring their god, but again we would hardly be inclined to call this “natural.” Thus there seems to be significant difficulties with equating the good and the natural and with equating the bad and the unnatural. Let’s now turn to ethical issues about discrimination.

Discrimination Against Gays and Lesbians Discrimination against gays and lesbians differs in several ways from the previous two types of discrimination we have considered: racism and sexism. One of the principal reasons for this is that sexual orientation is generally much less apparent than either race or sex. Because they are less easily identifiable, gays and lesbians are less likely to be subject to certain kinds of discrimination. Homosexuals have not formally been denied voting rights as women and African Americans have been, apparently do not suffer from a lower level of income than their heterosexual counterparts, and have not usually encountered restrictions on their individual right to hold property. In these ways, they are not in need of the same kinds of affirmative action programs that have been defended for racial minorities and women. Despite these differences that favor gays and lesbians, they are discriminated against in ways that would not be tolerated today if such discrimination were directed against racial minorities or women. Their right to serve openly in the military has only been achieved recently and remains contentious; in many states, they are not permitted to marry one another, with both the emotional and financial costs that such prohibitions incur; they are often discriminated against in child-related matters such as child custody during divorces, adoption, foster parenting, Big Brothers, the Boy Scouts, and the like. Consider, for example, the financial costs of not being permitted to marry. When a husband dies, his estate may pass to his wife without taxes; when a gay person’s life partner dies, transferred assets are heavily taxed. Moreover, gays and lesbians—and their families—usually experience a very painful process when they begin to let their sexual orientation become public. Again, there is nothing comparable for racial minorities or for women. Announcements of one’s race or gender rarely come as surprises to one’s family and loved ones in the way that revealing one’s sexual orientation often does. Finally, it is important to realize that some gays and lesbians experience discrimination because of the radical character of their beliefs and “lifestyles.” Here it is difficult to draw the line, but it would seem that at least part of the criticism and opposition they experience is directed primarily against their radicalness, not their gayness.

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Let’s now turn to a consideration of two specific areas of discrimination—gays and lesbians in the military and homosexual marriage—and the more general issue raised by these particular problems, the issue of protection for gay rights.

Gays and Lesbians in the Military After he was elected in 1992, President Bill Clinton attempted to lift the ban against homosexuals in the military, replacing it with a “Don’t ask, don’t tell” policy that many on varying sides of the issue found dissatisfying. He thereby ignited a heated debate about whether open homosexuals should be officially allowed to serve in the armed forces. Various arguments were advanced against lifting the ban, many of which centered around the effect on heterosexual military personnel “unit cohesion” and “combat effectiveness.” In 2011, in a combination of court, legislative and presidential decisions, the “Don’t ask, don’t tell” ban was lifted, and it became possible for gays and lesbians to serve openly in the United States military. It remains to be seen if this policy will remain in place in future years.

Same-Sex Marriage Same-sex marriage is now a reality in a number of states. The constitutionality of some sections of DOMA, the Defense of Marriage Act of 1996, that defines marriage as a union between a man and a woman, remains a matter of contention before the courts. In other words, gay marriage is legal in some states, illegal in others, and the position of the federal government in this regard remains undecided. At the time this book was going to press, the question of same-sex marriage was still an open issue in the courts. Some gay rights supporters have advocated the legalization of gay and lesbian marriages and samesex marriage has been at least sporadically legally recognized in the United States. Opponents of the legalization of same-sex marriage often draw on religious sources. Many condemn gay and lesbian sexuality in general; others maintain that the traditionally religious meaning of marriage is incompatible with same-sex unions. Advocates of same-sex marriages see it as a matter of equal rights. They point to the many ways in which gays and lesbians have been disadvantaged because they have not been able to marry their partners. This has particularly been a source of anguish for gays since the onset of AIDS, when gays have cared for dying partners but have not been given the recognition of one who has lost a spouse. Some of the obstacles they face include denial of hospital visitation rights, challenges to durable power of attorney by bloodrelated family, the denial of rights to pass property without taxation, and challenges to the wills of the deceased by blood families. Other gay rights advocates have argued that marriage does not provide the path to liberation that some have claimed. The question of gay marriage provides us with an opportunity to reflect on the purposes of marriage in general, and on the interests of the state in sanctioning such unions. Certainly one of the principal purposes of marriages is to provide a sustaining environment within which procreation and the raising of children can occur without involvement on the part of the state. In other words, the state clearly has an interest in procreation from generation to generation, and the institution of marriage historically has provided the context within which that happens. Although this has not yet occurred as an issue in the United States, we have seen in a number of Western European countries and in Japan as well a declining birthrate that has alarmed their respective governments. Without positive intervention on the part of the government, leaders worry that the future days of their country are numbered. Indeed, they worry that the final decades of their country may be excruciatingly painful in a country of elderly citizens with few to take care of them. What demographers call the replacement rate is 2.1 children per family. When the birth rate falls below this, the overall population of the country begins to shrink unless there is significant immigration to offset this. In Western Europe, in Denmark, Sweden, and Norway hovers around 1.7; Spain is less than 1.5, and Germany, Austria, and Greece are around 1.4. Japan is 1.2, and Hong Kong is even less than that. Many Western European democracies are now instituting increasingly strong reward

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systems in order to encourage people to have children, and this includes much more generous parental leave programs than are found in the United States. But the procreation and raising of children is neither a necessary nor sufficient condition of marriage. We certainly do not bar heterosexual couples who are unable to bear children from becoming married, nor do we require of heterosexual couples that they procreate. Moreover, in our contemporary world of new assistive reproductive technologies, there are possibilities for procreation that simply were not present in an earlier age. Many gay and lesbian couples want to have and raise children, whether their own biological children or adopted, and this is now increasingly possible in our world. Historically, the state has had other interests in the institution of marriage as well. In the United States for almost two centuries, it was a principal mechanism for maintaining white supremacy. Most states had laws prohibiting marriage between its white citizens and people of color, although it seemed to show no concern about restricting marriage even more narrowly within the latter category. Interestingly, the justification for such restrictions was often the same one that we have seen in regard to barring gay marriages: they are unnatural. Beginning in the 1970s when California repealed its law restricting the marriage of whites to nonwhites, the United States gradually abolished this as a legitimate purpose of the institution of marriage. The purposes, even the “natural” purposes, of marriage are malleable, subject to historical revision and to moral improvement. In California, the controversy continues with Proposition 8, which restricted valid marriages to those between a man and a woman. When we look at the history of marriage in the United States and Western Europe, we see that it had other functions as well. Until quite recently, marriage was a patriarchal structure in which the husband was by far the more powerful figure. After all, in the United States equal rights for women did not arrive until decades after equal rights–at least in theory—had been granted to black men. There was a political trade-off in the institution of marriage that can be traced back to the days of kings. Kings granted men a certain sovereignty over their own wives and households, and the political trade-off was that the men consequently became financially responsible for wife and children. Again we can see the way in which the state has an interest in perpetuating the institution of marriage in this kind of context because this removes from the king the burden of responsibility for carrying about the welfare of the wife and children and instead places this responsibility squarely on the shoulders of the “man” of the house. At this juncture, we see the debate over gay marriage can go in two different directions. On the one hand, advocates of gay marriage have argued that there is nothing intrinsic about gay marriage that makes it unable to assume the same responsibilities and roles of its heterosexual counterpart. This line of argument is most clear in regard to those who defend the institution of marriage, whether gay or straight, as society’s best arrangement for having and raising children. On the other hand, others have argued that we ought to look more closely at the functions of marriage and see whether they can be carried out more efficiently by social and economic relationships that are not necessarily tied to marriage at all. Consider the issue of dependency. In the traditional model of marriage, the woman was dependent upon the man, as were the children. If the man died, then the family lost its “breadwinner.” In other words, the family lost its source of financial autonomy. The state’s recognition of this vulnerability eventually led to the development of survivor’s benefits, that is, benefits paid to the family in recognition of the fact that they had lost their source of income. In the latter part of the twentieth century, when it became more common that a woman might be providing the principal source of income for a family, the legal and economic arrangement began to shift, allowing a survivor’s benefits to either the husband or the wife. This was a step forward for gender equality. The next step, advocates of gay marriage argue in this context, should be to provide the same type of financial protection for gay couples that we provide for straight couples. That again would be an example of the first type of approach to this problem, one that extends the application of the traditional institution of marriage to gay couples. The second type of approach, however, would be simply to disentangle the question of economic dependence from marriage entirely and establish a system in which there can be a financial cushion for any people who lose their principal source of financial support. This could include not simply gay or straight couples, but also others who live together, perhaps with no sexual dimension to the relationship at all. One could imagine several sisters,

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for example, living together and taking care of one another, with one as the principal breadwinner. Perhaps another had been the principal caregiver for their mother while she was alive. In a situation such as this, if the principal income earner were to die, then it seems reasonable that the remaining partners would be eligible for some type of survivor’s benefit. So, too, we could imagine a couple—whether straight or gay is irrelevant—in which both partners were equal income earners. In a situation such as this where there is no dependency, it may make little sense to have survivor benefits. Thus the question of gay marriage expands to a question about the nature of marriage itself and the proper role that the government should play in the regulation of marriage.

Models of the Place of Sexual Orientation in Society When we envision the ideal society as we would like to see it, what place does sexual orientation have in it? Is it a society composed solely of heterosexuals, or at least one in which homosexuals are not tolerated as members in good standing? Is it a society in which gays and lesbians are not discriminated against, but whose presence is also not stressed in any way? Or is it a society in which difference is celebrated and encouraged? Our picture here is a complex one, because we actually have two separate—and sometimes conflicting—factors at work as individuals develop their own position on this issue. First, there is the issue of the morality of homosexuality, which is part of an individual’s overall views on sexual morality. Second, there is the issue of societal rights and governmental protection of those rights. Here the issue is the extent to which government ought to be involved in legislating matters of sexual morality. Let’s consider how both of these factors intersect to form the major positions in this ongoing societal debate. The Conservative Model

Many conservatives espouse an ideal of society that has no room for gays and lesbians. In some versions, simply being homosexual is enough to eliminate a person from the community. In other versions, gays and lesbians would be allowed to have their sexual orientation, but not to engage in homosexual acts. They would, in other words, be sentenced to a life of involuntary chastity. The stronger version would seek to change the sexual orientation of gays and lesbians to a heterosexual one so that there simply would be no homosexuals. Defenders of conservative models offer two kinds of arguments. First, some maintain that homosexuality is intrinsically evil, and that therefore it should not be tolerated. Many defenders of this position cite religious sources as the foundation of their belief, whereas others appeal to some version of the “unnaturalness” argument discussed earlier. Second, some conservatives maintain that homosexuality contradicts important social and moral values—such as the value of family life—and should not be tolerated for that reason. Here the focus is not on homosexual acts, but on the values associated with homosexuals. Critics of the conservative model offer several replies. First, many defenders of homosexuality argue that it is not unnatural, a point we have already discussed. Second, they point out that even if one believed something was unnatural and thus evil, it doesn’t automatically follow that one is in favor of banning it. Many might think smoking cigarettes is bad, but that doesn’t mean it should be completely banned. Third, they argue that it is consistent to support certain key social values, such as the value of family life, and yet not require that everyone live out that value in the same way. Many religious orders forbid their members from marrying, yet their presence is not seen in society as contradicting the value of family life. Fourth, many gays and lesbians support family life and in many cases would even like to have the option of marriage open to them. Perhaps the most telling reply to supporters of the conservative model is one that does not address their specific arguments, but rather the plight of individuals who are ostracized from society simply on the basis of who they are. If the traditional model were to prevail, gays and lesbians would be excluded from presenting themselves honestly in society simply because of their sexual orientation, not because of any specific, nonsexual actions or values. Where can these people go? They can either pretend they are straight, and thus gain some acceptance, or stand by their sexual orientation and be excluded from society. They must choose, in other words, between

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acceptance through denial of their own identity or exclusion as a result of affirming their sexual identity. A model of society that excludes a significant group in this way seems to be both a cruel and an unjust model. The Liberal Model

There is no single “liberal” position on the issue of gay and lesbian rights. However, there are two principal currents in the liberal tradition that discourage discrimination against homosexuals: the emphasis on individual autonomy and the importance of the right to privacy.

Autonomy Arguments Liberals characteristically believe that individual liberty is a very high priority and consequently many hold that individuals should be free to have and express whatever sexual orientation they wish. In some versions of liberalism, this right is virtually absolute, limited only in those instances when its exercise infringes on someone else’s autonomy, whereas other versions of liberalism believe that such rights may be restricted for other reasons as well.

Privacy Arguments Many liberals place a high value on the right to privacy and see a person’s sexual orientation as protected from public scrutiny by that right to privacy. A person’s sexual orientation, they argue, is no one else’s business, especially not the government’s business. Privacy arguments are particularly important in regard to the issue of whether the state may forbid certain kinds of sexual acts between consenting adults in private.

The Difference between Toleration, Acceptance, and Support Liberal positions differ in the degree to which they are supportive of LGBT rights. We can distinguish three levels here. • Tolerance: Gays and lesbians should not be discriminated against, but they also should not be encouraged. The “don’t ask, don’t tell” policy of the military may fall into this category, although many gays and lesbians see it as less than tolerant. Also in this category are people who believe homosexuality is bad but who also believe sexual morality shouldn’t be legislated. Supporters of this position would be in favor of abolishing laws that forbid homosexual acts between consenting adults in private. • Acceptance: Gays and lesbians should be allowed to express their sexual orientation openly to the same extent that heterosexuals are allowed to express their sexual orientation openly and should not be discriminated against because of it. This would include support for legal protection against discrimination based on sexual orientation. • Endorsement: Gay and lesbian sexual orientation and lifestyles should be presented as an option that is as valid and valuable as heterosexual orientation and lifestyles. This may include presenting gay and lesbian families as models in public school curricula, legally sanctioning gay marriages, and so on. Within the liberal tradition, there is a wide variation in the level of support for gay and lesbian rights.

The Polymorphous Model Finally, some in our society—and this includes some heterosexuals and some homosexuals—see sexuality as centered purely around pleasure, and they see no necessary link between sexuality and either procreation or intimacy. Whatever brings pleasure is good and pleasure may come in many forms—that is, it may be polymorphus. Advocates of this view of sexuality hold that people should be allowed to engage in whatever kind of sexual activity they want and with whomever they want.

Diversity and Consensus Although there is relatively little common ground between the most extreme positions on this issue, there is the possibility of some reasonable consensus in the following way.

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It seems reasonable that we, as a society, may want to encourage certain fundamental moral values in society. Although such encouragement need not take the form of legislating morality (in the sense of attempting to force people to hold particular moral values through legislative fiat), and although it need not deny individual freedom or the right to privacy (we can discourage something without outlawing it), we may indeed decide to encourage certain values (such as honesty, long-lasting commitment, monogamy, etc.) in our society as a whole, including both heterosexuals and homosexuals. We may further want to discourage certain values and their associated behaviors (such as treating people merely as sexual objects, anonymous sex, etc.), again for everyone, regardless of sexual orientation. The focus, in other words, for finding common ground is not on sexual orientation, but on values. We can see how this could be applied to issues such as homosexuals in the military and to gay and lesbian marriages. Traditionally, the military has stood for certain values—patriotism, loyalty to one’s unit, discipline, and so on—that could be affirmed for both homosexuals and heterosexuals. Indeed, this is in fact almost exactly the situation we have seen for decades (if not centuries). The gays and lesbians in the military have been committed first and foremost to military values, and have often served with great distinction. The only difference would be to allow them to acknowledge their sexual orientation while still retaining their commitment to the values of the military. A similar approach can be taken to the question of gay and lesbian marriages. It seems reasonable that society as a whole would want to encourage certain values such as commitment, individual caring, intimacy, and the like. Insofar as marriage is one of the institutions that helps support these values, extending this to include gays and lesbians would seem reasonable, for it gives them the opportunity to participate in a highly important societal institution.

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The Arguments Martha Nussbaum

“A Right to Marry? Same-sex Marriage and Constitutional Law” About the Author: Martha Nussbaum is the Ernst Freund Professor of Law and Ethics at the University of Chicago, holding appointments in the Law School, Philosophy Department, Divinity School, and Classics. She is the author of numerous books and articles in philosophy, including The Fragility of Goodness, The Therapy of Desire, For Love of Country, Cultivating Humanity, and Sex and Social Justice. About the Article: Nussbaum examines the issue of same-sex marriage, placing it within the wider context of the institution of marriage in general and in the context of the United States Constitution in particular and examining the historical transformations of marriage in various cultures. This essay is adapted from herbook From Disgust to Humanity: Sexual Orientation and the Constitution (Oxford, 2010). It was written before the California ruling on Prop 8 and published in Dissent Magazine in the summer of 2009. For online replies by Martha Ackelsberg, Stephanie Coontz, and Katha Pollitt, see http://dissentmagazine.org/online.php?id=266. As You Read, Consider This: 1. Nussbaum distinguishes three aspects of marriage. What are these three aspects? How do they play in the development of her argument? 2. What does Nussbaum mean by the “expressive dimension of marriage?” What role does this concept play in her analysis? (Hint: She returns to this concept at the end of the section on “What is the Right to Marry?’”) Martha Nussbaum, “A Right to Marry? Same–Sex Marriage and Constitutional Law.” Dissent Magazine—Summer 2009 Issue, pp. 1–22. Copyright © 2009. Reprinted by permission of The University of Pennsylvania Press.

3. What does Nussbaum mean by her claim that monogamy “rested on the disenfranchisement of women?” 4. Nussbaum considers four arguments against same-sex marriage. What are these four arguments? What are Nussbaum’s replies to each? 5. What reasons does Nussbaum give for maintaining that civil unions are “a kind of second-class status?”

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arriage is both ubiquitous and central. All across our country, in every region, every social class, every race and ethnicity, every religion or non-religion, people get married. For many if not most people, moreover, marriage is not a trivial matter. It is a key to the pursuit of happiness, something people aspire to—and keep aspiring to, again and again, even when their experience has been far from happy. To be told “You cannot get married” is thus to be excluded from one of the defining rituals of the American life cycle. The keys to the kingdom of the married might have been held only by private citizens—religious bodies and their leaders, families, other parts of civil society. So it has been in many societies throughout history. In the United States, however, as in most modern nations, government holds those keys. Even if people have been married by their church or religious group, they are not married in the sense that really counts for social and political purposes unless they have been granted a marriage license by the state. Unlike private actors, however, the state doesn’t have complete freedom to decide who may and may not marry. The state’s involvement raises fundamental issues about equality of political and civic standing. Same-sex marriage is currently one of the most divisive political issues in our nation. In November 2008, Californians passed Proposition 8, a referendum that removed the right to marry from same-sex couples who had been granted that right by the courts. This result has been seen by the same-sex community as deeply degrading. More recently, Iowa and Vermont have legalized same-sex marriage, the former through judicial interpretation of the state constitution, the latter through legislation. Analyzing this issue will help us understand what is happening in our country, and where we might go from here. Before we approach the issue of same-sex marriage, we must define marriage. But marriage, it soon becomes evident, is no single thing. It is plural in both content and meaning. The institution of marriage houses and supports several distinct aspects of human life: sexual relations, friendship and companionship, love, conversation, procreation and child-rearing, mutual responsibility. Marriages can exist without each of these. (We have always granted marriage licenses to sterile people, people too old to have children, irresponsible people, and people incapable of love and friendship. Impotence, lack of interest in sex, and refusal to allow intercourse may count as grounds for divorce, but they don’t preclude marriage.) Marriages can exist even in cases where none of these is present, though such marriages are probably unhappy. Each of these important aspects of human life, in turn, can exist outside of marriage, and they can even exist all together outside of marriage, as is evident from the fact that many unmarried couples live lives of intimacy, friendship, and mutual responsibility, and have and raise children. Nonetheless, when people ask themselves what the content of marriage is, they typically think of this cluster of things. Nor is the meaning of marriage single. Marriage has, first, a civil rights aspect. Married people get a lot of government benefits that the unmarried usually do not get: favorable treatment in tax, inheritance, and insurance status; immigration rights; rights in adoption and custody; decisional and visitation rights in health care and burial; the spousal privilege exemption when giving testimony in court; and yet others. Marriage has, second, an expressive aspect. When people get married, they typically make a statement of love and commitment in front of witnesses. Most people who get married view that statement as a very important part of their lives. Being able to make it, and to make it freely (not under duress) is taken to be definitive of adult human freedom. The statement made by the marrying couple is usually seen as involving an answering statement on the part of society: we declare our love and commitment, and society, in response, recognizes and dignifies that commitment. Marriage has, finally, a religious aspect. For many people, a marriage is not complete unless it has been solemnized by the relevant authorities in their religion, according to the rules of the religion. Government plays a key role in all three aspects of marriage. It confers and administers benefits. It seems, at least, to operate as an agent of recognition or the granting of dignity. And it forms alliances with religious

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bodies. Clergy are always among those entitled to perform legally binding marriages. Religions may refuse to marry people who are eligible for state marriage and they may also agree to marry people who are ineligible for state marriage. But much of the officially sanctioned marrying currently done in the United States is done on religious premises by religious personnel. What they are solemnizing (when there is a license granted by the state) is, however, not only a religious ritual, but also a public rite of passage, the entry into a privileged civic status. To get this privileged treatment under law people do not have to show that they are good people. Convicted felons, divorced parents who fail to pay child support, people with a record of domestic violence or emotional abuse, delinquent taxpayers, drug abusers, rapists, murderers, racists, anti-Semites, other bigots, all can marry if they choose, and indeed are held to have a fundamental constitutional right to do so—so long as they want to marry someone of the opposite sex. Although some religions urge premarital counseling and refuse to marry people who seem ill-prepared for marriage, the state does not turn such people away. The most casual whim may become a marriage with no impediment but for the time it takes to get a license. Nor do people even have to lead a sexual lifestyle of the type the majority prefers in order to get married. Pedophiles, sadists, masochists, sodomites, transsexuals—all can get married by the state, so long as they marry someone of the opposite sex. Given all this, it seems odd to suggest that in marrying people the state affirmatively expresses its approval or confers dignity. There is indeed something odd about the mixture of casualness and solemnity with which the state behaves as a marrying agent. Nonetheless, it seems to most people that the state, by giving a marriage license, expresses approval, and, by withholding it, disapproval. WHAT IS the same-sex marriage debate about? It is not about whether same-sex relationships can involve the content of marriage: few would deny that gays and lesbians are capable of friendship, intimacy, “meet and happy conversation,” and mutual responsibility, nor that they can have and raise children (whether their own from a previous marriage, children created within their relationship by surrogacy or artificial insemination, or adopted children). Certainly none would deny that gays and lesbians are capable of sexual intimacy. Nor is the debate, at least currently, about the civil aspects of marriage: we are moving toward a consensus that same-sex couples and opposite-sex couples ought to enjoy equal civil rights. The leaders of both major political parties appeared to endorse this position during the 2008 presidential campaign, although only a handful of states have legalized civil unions with material privileges equivalent to those of marriage. Finally, the debate is not about the religious aspects of marriage. Most of the major religions have their own internal debates, frequently heated, over the status of same-sex unions. Some denominations—Unitarian Universalism, the United Church of Christ, and Reform and Conservative Judaism—have endorsed marriage for same-sex couples. Others have taken a friendly position toward these unions. Mainline Protestant denominations are divided on the issue, although some have taken negative positions. American Roman Catholics, both lay and clergy, are divided, although the church hierarchy is strongly opposed. Still other denominations and religions (Southern Baptists, the Church of Jesus Christ of Latter-day Saints) seem to be strongly opposed collectively. There is no single “religious” position on these unions in America today, but the heat of those debates is, typically, denominational; heat does not spill over into the public realm. Under any state of the law, religions would be free to marry or not marry same-sex couples. The public debate, instead, is primarily about the expressive aspects of marriage. It is here that the difference between civil unions and marriage resides, and it is this aspect that is at issue when same-sex couples see the compromise offer of civil unions as stigmatizing and degrading. The expressive dimension of marriage raises several distinct questions. First, assuming that granting a marriage license expresses a type of public approval, should the state be in the business of expressing favor for, or dignifying, some unions rather than others? Are there any good public reasons for the state to be in the marriage business at all, rather than the civil union business? Second, if there are good reasons, what are the arguments for and against admitting same-sex couples to that status, and how should we think about them? Myth of the Golden Age

WHEN PEOPLE talk about the institution of marriage, they often wax nostalgic. They think, and often say, that until very recently marriage was a lifelong commitment by one man and one woman, sanctified by God and the

state, for the purposes of companionship and the rearing of children. People lived by those rules and were happy. Typical, if somewhat rhetorical, is this statement by Senator Robert Byrd of West Virginia during the debates over the “Defense of Marriage” Act: Mr. President, throughout the annals of human experience, in dozens of civilizations and cultures of varying value systems, humanity has discovered that the permanent relationship between men and women is a keystone to the stability, strength, and health of human society—a relationship worthy of legal recognition and judicial protection We used to live in that golden age of marital purity. Now, the story goes, things are falling apart. Divorce is ubiquitous. Children are growing up without sufficient guidance, support, and love, as adults live for selfish pleasure alone. We need to come to our senses and return to the rules that used to make us all happy. Like most Golden Age myths, this one contains a core of truth: commitment and responsibility are under strain in our culture, and too many children are indeed growing up without enough economic or emotional support. We can’t think well about how to solve this problem, however, unless we first recognize the flaws in the mythic depiction of our own past. Like all fantasies of purity, this one masks a reality that is far more varied and complex. To begin with, Byrd’s idea that lifelong monogamous marriage has been the norm throughout human history is just mistaken. Many societies have embraced various forms of polygamy, informal or common-law marriage, and sequential monogamy. People who base their ethical norms on the Bible too rarely take note of the fact that the society depicted in the Old Testament is polygamous. In many other ancient societies, and some modern ones, sex outside marriage was, or is, a routine matter: in ancient Greece, for example, married men routinely had socially approved sexual relationships with prostitutes (male and female) and, with numerous restrictions, younger male citizens. One reason for this custom was that women were secluded and uneducated, thus not able to share a man’s political and intellectual aspirations. If we turn to republican Rome, a society more like our own in basing marriage on an ideal of love and companionship, we find that this very ideal gave rise to widespread divorce, as both women and men sought a partner with whom they could be happy and share a common life. We hardly find a major Roman figure, male or female, who did not marry at least twice. Moreover, Roman marriages were typically not monogamous, at least on the side of the male, who was expected to have sexual relations with both males and females of lower status (slaves, prostitutes). Even if wives at times protested, they understood the practice as typical and ubiquitous. These Romans are often admired (and rightly so, I think) as good citizens, people who believed in civic virtue and tried hard to run a government based on that commitment. Certainly for the founders of the United States the Roman Republic was a key source of both political norms and personal heroes. And yet these heroes did not live in a marital Eden. In fact, there is no better antidote to the myth of marital purity than to read Cicero’s account of the unhappy marriage of his brother Quintus to Pomponia Attica, the sister of his best friend, Atticus. Through his narrative (however biased in his brother’s favor) we get a glimpse of something so familiar that it is difficult to believe it all happened around 50 B.C.E. Cicero is out in the country, on one of his estates, and his brother has (it seems) dragged his unwilling wife away from the city to spend a week on the farm—with a brother-in-law who doesn’t like her and who, despite his undoubted greatness, is more than a little self-obsessed: When we arrived there Quintus said in the kindest way, “Pomponia, will you ask the women in . . .?” Both what he said and his intention and manner were perfectly pleasant, at least it seemed so to me. Pomponia however answered in our hearing, “I am a guest here myself.” . . . Quintus said to me, “There! This is the sort of thing I have to put up with every day.” . . . I myself was quite shocked. Her words and manner were so gratuitously rude. [They all go in to lunch, except for Pomponia, who goes straight to her room; Quintus has some food sent up to her, which she refuses.] In a word, I felt my brother could not have been more forbearing nor your sister ruder . . . [The following day, Quintus has a talk with his brother.] He told me that Pomponia had refused to sleep with him, and that her attitude when he left the house was just as I had seen it the day before. Well, you can tell her for me that her whole conduct was lacking in sympathy.

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The marriage lasted six more unhappy years and then ended in divorce. The shock of seeing our own face in the mirror of Cicero’s intimate narrative reminds us that human beings always have a hard time sustaining love and even friendship; that bad temper, incompatibility, and divergent desires are no invention of the sexual revolution. Certainly they are not caused by the recognition of same-sex marriage. We’ve always lived in a postlapsarian world. The rise of divorce in the modern era, moreover, was spurred not by a hatred of marriage but, far more, by a high conception of what marriage ought to be. It’s not just that people began to think that women had a right to divorce on grounds of bodily cruelty, and that divorce of that sort was a good thing. It’s also that Christians began insisting—just like those ancient Romans—that marriage was about much more than procreation and sexual relations. John Milton’s famous defense of divorce on grounds of incompatibility emphasizes “meet and happy conversation” as the central goal of marriage and notes that marriage ought to fulfill not simply bodily drives but also the “intellectual and innocent desire” that leads people to want to talk a lot to each other. People are entitled to demand this from their marriages, he argues, and entitled to divorce if they do not find it. If we adopt Milton’s view, we should not see divorce as expressing (necessarily) a falling away from high moral ideals but rather an unwillingness to put up with a relationship that does not fulfill, or at least seriously pursue, high ideals. In our own nation, as historians of marriage emphasize, a social norm of monogamous marriage was salient, from colonial times onward. The norm, however, like most norms in all times and places, was not the same as the reality. Studying the reality of marital discord and separation is very difficult, because many if not most broken marriages were not formally terminated by divorce. Given that divorce, until rather recently, was hard to obtain, and given that America offered so much space for relocation and the reinvention of self, many individuals, both male and female, simply moved away and started life somewhere else. A man who showed up with a “wife” in tow was not likely to encounter a background check to find out whether he had ever been legally divorced from a former spouse. A woman who arrived calling herself “the Widow Jones” would not be asked to show her husband’s death certificate before she could form a new relationship and marry. The cases of separation that did end up in court were the tip of a vast, uncharted iceberg. If, as historian Hendrik Hartog concludes about the nineteenth century, “Marital mobility marked American legal and constitutional life,” it marked, far more, the daily lives of Americans who did not litigate their separations. Insofar as monogamy was reality, we should never forget that it rested on the disenfranchisement of women. Indeed, the rise of divorce in recent years is probably connected to women’s social and political empowerment more than to any other factor. When women had no rights, no marketable skills, and hence no exit options, they often had to put up with bad marriages, with adultery, neglect, even with domestic violence. When women are able to leave, they demand a better deal. This simple economic explanation for the rise of divorce—combined with Milton’s emphasis on people’s need for emotional attunement and conversation—is much more powerful than the idea of a fall from ethical purity in explaining how we’ve moved from where we were to where we are today. But if such factors are salient, denial of marriage to same-sex couples is hardly the way to address them. Throughout the nineteenth and early twentieth centuries, a distinctive feature of American marriage was the strategic use of federalism. Marriage laws have always been state laws (despite recurrent attempts to legislate a national law of marriage and divorce). But states in the United States have typically used that power to compete with one another, and marriage quickly became a scene of competition. Long before Nevada became famous as a divorce haven, with its short residency requirement, other states assumed that role. For quite a stretch of time, Indiana (surprisingly) was the divorce haven for couples fleeing the strict requirements of states such as New York (one of the strictest until a few decades ago) and Wisconsin. The reasons why a state liberalized its laws were complex, but at least some of them were economic: while couples lived out the residency requirement, they would spend money in the state. In short, as Hartog points out, marriage laws “became public packages of goods and services that competed against the public goods of other jurisdictions for the loyalty and the tax dollars of a mobile citizenry.”

What we’re seeing today, as five states (Massachusetts, Connecticut, Iowa, Vermont, and, briefly, California) have legalized same-sex marriage, as others (California, and Vermont and Connecticut before their legalization of same-sex marriage) have offered civil unions with marriage-like benefits, and yet others (New York) have announced that, although they will not perform same-sex marriages themselves, they will recognize those legally contracted in other jurisdictions, is the same sort of competitive process—with, however, one important difference. The federal Defense of Marriage Act has made it clear that states need not give legal recognition to marriages legally contracted elsewhere. That was not the case with competing divorce regimes: once legally divorced in any other U. S. state, the parties were considered divorced in their own. But the non-recognition faced by same-sex couples does have a major historical precedent. States that had laws against miscegenation refused to recognize marriages between blacks and whites legally contracted elsewhere, and even criminalized those marriages. The Supreme Court case that overturned the anti-miscegenation laws, Loving v. Virginia, focused on this issue. Mildred Jeter (African American) and Richard Loving (white) got married in Washington, D. C., in 1958. Their marriage was not recognized as legal in their home state of Virginia. When they returned, there they were arrested in the middle of the night in their own bedroom. Their marriage certificate was hanging on the wall over their bed. The state prosecuted them, because interracial marriage was a felony in Virginia, and they were convicted. The judge then told them either to leave the state for twenty-five years or to spend one year in jail. They left, but began the litigation that led to the landmark 1967 decision. In 2007, on the fortieth anniversary of that decision, Jeter Loving issued a rare public statement, saying that she saw the struggle she and her late husband waged as similar to the struggle of same-sex couples today: My generation was bitterly divided over something that should have been so clear and right. The majority believed . . . that it was God’s plan to keep people apart, and that government should discriminate against people in love. But . . . [t]he older generation’s fears and prejudices have given way, and today’s young people realize that if someone loves someone they have a right to marry. Surrounded as I am now by wonderful children and grandchildren, not a day goes by that I don’t think of Richard and our love, our right to marry, and how much it meant to me to have that freedom to marry the person precious to me, even if others thought he was the “wrong kind of person” for me to marry. I believe all Americans, no matter their race, no matter their sex, no matter their sexual orientation, should have that same freedom to marry. The politics of humanity seems to require us to agree with her. Let’s consider, however, the arguments on the other side. Panic over Same-Sex Marriage

AS WE do that, we need to keep two questions firmly in mind. First, does each argument really justify legal restriction of same-sex marriage or only some peoples’ attitudes of moral and religious disapproval? We live in a country in which people have a wide range of different religious beliefs, and we agree in respecting the space within which people pursue those beliefs. We do not, however, agree that these beliefs, by themselves, are sufficient grounds for legal regulation. Typically, we understand that some beliefs (including some but not all moral commitments) can generate public arguments that bear on the lives of all citizens in a decent society, while others generate only intra-religious arguments. Thus, observant Jews abhor the eating of pork, but few if any would think that this religiously grounded abhorrence is a reason to make the eating of pork illegal. The prohibition rests on religious texts that not all citizens embrace, and it cannot be translated into a public argument that people of all religions can accept. Similarly in this case, we must ask whether the arguments against same-sex marriage are expressed in a neutral and sharable language or only in a sectarian doctrinal language. If the arguments are moral rather than doctrinal, they fare better, but we still have to ask whether they are compatible with core values of a society dedicated to giving all citizens the equal protection of the laws. Many legal aspects of our history of racial and gender-based discrimination were defended by secular moral arguments, but that did not insulate them from constitutional scrutiny. Second, we must ask whether each argument justifies its conclusion or whether there is reason to see the argument as a rationalization of some deeper sort of anxiety or aversion.

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The first and most widespread objection to same-sex marriage is that it is immoral and unnatural. Similar arguments were widespread in the anti-miscegenation debate, and, in both cases, these arguments are typically made in a sectarian and doctrinal way, referring to religious texts. (Anti-miscegenation judges, for example, referred to the will of God in arguing that racial mixing is unnatural.) It is difficult to cast such arguments in a form that could be accepted by citizens whose religion teaches something different. They look like Jewish arguments against the eating of pork: good reasons for members of some religions not to engage in same-sex marriage, but not sufficient reasons for making them illegal in a pluralistic society. A second objection, and perhaps the one that is most often heard from thoughtful people, insists that the main purpose of state-sanctified marriage is procreation and the rearing of children. Protecting an institution that serves these purposes is a legitimate public interest, and so there is a legitimate public interest in supporting potentially procreative marriages. Does this mean there is also a public interest in restricting marriage to only those cases where there may be procreation? This is less clear. We should all agree that the procreation, protection, and safe rearing of children are important public purposes. It is not clear, however, that we have ever thought these important purposes best served by restricting marriage to the potentially procreative. If we ever did think like this, we certainly haven’t done anything about it. We have never limited marriage to the fertile or even to those of an age to be fertile. It is very difficult, in terms of the state’s interest in procreation, to explain why the marriage of two heterosexual seventy-year-olds should be permitted and the marriage of two men or two women should be forbidden—all the more because so many same-sex couples have and raise children. As it stands, the procreation argument looks two-faced, approving in heterosexuals what it refuses to tolerate in same-sex couples. If the arguer should add that sterile heterosexual marriages somehow support the efforts of the procreative, we can reply that gay and lesbian couples who don’t have or raise children may support, similarly, the work of procreative couples. Sometimes this argument is put a little differently: marriage is about the protection of children, and we know that children do best in a home with one father and one mother, so there is a legitimate public interest in supporting an institution that fulfills this purpose. Put this way, the argument, again, offers a legitimate public reason to favor and support heterosexual marriage, though it is less clear why it gives a reason to restrict samesex marriage (and marriages of those too old to have children or not desiring children). Its main problem, however, is with the facts. Again and again, psychological studies have shown that children do best when they have love and support, and it appears that two-parent households do better at that job than single-parent households. There is no evidence, however, that opposite-sex couples do better than same-sex couples. There is a widespread feeling that these results can’t be right, that living in an “immoral” atmosphere must be bad for the child. But that feeling rests on the religious judgments of the first argument; when the well-being of children is assessed in a religiously neutral way, there is no difference A third argument is that if same-sex marriage receives state approval, people who believe it to be evil will be forced to “bless” or approve of it, thus violating their conscience. This argument was recently made in an influential way by Charles Fried in Modern Liberty and the Limits of Government. Fried, who supports an end to sodomy laws and expresses considerable sympathy with same-sex couples, still thinks that marriage goes too far because of this idea of enforced approval. What, precisely, is the argument here? Fried does not suggest that the recognition of same-sex marriage would violate the Free Exercise clause of the First Amendment—and that would be an implausible position to take. Presumably, the position is that the state has a legitimate interest in banning same-sex marriage on the grounds that it offends many religious believers. This argument contains many difficulties. First, it raises an Establishment Clause problem: for, as we’ve seen, religions vary greatly in their attitude to same-sex marriage, and the state, following this argument, would be siding with one group of believers against another. More generally, there are a lot of things that a modern state does that people deeply dislike, often on religious grounds. Public education teaches things that many religious parents abhor (such as evolution and the equality of women); parents often choose home schooling for that reason. Public health regulations license butchers who cut up pigs for human consumption; Jews don’t want to be associated with this practice. But nobody believes that Jews have a right to ask the state to impose their reli-

giously grounded preference on all citizens. The Old Order Amish don’t want their children to attend public school past age fourteen, holding that such schooling is destructive of community. The state respects that choice—for Amish children; and the state even allows Amish children to be exempt from some generally applicable laws for reasons of religion. But nobody would think that the Amish have a right to expect the state to make public schooling past age fourteen off-limits for all children. Part of life within a pluralistic society that values the non-establishment of religion is an attitude of live and let live. Whenever we see a nation that does allow the imposition of religiously grounded preferences on all citizens—as with some Israeli laws limiting activity on the Sabbath, and as with laws in India banning cow slaughter—we see a nation with a religious establishment, de jure or de facto. We have chosen not to take that route, and for good reasons. To the extent that we choose workdays and holidays that coincide with the preferences of a religious majority, we bend over backward to be sensitive to the difficulties this may create for minorities. A fourth argument, again appealing to a legitimate public purpose, focuses on the difficulties that traditional marriage seems to be facing in our society. Pointing to rising divorce rates and evidence that children are being damaged by lack of parental support, people say that we need to defend traditional marriage, not undermine it by opening the institution to those who don’t have any concern for its traditional purposes. We could begin by contesting the characterization of same-sex couples. In large numbers, they do have and raise children. Marriage, for them as for others parents, provides a clear framework of entitlements and responsibilities, as well as security, legitimacy, and social standing for their children. In fact, the states that have legalized same-sex marriage, Massachusetts, Connecticut, Iowa, and Vermont, have among the lowest divorce rates in the nation, and the Massachusetts evidence shows that the rate has not risen as a result of the legalization. In the European countries that have legalized same-sex marriage, divorce rates appear to be roughly the same as among heterosexual couples. We might also pause, for reasons I have already given, before granting that an increase in the divorce rate signals social degeneration. But let us concede, for the sake of argument, that there is a social problem. What, then, about the claim that legalizing same-sex marriage would undermine the effort to defend or protect traditional marriage? If society really wants to defend traditional marriage, as it surely is entitled to do and probably ought to do, many policies suggest themselves: family and medical leave; drug and alcohol counseling on demand; generous support for marital counseling and mental health treatment; strengthening laws against domestic violence and enforcing them better; employment counseling and financial support for those under stress during the present economic crisis; and, of course, tighter enforcement of child-support laws. Such measures have a clear relationship to the stresses and strains facing traditional marriage. The prohibition of same-sex marriage does not. If we were to study heterosexual divorce, we would be unlikely to find even a single case in which the parties felt that their divorce was caused by the availability of marriage to same-sex couples. The objector at this point typically makes a further move. The very recognition of same-sex marriage on a par with traditional marriage demeans traditional marriage, makes it less valuable. What’s being said, it seems, is something like this: if the Metropolitan Opera auditions started giving prizes to pop singers of the sort who sing on American Idol, this would contaminate the opera world. Similarly, including in the Hall of Fame baseball players who got their records by cheating on the drug rules would contaminate the Hall of Fame, cheapening the real achievements of others. In general, the promiscuous recognition of low-level or non-serious contenders for an honor sullies the honor. This, I believe, is the sort of argument people are making when they assert that recognition of same-sex marriage defiles traditional marriage, when they talk about a “defense of marriage,” and so forth. How should we evaluate this argument? First of all, we may challenge it on the facts. Same-sex couples are not like B-grade singers or cheating athletes—or at least no more so than heterosexual couples. They want to get married for reasons very similar to those of heterosexuals: to express love and commitment, to gain religious sanctification for their union, to obtain a package of civil benefits—and, often, to have or raise children. Traditional marriage has its share of creeps, and there are same-sex creeps as well. But the existence of creeps among the heterosexuals has never stopped the state from marrying heterosexuals. Nor do people talk or think that way. I’ve never heard anyone say that the state’s willingness to marry Britney Spears or O. J. Simpson demeans or sullies their own marriage. But somehow, without even knowing anything about the character or intentions of the same-sex couple next door, they think their own marriages would be sullied by public recognition of that union.

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If the proposal were to restrict marriage to worthy people who have passed a character test, it would at least be consistent, though few would support such an intrusive regime. What is clear is that those who make this argument don’t fret about the way in which unworthy or immoral heterosexuals could sully the institution of marriage or lower its value. Given that they don’t worry about this, and given that they don’t want to allow marriage for gays and lesbians who have proven their good character, it is difficult to take this argument at face value. The idea that same-sex unions will sully traditional marriage cannot be understood without moving to the terrain of disgust and contamination. The only distinction between unworthy heterosexuals and the class of gays and lesbians that can possibly explain the difference in people’s reaction is that the sex acts of the former do not disgust the majority, whereas the sex acts of the latter do. The thought must be that to associate traditional marriage with the sex acts of same-sex couples is to defile or contaminate it, in much the way that eating food served by a dalit, (formerly called “untouchable,”) used to be taken by many people in India to contaminate the high-caste body. Nothing short of a primitive idea of stigma and taint can explain the widespread feeling that same-sex marriage defiles or contaminates straight marriage, while the marriages of “immoral” and “sinful” heterosexuals do not do so. If the arguer should reply that marriage between two people of the same sex cannot result in the procreation of children, and so must be a kind of sham marriage, which insults or parodies, and thus demeans, the real sort of marriage, we are back to the second argument. Those who insist so strongly on procreation do not feel sullied or demeaned or tainted by the presence next door of two opposite-sex seventy-year-olds newly married, nor by the presence of opposite-sex couples who publicly announce their intention never to have children—or, indeed, by opposite-sex couples who have adopted children. They do not try to get lawmakers to make such marriages illegal, and they neither say nor feel that such marriages are immoral or undermine their own. So the feeling of undermining, or demeaning, cannot honestly be explained by the point about children and must be explained instead by other, more subterranean, ideas. If we’re looking for a historical parallel to the anxieties associated with same-sex marriage, we can find it in the history of views about miscegenation. At the time of Loving v. Virginia, in 1967, sixteen states both prohibited and punished marriages across racial lines. In Virginia, a typical example, such a marriage was a felony punishable by from one to five years in prison. Like same-sex marriages, cross-racial unions were opposed with a variety of arguments, both political and theological. In hindsight, however, we can see that disgust was at work. Indeed, it did not hide its hand: the idea of racial purity was proudly proclaimed (for example, in the Racial Integrity Act of 1924 in Virginia), and ideas of taint and contamination were ubiquitous. If white people felt disgusted and contaminated by the thought that a black person had drunk from the same public drinking fountain or swum in the same public swimming pool or used the same toilet or the same plates and glasses—all views widely held by southern whites—we can see that the thought of sex and marriage between black and white would have carried a powerful freight of revulsion. The Supreme Court concluded that such ideas of racial stigma were the only ideas that really supported those laws, whatever else was said: “There is patently no legitimate overriding purpose independent of invidious racial discrimination which justifies this classification.” We should draw the same conclusion about the prohibition of same-sex marriage: irrational ideas of stigma and contamination, the sort of “animus” the Court recognized in Romer v. Evans, is a powerful force in its support. So thought the Supreme Court of Connecticut in October 2008, saying Beyond moral disapprobation, gay persons also face virulent homophobia that rests on nothing more than feelings of revulsion toward gay persons and the intimate sexual conduct with which they are associated . . . . Such visceral prejudice is reflected in the large number of hate crimes that are perpetrated against gay persons . . . .The irrational nature of the prejudice directed at gay persons, who “are ridiculed, ostracized, despised, demonized and condemned “merely for being who they are” . . . is entirely different in kind than the prejudice suffered by other groups that previously have been denied suspect or quasi-suspect class status. This fact provides further reason to doubt that such prejudice soon can be eliminated and underscores the reality that gay persons face unique challenges to their political and social integration.

We have now seen the arguments against same-sex marriage. They do not seem impressive. We have not seen any that would supply government with a “compelling” state interest, and it seems likely, given Romer, that these arguments, motivated by animus, fail even the rational basis test. The argument in favor of same-sex marriage is straightforward: if two people want to make a commitment of the marital sort, they should be permitted to do so, and excluding one class of citizens from the benefits and dignity of that commitment demeans them and insults their dignity. What is the “Right to Marry”?

IN OUR constitutional tradition, there is frequent talk of a “right to marry.” In Loving, the Court calls marriage “one of the basic civil rights of man.” A later case, Zablocki v. Redhail, recognizes the right to marry as a fundamental right for Fourteenth Amendment purposes, apparently under the Equal Protection clause; the Court states that “the right to marry is of fundamental importance for all individuals” and continues with the observation that “the decision to marry has been placed on the same level of importance as decisions relating to procreation, childbirth, child rearing, and family relationships.” Before courts can sort out the issue of same-sex marriage, they have to figure out two things: (1) what is this “right to marry”? and (2) who has it? What does the “right to marry” mean? On a minimal understanding, it just means that if the state chooses to offer a particular package of expressive and/or civil benefits under the name “marriage,” it must make that package available to all who seek it without discrimination (though here “all” will require further interpretation). Loving concerned the exclusion of interracial couples from the institution; Zablocki concerned the attempt of the state of Wisconsin to exclude from marriage parents who could not show that they had met their child support obligations. Another pertinent early case, Skinner v. Oklahoma, invalidated a law mandating the compulsory sterilization of the “habitual criminal,” saying that such a person, being cut off from “marriage and procreation,” would be “forever deprived of a basic liberty.” A more recent case, Turner v. Safley, invalidated a prohibition on marriages by prison inmates. All the major cases, then, turn on the denial to a particular group of people of an institutional package already available to others. Is the right to marry, then, merely a non-discrimination right? If so, the state is not required to offer marriages at all. It’s only that once it does so, it must do so with an even hand. The talk of marriage as a “fundamental right,” together with the fact that most of these decisions mingle equal protection analysis with due process considerations, suggests, however, that something further is being said. What is it? Would it violate the Constitution if a state decided that it would offer only civil unions and drop the status of marriage, leaving that for religious and private bodies? Put in terms of our three categories, then, does the “right to marry” obligate a state to offer a set of economic and civil benefits to married people? Does it obligate a state to confer dignity and status on certain unions by the use of the term “marriage”? And does it require the state to recognize or validate unions approved by religious bodies? Clearly, the answer to the third question is, and has always been, no. Many marriages that are approved by religious bodies are not approved by the state, as the case of same-sex marriage has long shown us, and nobody has thought it promising to contest these denials on constitutional grounds. The right to the free exercise of religion clearly does not require the state to approve all marriages a religious body approves. Nor does the “right to marry” obligate the state to offer any particular package of civil benefits to people who marry. This has been said repeatedly in cases dealing with the marriage right. On the other side, however, it’s clear that the right in question is not simply a right to be treated like others, barring group-based discrimination. The right to marry is frequently classified with fundamental personal liberties protected by the Due Process clause of the Fourteenth Amendment. In Meyer v. Nebraska, for example, the Court says that the liberty protected by that Clause “without doubt . . . denotes not merely freedom from bodily restraint but also the right of the individual to contract, to engage in any of the common occupations of life, to acquire useful knowledge, to marry, establish a home and bring up children, to worship God according to the dictates of his own conscience, and generally to enjoy those privileges long recognized . . . as essential to the orderly pursuit of happiness by free men.” Loving, similarly, states that “the freedom to marry, or not marry, a person of another race resides with the individual and cannot be infringed by the state,” grounding this conclusion in the Due Process clause as well as the Equal Protection clause. Zablocki allows that “reasonable regulations that do not significantly

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interfere with decisions to enter into the marital relationship may legitimately be imposed,” but concludes that the Wisconsin law goes too far, violating rights guaranteed by the Due Process clause. Turner v. Safley, similarly, determines that the restriction of prisoner marriages violates the Due Process clause’s privacy right. What does due process liberty mean in this case? Most of the cases concern attempts by the state to forbid a class of marriages. That sort of state interference with marriage is, apparently, unconstitutional on due process as well as equal protection grounds. So, if a state forbade everyone to marry, that would presumably be unconstitutional. Nowhere, however, has the Court held that a state must offer the expressive benefits of marriage. There would appear to be no constitutional barrier to the decision of a state to get out of the expressive game altogether, going over to a regime of civil unions or, even more extremely, to a regime of private contract for marriages, in which the state plays the same role it plays in any other contractual process. Again, the issue turns on equality. What the cases consistently hold is that when the state does offer a status that has both civil benefits and expressive dignity, it must offer it with an even hand. This position, which I’ve called “minimal,” is not so minimal when one looks into it. Laws against miscegenation were in force in sixteen states at the time of Loving. In other words, marriage is a fundamental liberty right of individuals, and because it is that, it also involves an equality dimension: groups of people cannot be fenced out of that fundamental right without some overwhelming reason. It’s like voting: there isn’t a constitutional right to vote, as such: some jobs can be filled by appointment. But the minute voting is offered, it is unconstitutional to fence out a group of people from the exercise of the right. At this point, then, the questions become, Who has this liberty/equality right to marry? And what reasons are strong enough to override it? Who has the right? At one extreme, it seems clear that, under existing law, the state that offers marriage is not required to allow it to polygamous unions. Whatever one thinks about the moral issues involved in polygamy, our constitutional tradition has upheld a law making polygamy criminal, so it is clear, at present, that polygamous unions do not have equal recognition. (The legal arguments against polygamy, however, are extremely weak. The primary state interest that is strong enough to justify legal restriction is an interest in the equality of the sexes, which would not tell against a regime of sex-equal polygamy.) Regulations on incestuous unions have also typically been thought to be reasonable exercises of state power, although, here again, the state interests have been defined very vaguely. The interest in preventing child abuse would justify a ban on most cases of parent-child incest, but it’s unclear that there is any strong state interest that should block adult brothers and sisters from marrying. (The health risk involved is no greater than in many cases where marriage is permitted.) Nonetheless, it’s clear that if a brother-sister couple challenged such a restriction today on due process/equal protection grounds, they would lose, because the state’s alleged (health) interest in forbidding such unions would prevail. How should we think of these cases? Should we think that these individuals have a right to marry as they choose, but that the state has a countervailing interest that prevails? Or should we think that they don’t have the right at all, given the nature of their choices? I incline to the former view. On this view, the state has to show that the law forbidding such unions really is supported by a strong public interest. At the other extreme, it is also clear that the liberty and equality rights involved in the right to marry do not belong only to the potentially procreative. Turner v. Safley concerned marriages between inmates, most serving long terms, and non-incarcerated people, marriages that could not be consummated. The case rested on the emotional support provided by marriage and its religious and spiritual significance. At one point the Court mentions, as an additional factor, that the inmate may some day be released, so that the marriage might be consummated, but that is clearly not the basis of the holding. Nor does any other case suggest that the elderly or the sterile do not have the right. The best way of summarizing the tradition seems to be this: all adults have a right to choose whom to marry. They have this right because of the emotional and personal significance of marriage, as well as its procreative potential. This right is fundamental for Due Process purposes, and it also has an equality dimension. No group of people may be fenced out of this right without an exceedingly strong state justification. It would seem that the best way to think about the cases of incest and polygamy is that in these cases the state can meet its burden, by showing that policy considerations outweigh the individual’s right, although it is not impossible to imagine that these judgments might change over time.

Legal Issues

WHAT, THEN, of people who seek to marry someone of the same sex? This is the question with which courts are currently wrestling. Recent state court decisions had to answer four questions (using not only federal constitutional law but also the text and tradition of their own state constitutions): First, will civil unions suffice, or is the status of marriage constitutionally compelled? Second, is this issue one of due process or equal protection or a complex mixture of both? Third, in assessing the putative right against the countervailing claims of state interest, is sexual orientation a suspect classification for equal protection purposes? In other words, does the state forbidding such unions have to show a mere rational basis for the law or a “compelling” state interest? Fourth, what interests might so qualify? Three states that have recently confronted this question—Massachusetts, California, and Connecticut—give different answers to these questions, but there is a large measure of agreement. All agree that, as currently practiced, marriage is a status with a strong component of public dignity. Because of that unique status, it is fundamental to individual self-definition, autonomy, and the pursuit of happiness. The right to marry does not belong only to the potentially procreative. (The Massachusetts court notes, for example, that people who cannot stir from their deathbed are still permitted to marry.) For all these expressive reasons, it seems that civil unions are a kind of second-class status, lacking the affirmation and recognition characteristic of marriage. As the California court put it, the right is not a right to a particular word, it is the right “to have their family relationship accorded dignity and respect equal to that accorded other officially recognized families.” All three courts draw on the miscegenation cases to make this point. The California court notes that if states opposed to miscegenation had created a separate category called “transracial union,” while still denying interracial couples the status of “marriage,” we would easily see that this was no solution. All three courts invoke both due process and equal protection. The Massachusetts court notes that the two guarantees frequently “overlap, as they do here.” They all agree that the right to marry is an individual liberty right that also involves an equality component: a group of people can’t be fenced out of that right without a very strong governmental justification. How strong? Here the states diverge. The Massachusetts court held that the denial of same-sex marriages fails to pass even the rational basis test. The California and Connecticut courts, by contrast, held that sexual orientation is a suspect classification, analogizing sexual orientation to gender. What state interests lie on the other side? The California and Connecticut opinions examine carefully the main contenders, concluding that none rises to the level of a compelling interest. Preserving tradition all by itself cannot be such an interest: “the justification of ‘tradition’ does not explain the classification, it just repeats it.” Nor can discrimination be justified simply on the grounds that legislators have strong convictions. None of the other preferred policy considerations (the familiar ones we have already identified) stands up as sufficiently strong. These opinions will not convince everyone. Nor will all who like their conclusion, or even their reasoning, agree that it’s good for courts to handle this issue, rather than democratic majorities. But the opinions, I believe, should convince a reasonable person that constitutional law, and therefore courts, have a legitimate role to play in this divisive area, at least sometimes, standing up for minorities who are at risk in the majoritarian political process. Future of Marriage

WHAT OUGHT we to hope and work for, as a just future for families in our society? Should government continue to marry people at all? Should it drop the expressive dimension and simply offer civil-union packages? Should it back away from package deals entirely, in favor of a regime of disaggregated benefits and private contract? Such questions, the penumbra of any constitutional debate, require us to identify the vital rights and interests that need state protection and to think how to protect them without impermissibly infringing either equality or individual liberty. Our analysis of the constitutional issues does not dictate specific answers to these questions, but it does constrain the options we ought to consider. The future of marriage looks, in one way, a lot like its past. People will continue to unite, form families, have children, and, sometimes, split up. What the Constitution dictates, however, is that whatever the state decides to do in this area will be done on a basis of equality. Government cannot exclude any group of citizens from the

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civil benefits or the expressive dignities of marriage without a compelling public interest. The full inclusion of same-sex couples is in one sense a large change, just as official recognition of interracial marriage was a large change, and just as the full inclusion of women and African Americans as voters and citizens was a large change. On the other hand, those changes are best seen as a true realization of the promise contained in our constitutional guarantees. We should view this change in the same way. The politics of humanity asks us to stop viewing same-sex marriage as a source of taint or defilement to traditional marriage but, instead, to understand the human purposes of those who seek marriage and the similarity of what they seek to that which straight people seek. When we think this way, the issue ought to look like the miscegenation issue: as an exclusion we can no longer tolerate in a society pursuing equal respect and justice for all. Works Consulted for this essay include the Following: • • • •

Nancy F. Cott, Public Vows: A History of Marriage and the Nation (Harvard University Press, 2000). Charles Fried, Modern Liberty: and the Limits of Government (New York: W.W. Norton, 2006). Hendrik Hartog, Man and Wife in America: A History (Harvard University Press, 2000). Andrew Koppelman, Same Sex, Different States: When Same-Sex Marriages Cross State Lines (Yale University Press, 2006). • Cass R. Sunstein, “The Right to Marry,” Cardozo Law Review 26 (2005), 2081- 2120. • Susan Treggiari, Roman Marriage (Oxford University Press, 1991). • Craig Williams, Roman Homosexuality (Oxford University Press, 1999). Updated edition forthcoming, 2009.

Journal/Discussion Questions ✍ Nussbaum’s essay discusses several arguments against same-sex marriage. Do you agree with Nussbaum’s assessment of these arguments? 1. The issue of same-sex marriage raises questions about the relation between religion and the state. How does Nussbaum view this relationship? In what ways do you agree or disagree with her? 2. Critically evaluate Nussbaum’s claim that civil unions are a second-class status. What is your position on this? Discuss.

James Q. Wilson

“Against Homosexual Marriage” About the Author: James Q. Wilson is Collins professor of management and public policy at UCLA. His books include The Moral Sense, On Character, Moral Judgment: Does the Abuse Excuse Threaten Our Legal System? and Thinking about Crime. About the Article: Using Andrew Sullivan’s Virtually Normal as a counterpoint, Wilson develops his arguments against homosexual marriage. As You Read, Consider This: 1. What, according to Wilson, are the prohibitionist, conservative, and liberal positions on the issue of homosexual marriage? Which of these is closest to Wilson’s position?

O

ur courts, which have mishandled abortion, may be on the verge of mishandling homosexuality. As a consequence of two pending decisions, we may be about to accept homosexual marriage.

“Against Homosexual Marriage,” by James Q. Wilson (Commentary, March/1996) Reprinted from COMMENTARY, March/1996. by permission; copyright © 2016 by Commentary, Inc.

In 1993 the supreme court of Hawaii ruled that, under the equal-protection clause of that state’s constitution, any law based on distinctions of sex was suspect, and thus subject to strict judicial scrutiny. Accordingly, it reversed the denial of a marriage permit to a same-sex couple, unless the state could first demonstrate a “compelling state interest” that would justify limiting marriages to men and women. A new trial is set for early this summer. But in the meantime, the executive branch of Hawaii appointed a commission to examine the question of same-sex marriages; its report, by a vote of five to two, supports them. The legislature, for its part, holds a different view of the matter, having responded to the court’s decision by passing a law unambiguously reaffirming the limitation of marriage to male-female couples. No one knows what will happen in the coming trial, but the odds are that the Hawaiian version of the equalrights amendment may control the outcome. If so, since the United States Constitution has a clause requiring that “full faith and credit shall be given to the public acts, records, and judicial proceedings of every other state,” a homosexual couple in a state like Texas, where the population is overwhelmingly opposed to such unions, may soon be able to fly to Hawaii, get married, and then return to live in Texas as lawfully wedded. A few scholars believe that states may be able to impose public-policy objections to such; out-of-state marriages—Utah has already voted one in, and other states may follow—but only at the price of endless litigation. That litigation may be powerfully affected by the second case. It concerns a Colorado statute, already struck down by that state’s supreme court, that would prohibit giving to homosexuals “any claim of minority status, quota preferences, protected status, or claim of discrimination.” The U.S. Supreme Court is now reviewing the appeals. If its decision upholds the Colorado Supreme Court and thus allows homosexuals to acquire a constitutionally protected status, the chances will decline of successful objections to homosexual marriage based on considerations of public policy. Contemporaneous with these events, an important book has appeared under the title Virtually Normal. In it, Andrew Sullivan, the editor of the New Republic, makes a strong case for a new policy toward homosexuals. He argues that “all public (as opposed to private) discrimination against homosexuals be ended. . . . And that is all.” The two key areas where this change is necessary are the military and marriage law. Lifting bans in those areas, while also disallowing anti-sodomy laws and providing information about homosexuality in publicly supported schools, would put an end to the harm that gays have endured. Beyond these changes, Sullivan writes, American society would need no “cures of homophobia or reeducations, no wrenching private litigation, no political imposition of tolerance.” It is hard to imagine how Sullivan’s proposals would, in fact, end efforts to change private behavior toward homosexuals, or why the next, inevitable, step would not involve attempts to accomplish just that purpose by using cures and reeducations, private litigation, and the political imposition of tolerance. But apart from this, Sullivan—an English Catholic, a homosexual, and someone who has on occasion referred to himself as a conservative—has given us the most sensible and coherent view of a program to put homosexuals and heterosexuals on the same public footing. His analysis is based on a careful reading of serious opinions and his book is written quietly, clearly, and thoughtfully. In her review of it in First Things (January 1996), Elizabeth Kristol asks us to try to answer the following question: What would life be like if we were not allowed to marry? To most of us, the thought is unimaginable; to Sullivan, it is the daily existence of declared homosexuals. His response is to let homosexual couples marry. Sullivan recounts three main arguments concerning homosexual marriage, two against and one for. He labels them prohibitionist, conservative, and liberal. (A fourth camp, the liberationist, which advocates abolishing all distinctions between heterosexuals and homosexuals, is also described—and scorched for its “strange confluence of political abdication and psychological violence.”) I think it easier to grasp the origins of the three main arguments by referring to the principles on which they are based. The prohibitionist argument is in fact a biblical one; the heart of it was stated by Dennis Prager in an essay in the Public Interest (“Homosexuality, the Bible, and Us,” Summer 1993). When the first books of the Bible were written, and for a long time thereafter, heterosexual love is what seemed at risk. In many cultures—not only in Egypt or among the Canaanite tribes surrounding ancient Israel but later in Greece, Rome, and the Arab world, to say nothing of large parts of China, Japan, and elsewhere— homosexual practices were common and widely tolerated or even exalted. The Torah reversed this, making the family the central unit of life, the obligation to marry one of the first responsibilities of man, and the linkage of

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sex to procreation the highest standard by which to judge sexual relations. Leviticus puts the matter sharply and apparently beyond quibble: Thou shalt not live with mankind as with womankind; it is an abomination. . . . If a man also lie with mankind, as he lieth with a woman, both of them have committed an abomination; they shall surely be put to death; their blood shall be upon them. Sullivan acknowledges the power of Leviticus but deals with it by placing it in a relative context. What is the nature of this “abomination” Is it like killing your mother or stealing a neighbor’s bread, or is it more like refusing to eat shellfish or having sex during menstruation? Sullivan suggests that all of these injunctions were written on the same moral level and hence can be accepted or ignored as a whole. He does not fully sustain this view, and in fact a refutation of it can be found in Prager’s essay. In Prager’s opinion and mine, people at the time of Moses, and for centuries before him, understood that there was a fundamental difference between whom you killed and what you ate, and in all likelihood people then and for centuries earlier linked whom you could marry closer to the principles that defined life than they did to the rules that defined diets. The New Testament contains an equally vigorous attack on homosexuality by St. Paul. Sullivan partially deflects it by noting Paul’s conviction that the earth was about to end and the Second Coming was near; under these conditions, all forms of sex were suspect. But Sullivan cannot deny that Paul singled out homosexuality as deserving of special criticism. He seems to pass over this obstacle without effective retort. Instead, he takes up a different theme, namely, that on grounds of consistency many heterosexual practices— adultery, sodomy, premarital sex, and divorce, among others—should be outlawed equally with homosexual acts of the same character. The difficulty with this is that it mistakes the distinction alive in most people’s minds between marriage as an institution and marriage as a practice. As an institution, it deserves unqualified support; as a practice, we recognize that married people are as imperfect as anyone else. Sullivan’s understanding of the prohibitionist argument suffers from his unwillingness to acknowledge this distinction. The second argument against homosexual marriage—Sullivan’s conservative category—is based on natural law as originally set forth by Aristotle and Thomas Aquinas and more recently restated by Hadley Arkes, John Finnis, Robert George, Harry V Jaffa, and others. How it is phrased varies a bit, but in general its advocates support a position like the following: man cannot live without the care and support of other people; natural law is the distillation of what thoughtful people have learned about the conditions of that care. The first thing they have learned is the supreme importance of marriage, for without it the newborn infant is unlikely to survive or, if he survives, to prosper. The necessary conditions of a decent family life are the acknowledgment by its members that a man will not sleep with his daughter or a woman with her son and that neither will openly choose sex outside marriage. Now, some of these conditions are violated, but there is a penalty in each case that is supported by the moral convictions of almost all who witness the violation. On simple utilitarian grounds it may be hard to object to incest or adultery; if both parties to such an act welcome it and if it is secret, what differences does it make? But very few people, and then only ones among the overeducated, seem to care much about mounting a utilitarian assault on the family. To this assault, natural-law theorists respond much as would the average citizen—never mind “utility,” what counts is what is right. In particular, homosexual uses of the reproductive organs violate the condition that sex serve solely as the basis of heterosexual marriage. To Sullivan, what is defective about the natural-law thesis is that it assumes different purposes in heterosexual and homosexual love: moral consummation in the first case and pure utility or pleasure alone in the second. But in fact, Sullivan suggests, homosexual love can be as consummatory as heterosexual. He notes that as the Roman Catholic Church has deepened its understanding of the involuntary—that is, in some sense genetic—basis of homosexuality, it has attempted to keep homosexuals in the church as objects of affection and nurture, while banning homosexual acts as perverse. But this, though better than nothing, will not work, Sullivan writes. To show why, he adduces an analogy to a sterile person. Such a person is permitted to serve in the military or enter an unproductive marriage; why not homosexuals? If homosexuals marry without procreation, they are no different (he suggests) from a sterile man or woman who marries without hope of procreation. Yet people, I think, want the form observed even when the

practice varies; a sterile marriage, whether from choice or necessity, remains a marriage of a man and a woman. To this Sullivan offers essentially an aesthetic response, just as albinos remind us of the brilliance of color and genius teaches us about moderation, homosexuals are a “natural foil” to the heterosexual union, “a variation that does not eclipse the theme.” Moreover, the threat posed by the foil to the theme is slight as compared to the threats posed by adultery, divorce, and prostitution. To be consistent, Sullivan once again reminds us, society would have to ban adulterers from the military as it now bans confessed homosexuals. But again this misses the point. It would make more sense to ask why an alternative to marriage should be invented and praised when we are having enough trouble maintaining the institution at all. Suppose that gay or lesbian marriage were authorized; rather than producing a “natural foil” that would “not eclipse the theme,” I suspect such a move would call even more seriously into question the role of marriage at a time when the threats to it, ranging from single-parent families to common divorces, have hit record highs. Kenneth Minogue recently wrote of Sullivan’s book that support for homosexual marriage would strike most people as “mere parody,” one that could farther weaken an already strained institution. To me, the chief limitation of Sullivan’s view is that it presupposes that marriage would have the same, domesticating, effect on homosexual members as it has on heterosexuals, while leaving the latter largely unaffected. Those are very large assumptions that no modern society has ever tested. Nor does it seem plausible to me that a modern society resists homosexual marriages entirely out of irrational prejudice. Marriage is a union, sacred to most, that unites a man and woman together for life. It is a sacrament of the Catholic Church and central to every other faith. Is it out of misinformation that every modern society has embraced this view and rejected the alternative? Societies differ greatly in their attitude toward the income people may have, the relations among their various races, and the distribution of political power. But they differ scarcely at all over the distinctions between heterosexual and homosexual couples. The former are overwhelmingly preferred over the latter. The reason, I believe, is that these distinctions involve the nature of marriage and thus the very meaning—even more, the very possibility—of society. The final argument over homosexual marriage is the liberal one, based on civil rights. As we have seen, the Hawaiian Supreme Court ruled that any state-imposed sexual distinction would have to meet the test of strict scrutiny, a term used by the U.S. Supreme Court only for racial and similar classifications. In doing this, the Hawaiian court distanced itself from every other state court decision—there are several—in this area so far. A variant of the suspect-class argument, though, has been suggested by some scholars who contend that denying access to a marriage license by two people of the same sex is no different from denying access to two people of different sexes but also different races. The Hawaiian Supreme Court embraced this argument as well, explicitly comparing its decision to that of the U.S. Supreme Court when it overturned state laws banning marriages involving miscegenation. But the comparison with black-white marriages is itself suspect. Beginning around 1964, and no doubt powerfully affected by the passage of the Civil Rights Act of that year, public attitudes toward race began to change dramatically. Even allowing for exaggerated statements to pollsters, there is little doubt that people in fact acquired a new view of blacks. Not so with homosexuals. Though the campaign to aid them has been going on vigorously for about a quarter of a century, it has produced few, if any, gains in public acceptance, and the greatest resistance, I think, has been with respect to homosexual marriages. Consider the difference. What has been at issue in race relations is not marriage among blacks (for over a century, that right has been universally granted) or even miscegenation (long before the civil-rights movement, many Southern states had repealed such laws). Rather, it has been the routine contact between the races in schools, jobs, and neighborhoods. Our own history, in other words, has long made it clear that marriage is a different issue from the issue of social integration. There is another way, too, in which the comparison with race is less than helpful, as Sullivan himself points out. Thanks to the changes in public attitudes I mentioned a moment ago, gradually race was held to be not central to decisions about hiring, firing, promoting, and schooling, and blacks began to make extraordinary advances in society. But then, in an effort to enforce this new view, liberals came to embrace affirmative action, a policy that said that race was central to just such issues, in order to ensure that real mixing

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occurred. This move created a crisis, for liberalism had always been based on the proposition that a liberal political system should encourage, as John Stuart Mill put it, “experiments in living” free of religious or political direction. To contemporary liberals, however, being neutral about race was tantamount to being neutral about a set of human preferences that in such matters as neighborhood and schooling left groups largely (but not entirely) separate. Sullivan, who wisely sees that hardly anybody is really prepared to ignore a political opportunity to change lives, is not disposed to have much of this either in the area of race or in that of sex. And he points out with great clarity that popular attitudes toward sexuality are anyway quite different from those about race, as is evident from the fact that wherever sexual orientation is subject to local regulations, such regulations are rarely invoked. Why? Because homosexuals can “pass” or not, as they wish; they can and do accumulate education and wealth; they exercise political power. The two things a homosexual cannot do are join the military as an avowed homosexual or marry another homosexual. The result, Sullivan asserts, is a wrenching paradox. On the one hand, society has historically tolerated the brutalization inflicted on people because of the color of their skin, but freely allowed them to marry; on the other hand, it has given equal opportunity to homosexuals, while denying them the right to marry. This, indeed, is where Sullivan draws the line. A black or Hispanic child, if heterosexual, has many friends, he writes, but a gay child “generally has no one.” And that is why the social stigma attached to homosexuality is different from that attached to race or ethnicity—”because it attacks the very heart of what makes a human being human: the ability to love and be loved.” Here is the essence of Sullivan’s case. It is a powerful one, even if (as I suspect) his promarriage sentiments are not shared by all homosexuals. Let us assume for the moment that a chance to live openly and legally with another homosexual is desirable. To believe that, we must set aside biblical injunctions, a difficult matter in a profoundly religious nation. But suppose we manage the diversion, perhaps on the grounds that if most Americans skip church, they can as readily avoid other errors of (possibly) equal magnitude. Then we must ask on what terms the union shall be arranged. There are two alternatives—marriage or domestic partnership. Sullivan acknowledges the choice, but disparages the domestic-partnership laws that have evolved in some foreign countries and in some American localities. His reasons, essentially conservative ones, are that domestic partnerships are too easily formed and too easily broken. Only real marriages matter. But—aside from the fact that marriage is in serious decline, and that only slightly more than half of all marriages performed in the United States this year will be between never-before-married heterosexuals—what is distinctive about marriage is that it is an institution created to sustain child-rearing. Whatever losses it has suffered in this respect, its function remains what it has always been. The role of raising children is entrusted in principle to married heterosexual couples because after much experimentation—several thousand years, more or less—we have found nothing else that works as well. Neither a gay nor a lesbian couple can of its own resources produce a child; another party must be involved. What do we call this third party? A friend? A sperm or egg bank? An anonymous donor? There is no settled language for even describing, much less approving of, such persons. Suppose we allowed homosexual couples to raise children who were created out of a prior heterosexual union or adopted from someone else’s heterosexual contact. What would we think of this? There is very little research on the matter. Charlotte Patterson’s famous essay, “Children of Gay and Lesbian Parents” (Journal of Child Development, 1992), begins by conceding that the existing studies focus on children born into a heterosexual union that ended in divorce or that was transformed when the mother or father “came out” as a homosexual. Hardly any research has been done on children acquired at the outset by a homosexual couple. We therefore have no way of knowing how they would behave. And even if we had such studies, they might tell us rather little unless they were conducted over a very long period of time. But it is one thing to be born into an apparently heterosexual family and then many years later to learn that one of your parents is homosexual. It is quite another to be acquired as an infant from an adoption agency or a parent-for-hire and learn from the first years of life that you are, because of your family’s position, radically different from almost all other children you will meet. No one can now say how grievous this would be. We know

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that young children tease one another unmercifully; adding this dimension does not seem to be a step in the right direction. Of course, homosexual “families,” with or without children, might be rather few in number. Just how few, it is hard to say. Perhaps Sullivan himself would marry, but, given the great tendency of homosexual males to be promiscuous, many more like him would not, or if they did, would not marry with as much seriousness. That is problematic in itself. At one point, Sullivan suggests that most homosexuals would enter a marriage “with as much (if not more) commitment as heterosexuals.” Toward the end of his book, however, he seems to withdraw from so optimistic a view. He admits that the label “virtually” in the title of his book is deliberately ambiguous, because homosexuals as a group are not “normal.” At another point, he writes that the “openness of the contract” between two homosexual males means that such a union will in fact be more durable than a heterosexual marriage because the contract contains an “understanding of the need for extramarital outlets” (emphasis added). But no such “understanding” exists in heterosexual marriage; to suggest that it might in homosexual ones is tantamount to saying that we are now referring to two different kinds of arrangements. To justify this difference, perhaps, Sullivan adds that the very “lack of children” will give “gay couples greater freedom.” Freedom for what? Freedom, I think, to do more of those things that heterosexual couples do less of because they might hurt the children. The courts in Hawaii and in the nation’s capital must struggle with all these issues under the added encumbrance of a contemporary outlook that makes law the search for rights, and responsibility the recognition of rights. Indeed, thinking of laws about marriage as documents that confer or withhold rights is itself an error of fundamental importance—one that the highest court in Hawaii has already committed. “Marriage,” it wrote, “is a state-conferred legal-partnership status, the existence of which gives rise to a multiplicity of rights and benefits . . . ” A state-conferred legal partnership? To lawyers, perhaps; to mankind, I think not. The Hawaiian court has thus set itself on the same course of action as the misguided Supreme Court in 1973 when it thought that laws about abortion were merely an assertion of the rights of a living mother and an unborn fetus. I have few favorable things to say about the political systems of other modern nations, but on these fundamental matters—abortion, marriage, military service—they often do better by allowing legislatures to operate than we do by deferring to courts. Our challenge is to find a way of formulating a policy with respect to homosexual unions that is not the result of a reflexive act of judicial rights-conferring, but is instead a considered expression of the moral convictions of a people.

Journal/Discussion Questions ✍ Wilson refers briefly to the experience of adolescents who are gay and the difficulties they encounter in coming of age in our society. Have your own experiences and observations confirmed Wilson’s observations? What moral significance do those experiences have? 1. At several points in his essay, Wilson discusses the relationship between issues of race and ethnicity and issues of sexual orientation. In what ways are they similar? In what ways are they different? 2. Some have offered “domestic partnership laws” as an alternative to legalizing homosexual marriages. What is Wilson’s position on this alternative? Do you agree or disagree?

Concluding Discussion Questions Where Do You Stand Now?

Instructions You have already answered the following questions in your moral problems self-quiz at the beginning of this book. Now that you have studied the material in this section, take a moment to answer the same questions again. You can either enter your answers below or complete the survey on-line at http://ethics.sandiego.edu/surveys.

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Chapter 8. Sexual Orientation

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Strongly Agree

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Chapter 8: Sexual Orientation

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Gays and lesbians should be allowed to serve openly in the military. Gays and lesbians should not be discriminated against in hiring or housing. Homosexuality is unnatural. Same-sex marriages should be legal. Homosexuality is a matter of personal choice.

Compare your answers to this self-quiz with the answers to the initial self-quiz. How, if at all, have your answers changed? How have the reasons for your answers changed?

Journal/Discussion Questions ✍ How well do you think the articles in this section have understood the experience of being gay? How well do you think they have understood the experience of being heterosexual? What do you think they have left out or misunderstood? 1. Imagine that you have been hired by a congressional committee charged with the responsibility of drafting new legislation to articulate the place of gays and lesbians in society. How would you advise the committee? What laws, if any, would you propose to add? To delete?

2. Should prominent gays and lesbians publicly reveal their sexual orientation? If they refuse to do so, are others—either gay or not—entitled to reveal it against their wishes? 3. Imagine a round table discussion of the issue of whether openly gay individuals should be allowed to serve in the military. The participants include you, and Professors Nussbaum and Wilson. Recount the dialogue that would occur in such a discussion.

For Further Reading Web Resources For Web-based resources on sexual orientation, see the Sexual Orientation page of Ethics Updates (http:// ethics.sandiego.edu). This page includes court decisions relating to sexual orientation.

Review Articles and Bibliographies For a short overview of some of the philosophical issues about homosexuality, see Brent Pickett, “Homosexuality,” Stanford Encyclopedia of Philosophy (2011) http://plato.stanford.edu/entries/ homosexuality/).

General Books, Anthologies, and Articles Among the most important recent works is Martha C. Nussbaum, From Disgust to Humanity: Sexual Ori-

entation and Constitutional Law (Inalienable Rights) (New York: Oxford University Press, 2009). Perhaps the best sympathetic philosophical approach to these issues is to be found in Richard D. Mohr’s A More Perfect Union: Why Straight America Must Stand Up for Gay Rights (Boston: Beacon Press, 1995). For a much different perspective, see Roger Scruton, Sexual Desire (London: Weidenfeld and Nicolson, 1985). For the exchange between Scruton and Martha Nussbaum, see The Liberation Debate: Rights at Issue, edited by Michael Leahy and Dan Cohn-Sherbok (London: Routledge, 1996), pp. 89–133. Also see Michael Ruse, Homosexuality: A Philosophical Inquiry (New York: Basil Blackwell, 1968); Homosexuality and Ethics, edited by Edward Batchelor, Jr. (New York: Pilgrim Press, 1980); Roger J. Magnuson Are Gay Rights

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Right? Making Sense of the Controversy, Updated Edition (Portland, OR: Multnomah, 1990); Susan Moller Okin, Sex, Preference, and Family (New York: Oxford University Press, 1997). On the “social construction” of the concept of homosexuality, see Edward Stein, The Mismeasure of Desire (New York: Oxford University Press, 2001), and his Forms of Desire: Sexual Orientation and the Social Constructionist Controversy (New York: Routledge, 1992); David Halperin’s One Hundred Years of Homosexuality (London: Routledge, 1992); and Timothy F. Murphy, Gay Science: the Ethics of Social Science Research (New York: Columbia University Press, 1997).

Same-sex Marriage On the issue of gay and lesbian marriages, see David Moats, Civil Wars: Gay Marriage in America (Austin, TX: Harcourt, 2004) for a history of the Vermont legislation; Evan Gerstmann, Same-Sex Marriage and the Constitution (Cambridge: Cambridge University Press, 2003); Cheshire Calhoun, Feminism, The Family, and the Politics of the Closet (Oxford: Oxford University Press, 2002). For a lively exchange between two conservatives on opposite sides of this issue, see Shelby Steele, “Selma to San Francisco? Same-sex marriage is not a civil rights issue,” The Wall Street Journal (March 20, 2004), reply by Andrew Sullivan, “Civil Rites,” The New Republic Online (Post date 03/30/04) (http://www.tnr.com/doc.mhtml?i=fisking&s=sulli van033004); and rejoinder by Shelby Steele, “Married with Children,” The New Republic Online (Post

date 04/14/04) http://www.tnr.com/doc.mhtml?i=ex press&s=steele041304). Roger Scruton, “The Moral Birds and Bees: Sex and Marriage, Properly Understood,” National Review, Volume LV, No. 17 (September 15, 2003) argues against same-sex marriage; Jason A. Beyer, “Public Dilemmas and Gay Marriage: Contra Jordan,” Journal of Social Philosophy, Vol. 33, No. 1 (Spring 2002), pp. 9–16; M. D. A. Freeman, “Not Such a Queer Idea: Is There a Case for Same Sex Marriages?” Journal of Applied Philosophy, Vol 16, No. 1 (1999), pp. 1–17; Angela Bolte, “Do Wedding Dresses Come in Lavender? The Prospects and Implications of Same-Sex Marriage,” Social Theory and Practice, Vol. 24, No. 1 (Spring, 1998), pp. 111–31; Andrew M. Roth, “Sociological, Political, and Legal Contexts Regarding the Current Debate on Gay Marriage,” Public Affairs Quarterly, Vol. 12, No. 3 (July, 1998), pp. 347–61; Claudia Card, “Against Marriage and Motherhood,” Hypatia, Vol. 11, No. 3 (Summer 1996), pp. 1–23; Christine Pierce, “Gay Marriage,” Journal of Social Philosophy, Vol. 26, No. 2 (Fall 1995), pp. 5–16. Also see the essays in Andrew Sullivan, Same-Sex Marriage: Pro and Con. A Reader (Boston: Vintage, 1997); Timothy F. Murphy, ed., Gay Ethics: Controversies in Outing, Civil Rights, and Sexual Science (West Hazleton, PA: Haworth Press, 1994) and John Corvino, Same Sex (Lanham, MD: Rowman and Littlefield, 1997); on the implications of this discussion for the family, see Sex, Preference, and Family: Essays on Law and Nature, edited by Avid M. Estlund and Martha C. Nussbaum (New York: Oxford, 1997).

MySearchLab Connections Sources OnLine READ AND REVIEW Study and Review: Chapter 8 The text explores moral issues surrounding the topic of sexual orientation. These readings further explore that theme. 1. On Liberty by John Stuart Mill This essay presents a utilitarian argument for civil liberty. Even as a political voice was granted to a larger portion of the population, many espoused a paternalistic attitude as they argued. Mill eloquently argues against arguments to limit personal freedom for those they deemed incapable of

adequately governing themselves. Mill’s central premise is that the highest possible degree of personal liberty is essential to each individual reaching his or her greatest potential and thus benefiting society as a whole to the fullest degree; the only justified limits to personal liberty are those society deems necessary to protect others. 2. Five Ways by Saint Thomas Aquinas St. Thomas Aquinas focuses on observations of the world as the evidence for the existence of God—that things move, that material things are caused, that not everything in the world appears to be necessary, that some things are better than others, and that things work well together toward a common end.

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3. The Teleological Argument by William Paley In this brief selection from his book, Natural Theology, William Paley offers a “thought experiment” which he believes will justify belief in God. This thought experiment involves imagining that one has come across a watch while walking through the countryside. Paley expects his reader to discern an analogy between this watch (and our reactions to it) and to biological organisms. RESEARCH AND EXPLORE Explore the following questions using the research tools available on www.mysearchlab.com. Explore on mythinkinglab.com

1. According to the text, sexual orientation is constructed through both physiological arousal and social identity. Does the role of social identity give

an opening for society to impose sexual orientation on individuals? That is, may a society legislate sexual orientation for the good of either the individuals or the society as a whole? 2. The philosophical view of teleology says there is a purpose for everything. Examine homosexuality in general, and same-sex marriage specifically, from a teleological perspective. Would a teleologist be in favor of, or opposed to, same-sex marriage? Why? 3. According to theists, the bible is the word of God, and the bible lists many sins, including homosexuality. Is it wrong for a theist to be opposed to homosexuality on religious grounds? Defend your position, and address other sins listed in the bible, such as murder and robbery. Who is the arbiter of what is a “sin” and what is not, and which are made legal or illegal in a secular society?

PART THREE

Expanding the Circle I

n the final section of this book, we turn to a consideration of the scope of our moral duties. Although both classical deontological and utilitarian thought seem in principle largely neutral in regard to things such as national borders, in fact the boundaries of our nation often mark the boundaries of our moral obligations for many people. Egoistic theories seem to make the boundaries of our obligation much narrower yet. In Part Three, we are asking the question of how far beyond our border our obligations extend. Chapter 9 deals with issues of world hunger and whether we have obligations to impoverished nations often far distant from our own. Chapter 10 asks whether our obligations extend yet further, to include nonhuman animals, the sentient world as a whole. Chapter 11 pursues the question of our obligations to the earth itself and the environment on which we constantly depend. Chapter 12 looks at ethical issues arising in the virtual world.

Part Three: Expanding the Circle

The following diagram illustrates the various ways of expanding the circle of morality that philosophers have proposed:

Individual Ethical Egoism: Concerned only with one's self

Group Ethical Egoism, Aristotelian Virtue Theory: Concerned only with one's group (community, city-state, nation, etc.)

Traditional Utilitarianism, Deontology: Directly concerned only with human beings

Expanded Utilitarianism: Directly concerned with the welfare of all sentient beings

Individual

Biocentrism: m

Individualistic Ecocentrism: Directly concerned with all individual entities in the world

Holistic Ecocentrism: Directly concerned with all species and groups

An

Group H u m a n it y ni and nA N on h u m a

als

Hu

Directly concerned with all individual entities in the living world

an

m

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L i v i n g Wo r l d d im or l a To te and Ina minate W ty tal i un E c ol o g ica l C o m m

As you consider each of the topics in the next four chapters, try to situate yourself within this map and see where you think the boundaries of our moral obligation should be drawn. We also see in this set of problems that there is an interesting interplay among the various issues. For example, our position on the moral status of animals will have important implications for our position on issues of world hunger, since the production of beef as a principal source of protein is far less efficient than our other, vegetarian ways of obtaining protein. So, too, there is an interesting relationship between environmental issues, on the one hand, and issues about animal welfare and about environmental justice. A position on any one of these issues has important implications for our positions on the others.

9 World Hunger and Poverty

An Introduction to the Moral Issues 364 The Problem 364 Background: The Statistics 365 Extreme Poverty 365 Guilt and Denial 365 The Gap: American and European Affluence 366 The Income and Wealth Gap: The Elite and the Rest of Us 366 The Case for Helping Other Countries 367 The Argument from the Virtue Compassion 367 The Moral Force of Suffering 367 Aristotle’s Account of Virtue 367 Compassion as a Virtue 367 The Issue of Luck 368 The Place of Children 368 The Issue of Complicity 369 The Group Egoist Argument 370 The Strict Utilitarian Argument 370 The Basic Rights Argument 371 The Kantian Imperfect Duty Argument 371 Kant on Perfect and Imperfect Duties 371 The Duty of Benevolence 371 Smart Aid: Learning to Helping Well 372 The Human Component of Natural Disasters 372 Hurricane Katrina 372 The Global Picture 373 Disaster Relief 373 Disaster Relief and Local Corruption 373 363

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National Pride 373 From Disaster Relief to the Alleviation of World Poverty 374 The Case Against Helping Other Countries 375 The Lifeboat Argument 375 Hardin’s Lifeboat Metaphor 375 Evaluating Hardin’s Metaphor 375 Carrying Capacity 375 Sinking Together 376 Lifeboats and Luxury Liners 376 Who Dumped Us in the Water? 376 All in One Boat? 376 The Effectiveness Argument 376 The Libertarian Argument 377 The Particularity Argument 377 The Liberal State Argument 377 Diversity and Consensus 377 Short-Term Relief 377 Long-Term Assistance 378 A Common World 378 The Arguments 378 Thomas W. Pögge, “The Moral Demands of Global Justice” 378 Michael Walzer, “Achieving Global and Local Justice” 384 Concluding Discussion Questions 390 For Further Reading 391

An Introduction to the Moral Issues The Problem We cannot help but be struck by the vast differences in standards of living between the United States (and other comparable industrialized nations) and developing countries. We have only to turn on the evening news to see clips of famine and starvation, natural disasters, and other political turmoil throughout the world. We may believe the political disagreements are best resolved among the disputants themselves. The natural disasters are transitory, but perhaps more evenly distributed among all the countries of the world. The hunger and starvation, however, are more disturbing, especially when we look around at our own affluence as a nation. The pictures that we see on television and in ads from organizations such as Oxfam are typically pictures of famine victims, particularly children. These are cases of what we will call acute need. But there is another kind of need that forms a constant backdrop to these episodes of disaster: this is the chronic need, the malnutrition, the lack of medical care, the absence of educational opportunities, the shortened life span, all the components that comprise the diminished and marginalized lives of so many people across the globe. Should we help other nations, especially those in great poverty whose population is starving? Let’s look more closely at these issues, beginning with the arguments in favor of helping other countries that are impoverished and whose population is starving.

Chapter 9. World Hunger and Poverty

Background: The Statistics It is helpful to appreciate the extent of the problem of world poverty and world hunger and to have some sense of the causes as well as possible remedies for such inequalities. Economists use a number of indicators to measure the amount of poverty in a given country. Let’s look at some of these statistics. Extreme Poverty

The World Bank is one of the principal sources of data about economies around the world, and thus about poverty as well. For many years, the World Bank had defined the absolute poverty level—the level at which people cannot meet basic needs such as food, water, shelter, and the like—at $1 per day income. On that basis, it was calculated that one billion people live in poverty. In 2008, the World Bank recalibrated its estimate of the poverty line and raised it to $1.25 per day, with the result that the number of people living at or below the poverty line increased to 1.4 billion. Using this adjusted index, this figure of 1.4 billion represents a decrease from the 1.9 billion in poverty in 1981 (adjusted for the 2008 index). The United Nations Millennium Development Goals seek to reduce the percentage of people under the poverty line from the 1990 figure of 1.8 billion to half of that by 2015, bringing the number to less than one billion. The geographical distribution of this poverty is extremely unequal. Over 50 percent of the population in sub-Saharan Africa falls into this category, as does 40 percent of South Asia. The rate then drops dramatically to East Asia and the Pacific at 16.8 percent, then Latin American and the Caribbean at 8 percent, and Europe, Central Asia, the Middle East and North Africa are under 4 percent. As Australian philosopher Peter Singer has pointed out in his The Life You Can Save: Acting Now to End World Poverty, this is the kind of poverty that kills. Life expectancy in these countries is typically thirty years less than in their more affluent counterparts. The percentage of the population that lives on $1.25 or less per day is one of the principal indicators of absolute poverty levels. It is here where narratives become particularly important. It is difficult for many of us to imagine what such a life is like. Similarly, we have a difficult time imagining the mind-boggling numbers of people involved. We can best understand poverty and hunger and starvation one person at a time, following the course of a person’s days through a life that is otherwise unimaginable to us. The difficulty with such narratives, though, is that they’re often excruciatingly difficult to watch. They make us feel uncomfortable, guilty, and most of us have an understandable desire to flee from such feelings. The unfortunate result of this desire to flee is that we turn our backs on the plight of the poor, the unfortunate, the dying. Indeed, many of us—teachers and students alike—flee so quickly that we don’t even want to discuss the topic. Let’s examine that reaction a bit more closely. Guilt and Denial

As you are reading this introduction, you yourself may be feeling uncomfortable, perhaps even guilty about this topic. Let’s examine this more closely. In everyday life when we do something bad, such as hurt the feelings of a friend, we often feel guilty. That’s appropriate, and most of us don’t run away from a feeling like that. Part of the reason we don’t flee from the feeling is that there’s something we can do about it: we can apologize to our friend, we can perhaps do something to make up for the offense, and generally speaking there is some way of remedying the situation. In fact in a case such as this, the remedy is comparatively easy and does not involve a major disruption of our lives. The difficulty with feeling guilty about the suffering of millions of people across the globe has several dimensions. First, in the case of offending a friend, there is some action we have performed that precipitates the feeling of guilt. In the case of world hunger, however, there is no specific antecedent action we have performed that directly causes the suffering. Upon closer examination, we may be able to discern ways in which we contribute to world hunger, but this may take a fair amount of self-scrutiny. Second, it is not clear exactly what we need to do to assuage the guilt. Yet it is clear that whatever we might do, it’s going to be pretty big. It will involve a major disruption to our life in a way that apologizing to our friend would not. Third, it is not immediately clear

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whether our massive contribution toward solving the problem of world hunger will even make a significant difference. If I donated all my worldly wealth—admittedly, not exactly an enormous amount of money, but still everything that I have—to Oxfam tomorrow, will the problem of world hunger be diminished in any significant way? No. My feeling of guilt seems to drive me to a course of action that will leave me financially devastated and yet will not significantly help solve the problem of world hunger in any way. In the following pages, I am going to ask you to hold this feeling of guilt in abeyance. In particular, we need to examine each of these three components. First, are there ways in which we in fact have contributed to the creation of world poverty? Second, will helping to eradicate world poverty actually involve divesting ourselves of all our worldly goods, or are there other courses of action that are perhaps less radical but nonetheless fulfill our moral obligations? Third, in what sense will our actions be significant in reducing the problem of world poverty? Each of these is, I think, a legitimate and important question, and in the course of this introduction, I hope to answer all three of them. The Gap: American and European Affluence

Many of those reading this introduction probably do not feel affluent. However, those of us in the United States are far more affluent than a large percentage of people around the world. Let me suggest a couple of little measures of this. Go to your local supermarket and walk through the produce section. The array of perfectly polished apples, beautiful bananas, peaches, berries, and assorted vegetables is beyond anything that the kings and queens of Europe had at their disposal in the past. And all of this is available to the average citizen at a fairly affordable price. You don’t have to be a millionaire in order to buy a beautiful apple. The second test of our comparative affluence may be a bit more difficult to perform, but if you know anyone who came to the United States from an impoverished country, talk to them about the differences. I have done this with a number of students over the years, and two common themes emerged. First, they are all struck by the amount of waste in the United States, by the number of things that we simply discard rather than attempt to fix. Americans throw away more than many people use simply to live on day by day. Second, these students are inevitably impressed by the incredible quality of what we have at our easy disposal. You may not feel as though you are affluent, but compared with the rest of the world, you are. What we consider poverty in the United States is nothing compared with the dirt-poor poverty one sees in many areas of the world. In the United States, most poor people have color television sets and automobiles. It is not uncommon to see people begging on the streets and then stopping while they answer a cell phone call. (In the United States, cell phones are often a necessity for the poor, many of whom are homeless, in order to maintain contact with social service agencies.) To be sure, there are plenty of people in the United States who go to sleep at night hungry, but the percentage—compared with the rest of the world—is small. The Income and Wealth Gap: The Elite and the Rest of Us

Not all discrepancies occur just between those countries that are highly industrialized and those that are not. There are also huge gaps of income and wealth between those at the very top and the rest of us. Consider these global figures, provided by The Economist magazine in a 2011 article on “Global Leaders.” The richest 1 percent of the world’s population controls over 40 percent of the world’s wealth, while the bottom half of the world’s population control only 1 percent of its wealth. This is a staggering discrepancy between the top and the bottom. One way of visualizing the discrepancy in wealth and inequality around the world was suggested by the Dutch economist Jan Pen in his book Income Distribution. Imagine a parade in which the people in the parade pass by in a steady stream, taking an hour from the first marcher to the last. Further imagine, Pen suggests, that these people went in order, based on their income, those who make the least at the head of the parade while the biggest earners bring up the rear. Furthermore, and this is the key element, imagine that a person’s height was proportionate to his or her income, with an average height being equivalent to an average income. At first, the marchers wouldn’t even be visible: losing money, their height would unfortunately put them below the surface. They would be followed by midgets, the jobless and the working poor—for half an hour. A total of forty-five minutes would have elapsed before the first person of average height. With six minutes left, the marchers are twelve feet tall, and growing fast. The last four hundred marchers are each over two miles tall.

Chapter 9. World Hunger and Poverty

The Case for Helping Other Countries There are a number of strong reasons for helping countries that are impoverished and starving. The first of these centers on our character and in particular on the virtue of compassion. Others center on consequences, rights, and the duty to beneficence. The Argument from the Virtue of Compassion

The Moral Force of Suffering The mere sight of the deep suffering associated with poverty and starvation has a moral force all its own: It touches the deepest roots of human compassion to see such suffering. Anyone who possesses the virtue of compassion cannot help but respond to such suffering. To turn our backs in the face of such human misery would be cold-hearted indeed. Such a response would not only fail to relieve the suffering of others, but it would also diminish us, revealing a disturbing moral indifference. A virtuous person must respond to such suffering.

Aristotle’s Account of Virtue Most philosophers would agree that compassion is a virtue. Yet precisely what do we mean by this claim? Aristotle’s framework provides us with one of the best possible guides to answering this question. Virtues, in Aristotle’s eyes, are our strengths of character that promote human flourishing. They are acquired through practice, often long years of practice, to develop into a habit. In this sense, virtues gradually become second nature. We need these strengths of character, Aristotle argues, in order to have a good life; without them, our life would be diminished. Moreover, Aristotle depicts virtues as a combination of action and emotion. It is not enough in Aristotle’s world simply to act in a particular way; we must also feel in a particular way. Without virtue, we would be less able to fulfill our potential, less capable of realizing our dreams and ambitions. Thus for Aristotle, there is a very important motivation for being moral that has relatively little to do directly with the well-being of others: in being moral, we make our own lives better. There are two different ways in which we can fail to hit the mark in regard to virtue, fail to achieve the golden mean between what Aristotle calls excess and deficiency. We can have either too much or too little of the required character trait. Take courage for example. We are all familiar with the coward who has too little courage. Individuals who lack courage are unable to achieve their life’s goals, since they are unable to face and overcome the dangers and obstacles in their path. Individuals with too much courage, according to Aristotle, are persons who are foolhardy, risking too much for too little potential gain. The individual who rushes into a burning house to save a trapped infant is a courageous person. The one who rushes into a burning house to save his iPhone is a fool, risking his life for something of far less value, something that could easily be replaced.

Compassion as a Virtue Aristotle doesn’t discuss compassion as a virtue, but we can easily imagine what an Aristotelian approach would look like. Compassion is that strength of character that allows, even compels, us to respond appropriately to the suffering of others, especially other human beings. It is easy to imagine what a deficiency in compassion would look like: the sociopath, completely unmoved by the suffering of other human beings. It is important to realize that this is a person who would be deficient in both action and feeling, at least in the most extreme case. In more moderate cases, the person might be lacking in one or the other. Some may experience the feeling of compassion, but fail to act upon it; others may go through the motions of compassionate actions, but lack the genuine feelings behind those motions. Yet what about the person who has too much compassion? It’s not exactly a major problem in the world today, but what would that person look like? And why would too much compassion be a vice? To call it a vice is to call it a weakness of character, a barrier to human flourishing. We can imagine several ways in which individuals could have too much compassion. First, individuals could be so sensitive to the suffering that perhaps continually surrounds them that they would be paralyzed by its intensity, unable to move forward in life

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because the suffering of others is constantly pulling them from all directions. In this first sense of too much compassion, the excess compassion distorts the individuals’ feeling for those around them and, in the most extreme cases, paralyses the individuals with the pull of suffering from all directions. The second sense in which individuals can have too much compassion relates to the question of action rather than feeling. Out of a sense of compassion, individuals may do things for suffering persons that are in one way or another inappropriate. For example, seeing an elderly person have a difficult time in pouring a glass of water, we might take the pitcher and pour it for them. Clearly the intent of the action is a compassionate one, but in the process we may deprive the other person of his or her autonomy. We may do too much. Or, we may do the wrong thing, helping people in need in ways that are ultimately injurious to them. For example, at the end of World War II when German soldiers were returning from the Russian front, emaciated from the treacherous winter and sparse rations in Russian prisoner of war camps, wives cooked rich, sumptuous meals for their starving husbands. The action was certainly a compassionate one, but it was still the wrong action; in many cases, the men’s bodies were so emaciated that when the rich food hit their systems, they just shut down and died. This analysis suggests that compassion for the victims of world hunger must strike a delicate balance between too much and too little in regard to both feeling and action. Recall our earlier discussion of guilt and denial. These feelings often block our compassionate response, enabling us to simply push the problem out of our minds. Two specific factors contribute to this response. Both of these factors relate to the magnitude of the problem. First, the problem seems so big that it threatens to engulf all of our resources. Second, the problem seems to be unending, with the result that we could give everything we have and still not make a significant dent in solving the problem. Yet it is precisely at this juncture that we should recall Aristotle’s description of virtue as finding the Golden Mean between excess and deficiency. From the viewpoint of virtue ethics, it is reasonable to say that a compassionate response to world hunger need not involve divesting ourselves of all our wealth, but rather contributing a reasonable amount of our wealth based on our financial situation. It is reasonable, in other words, to respond compassionately by consistently doing our share. In this context, it is helpful to realize that we can in fact make significant progress in reducing the amount of poverty, hunger, and starvation in the world. UNICEF, the United Nations Children’s Fund, established its program of millennium development goals, and the reduction of all world poverty by 50 percent by 2015 was the first of these. They have already made significant progress toward this goal, and there is a reasonably good chance that they will actually achieve it by 2015. Thus, although world hunger is a problem of daunting dimensions, it is something that we can actually solve. We ought not to turn away because of feelings of futility and incompetence. There is one final factor that this analysis should highlight: the virtue of compassion tends to best flourish within the context of a compassionate community. It is precisely when we situate ourselves within such a community that we no longer feel alone in our response. Such communities form at many levels: on the basis of national identity, religious affiliation, involvement in civic groups, participation in campus activities, and the like.

The Issue of Luck Our moral disquiet about this poverty and hunger is intensified by the fact that we know as individuals we do not deserve our affluence any more or less than those in famine-ridden countries deserve their destitution and hunger. This is not to deny that you or I work hard. But if we had been born in Rwanda or Somalia, we could be working just as hard and still be starving to death. The overall affluence of our society is not something we have because of our merit; it is largely a matter of luck.

The Place of Children The children have a special place in all of this, and if there are any innocents left in the world, it is the children. Whatever we may say about the political and economic leaders of a country, we cannot help but feel that the children deserve better. In a sea of suffering, theirs stands out as having a special and undeniable moral force. It pulls us out of our moral complacency and demands a response from us. This is the paradigmatic case of the suffering of the innocents.

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As Hugh LaFollette and Larry May have pointed out in their excellent and widely reprinted essay (also available online at http://www.hughlafollette.com/papers/suffer.htm) “Suffer the Little Children,” it is the children who suffer the most from poverty. Children make up over 70 percent of the malnourished people in the world. Indeed, LaFollette and May point out that there are two key characteristics to the suffering of children that deserve special attention here and that may move us, halfway across the globe, to action. First, children are innocent. Certainly in some countries, national leaders may be partially at fault for some of the disasters that befall their country, and in some cases parents may have done less than we wish to take care of their children. Yet even if that is the case, the children deserve better. They do not deserve to suffer for the shortcomings of either politicians or parents. This gives the suffering of children a particular moral status not necessarily found in all cases of suffering. Second, children are vulnerable in a way that is not true about adults. They cannot take care of themselves. Even such simple things as getting food, staying clean, avoiding danger—all these are difficult for children in a way that is not true about adults. So this too gives the status of the suffering of children a particular weight: someone has to take care of them because they cannot do it themselves. It is also important to notice that this is suffering to which we would respond if it were directly in front of us. In part, the suffering of children seems to be hidden from view by a purely accidental fact, namely, that the children are hidden from view someplace else far from our homes. Indeed, part of what it means to be a morally alive individual is that we are sensitive to the suffering of other people when we are in its presence. In fact, we think of those who are utterly unresponsive to the suffering of others as sociopaths, as lacking in some basic human capabilities that otherwise distinguish our species from others. The Issue of Complicity

We don’t deserve to be born into an affluent society any more than we deserve to be born into an impoverished one. It is simply a matter of luck. We can certainly conjure up metaphysical puzzles about whether “I” would still be the same “I” as the one that has grown up in the United States if I had been born in sub-Saharan Africa. But those metaphysical puzzles simply serve to distract our attention from the more important moral point here: namely, I did not do anything to merit being born in the United States rather than in sub-Saharan Africa. It is, in other words, simply a matter of luck. But is it purely a matter of luck that some societies are rich and others are poor? Here the issue becomes more complex. The argument, put forth by many, is that the affluence of countries like the United States and other highly industrialized countries is built at least in part on the impoverishment of developing nations in at least two ways. According to this argument, major industrialized nations have exploited both the natural resources and the labor of developing countries, taking an unfair advantage in order to increase their own profits at the expense of diminishing the developing nations. In regard to the exploitation of natural resources, advocates of this position point to the multiple ways in which multinational corporations will remove natural resources (timber, minerals, oil, and the like) in such a way as to minimize the cost of extraction, and in practice this often means causing sweeping environmental damage that leaves inhabitants impoverished and more susceptible to natural disasters as well as the toxic effects of pollutants used in the process of extracting the natural wealth. One has only to look at such priceless resources as the Amazon rain forests, which are receding year by year at an alarming rate, to see this process in action. In regard to the exploitation of indigenous labor, the argument has a parallel structure: large national and multinational corporations build their factories and farms in countries where labor is in cheap and plentiful supply. With an abundance of workers, corporations have little need to worry about the health or well-being of their workforce. If workers become sick and die, they can simply be discarded like old pieces of machinery. There will always be more workers. In order to ensure an uninterrupted supply of such workers, companies will often align themselves with local political powers and against movements that favor workers’ rights. Again, examples are all too easy to find. The issue of complicity adds a special urgency to the moral force of the suffering of the poor and the hungry. If their suffering is in part the result of our own actions, then we bear a particular responsibility to help remedy the situation.

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Many of us, of course, do not own multinational corporations or even have any stock in them, but the issue of complicity does not end here. As consumers we often discover that we buy products the purchase of which depends on and strengthens the very exploitative policies most of us would decry. Thus complicity becomes an issue not only before the fact, in regard to the production of these goods, but also after the fact in respect to the sale and consumption of such goods. The Group Egoist Argument

The compassionate response demands that we set aside self-interest and respond directly to relieve the suffering of others, even when we must make sacrifices to do so. This is a morally demanding response, and some have argued that we may not always be able or willing to respond so selflessly. Some in this tradition have argued that there are still good, self-centered moral reasons for trying to relieve the suffering of other countries. One of the principal characteristics of the twenty-first century is a growing interdependence among nations, such that the fate of any one single nation is inextricably linked to the fate of all the others. We see this at many levels. Take, for example, the spread of disease, especially highly communicable diseases. An outbreak of flu quickly spreads beyond national borders, and as the movie Contagion so skillfully depicted, there is little chance of containing an epidemic without significant international cooperation. So, too, in the economic realm. As we have now seen time and again, economic troubles in one region of the world can easily trigger economic downturns across the globe. Or, to take a third area, consider environmental issues. National efforts to reduce greenhouse gases, for example, can easily be thwarted or undermined if other countries do not undertake a comparable reduction. Increasingly, in the twenty-first century, we all sink or swim together. If this is so, then the group consequentialist may have a strong argument. It may be in our country’s long-term self-interest to ensure that other countries around the world avoid economic disasters and achieve the kind of economic self-sufficiency that makes them reliable partners in the global economy. The strength of the group consequentialist’s position is that there is no need to appeal to compassion or altruism. Simple self-interest will do, as long as it is enlightened and long-term self-interest. The Strict Utilitarian Argument

Utilitarianism, as we have said before, is a very demanding moral doctrine, for it asserts (1) that we should give our own happiness and pain no special weight and (2) that we should always do what produces the greatest overall amount of utility. When we combine these principles, we begin to get a strong argument that morally requires rich nations to reduce the gap between themselves and poor nations until they are relatively equal. Once one accepts the strongly impartialist premise that someone else’s suffering counts just as much as one’s own in the moral calculus, then it is a comparatively short step to concluding that one should reduce everyone else’s suffering to the same level as one’s own. The most articulate and powerful representative of this position is Peter Singer. He is also one of the most demanding of utilitarians, asking those of us who live privileged economic lives to contribute to the reduction of poverty until we have succeeded in closing the gap between rich and poor. This is morally a tremendously demanding position, and many will dismiss both the position and Singer himself out of hand. It is worth noting in this context that Singer is a person who has the courage of his convictions. A vegetarian and one of the founding voices in the animal liberation movement, Singer lives the life that he enjoins us to live as well. He gives much of his income to organizations devoted to the reduction of world poverty, lives a very simple life, rides his bicycle around Princeton, and in many other ways lives out the moral commitments he maintains we should all have. This is not to say that Singer’s position is automatically right because he practices what he preaches, but it would certainly be far less convincing at a purely human level if he himself did not follow his own moral exhortations. There are two types of replies the Singer’s position: those that come from within a utilitarian framework, and those that come from the outside. Let me discuss here one of the objections from within utilitarianism itself. One can agree with the general goal of the equitable distribution of wealth across the world and still disagree about the best means of achieving that goal. This is an extraordinarily complex empirical question. Certainly

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one path toward economic equality is the one that Singer articulates, but this involves a high degree of self-sacrifice on the part of the more affluent members of the world. Some have maintained that the best way to respond to this challenge of world poverty and hunger is to find ways in which individuals and individual nations can achieve greater self-sufficiency and economic independence within a framework of private enterprise. The Basic Rights Argument

Some authors, including Henry Shue in Basic Rights, have argued that everyone has a right to minimal subsistence, and that this is a positive right. Recall the difference between a negative right and a positive one. If I have a negative right, that simply prohibits others from interfering with me in the exercise of that right. A negative right to free speech prevents others from silencing me, but it does not require them to give me a microphone, even if they have an extra one. A positive right, in contrast, obligates other people to assist me in the exercise of my right if I am in need of assistance. If I have a positive right to free speech, others (usually the state) must provide me with the opportunity and means for exercising that right. The right to subsistence, Shue argues, is a positive right that obligates others (particularly those with an overabundance of food) to assist me in continuing to subsist. The tradition of rights has proved to be a powerful one over the last two centuries, beginning with the founding documents on human rights in both the United States and France. The second half of the twentieth century witnessed a number of political movements that centered on the affirmation of rights: civil rights for racial and gender equality, gay-rights, rights for persons with disabilities, the rights of indigenous peoples, and even children’s rights. The notion of rights is a genuinely modern and Western notion; we don’t find discussions of human rights in either ancient Greek philosophy or traditional Asian philosophy. Rather, this notion is particularly well suited to the modern, capitalist, and highly individualistic world in which persons have to be able to assert what they are entitled to within a world of strangers who are largely indifferent to them. The Kantian Imperfect Duty Argument

The moral philosophy of Immanuel Kant offers yet another perspective for understanding our obligations to other people, particularly those who are in dire need of assistance. His notion of imperfect duties helps us understand one of the ways in which we can put legitimate limits on our moral obligations in regard to world hunger.

Kant on Perfect and Imperfect Duties In his discussion of moral duties, Kant distinguished between two types of duties. Perfect duties are those that require specific actions and that must be met all the time. The duty to tell the truth, for example, is a perfect duty. We must always tell the truth. Thus a perfect duty is something that we have to do all the time, without exception. Imperfect duties, in contrast, require that we perform some among a group of actions but do not mandate each and every action. The duty to benevolence is an imperfect duty. We are morally required, Kant says, to perform acts of benevolence toward those in need, but this does not mean that we are required to act benevolently toward each and every person in need and on each and every occasion of such need. We are morally obligated to act benevolently, but we have a considerable amount of moral freedom to decide about the particular occasions of such benevolence.

The Duty of Benevolence One of the strengths of Kant’s position is that it allows us to find a middle ground between those who maintain that we have no duties to other countries and those who claim that we have seemingly overwhelming obligations to them. We have a duty to some benevolence, but we do not have a duty to reduce our standard of living to the point of equality with the poor of the world. In this respect, Kant’s position seems to correspond with the moral intuitions of many people today.

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Smart Aid: Learning to Help Well In moral philosophy, we spend a lot of time debating whether we should help. Yet for those involved on the front lines of aid work across the world, there is a deeper realization that we must not only ask, “Should we help?” but also, “How can we best help?” Learning to help well, which I will call SmartAid here, is crucially important. If we help poorly, our aid may be ineffective or even harmful. Let me give an example of one of the ways in which outside aid may prove to be harmful. Imagine a region devastated by a natural disaster. Relief agencies come in from the outside and provide sorely needed supplies— food, water, shelter, and the like. Perhaps they stay for a matter of months before moving on to the next disaster. While they are giving away food to those who are hungry, the local merchants who still have foodstuffs to sell will find their merchandise rotting on the shelves. After all, when faced with a choice between free food and food that costs money, most people will choose the free food. But if the merchants are unable to sell their goods, then they are unable to give part of the proceeds to the farmers who originally brought in the crop. Farmers, robbed of this crucial income, are unable to buy seed to plant for the next harvest. Thus just as the relief agencies are leaving the region to move on to the next disaster, there is a new disaster in the making because the farmers had been unable to plant a new crop for the coming season. Relief agencies have, of course, learned from these kinds of scenarios and have gradually developed ways of avoiding most of the pitfalls associated with short-term aid. Yet the example points out are crucial fact: it is not enough simply to help, we have to know how to help well. That is the challenge of the twenty-first century. It is also important to realize that many of the so-called natural disasters that call for assistance are in fact disasters to which the human component has often contributed as much as Mother Nature. Let’s look at this more closely. The Human Component of Natural Disasters

Hurricane Katrina When Hurricane Katrina devastated New Orleans and massive regions of the Gulf of Mexico, it was an apparently unprecedented natural disaster, an example of how—even after centuries of civilization and technology—we can still be at the mercy of Mother Nature. The raging waves, the whipping winds—this was nature at its most fearsome, a phenomenon in which human beings play no role except as bystanders fearing for their lives. A truly natural disaster. Or so it seemed. When we look more closely, however, we see that much of the loss of life and devastation from Katrina was as much the result of human decisions as it was of raging winds. The first of those decisions was that of Jean Baptiste Le Moyne de Bienville to place his settlement in such a precarious location—but if it was precarious in 1718, it is all the more so almost 300 years later, with the increasingly rapid erosion of the barrier islands and the marshlands that had together sheltered New Orleans from the worse ravages of storms. (The beaches of Phuket in Thailand were similarly more vulnerable to the 2011 tsunami because of the destruction of their barrier reefs.) Whatever else we might want to say about Katrina, clearly it was not simply a natural disaster—human choices too led to making it the disaster it eventually turned out to be. Political decisions contributed significantly to this “natural” disaster as well. Mark Fischetti’s 2001 article in Scientific American on the probable impact of a hurricane on New Orleans, “Drowning New Orleans,” was but the most dramatic example of the warnings that public officials received and ignored. Repeated federal budget cuts for disaster preparedness played a major role in increasing the vulnerability of the population of New Orleans to a Category 4 hurricane. There was a surprisingly strong consensus in the scientific community that New Orleans would be devastated by flooding if hit by such a big storm, and most realized that it was simply a matter of time before it happened. Humans contributed in yet another way to this “natural” disaster. The suffering and loss of life we have seen in New Orleans tap clearly into the fault lines of race and class in our society. The suffering and death fell disproportionately on the shoulders of those who are poor and black. This is one more way in which this disaster

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was created by humans: it singled out blacks and poor people for special devastation. There is nothing natural about that aspect of the disaster, but neither is there anything unusual in its selectiveness. Throughout the world, the poor are those most vulnerable to natural disasters.

The Global Picture What we saw first-hand in the aftermath of Hurricane Katrina mirrors a larger picture around the world. A natural disaster occurs within a wide network of human connections—political, social, religious, and economic— that may either mitigate its impact or amplify that impact. The Sichuan earthquake that devastated China in 2008, for example, was the biggest single disaster for children in years. Over 10,000 children were killed in the quake—and this in a country with a “one child” rule— when their schools collapsed. (This rule was eventually suspended for families that lost a child to the quake.) Over three million children were displaced. Part of this heavy death toll for children was bad luck—if the quake had hit at a time when the children were not in school, many lives would have been spared. But part was due to human complicity, as outraged Chinese parents subsequently pointed out to their government. If the Chinese government had simply enforced their existing building codes, many of those schools would not have collapsed. Natural disasters are often at least in part human ones. Disaster Relief

Relief agencies have learned the complexities of giving aid well, especially in countries in which the government is corrupt and the people impoverished. In fact, many of the countries in which natural disasters are worst are countries that also have corrupt regimes that exploit the people and keep the wealth for themselves. In the process, they often leave the population as a whole more vulnerable to natural disasters when they occur. Consider something as simple as infrastructure. In countries with corrupt governments, there are often massive areas populated by the poor, and in these areas basic services—such as roads, running water, waste disposal, and power—are in short supply. When disaster hits, these regions are often the least capable of responding effectively. In fact, we have learned the strong infrastructure is often the best line of defense against disasters, whether natural or not. When Hurricane Irene hit the United States in 2011, there was significant damage, but there was a resilience to the response because it hit areas (in contrast to Katrina) that all had fairly good infrastructure. In other words, they were able to bounce back from the disaster in a way that areas with less developed infrastructure would not have been able to do. Disaster Relief and Local Corruption

In dealing with foreign governments during relief work, major relief agencies have often found themselves faced with political challenges that make it far more difficult to help the primary victims of the disaster. Often the local government demands that relief supplies be funneled through the government. There are several dangers in this. First, the government can simply appropriate a portion of the relief aid for itself, adding to its own coffers and the offshore bank accounts of its leaders. Second, the government can distribute the relief materials itself, (1) taking credit for the relief and (2) apportioning the aid to victims based on their political allegiance. Regions known to be anti-government may receive little or no aid, while regions that are supportive of the government may find themselves inundated with relief. National Pride

The acceptance of foreign aid in often viewed by governments as an affront to their national dignity. When Myanmar (formerly known as Burma) was devastated in 2008 by a cyclone (the name for hurricanes in that region of the world) that killed nearly 100,000 people, foreign aid quickly mobilized, but aid ships with food and drinkable water found themselves standing off the coast of Myanmar, unable to unload their supplies because of the intransigence of the Myanmar government. Moreover, once again earlier human decisions had exacerbated the situation: the storm hit the delta, which over the years had been stripped of its mangrove forests in order to build shrimp farms and rice paddies. The mangrove forests would have absorbed the storm surge much more

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effectively, but without them the farmers—poor, living in shacks barely above sea level—were easily swept out to sea. I happened to be in Thailand the week after the tsunami hit in 2004, and the contrast is enlightening in several respects. Over 8,000 people were killed, many in the resort area along the beach in Phuket. First, the Thai government (whatever its other problems may be) is proud and independent. Within a day, the government had begun to mobilize and coordinate relief efforts internally. The Thai economy was relatively robust, and the government quickly announced that it did not want foreign dollars for aid: it had enough internal resources to cope with the disaster. (In addition to national and local government funds, Thailand had thirty million dollars in private donations from within the country.) They did, however, make it clear that they would welcome foreign expertise in dealing with the disaster to supplement and coordinate with their own efforts. The prime minister appeared on television, sending out a message to the world: we do not want your charity, but we would certainly appreciate your business, including your tourist business. In other words, the effective response of Thailand to its natural disaster was in significant measure dependent on the pre-existing human resources—political, economic, social, and religious. Thailand was also fortunate in another way. Different types of disasters leave different types of signatures. With an earthquake, for example, infrastructure is often destroyed, and the victims are trapped at the site of the disaster, often inaccessible for days. In hurricanes, there is often a lot of collateral damage outside the main disaster areas, damage that interrupts communication networks and blocks transportation and relief routes. A tsunami, though, is different: it causes terrible devastation, but it is not only localized, but—because it is a tsunami and thus a wave and there is no storm on land as in a hurricane—it is also always along the shore. Furthermore, if the tsunami results from an event that is distant from the country affected, then there is no local earthquake involved. That means that access to the region is largely unimpeded. Typically, you can drive right up to the disaster region and none of the roads will have been damaged. A high percentage of those affected by the tsunami are killed outright or carried out to sea and drown. This dramatically affects the ratio of victims to survivors. In an earthquake, there will be many victims who do not die immediately. In a tsunami, there will be far fewer victims who survive the first minutes of the disaster. The devastation is terrible, but typically even a large portion of the debris is carried out to sea. In other words, the nature of some disasters makes it easier to recover from them than others. Of course, as we saw in the 2011 Tohuku earthquake and tsunami in Japan, there is an added potential liability with tsunamis that was not present in Thailand but was crucial in Japan: nuclear power plants typically need direct access to water for cooling, and thus they are likely to be built along a coast line. When they are hit by an earthquake and then a tsunami, the disaster may be too much for them to sustain. From Disaster Relief to the Alleviation of World Poverty

A natural disaster, such as an earthquake or hurricane, can be the occasion for an outpouring of international aid, but we must distinguish between Band-Aid relief and long-term eradication of chronic poverty and hunger. Disaster relief is concerned with Band-Aids, but even then it attempts to ensure that the Band-Aid is well placed. Overall, relief agencies seek to provide assistance in ways that, all other things being equal, help to strengthen the country and make it economically more independent and self-sustaining. Even though the primary focus of relief aid is to prevent immediate deaths in the days and weeks immediately after a disaster, relief organizations attempt to structure their aid in such a way as to minimize long-term dependence on outside resources and to strengthen internal resources (including infrastructure) that will contribute to long-term sustainability in the country itself. Yet all too often they find that their hands are tied, that local officials are unwilling to make the changes necessary to ensure long-term economic prosperity. Instead, these officials are often more interested in maintaining the status quo, from which they often directly benefit economically and in many other ways. This issue has made long-term international economic aid very controversial, and the World Bank has come to symbolize this controversy. When it offers to assist struggling countries during economic hard times, the World Bank often attaches to its assistance requirements for reform that many of the countries find objectionable.

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The rationale behind the World Bank’s position is a simple one: without such changes, the recipient country will simply find itself back in the same economic dire straits in a few years. Indeed, if the recommended changes were easy to make, they probably already would have been in place. Moreover, at this juncture nationalistic feelings often run high and the World Bank comes to be seen as an intruder who is trying to impose its outside will on the people of the country. The World Bank, on the other hand, sees itself as the Savior, attempting to get the country to do what is ultimately in its own best interests. In one version or another, this script has been played out across the world.

The Case Against Helping Other Countries Several different types of arguments have been advanced against claims that we should provide aid to impoverished and starving peoples, and we will now turn to a consideration of these arguments. The Lifeboat Argument

In one of the most controversial articles ever written on this subject, Garrett Hardin in “Lifeboat Ethics” argues that we have a duty not to help the poor and starving of other countries. This is a strong and startling claim. Hardin is not simply saying that it was not necessary to aid the poor—he was saying that it was wrong to help them. His article appeared originally in 1974, but continues to be relevant even today. Indeed, to many it seems to have a special relevance in economic hard times.

Hardin’s Lifeboat Metaphor Hardin suggests that rich nations are like lifeboats, and swimming around them are the poor of the world, who are clambering to get into the lifeboat. If we let them into the lifeboat—that is, if we provide aid or permit immigration in significant degrees—then we will surely swamp the lifeboat and everyone, not just the poor already in the water, will be adrift. The answer—at least from the standpoint of those in the lifeboat—is not to take as many people in as possible until it is on the verge of sinking, but rather to preserve the integrity and long-term survivability of the boat itself. Hardin admits that it is purely a matter of luck that one is born in the lifeboat rather than in the water, but he does not see this as changing his position. Those who really feel it is unfair can give up their places in the lifeboat to people in the water. It is also worth noting here that although the primary focus of Hardin’s article is on foreign aid to mitigate world hunger, this can also be interpreted as an argument against immigration. The image that follows from Hardin’s metaphor is that of starving people desperately trying to climb into a lifeboat and thereby threatening to swamp the entire boat. It is easy to see this as an anti-immigration metaphor, where we have the world’s poor clambering to gain access to the more affluent countries which offer promise of economic salvation.

Evaluating Hardin’s Metaphor Hardin’s metaphor proved to be an extraordinarily powerful one, capturing the public’s attention and convincing many people that the solution to the problem of world hunger was simply to ignore the problem. But it is worth pausing here to examine how illuminating the metaphor really is.

Carrying Capacity Hardin’s metaphor depends in significant measure on the idea that countries have a fixed maximum amount of food that they can produce. This is what economists often referred to as the “carrying capacity” of the country, that is, how many people a given region of the world can sustain. Remember that Hardin’s article was first published in 1974. All a lot has changed since then, and we have come to understand that regions are able to produce far more food than we originally thought. In fact, there is good reason to think that there is already enough food in the world to feed the entire population, and that the

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real problem is one of distribution rather than production. Increasingly sophisticated agricultural techniques have raised the yield per acre of land to many times what it was back in 1974. Thus the first point of disanalogy: a lifeboat has a finite and fixed supply of resources, whereas in real world countries, there is an elasticity to the natural resources and production capabilities that is quite different from what you find in a lifeboat.

Sinking Together The second point of disanalogy with Harden’s lifeboat example is this: the fate of each individual boat seems to be entirely independent of the fate of the other boats. Yet once again, when we look at the real world, we see that it does not operate in this way. The economic fate of particular countries is typically tied up with the economic survival of other countries. In other words, if one country collapses, other countries may falter as a result. Conversely, helping another country may be beneficial to many other countries, including the ones that provide the aid. Yet Hardin’s metaphor misses all of this, making aid a zero-sum game. That is, his metaphor suggests that whenever you help someone else, you diminish yourself to the same degree as you help the other. In real life, as economists have amply shown, it often doesn’t work this way. Helping others may be one of the best ways of helping ourselves as well.

Lifeboats and Luxury Liners Consider a third way in which Hardin’s metaphor misleads us. He paints a picture all lifeboats adrift with many, many swimmers in the water trying to escape drowning. The more accurate metaphor here would be one that suggests that we have a variety of ships stretching from luxury liners at one end and leaky rowboats at the other. This is a much more accurate way of metaphorically describing the variety of countries around the world. This has important consequences for evaluating Hardin’s argument. By referring to the affluent nations of the world as lifeboats, he suggests that they are in a precarious position, barely able to take care of their ownselves. On the other hand, if we see those nations as luxury liners, we may have a quite different assessment of their moral responsibility. And, in fact, this is much closer to the truth: countries such as the United States have a tremendous amount of wealth and power such that they are more comparable to the most luxurious passenger liners in the sea.

Who Dumped Us in the Water? Hardin begins his story with people already either in the water or in the lifeboats. Thus there is no need to explain how anyone got there. Yet this too is an important point of disanalogy. To continue with Hardin’s analogy for the moment, we could ask whether some of the people in the water were in fact pushed into the water by people already in the lifeboats. This point of criticism suggests that we in the affluent nations may be to some extent complicit in the fate of those who are starving. Again, an important point of disanalogy.

All in One Boat? The final question to be raised about this analogy is whether it is even accurate to think of individual nations as separate boats. Increasingly, we have come to realize that we—rich and poor alike—are all in one boat, a boat called Earth. The Effectiveness Argument

Arguments that wealthy nations are obligated to aid poor nations contain not only a moral premise about obligation but also an implicit pragmatic premise that such aid can be effective. Some critics of aid have maintained that this issue can be settled on pragmatic grounds: aid, they argue, just doesn’t work. And since it doesn’t, we are under no moral obligation to do it. The best reply to this objection is empirical, that is, we need to look at specific instances of aid and see whether in fact they have been effective or not. To attempt to do this in this overview would probably require a

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book in itself, but readers are urged to look at specific programs, whether those run by the United Nations or some other organization, and independently assess the effectiveness of the programs. The Libertarian Argument

Some claim that we have only negative rights and thus only negative duties. Libertarianism is the clearest political expression of this doctrine, and the novels (such as Atlas Shrugged and Fountainhead) of Ayn Rand are the most popular literary expressions of it. For a libertarian, the right to life is purely a negative one. No one is entitled to take my life away from me, but certainly no one is obligated to support my existence. Each person is solely responsible for his or her own existence, and society as a whole owes me nothing positive. Furthermore, many in this tradition hold the right to property to be practically as strong as the right to life. This has important implications for any analysis of the unequal distribution of wealth. The libertarians maintain that the government has very few, if any, rights to deprive individuals of their property. (Many, for this reason, are strongly opposed to most taxes.) Thus libertarians see this issue as a conflict between an extremely weak or nonexistent claim (the right of the poor to aid) against a very strong claim (the right of individuals to acquire and retain their own property). For them, the choice is easy. Any program that utilizes tax dollars in order to provide relief for people starving around the world is basically theft, taking property from people who rightfully possess it and giving it to others who have no right to it. The Particularity Argument

Special moral obligation to take care of our own. As indicated earlier, there is something suspicious about a moral theory that requires us to care so much about strangers that we diminish the quality of life for those nearest and dearest to us. Consider this in relation to children. I love my daughter dearly and I work hard to try to ensure that she has the opportunities for building a good life for herself. If I am a utilitarian, am I obligated to give up money I would spend on my daughter to relieve the (admittedly, quite worse) suffering of complete strangers on the other side of the globe? To raise this question is to call into doubt one of the most fundamental premises of most ethical theories: impartiality. Both Kantians and utilitarians would agree that the moral point of view is one of strict impartiality. I should not give more weight to the suffering of those I love than I do to the suffering of strangers. Yet in recent years, this premise has come under increasing challenge and some have argued that particularity may have more positive significance in the moral life than previously thought. In fact, some in this tradition would argue that there is something morally alienating about individuals who do not put the interests of those they love above the interests of strangers. This continues to be a point of great controversy among philosophers. The Liberal State Argument

The final argument that has been advanced against claims of obligations to impoverished and starving nations could be considered a political version of the particularity argument or a type of group egoism argument. The argument is a simple one. The liberal state can only function well—that is, provide the services to its citizens that it promises—if it rests on a solid economic foundation. If that foundation is threatened either through massive foreign aid or through massive immigration, then the state may no longer be able to provide any of its members with the traditional benefits of a liberal state. Education, defense, health care, construction, and maintenance of infrastructure—all of these things would be drastically reduced if the liberal state were suddenly paying out huge sums for foreign aid or trying to meet the needs of a vast influx of immigrants.

Diversity and Consensus Short-Term Relief

Many of the issues surrounding relief, both short-term and long-term, are empirical issues concerning effectiveness. As we have already seen in our earlier discussion of efficiency, critics of even short-term relief often express

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their greatest doubts about the efficacy of such relief. One of the principal challenges to supporters of such aid is to show that such aid does more good than harm in the long run. Despite these criticisms, the moral bottom line about short-term relief centers around the issue of compassion. How can we, in the face of such suffering and in the midst of our relative affluence, turn away in indifference? To fail to respond seems inhumane. The moral challenge is to discern how to respond wisely and effectively. Long-Term Assistance

Assistance programs are generally oriented toward helping recipient countries to become self-sustaining, rather than at establishing a long-term relationship of aid and dependency. How we can do this with skill and efficiency is an extremely complex question, but one that must be answered. In the process of answering it, we must also deal with questions about exploitation, population control, human rights, and respect for diverse cultural traditions. Moreover, we must figure out a way of determining how far we should go in offering assistance and support. The two extremes—Hardin, who advocates not helping at all, and Singer, who says we should help to the point of relative equality—leave a vast middle ground. Presumably the truth is somewhere in the middle here. A Common World

What kind of world do we envision for our future? Is it a world of vast inequities, the superfluously rich and the starving poor? Or is it a world in which all human beings have at least the minimal conditions of a good life and the opportunity through hard work to better their situation? And if it is the latter type of world that we hope for, then we must ask ourselves how we shall achieve it. It hasn’t happened by itself at this point, then there is little chance that such a world can be created without a sustained effort on the part of the more affluent nations.

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The Arguments Thomas W. Pögge

“The Moral Demands of Global Justice” About the Author: Thomas Pögge is the Leitner Professor of Philosophy and International Relations at Yale, where he teaches moral and political philosophy. He is one of the foremost voices in the contemporary discussion of global justice, poverty and inequality. John Rawls was his dissertation director at Harvard, where he did his doctoral dissertation on Kant, Rawls, and global justice. He has published numerous books and an extraordinary number of articles, particularly relating to global justice and world hunger. His writings have been translated into over twenty languages. His most recent book is Politics as Usual: What Lies behind the Pro-Poor Rhetoric (2010). About the Article: This article addresses the issue of obligations of justice that extend beyond our own national borders, particularly obligations to alleviate world hunger. He argues against those who maintain that the problem is insurmountable, maintaining instead that the eradication of world poverty is an achievable goal. The number of people living in poverty has declined somewhat since the publication of this article in 2000, but the overall issues that Pögge discusses remain largely unchanged today. As You Read, Consider These Questions: 1. In the opening paragraphs, Pögge notes the way in which deaths due to poverty are typically omitted from lists of the catastrophes of the twentieth century. What conclusion does he draw from this? 2. Pögge offers several ways of seeing what it would take to significantly reduce the level of global poverty. Explain his examples. Thomas W. Pögge, “The Moral Demands of Global Justice” Dissent Fall 2000. Copyright © 2000. Reprinted with permission of the University of Pennsylvania Press.

3. What percentage of the United States’ budget goes to foreign aid? Is this more or less than you thought before reading this article? Discuss. 4. What does Pögge mean by a “solidaristic” community? How does this notion figure in his arguments? In his analysis of Brazil?

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ETROSPECTIVES on the twentieth century give ample space to its horrors. Natural catastrophes are overshadowed by wars and other human made disasters: six million murdered in the German Holocaust, thirty million starved to death in Mao’s Great Leap Forward, eleven million wiped out by Josef Stalin, two million killed by the Khmer Rouge, half a million hacked to death in Rwanda, and so on. Missing from these retrospectives are the deaths from starvation and preventable diseases—world hunger for short—some two hundred million in just the few years since the end of the cold war. Why are these deaths not mentioned? Are they too humdrum, too ordinary, not shocking enough? Or are they perhaps too disturbing—deaths that, unlike the others, are not clearly someone else’s responsibility? Let us consider the disturbing thought. Do we bear some responsibility for deaths due to extreme poverty abroad? Confronted with this question, most respond with a firm No. But this No comes very quickly and with a reluctance to delve more deeply into the reasons for it. This reluctance is shared by ethicists, whose job it is to think about moral issues and responsibilities. Most of them probably agree with the No of their compatriots, but very few have taken the trouble to examine the question carefully enough to provide good reasons for this answer. How does one examine such a question? One may begin by recapitulating the basic facts about world hunger. Of a total of six billion human beings, one quarter live below the international poverty line (WDR, 25), “that income or expenditure level below which a minimum, nutritionally adequate diet plus essential non food requirements are not affordable” (HDR 1996, 222). This level is specified in terms of a daily income with the purchasing power that one dollar had in the United States in 1985. Because of inflation in the intervening years, this level now corresponds to an annual per capita income of $560 at purchasing power parity or to an annual per capita income of $140 at current exchange rates. This last figure takes account of the fact that, in the poor countries, only about twenty-five cents is needed, on average, to buy local currency that has as much purchasing power as one dollar has in the United States (cf. WDR, 230 1). So households in the poorest quartile of humankind cannot afford, per person per year, whatever basic necessities can be bought for $560 in the United States or for $140 in the average poor country. (As this article goes to press, I find that the World Bank and the United Nations Development Program have quietly redefined the international poverty line in terms of a daily income with the purchasing power that one dollar had in the United States in 1993 [HDR 2000, 4, 170f.]. Since the U.S. dollar lost more than a quarter of its value between 1985 and 1993, this revision lowers the international poverty line by over 25 percent and thus conveniently reduces the number of global poor without cost to anyone.) Such severe poverty has consequences: “Worldwide, 34,000 children under age five die daily from hunger and preventable diseases” (USA, iii). Roughly one third of all human deaths, some fifty thousand daily or eighteen million annually, are due to poverty related causes (WHO, Table 2). This fraction is so high because far more than a quarter of all human deaths, and births, occur in the poorest quartile due to the much shorter life expectancy among the poor. “Two out of five children in the developing world are stunted, one in three is underweight and one in ten is wasted” (FAO). One quarter of all children between five and fourteen, 250 million in all, are compelled to work, often under harsh conditions, as soldiers, prostitutes, or domestic servants or in agriculture, construction, textile, or carpet production (ILO; WDR, 62). If they survive long enough, many of them will join the currently 850 million illiterate adults. Some 840 million persons are today chronically malnourished, 880 million without access to health services, one billion without adequate shelter, 1.3 billion without access to safe drinking water, two billion without electricity, and 2.6 billion without access to basic sanitation (HDR 1998, 49; HDR 1999, 22). Many people in the more affluent countries believe that severe global poverty is rapidly declining. With so much economic and technological progress, it seems reasonable to assume that a rising tide must be lifting all

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boats. International declarations, summits, and conventions devoted to the problem project a strong image of concerted action and brisk progress. But the real trend is more mixed. There has been significant progress in the formulation and ratification of relevant documents, in the gathering and publication of statistical information, and even in reducing important aspects of poverty. And yet, in the period since the end of the cold war, the number of persons subsisting below the international poverty line “rose from 1.2 billion in 1987 to 1.5 billion today and, if recent trends persist, will reach 1.9 billion by 2015” (WDR, 25). The trend in international inequality clearly shows the inadequacy of the rising tide image: “The income gap between the fifth of the world’s people living in the richest countries and the fifth in the poorest was 74 to 1 in 1997, up from 60 to 1 in 1990 and 30 to 1 in 1960.” Estimates for earlier times are eleven to one for 1913, seven to one for 1870, and three to one for 1820 (HDR 1999, 3). Today, while the bottom quartile of humankind live on less than $140 per year, 1998 per capita gross national product (GNP) was $29,340 in the United States; somewhat more in Japan; and somewhat less, on average, in Western Europe (WDR, 230 1). Such enormous inequality casts doubt upon the common view that eradicating world hunger would be prohibitively expensive, that it would truly impoverish us and destroy our culture and lifestyle. Richard Rorty articulates such a view when he expresses doubt that we can help the global poor: “a politically feasible project of egalitarian redistribution of wealth requires there to be enough money around to ensure that, after the redistribution, the rich will still be able to recognize themselves—will still think their lives worth living” (Rorty, 14). Such apprehension may seem justified in view of the huge number of poor people, 1.5 billion below the international poverty line. But it is in fact grossly exaggerated because global income inequality is much larger than Rorty seems to realize. The aggregate income of the poorest quartile is less than 0.7 percent of the global social product, less than $210 billion out of nearly $30 trillion ( WDR, 231). A shift in global income distribution that would double (or triple) their incomes entirely at our expense would still be quite minor. It would reduce the top tenth of incomes by a mere 1 or 2 percent—hardly a serious threat to our culture and lifestyle. This conclusion is reinforced by looking at inequalities in wealth. These are considerably greater than inequalities in income, since well off households typically have more net worth than annual income while poor households typically have less. The fortunes of the ultrarich, in particular, have become enormous: “The world’s 200 richest people more than doubled their net worth in the four years to 1998, to more than $1 trillion. The assets of the top three billionaires are more than the combined GNP of all least developed countries and their 600 million people” (HDR 1999, 3). “The additional cost of achieving and maintaining universal access to basic education for all, basic health care for all, reproductive health care for all women, adequate food for all and safe water and sanitation for all is . . . less than 4% of the combined wealth of the 225 richest people in the world” (HDR 1998, 30). Once again, Rorty’s apprehension looks vastly overblown. A third way of putting the cost of eradicating world hunger in perspective relates this cost to the so-called peace dividend. Following the end of the cold war, military expenditures declined from 4.7 percent of the global social product in 1985 to 2.9 percent in 1996 (HDR 1998, 197; HDR 1999, 191). This decline currently produces an annual dividend of more than $500 billion annually—far more than the under $210 billion collective annual income of the poorest quartile. Many U.S. citizens apparently believe that a large proportion of the federal budget is already being spent on foreign aid. But in fact, “The U.S. Agency for International Development (USAID) administers America’s foreign assistance programs, which account for less than one half of 1% of the federal budget” (USAID). Net official development assistance (ODA) provided by the United States has fallen to under $9 billion in 1998, $32 per citizen. As a share of GNP, this is 0.10 percent (versus 0.21 percent under Ronald Reagan in 1987–1988)—the lowest among developed countries, which have followed the U.S. lead by reducing their aggregate net ODA from 0.33 percent of their combined GNPs to 0.24 percent ($51.9 billion) during the same period (HDR 2000, 218). The allocation of such funds is, moreover, governed by political considerations: only 21 percent goes to the forty-three least developed countries (HDR 2000, 218) and only 8.3 percent is spent on meeting basic needs (HDR 2000, 79). Thus the twenty-one donor states together spend $4.3 billion annually on meeting basic needs abroad, less than .08 cents per day for each person in the poorest quartile.

The World Food Summit in Rome, organized by the UN Food and Agriculture Organization (FAO) in November 1996, provides a telling example of prevailing official attitudes toward poverty eradication. Its principal achievement was this pledge by the 186 participating governments: “We, the Heads of State and Government, or our representatives, gathered at the World Food Summit . . . reaffirm the right of everyone to have access to safe and nutritious food, consistent with the right to adequate food and the fundamental right of everyone to be free from hunger. We pledge our political will and our common and national commitment to achieving food security for all and to an on going effort to eradicate hunger in all countries, with an immediate [!] view to reducing the number of undernourished people to half their present level no later than 2015. We consider it intolerable that more than 800 million people throughout the world, and particularly in developing countries, do not have enough food to meet their basic nutritional needs. This situation is unacceptable.” (Rome) The U.S. government published its own interpretation of this pledge: “the attainment of any ‘right to adequate food’ or ‘fundamental right to be free from hunger’ is a goal or aspiration to be realized progressively that does not give rise to any international obligations” (IS). It also challenged the FAO’s claim (WA ) that fulfilling the pledge would require all developed states combined to increase their development assistance in agriculture by $6 billion annually: “As part of the U.S. Action Plan on Food Security, USAID commissioned a separate study of the projected cost of meeting the World Food Summit target and a strategy for reaching this goal. The study, completed in mid-1998, estimated that the target could be reached with additional global assistance of [only] $2.6 billion annually.” (USA, Appendix A). So the study proposes that the pledge be backed by only $3 rather than $7 annually for each malnourished person. The hunger reduction plan adopted in Rome implicitly envisions well over 200 million deaths from hunger and preventable diseases over the 1997–2015 plan period. One might have thought that, even if the FAO’s proposed annual increase of $6 billion were to reduce hunger faster than planned, this should be no cause for regret. Halving world hunger in nineteen years, after all, is glacial progress. And $6 billion is not much to ask from the high income countries, whose combined annual GNP in 1998 was $22,599 billion (WDR 231). The growing reluctance to spend money on reducing world hunger is associated with the increasingly popular idea that this goal is best achieved through investment rather than aid. Hunger will be erased through globalization and free markets. But this idea is problematic. The freer, globalized markets of recent years have actually, thanks partly to the 1997–1998 global debt and currency crisis, produced a 25% increase in the number of people living below the international poverty line (cf. WDR, 25). Foreign investment and free markets can be helpful where a minimally adequate infrastructure is in place and the physical and mental development of prospective employees has not been permanently retarded through disease, malnutrition, and illiteracy. But foreign investment will rarely create such conditions; it will not help those children who now need food, safe water, basic sanitation, basic health services, and primary education. Money spent to meet these needs would produce an advance that would help attract foreign investment, which could then sustain the advance on its own. If these needs are not met, investment will flow elsewhere, and the enormous gap between rich and poor will continue to grow. This response—that children must have their basic needs met—is one we would give unquestioningly in a domestic context. We would find it intolerable if, somewhere in the United States, infant mortality were 20 percent because of lack of food, safe water, basic sanitation, basic health services, and primary education. Why are similar conditions abroad seen as so much more acceptable? Obviously, the national border around our country plays a significant role in our moral thinking. But what exactly is its supposed moral significance? The common idea is that the United States is a solidaristic community whose members owe much more to one another than to outsiders. This idea can be relevantly extended in two ways. One could claim that our responsibilities toward foreigners are overridden by our responsibilities toward compatriots. But this claim would be ineffective, because the cost of erasing world hunger is too small to entail any real losses for our compatriots. One percent of the developed countries’ GNP—less than half the “peace dividend”—could greatly reduce world hunger within a few years, allowing expenditures to decline significantly thereafter (cf. Pögge). This outlay would not prevent us from meeting our responsibilities toward our compatriots, however expansively these may be conceived.

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Alternatively, one could claim that we have no responsibilities to provide any aid and support beyond the solidaristic national community we sustain with one another. This claim might be backed by saying that the responsibilities we would otherwise have are, in this case, canceled by the fact that starving foreigners have states and compatriots of their own who ought to provide the needed support. But this argument is unpromising because the global poor do not in fact have states and compatriots willing and able to secure their basic needs and also have not agreed to waive whatever claims they would otherwise have on us. It is more promising to back the claim by saying that responsibilities to provide any aid and support, beyond one’s immediate family and beyond emergencies one immediately encounters, arise only through voluntary participation in a solidaristic community. By living in the United States, we have accepted such responsibilities toward our compatriots; but we have not accepted any such responsibilities toward foreigners. To examine this view, let us reflect on Brazil for a moment and assume that most Brazilians do not think of their country as a solidaristic community. There is in fact evidence for this assumption, as Brazil is the most unequal society on earth, with the highest fifth of incomes being thirty-two times the lowest fifth (this quintile ratio tends to be between four and ten for countries outside Latin America [HDR 1999, 146 9]). Global income inequality is only slightly greater than Brazil’s when incomes are scored in terms of purchasing power (though it is vastly greater when we score incomes in terms of exchange rates, as we should to obtain a rough measure of the price of reducing poverty). The two cases are close in other respects as well: Brazil’s per capita GNP is $4,570—versus the world’s $4,890 (WDR, 230 1). In Brazil, 28.7 percent of the population lives below the international poverty line and 24 percent lack access to safe drinking water—versus 25 percent and 22 percent worldwide (HDR 1999, 146). In Brazil, 16 percent of all adults are illiterate—versus 22 percent worldwide; life expectancy in both cases is sixty-seven years (HDR 1999, 135, 137). Now suppose the rich elite in Brazil maintain that they have no responsibilities with regard to the poor in their country because most Brazilians do not see themselves as members, with the poor, in one solidaristic community. Few Americans would, I think, accept this disclaimer. We are willing to respect other societies even if they do not realize, or even aspire to realize, full justice as we understand it. But we do believe that there are certain minimum conditions that any state—whether its people conceive it as a solidaristic community or not— must meet for it to deserve moral respect. However such a minimal standard of decency might be formulated in detail (cf. Rawls), it seems clear that Brazil, given its massive and avoidable poverty, would fail to qualify. But if the global economic order is at least as bad as Brazil’s, must not the same judgment apply to it as well? This thought is suggested by the UN Universal Declaration of Human Rights, which proclaims that “Everyone is entitled to a social and international order in which the rights and freedoms set forth in this Declaration can be fully realized,” including the “right to a standard of living adequate for the health and well being of himself and of his family, including food, clothing, housing and medical care” (articles 28 and 25). As article 28 suggests, the incidence of severe poverty is importantly influenced by the existing social and international order. And such poverty may then entail not merely positive responsibilities for influential Brazilians and for us as potential helpers, but also negative responsibilities for influential Brazilians and for us as supporters of an economic order that reproduces massive starvation and poverty. Instead of merely failing to help the poor, we may be involved in harming them through the imposition of a global economic order under which inequality increases so rapidly that the gains from economic progress are huge at the top and minuscule or nonexistent at the bottom of the global hierarchy (cf. Milanovic). It is hardly surprising that the global order reflects the interests of wealthy and powerful states. Dependent on our votes and taxes, our government, with its allies, works very hard to shape the rules for our benefit, as we can see from its response to the World Food Summit, from its successful renegotiation of the Law of the Seas Treaty, and from countless other examples. To be sure, the global poor have their own governments. But almost all of them are too weak to exert any real influence on the organization of the global economy. More important, such governments have little incentive to attend to the needs of their poor citizens, as their continuation in power depends on the local elite and on foreign governments and corporations. It is not surprising, then, that developing countries with rich natural resource endowments are especially likely to experience civil wars and undemocratic rule and hence achieve slower (if any) economic growth (Lam). Their rulers can sell the country’s

resources, buy arms and soldiers to maintain their rule, and amass personal fortunes. They like the global economic order just the way it is. And affluent states, too, have no interest in changing the rules so that ownership rights in natural resources cannot be acquired from tyrannical governments. Such a change would reduce the supply and hence increase the price of the resources we import. People can kill one another with bombs and machetes. But economic arrangements are often quite as effective. Millions were killed in the Irish potato famine, in Stalin’s forced collectivization, in Mao’s Great Leap Forward, in contemporary North Korea, as well as in many other human made disasters. The ongoing catastrophe of world hunger is of the same kind. But it is also different: by being less confined in space and time, even more devastating, and less recognized. It claims a third of all human deaths. But these deaths happen far away, to people we never encounter. They happen in social contexts whose dependence on the existing global order we do not understand. And they happen in areas where we assume people have always been desperately poor. It seems unlikely, then, that the citizens and governments of the developed countries will be struck by the problem enough to recognize their responsibility. And so the deaths, with occasional summits, can be expected to continue for a long time to come. It is often said that moral reflections on world hunger are worthless, because no one denies that hunger is bad and should not exist. We should instead think about the practical question: how hunger might best be erased. I certainly agree that we should think about this practical question and will speak to it shortly. But I strongly disagree with the first point. The U.S. government has gone far out of its way to deny that the World Food Summit pledge, which calls hunger “intolerable” and “unacceptable,” gives rise to any international obligations. This great moral error, shared by most governments and citizens of the developed countries, is the principal obstacle to eradicating world hunger. Without a sense of moral responsibility for the global economic order we are imposing, there will not be the political will to reform this order, nor sufficient readiness by governments and individuals to mitigate its worst effects. The moral responsibility I assert presupposes that the governments and citizens of the developed countries can reduce world hunger through measures of reform and mitigation. Some professional economists invite skepticism about this assumption in three ways: by showing that some methods (for example, large-scale development aid) have not worked well; by arguing that the effects of individual variables in a highly complex system cannot be reliably measured (the clear benefits of Oxfam projects or Grameen Bank microlending to specific individuals may well be offset by their unknowable indirect effects); and by spirited disagreements about what is to be done (causing laypersons to shrug: “If even economists differ so sharply, then perhaps we had better do nothing”). But this skepticism is rejected even by the governments of the affluent states. They have made the World Food Summit pledge and, in the case of the United States, argued in great detail that they can halve hunger by 2015 even more cheaply than the FAO has estimated. Not even these governments—certainly not above characterizing things they don’t want to do as things they cannot do—have endorsed the view that reducing world hunger is beyond our capacities. To be sure, they recognize no moral responsibility to reduce world hunger immediately and rapidly. But even they are constrained to agree that, if such a responsibility existed, it is not defeated by any evident incapacity to fulfill it. It is true that much so called aid has been ineffective in eradicating poverty. But this is hardly surprising, given that most of it has been bilateral development aid focused on buying political support from foreign governments and domestic exporters. Money can be more effectively spent, especially on local goods and services: enabling poor people to buy more and better foodstuffs and shelter, financing more and better schools and health services, and improving the local infrastructure (safe water, sanitation, electricity, road, rail links). Many governments of developing countries would welcome such funds and would contribute to making them effective, especially if their contribution were rewarded with continued funding. Yes, there are other poor countries whose rulers are more interested in keeping their poorer compatriots destitute, uneducated, impotent, dependent, and hence exploitable. In such cases, the least we should do is withdraw support from these rulers: by not letting them sell their country’s resources to our firms, by not letting them borrow from our banks in their country’s name, and by not letting them buy from our firms the arms they need to stay in power. Doing

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that would make it harder for them to maintain their power without popular support and, most important, would greatly reduce the rewards of, and hence incentives toward, the undemocratic acquisition and unresponsive exercise of political power. A third response to the economists’ smokescreen of skepticism goes back to Immanuel Kant, who argued that a morally mandated project may not be abandoned merely because, for all we currently know, it may be unachievable, but only if it is “demonstrably impossible” (Kant 89, 173 4). When the income of the top tenth of humankind is one hundred times the income of the bottom quarter, when a third of all human deaths are due to poverty, and when aggregate global income is continuously rising, it would be ludicrous to claim that reducing poverty is demonstrably impossible. We do not perhaps know the best way to proceed, but we are not exactly clueless either and would learn much more in the course of making a serious and concerted effort. Clearly, our critical deficiency is not expertise but a sense of moral responsibility and, based thereon, the political will to fund basic development and push reforms in the global economic order. Thomas W. Pögge’s work on this essay was supported by a grant from the Global Security and Sustainability Program of the John D. and Catherine T. MacArthur Foundation.

For Further Consideration 1. What are some of the negative consequences for developing countries that have significant natural resources? How does this make their plight worse? 2. Pögge maintains that we must have “a sense of moral responsibility for the global economic order we are imposing.” What does he mean by this? How would such a sense of responsibility affect the policies of the United States? 3. What three lines of argument do professional economists sometimes advance against Pögge’s call for a sense of moral responsibility for the global economic order? How does Pögge reply to each of these types of arguments?

Michael Walzer

“Achieving Global and Local Justice” About the Author: Michael Walzer is an American political philosopher, now a professor emeritus at the Institute for Advanced Study in Princeton. His numerous books include Spheres of Justice (1973) and Just and Unjust Wars (1977; 4th ed. 2006), the most influential work on just war theory in the last one hundred years. About the Article: This article, which appeared in 2011, addresses the issue of obligations of justice that extend beyond our own national borders. As You Read, Consider These Questions: 1. In the opening paragraphs, Walzer notes two difficulties with the project of articulating a global account of justice. What are these two difficulties? How does he deal with them? 2. In his own “little theory,” Walzer indicates it should have three components. What are these? 3. What is the difference between the humanitarian and the political aspects of justice-right-now?

Michael Walzer, “Achieving Global and Local Justice,” Dissent, Summer 2011. Copyright © 2011. Reprinted with permission of the University of Pennsylvania Press.

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ears ago, in 1983, I published a book called Spheres of Justice, which was an attempt to give an account of distributive justice in domestic society. I said virtually nothing in that book about distributive justice in international society. Since then, I have often been challenged to address issues of global justice, and I have responded with suggestions about how an argument might be constructed that would fit or sit alongside of the arguments of Spheres. What follows is an attempt to flesh out that argument, still in an incomplete way, but a little more fully than I have done in the past. I am not sure that what I will say here is consistent with my earlier suggestion, but I have never been accused of being a system-builder. The issues are very difficult, and perhaps it is useful to approach them in different ways, at different times. Here is one possible approach. Global justice would seem to require a global theory—a single philosophically grounded account of what justice is that explains why it ought to be realized in exactly this way, everywhere. It requires a comprehensive story about the just society, about equality, liberty, human rights, moral luck, and much else, a story that need only be repeated again and again, for it applies in identical fashion to every country in the world and also to the world as a whole. But there are several practical difficulties with this project. First, there is no one to whom we can tell the story, who can act authoritatively in its name. There is no global agent of justice whose legitimacy is widely recognized, who might take up the story in its true version and pursue the project it describes. Second, we can’t be sure that the story will be understood in the same way by all the people who hear it. The story won’t connect with a single common life whose interests and ideals might make it, first, comprehensible, and then appealing. There isn’t a common life of that sort or, better, there are many common lives of different sorts. The diversity of cultures and the plurality of states make it unlikely that a single account of justice (even if it were the single true account) could ever be persuasive across the globe or enforceable in everyday practice. A global despot or a philosophical vanguard might manage the enforcement, but it is hard to see how their rule, even if it served the cause of justice, could itself be just. And yet, the vast inequalities of wealth and power in the world today, and the accompanying poverty, malnutrition, and illness, cry out for a globally applicable critique. So does the extreme vulnerability of so many people to natural disaster and political violence. And this necessary critique cannot endorse the idea that cultural difference makes a difference; it must insist on the simple wrongness of the human suffering that we currently live with and, mostly, accept. If we force ourselves to look, the picture is grim: extraordinary wealth and terrible poverty, the powerful few and the powerless many, tyrants and warlords and their desperate victims. These polarities are frightening and, to my mind, obscene. But it is the people at their farther end whose living conditions and daily dying demand from us a single, coherent moral and political response. We don’t actually need to agree on the wrongness of inequality, or on a complete list of human rights, or on any full-scale theory of distributive justice in order to defend a global campaign against poverty, hunger, and disease, against mass murder and ethnic cleansing. No doubt, each of these human disasters is partly, even significantly, the product of local causes and agents, but all of them are also the products of an international economy increasingly marked by the flow of money, labor, and goods across political and cultural borders and of an international politics increasingly marked by the use of force and the transfer of military resources across those same borders. From our perspective, from the perspective of the wealthiest and most powerful countries, global impact takes precedence over local difference. So, how should we address the terrible injuries endured by the people at the wrong end of the global polarities? How should we think about the urgent needs of the desperately poor and the desperately weak? Let’s agree that we can’t agree on a comprehensive account of what global justice would require and that there isn’t right now a globally effective agent who could meet those requirements, even if we did agree about them—and “right now” is the absolutely necessary temporal rule. What we require instead is minimalist in character: the recognition of people like ourselves, concern for their suffering, and a few widely shared moral principles. If these three amount to a theory, it is, so to speak, a “little” theory, one that is incomplete in much the same way that global society is incomplete. This minimalist account of justice-right-now has two aspects, which I will call humanitarian and political; the two are not entirely distinct, but I will discuss them separately, in that order. What work would remain to be done if justice-right-now were ever realized, what kind of justice lies beyond our current urgencies? That requires a maximalist theory adapted to the realities of cultural and political difference.

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Humanitarianism

When we see human beings suffering, we feel a natural empathy with them, and we want to help. John Rawls claims that there is a natural duty to help people in trouble—a “duty of mutual aid.” He is right, I think, and this duty must have its root in fellow-feeling, in the pre-philosophical recognition of the “others” as people like us and of their troubles as troubles that might be ours. It is this natural empathy that explains the outpouring of aid after a devastating flood or earthquake. The response comes from thousands of ordinary men and women acting through voluntary associations and from political communities acting in the name of their citizens. But it starts from the feelings of individuals. How can these feelings generate a duty? It must be because one of the things we feel is that we ought to feel this way: we ought to want to help. Floods and earthquakes are natural disasters, but we know that their effects are often aggravated by malevolent or negligent human agents. Similarly, many of the disasters of social life were once imagined as acts of nature, but these days we look for direct or indirect human agency. In all these cases, whether the resultant suffering is naturally caused or by human hands, it is right to respond in a humanitarian way. But whenever human agents are involved, we are also required to follow the causal chain, to examine the history of malevolence or negligence and consider the responsibilities of all the men and women in the chain— including ourselves, if we find ourselves there. And once we know the names of the agents, natural duty will be transformed into political obligation. But let’s begin with the natural duty to relieve human suffering. We don’t do this very effectively, because there is so much suffering; it has so many causes; and there isn’t a single, coordinated relief effort that we can simply join. Still, in particular cases, we ought to help as best we can, and these cases extend beyond singular events like floods and earthquakes, epidemics and massacres. They include general conditions like deep poverty, homelessness, endemic disease, and ongoing persecution. I will focus mostly on poverty because it is the poor who suffer the most from every other kind of disaster. Americans saw this very clearly when Hurricane Katrina destroyed much of the city of New Orleans. It was the poorest residents who lived on the lowest ground, protected by the most poorly built and maintained levees, whose homes suffered the greatest damage. This is, as we all know, the common story. Disease kills first the weak and malnourished. Earthquake and fire are most deadly for those who live in jerry-built houses and tenements. Even a disaster like ethnic cleansing, where the violence cuts across class lines, will impact most cruelly on people without the resources that make escape possible. We can take poverty as the primary condition of human suffering—the first object of our natural duty to help. Again, we ought to help for humanitarian reasons and, again, we don’t need the guidance of a full-scale theory of justice. But we may need other theories, political theories or, at least, political knowledge, because what ought to be done, concretely, practically, here and now, is often far from obvious. Humanitarian aid in international society is not like dropping a coin into a beggar’s cup. Delivered out of simple good will, without political forethought, it often has unintended and very harmful consequences—like bringing in new groups of predators who take their cut, and more, of the aid workers’ beneficence. So we are bound to study the mixed record of success and failure, to argue about the best remedial policies, and then press the appropriate agents to carry them out. Some of these agents will be nongovernmental organizations, some will be attached to religious communities, some will be organs of the United Nations or international agencies like the International Monetary Fund or the World Bank, but the most effective agents in what is still a global society of states are the actually existing states. And that means that our humanitarian efforts require not only political knowledge but also political action; we have to press for the engagement of state officials and the expenditure of state funds. Without these two, humanitarian aid will never be sufficient to the needs that call it forth. Because these are humanitarian efforts, the duty to join them extends to all humankind. The duty of individuals and associations is relative only to their ability to help; it is a universal duty, and I think that weexperience it that way. The sight of human suffering, whoever the victims are, brings with it the sense of a duty to respond. I know that many people don’t, in fact, acknowledge this duty, but it is enough that those of us who do acknowledge it (and we too are many) don’t act only as individuals but as members of, and in a way on behalf of, humanity as a whole. So when we give money to Oxfam, or to Doctors Without Borders, or to Human Rights Watch, or when we ask the U.S. government to help the victims of a tsunami or to try to stop an ongoing

massacre, we are simply doing what we ought to do, what everyone ought to do. Exactly how much individual men and women, or their governments, are required to give of their time, energy, and money, I am not able to say. Philosophical argument doesn’t lend itself to that kind of precision. Arguments can certainly be made (about relative urgency, say) for doing this rather than that, but we must not expect any detailed theoretical guidance. It is probably possible, though, and if it’s possible then it is also necessary, to insist that individuals and governments are not doing enough even if we cannot specify exactly how much they should be doing. Hence the effectiveness of the argument that Thomas Pögge has been making in a number of recent books and articles (see, for example, “Growth and Inequality: Understanding Recent Trends and Political Choices,” Dissent, Winter 2008)—that it would take only a very small percentage of the GNP of the wealthiest countries to end global poverty. If that is true, then there is a strong argument for deploying those resources, whatever other deployments might be morally required. Sometimes, in cases like massacre or ethnic cleansing, the necessary response requires the use of force. We call this “humanitarian intervention,” and like other forms of humanitarianism, it is a universal duty: the obligation to stop a massacre falls on any state or coalition of states capable of acting effectively. Individuals are not capable in such cases, and NGOs sometimes provide relief for the wounded, as they did in Bosnia in the 1990s, in ways that facilitate the ongoing killing. State action of a forceful kind is required here; the goal is to stop the massacre and then help to install a non-murderous regime. Once again, the leaders of a military intervention don’t require a theory of the best regime to guide their efforts; they too should be minimalists. Humanitarian aid is commonly discussed under the heading of benevolence, as if it is a purely philanthropic project. But I think that is a mistake. Because it is obligatory, because it has to be massive, because it requires political agency, and because it can reach to the use of force—for all these reasons, humanitarianism in its global application is best understood as an aspect of justice. It includes charitable efforts and it is driven in the first instance by the feelings of individual men and women, but its scope, its organizational complexity, the policy debates it necessarily involves, and the fact that we can’t give it up, make it the work of the just and not only of the good. Political Responsibility

The humanitarian responses that I have been describing should be the same whether the crisis is a natural disaster or the product of human action (or inaction). The relevant principle is that whoever can, should. But if we examine the suffering caused by human beings, we will be led to argue for more particular obligations. Much of the world’s poverty and many of the attendant disasters of poverty are caused by predatory rulers, corrupt oligarchs, and brutal warlords. These are the agents of political plunder, economic disruption, civil war, and mass flight. They are not, however, the sole agents, for many of them are assisted or supported by more distant and less visible political and economic actors. States seeking compliant allies, corporations looking for cheap labor, entrepreneurs bribing public officials so as to avoid regulation, banks eager to receive the plundered money—these too are agents of human disaster. And since some of these latter agents are acting on our behalf, their responsibility extends to us, too. The relevant moral principle is as obvious (and as often ignored) as the principle of mutual aid: You must help repair the injuries to other people that you have helped to cause—whether the “help” consists in acting in ways that you shouldn’t act or failing to act in ways that you should. There are so many examples of this sort of complicity in human disaster that it will seem arbitrary to choose just one. But one will serve to illustrate my argument. In his book The Bottom Billion, Paul Collier describes some of the ways Western governments and corporations help to sustain the deep poverty of the worst-off people in the world. Consider, for example, the role of Western banks when poor countries experience revenue booms from oil or other mineral resources. Much of the money is siphoned off by local elites, often with the help of the extracting companies, and sent to banks in the West. What do the banks do then? “Basically,” writes Collier, “they keep quiet about it. Is this a necessary consequence of banking secrecy laws? No, it is not. If the money is suspected of having terrorist associations . . . we now require the banks to blow the whistle on it. But if it is stolen from the ordinary citizens of the bottom billion, well, that is just too bad.” Vast

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amounts of money have in fact been stolen—enough, if it were well spent, to make at least a dent in the deep poverty of the poorest countries. I don’t suppose that we have a natural duty to reform the banking system. But this is probably obligatory work for people who live in the countries that the banks serve and who benefit from the service. Of course, the obligations of bank officials and state regulators are more substantial and easier to specify, while those of ordinary citizens are weaker and more diffuse—still, they have some claim on us. And there are many obligations of this sort: to oppose governmental assistance (when it is our government) to predatory regimes; to support political and economic reconstruction in countries devastated by civil wars that we instigated or in which we intervened; to change trade policies that discriminate against poor countries; to require transnational corporations based in our country to pay minimum wages, protect the environment, observe safety laws, and recognize independent unions when they operate in other peoples’ countries. But, it might be argued, we are not in fact going to meet these obligations in sufficient numbers to succeed. Remedial or reparative justice as a political project is no less utopian than comprehensive global justice. Even if the resource transfers to which we are immediately obligated are smaller than those that would be required by a comprehensive theory, they are still too large to command wide support among the self-interested citizens of the richer countries. That may be so, but I suspect that the transfers are considerably smaller than a comprehensive theory would require. Equally important, the transfers (and all the other obligatory actions) follow from principles of mutual aid and political responsibility that are widely accepted even when their entailments are resisted. And, finally, we can identify responsible and capable agents and press them to act. So there are political battles here that can be fought and won or partly won—and the cause of justice-right-now can be incrementally advanced. Well then, my critic might continue, can’t comprehensive global justice also be incrementally advanced by doing exactly the same things? The defeat of predatory rulers, the reconstruction of devastated countries, the reform of the banks, fair trade, and the regulation of transnational corporations—wouldn’t all this also be required by any theory of comprehensive justice? The answer is yes, of course, but if “all this” is achieved piecemeal, as it would be in the real world, by many states and NGOs, working independently, here and there, more or less successfully, then it may not in fact advance a comprehensive scheme, and the very success of justice-right-now might make global comprehensiveness more difficult. This last point needs further explanation. One of the goals of justice-right-now, in both its humanitarian and political aspects, is to provide people around the globe with sufficient resources so that they can act on their own behalf. Immediate relief after a devastating flood, for example, should make it possible for people not only to resume a “normal” life, whatever that means in their circumstances, but also to work with water engineers and state officials to prevent future floods. If we forced banks to give up the plundered money of tyrants and warlords, we would be hoping for the emergence of states that can invest the money in education and development. When we argue for fair trade, we are aiming at the creation of local economies capable of providing jobs. When we support political reconstruction after civil wars and massacres, we are trying to build states capable of protecting their citizens. The natural duty and the political obligation to aid disaster victims have this necessary corollary: that we should not deal with disasters in ways that make it likely that we will have to deal with them again and again. We help people so as to make it possible for them to help themselves. And the crucial agent of self-help in the world as we know it is a state of their own. By this I mean a decent state, in their control, acting on their behalf, defending their rights and interests. Justice-right-now works, and only works, in and through the sovereign or semi-sovereign states of the global order. Nongovernmental organizations can certainly help, but governments are necessary. This is a critical point, whose importance is often underestimated. Statelessness and the anarchy and civil wars that engulf broken states are among the most important causes of human misery. What the least well-off people in the world today most need is the protection of a decent state. But the success of such states in maintaining peace and security, preventing flood and famine, providing education and welfare, promoting economic development, and policing foreign investors, while it would make the world more just, would not necessarily advance the cause of global justice if this is conceived in terms of a comprehensive theory. The achievements of many different states, the product in each case of internal political struggles, would not lead to anything like convergence on a uniform system of distributive justice.

Local Justice

How then should we think about justice-over-the-long-run? Relief and repair will create a world considerably more egalitarian than the world as it is today. That’s a good thing, in my view, though it is defensible first of all in negative terms, by reference to the terrible consequences of radical inequality. Beyond relief and repair, I don’t think that we need to insist on anything like an absolute egalitarianism—equality, so to speak, across the board. If men and women everywhere were protected against the common disasters of nature and social life, if the predatory versions of politics and business were under control, it seems to me that we could let cultural difference, political struggle, and economic competition work their ways and produce . . . whatever they produce. I don’t mean that “whatever they produce” will be all right or good enough or necessarily good at all. We will still require strenuous social criticism and repeatedly renewed political struggle. But these will now be local in character and reiterative across the globe. In a famous line, the Bible tells us, “Justice, justice shalt thou pursue.” But the relevant “thou,” once we have achieved economic sufficiency and political decency, is not humanity as a whole but rather the plurality of human communities. Let there be many pursuits. Let a hundred flowers bloom. It is entirely appropriate that different communities, cultures, and religions should have different ideas about the relative value of all the necessary and desirable social goods and also about the distributive criteria appropriate to each. Of course, there will be different priorities and different understandings even within the same community: difference and disagreement are universal features of human life. But these latter differences have a particular shape and character, which are determined by a common history, a common language, a common set of institutions, and a commitment to a shared future. And commonalities of these kinds tend to be produced and reproduced within political communities—I mean, within states. When the commonalities extend beyond the borders of a single state, as they apparently do in the case of the European Union, the pursuit of justice should be extended in the same way. If they were ever to extend across the globe, we would need only a single pursuit of justice. But regional extension is rare in the world today, and global extension is nonexistent. Mutual aid in time of crisis and political responsibility for cross-border injuries are the two necessary aspects of global justice—which is and ought to be a response to urgent need, to the suffering of the worst off. Its time constraint is right now. But the long-term distribution of social goods among people who have been freed from the urgencies of poverty and powerlessness—that should be their own work; that is local justice. And for that there is no time constraint; the work goes on and on. At any given moment, we are simply engaged. WHAT I am proposing here is that we think about local distributive justice in much the same way as we think about self-determination and the politics of liberation. Each collective self must determine itself by itself. The process is reiterative. Remember the Old Left maxim: “The liberation of the working class must be the work of the working class itself.” Similarly, national liberation must be the work of each oppressed or subordinate nation. Even when the project receives support from around the world, no one wants those external supporters to determine what liberation means for this nation—only its own people can (rightly) do that. And similarly again, the distribution of social goods must be decided by the men and women who invent, and produce, and value, and distribute the goods. They must figure out for themselves what justice requires. They must join in the everyday battles through which justice is pursued—which are necessarily fought by particular people in particular times and places. I think I would argue that we have a right to this pursuit, though I cannot begin to do that here. Perhaps it is enough to say that if empathy grounds the principle of mutual aid, then respect grounds the principle that justice-over-the-long-run must be local. In these local battles, the state is both an object and an instrument. It is an object in that we have to argue about how political power and office are rightly distributed; these are social goods like any others. If I believe that they should go to persuasive men and women who can win elections and to competent men and women who can pass civil service exams, I have to make the case for these distributive principles in front of my fellow citizens. As we may be learning in Iraq and Afghanistan, even if democracy and meritocracy are the universally right principles for the distribution of political power and office, they can’t be

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universally imposed. They must be worked out at the local level, and given the many particular histories of this “working out,” democracy and meritocracy will take different forms, and will be mixed in different ways, in different times and places. And all this is legitimate and right, even if this or that outcome doesn’t conform to the best theory of global justice. No outcome is the last outcome; the “working out” goes on and on. At the same time, the state and all its offices and officeholders are also instruments of distribution, providing welfare, guaranteeing impartial justice, determining what money can and cannot buy, and what limits should be set on political and economic power. Imagine that these instrumental uses of state power are (more or less) democratically determined. They will then be shaped and reshaped by popular opinion, historical memory, ideological debate, and political campaigns. The distributions that result may be legitimate even if we think they are wrong. And even if we think them right, the results will never be final. Difference and disagreement will work their way, and the distributive arguments will be renewed, as I’ve just said about the distribution of political power, again and again. Relief and repair, the primary forms of global justice, are also never finished, but we can imagine at least a rough agreement on the principles that guide them. And we can imagine a world in which all the existing states are capable of self-help, so that mutual aid and reparative justice are only intermittently required or required only to a modest degree. I say that the imagining is easy, but obviously we are very far from that world, very far from the global justice that people need right now. At the same time, many men and women are already engaged in the pursuit of local justice and in the unending arguments about social goods that it requires. One way of describing the political project that I am advocating here is to say that everyone should have the justice they need right now so that they are able to pursue the justice they will never finally have.

For Further Consideration 1. What, according to Walzer, is the foundation of the recognition of other people like us? 2. According to Walzer, what is the connection between feelings of humanitarian aid and political matters? 3. When we contribute to Oxfam or do other things to help to alleviate world hunger, Walzer suggests that we “act [not] only as individuals but as members of, and in a way on behalf of, humanity as a whole.” Explain what he means by that. Why is it important in Walzer’s eyes that these are not just isolated individual actions? Explain. 4. In his discussion of Paul Collier’s book, The Bottom Billion, Walzer discusses the question of complicity. What are some of the ways in which the West is often complicit in draining economic recourses from developing countries? 5. Explain the difference between global justice and local justice in Walzer’s eyes. What does he mean by “let many flowers bloom”? When is it not right to let many flowers bloom? When is it right to do so?

Concluding Discussion Questions Where Do You Stand Now?

Instructions You have already answered the following questions in your moral problems self-quiz at the beginning of this book. Now that you have studied the material in this section, take a moment to answer the same questions again. You can either enter your answers below or complete the survey on-line at http://ethics.sandiego.edu/surveys.

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Only the morally heartless would refuse to help the starving. We should help starving nations until we are all at the same economic level. In the long run, relief aid to starving nations does not help them. Overpopulation is the main cause of world hunger and poverty. The world is gradually becoming a better place.

Compare your answers to this self-quiz with the answers to the initial self-quiz. How, if at all, have your answers changed? How have the reasons for your answers changed?

Journal/Discussion Questions ✍ Let’s return to rock-bottom experiences. We are left with the fact that there are people throughout the world who are starving to death, slowly and painfully. We are—at least as a nation, and at least comparatively as individuals—affluent. How do you respond as a compassionate human being to the fact of such suffering? 1. Imagine that you have been asked to address the Annual Convention of Ethical Egoists (ACEE) on the issue of world hunger. What could you say about world hunger to those who believe that their only moral duty is to promote their own welfare?

2. Imagine that you have been asked to address the annual convention of compassionate persons on the issue of world hunger and the dangers of compassion. What would you have to say to this audience of compassionate people about the dangers and pitfalls of compassionate responses to world hunger? 3. Imagine that you have been asked by the president of the United States to draft a policy statement on the question of how the United States should respond to world hunger. What main elements would it contain?

For Further Reading Web Resources

Journals

The World Hunger and Poverty page of Ethics Updates (http://ethics.sandiego.edu) contains numerous online resources relating to poverty and world hunger. In addition to extensive statistical information and a PowerPoint presentations on The Ethics of World Hunger, this page includes links to online articles and videos by noted philosophers and many other resources for understanding world poverty.

In addition to the standard ethics journals mentioned in the bibliographical essay at the end of Chapter 1, also see the journals: • • • • •

Environmental Ethics; Ethics and International Affairs; Public Affairs Quarterly; Social Theory and Practice; World Development.

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Review Articles For excellent, very recent introductions to the issues of world hunger, see Hugh LaFollette, “World Hunger,” A Companion to Applied Ethics: Blackwell Companions to Philosophy, edited by R. G. Frey (Malden, MA: Blackwell Publishing, 2003), pp. 238–53 and Nigel Dower, “World Hunger,” The Oxford Handbook of Practical Ethics, edited by Hugh LaFollette (Oxford England: Oxford University Press, 2003), pp. 643–59, which surveys the literature and argues “for a moderate but significant duty of caring in response to the evils of extreme poverty.” Onora O’Neill, “International Justice: Distribution,” Encyclopedia of Ethics, edited by Lawrence C. Becker and Charlotte B. Becker (New York: Garland, 1992), Vol. I, pp. 624–628 provides an insightful and nuanced discussion of the issues of distributive justice, especially insofar as they relate to world hunger.

Reports Several reports on the state of the world have helped to share the international discussion of these issues. The Unicef report, The State of the World’s Children 2012 (http://www.unicef.org/publications/) is one of the most recent. Also see the excellent Worldwatch Institute Reports on Progress Toward a Sustainable Society, State of the World 2004 (New York: W.W. Norton, 2004) and Lester Brown’s Plan B, substantially revised (New York: W.W. Norton, 2009) and his World on the Edge (New York: Norton, 2011).

Anthologies Several valuable anthologies are available. William Aiken and Hugh LaFollette’s World Hunger and Moral Obligation, 2nd ed. (Englewood Cliffs, NJ: Prentice Hall, 1996) contains all the classic papers and a number of excellent recent articles; see especially the pieces by Hardin, Singer, Arthur, Narveson, Slote, and O’Neill; if you read just one book on world hunger, this should be it. After that, turn to Global Justice: Seminal Essays , edited by Thomas Pögge and Darrel Moellendorf (Paragon House, 2008) and Global Ethics: Seminal Ethics, edited by Thomas Pögge and Keith Horton (Paragon House, 2008) together provide an extraordinary set of papers on these issues.

General Defenses of the Duty to Aid Poor and Starving Nations Two philosophers have been particularly influential in focusing attention on the poor and hungry of the world. The first of these is Thomas Pögge. His Politics as Usual: What Lies Behind the Pro-Poor Rhetoric (Cambridge: Polity, 2010) argues vigorously that the problem of world hunger is far from solved, despite popular press accounts. His World Poverty and Human Rights: Cosmopolitan Responsibilities and Reforms (Cambridge: Polity Press, 2002) is an extraordinarily well-argued plea for world justice, as is his Global Justice (Oxford: Blackwell, 2001). For an excellent collection of critical essays on Pögge’s work, see Alison Jaggar, Thomas Pögge and his Critics (Cambridge: Polity Press, 2010). The other philosopher is Peter Singer, whose The Life You Save: Acting Now to End World Poverty (New York: Random House, 2009) is an eloquent call to arms—or, more precisely, a call to alms—by one of the foremost philosophers today. Singer’s One World: The Ethics of Globalization (New Haven, CT: Yale University Press, 2002) deals with poverty and world hunger especially in Chapter 5. Among many other notable works, see Gillian Brock, Global Justice: A Cosmopolitan Account (New York: Oxford University Press, 2009); Darrel Moellendorf, Cosmopolitan Justice (Boulder, CO: Westview Press, 2002); for a non-cosmopolitan approach, see David Miller, National Responsibility and Global Justice (New York: Oxford, 2008). In addition, see Jon Mandle, Global Justice (Cambridge: Polity, 2006); Pablo DeGreiff and Ciaran P. Cronin, eds., Global Justice and Transnational Politics (Boston: MIT Press, 2002); David Leslie Miller and Sohail H. Hashmi, eds., Boundaries and Justice: Diverse Ethical Perspectives (Princeton, NJ: Princeton University Press, 2001); Henry Shue, Basic Rights: Subsistence, Affluence, and U.S. Foreign Policy, 2nd ed. (Princeton, NJ: Princeton University Press, 1996), offers a strong conceptual foundation for positive basic rights. Among the classic sources, see Amartya Sen, Poverty and Famines: An Essay on Entitlement and Deprivation (New York: Oxford University Press, 1981), which stresses the way in which famines are rarely due to natural causes alone; also see Jean Drèze and Amartya Sen,

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Hunger and Public Action (Oxford, England: Clarendon Press, 1989).

Arguments Against the Duty to Aid Jennifer Trusted, “The Problem of Absolute Poverty,” in The Environment in Question: Ethics and Global Issues, edited by David E. Cooper (New York: Routledge, 1992), pp. 13–27, discusses the obligations of individuals in affluent countries to the Third World, arguing that there can be no duty of general beneficence and that it is not wrong to favor those who are near and dear to us.

Movies One of the most interesting movies about world hunger doesn’t portray a single starving person. David Yates’ A Girl in the Café (2007) addresses the issue of Western unwillingness to seriously confront the problem of world hunger in a fascinating, indirect way, by focusing instead of the relationship between two excruciatingly shy persons, played by Bill Nighy and Kelly Macdonald.

MySearchLab Connections Sources OnLine READ AND REVIEW Study and Review: Chapter 9 The text explores moral issues surrounding the topic of world hunger and poverty. These readings further explore that theme. 1. Nicomachean Ethics by Aristotle Aritotle’s Nicomachean Ethics is a work about how best to live. The central organizing concept is eudaimonia, here translated as happiness, which is constituted by a virtuous life. According to Aristotle, virtue is excellence in whatever you do. The most influential element of the Nicomachean Ethics is its account of moral virtue as a mean between extremes. The mean is not a compromise; it is the best that can be achieved, not too little, not too much. 2. Utilitarianism by John Stuart Mill Mill reasoned that there must be some foundation for value judgments in this human tendency to aspire to and pursue positive outcomes. He proposed that proper human actions and policies could be distinguished from improper ones based on what today may be called a cost benefit analysis. An action or policy was proper if, when implemented by each individual in the community, would result in the greatest good for the greatest number of individuals and institutions in society as a whole. His ethical theory is considered

impractical by some because it is difficult to measure degrees of happiness over the long term, and hence, to measure the relative value of particular actions or policies. 3. Higher & Lower Pleasures by John Stuart Mill Utilitarianism holds that acts can be judged morally according to their consequences, and the only consequence that matters is utility. Mill understands utility in terms of the greatest happiness for all. But what sort of happiness counts? Mill here distinguishes among types of pleasures and claims that certain sorts of pleasures—particularly those associated with the intellect—are superior sorts of pleasures. This theory attempts to respond to the challenge that utilitarianism is just a doctrine that encourages wanton indulgence. 4. An Inquiry into the Nature and Causes of the Wealth of Nations by Adam Smith Many consider Adam Smith as the Father of Economics; however, he described himself as a philosopher, a “Natural” philosopher. In a real sense, The Wealth of Nations can be considered a contribution to Political Philosophy. For example, Smith seeks a justification of capitalism by turning his attention to other nations that do not have capitalism and he compares the advantages of each. He was also a master of the description of how capitalism works.

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RESEARCH AND EXPLORE Explore the following questions using the research tools available on www.mysearchlab.com. Explore on mythinkinglab.com

1. The chapter discusses Aristotle’s account of virtue. How does Aristotle’s understanding of virtue fit with his goal of achieving what he calls the golden mean? Is it always a virtue to help others, or are

there times when that is not virtuous (or correct) behavior? 2. The chapter explains that, according to a strict utilitarian argument, the greatest overall amount of utility would require that the rich help the poor. Is there room within utilitarianism, or consequentialism in general, for a different conclusion? Explain. 3. Is the duty of benevolence the responsibility of individuals, of governments, or of both? Does it depend on the situation? Support your position.

10 Living Together with Animals

The Narratives 396 Jonathan Safran Foer, “Eating Animals” 396 Peter Singer, “Down on the Factory Farm” 402 An Introduction to the Moral Issues 409 The Scope of the Moral Circle 409 Consequentialist Concerns 410 Utilitarian Concerns 410 Speciesism 410 Considerations about Rights 410 Who Has Rights 410 How Do We Resolve Conflicts about Rights? 411 Concerns about Character 411 Compassion 411 Proximity 412 Common Ground 412 Medical Experimentation: Balancing Competing Concerns 412 The Middle Ground 412 Commercial Animal Agriculture and Eating Meat 412 The Cruelty of Animal Farming 412 The Vegetarian Option 412 Common Ground 413 The Arguments 413 Tom Regan, “The Case for Animal Rights” 413 Carl Cohen, “The Case for the Use of Animals in Biomedical Research” Concluding Discussion Questions 426 For Further Reading 427

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The Narratives Jonathan Safran Foer

“Eating Animals” About the Author: Jonathan Safran Foer is a young contemporary novelist who lives in Brooklyn. He graduated from Princeton with a major in philosophy in 1999, having studied writing at Princeton with Joyce Carol Oates. His novels, Extremely Loud and Incredibly Close (2005) and Everything Is Illuminated (2002) have both been very well received. About the Selection: This selection is the opening chapter of Foer’s first nonfiction book, Eating Animals (2009). It is a thoughtful and provocative work, setting aside many of the standard approaches to vegetarianism and instead placing the issue within the context of families—family life and family tradition—and personal integrity.

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mericans choose to eat less than .25% of the known edible food on the planet.

The Fruits of Family Trees

WHEN I WAS YOUNG, I would often spend the weekend at my grandmother’s house. On the way in, Friday night, she would lift me from the ground in one of her fire-smothering hugs. And on the way out, Sunday afternoon, I was again taken into the air. It wasn’t until years later that I realized she was weighing me. My grandmother survived the War barefoot, scavenging other people’s inedibles: rotting potatoes, discarded scraps of meat, skins, and the bits that clung to bones and pits. And so she never cared if! colored outside the lines, as long as I cut coupons along the dashes. And hotel buffets: while the rest of us erected Golden Calves of breakfast, she would make sandwich upon sandwich to swaddle in napkins and stash in her bag for lunch. It was my grandmother who taught me that one tea bag makes as many cups of tea as you’re serving, and that every part of the apple is edible. Money wasn’t the point. (Many of those coupons I clipped were for foods she would never buy.) Health wasn’t the point. (She would beg me to drink Coke.) My grandmother never set a place for herself at family dinners. Even when there was nothing more to be done-no soup bowls to be topped off, no pots to be stirred or ovens checked-she stayed in the kitchen, like a vigilant guard (or prisoner) in a tower. As far as I could tell, the sustenance she got from the food she made didn’t require her to eat it. In the forests of Europe, she ate to stay alive until the next opportunity to eat to stay alive. In America, fifty years later, we ate what pleased us. Our cupboards were filled with food bought on whims, overpriced foodie food, food we didn’t need. And when the expiration date passed, we threw it away without smelling it. Eating was carefree. My grandmother made that life possible for us. But she was, herself, unable to shake the desperation. Growing up, my brothers and I thought our grandmother was the greatest chef who ever lived. We would literally recite those words when the food came to the table, and again after the first bite, and once more at the end of the meal: “You are the greatest chef who ever lived.” And yet we were worldly enough kids to know that the Greatest Chef Who Ever Lived would probably have more than one recipe (chicken with carrots), and that most Great Recipes involved more than two ingredients. And why didn’t we question her when she told us that dark food is inherently healthier than light food, or that most of the nutrients are found in the peel or crust? (The sandwiches of those weekend stays were made Jonathan Safran Foer, pp. 3–17 from Eating Animals. Copyright © 2009 Jonathan Safran Foer. Reprinted by permission of Little, Brown and Company. Reproduced by permission of Penguin Books Ltd.

with the saved ends of pumpernickel loaves.) She taught us that animals that are bigger than you are very good for you, animals that are smaller than you are good for you, fish (which aren’t animals) are fine for you, then tuna (which aren’t fish), then vegetables, fruits, cakes, cookies, and sodas. No foods are bad for you. Fats are healthy— all fats, always, in any quantity. Sugars are very healthy. The fatter a child is, the healthier it is—especially if it’s a boy. Lunch is not one meal, but three, to be eaten at 11:00, 12:30, and 3:00. You are always starving. In fact, her chicken and carrots probably was the most delicious thing I’ve ever eaten. But that had little to do with how it was prepared, or even how it tasted. Her food was delicious because we believed it was delicious. We believed in our grandmother’s cooking more fervently than we believed in God. Her culinary prowess was one of our family’s primal stories, like the cunning of the grandfather I never met, or the single fight of my parents’ marriage. We clung to those stories and depended on them to define us. We were the family that chose its battles wisely, and used wit to get out of binds, and loved the food of our matriarch. Once upon a time there was a person whose life was so good there was no story to tell about it. More stories could be told about my grandmother than about anyone else I’ve ever met—her otherwordly childhood, the hairline margin of her survival, the totality of her loss, her immigration and further Joss, the triumph and tragedy of her assimilation—and though I will one day try to tell them to my children, we almost never told them to one another. Nor did we call her by any of the obvious and earned titles. We called her the Greatest Chef. Perhaps her other stories were too difficult to tell. Or perhaps she chose her story for herself, wanting to be identified by her providing rather than her surviving. Or perhaps her surviving is contained within her providing: the story of her relationship to food holds all of the other stories that could be told about her. Food, for her, is not food. It is terror, dignity, gratitude, vengeance, joyfulness, humiliation, religion, history, and, of course, love. As if the fruits she always offered us were picked from the destroyed branches of our family tree. Possible Again

UNEXPECTED IMPULSES STRUCK WHEN I found out I was going to be a father. I began tidying up the house, replacing long-dead light bulbs, wiping windows, and filing papers. I had my glasses adjusted, bought a dozen pairs of white socks, installed a roof rack on top of the car and a “doglcargo divider” in the back, had my first physical in half a decade . . . and decided to write a book about eating animals. Fatherhood was the immediate impetus for the journey that would become this book, but I’d been packing my bags for most of my life. When I was two, the heroes of all of my bedtime stories were animals. When I was four, we fostered a cousin’s dog for a summer. I kicked it. My father told me we don’t kick animals. When I was seven, I mourned the death of my goldfish. I learned that my father had flu shed him down the toilet. I told my father—in other, less civil words—we don’t flush animals down the toilet. When I was nine, I had a babysitter who didn’t want to hurt anything. She put it just like that when I asked her why she wasn’t havi ng chicken with my older brother and me: “I don’t want to hurt anything.” “Hurt anything?” I asked. “You know that chicken is chicken, right?” Frank shot me a look: Mom and Dad entrusted this stupid woman with their precious babies? Her intention might or might not have been to convert us to vegetarian ism—just because conversations about meat tend to make people feel cornered, not all vegetarians are proselytizers—but being a teenager, she lacked whatever restraint it is that so often prevents a full telling of this particular story. Without drama or rhetoric, she shared what she knew. My brother and I looked at each other, our mouths full of hurt chickens, and had simultaneous how-in-theworld-could-I-have-never-thought-of that-before-and-why-on- earth-didn’t-someone-tell-me? moments. I put down my fork. Frank finished the meal and is probably eating a chicken as I type these words. What our babysitter said made sense to me, not only because it seemed true, but because it was the extension to food of everything my parents had taught me. We don’t hurt family members. We don’t hurt friends or strangers. We don’t even hurt upholstered furniture. My not having thought to include animals in that list didn’t make them the exceptions to it. It just made me a child, ignorant of the world’s workings. Until I wasn’t. At which point I had to change my life.

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Until I didn’t. My vegetarianism, so bombastic and unyielding in the beginning, lasted a few yea rs, sputtered, and quietly died. I never thought of a response to our babysitter’s code, but found ways to smudge, diminish, and forget it. Generally speaking, I didn’t cause hurt. Generally speaking, I strove to do the right thing. Generally speaking, my conscience was clear enough. Pass the chicken, I’m starving. Mark Twain said that quitting smoking is among the easiest things one can do; he did it all the time. I would add vegetarianism to the list of easy things. In high school I became a vegetarian more times than I can now remember, most often as an effort to claim some identity in a world of people whose identities seemed to come effortlessly. I wanted a slogan to distinguish my mom’s Volvo’s bumper, a bake sale cause to fill the self-conscious half hour of school break, an occasion to get closer to the breasts of activist women. (And I continued to think it was wrong to hurt animals.) Which isn’t to say that I refrained from eating meat. Only that I refrained in public. Privately, the pendulum swung. Many dinners of those years began with my father asking, “Any dietary restrictions I need to know about tonight?” When I went to college, I started eating meat more earnestly. Not “believing in it”-whatever that would mean-but willfully pushing the questions out of my mind. I didn’t feel like having an “identity” right then. And I wasn’t around anyone who knew me as a vegetarian, so there was no issue of public hypocrisy, or even having to explain a change. It might well have been the preva ence of vegetarianism on campus that discouraged my own - one is less likely to give money to a street musician whose case is overflowing with bills. But when, at the end of my sophomore year, I became a philosophy major and started doing my first seriously pretentious thinking, I became a vegetarian again. The kind of willful forgetting that I was sure meat eating required felt too paradoxical to the intellectuallife I was trying to shape. I thought life could, should, and must conform to the mold of reason. You can imagine how annoying this made me. When I graduated, I ate meat—lots of every kind of meat—for about two years. Why? Because it tasted good. And because more important than reason in shaping habits are the stories we tell ourselves and one another. And I told a forgiving story about myself to myself. Then I was set up on a blind date with the woman who would become my wife. And only a few weeks later we found ourselves talking about two surprising topics: marriage and vegetarianism. Her history with meat was remarkably similar to mine: there were things she believed while lying in bed at night, and there were choices made at the breakfast table the next morning. There was a gnawing (if only occasional and short-lived) dread that she was participating in something deeply wrong, and there was the acceptance of both the confounding complexity of the issue and the forgivable fallibility of being human. Like me, she had intuitions that were very strong, but apparently not strong enough. People get married for many different reasons, but one that animated our decision to take that step was the prospect of explicitly marking a new beginning. Jewish ritual and symbolism strongly encourage this notion of demarcating a sharp division with what came before—the most well-known example being the smashing of the glass at the end of the marriage ceremony. Things were as they were before, but they will be different now. Things will be better. We will be better. Sounds and feels great, but better how? I could think of endless ways to make myself better (I could learn foreign languages, be more patient, work harder), but I’d already made too many such vows to trust them anymore. I could also think of endless ways to make “us” better, but the meaningful things we can agree on and change in a relationship are few. In actuality, even in those moments when so much feels possible, very little is. Eating animals, a concern we’d both had and had both forgotten, seemed like a place to start. So much intersects there, and so much could flow from it. In the same week, we became engaged and vegetarian. Of course our wedding wasn’t vegetarian, because we persuaded ourselves that it was only fair to offer animal protein to our guests, some of whom had traveled great distances to share our joy. (Find that logic hard to follow?) And we ate fish on our honeymoon, but we were in Japan, and when in Japan . . . And back in our new home, we did occasionally eat burgers and chicken soup and smoked salmon and tuna steaks. But only every now and then. Only whenever we felt like it. And that, I thought, was that. And I thought that was just fine. I assumed we’d maintain a diet of conscientious inconsistency. Why should eating be different from any of the other ethical realms of our lives? We were

honest people who occasionally told lies, careful friends who sometimes acted clumsily. We were vegetarians who from time to time ate meat. And I couldn’t even feel confident that my intuitions were anything more than sentimental vestiges of my childhood—that if I were to probe deeply, I wouldn’t find indifference. I didn’t know what animals were, or even approximately how they were farmed or killed. The whole thing made me uncomfortable, but that didn’t imply that anyone else should be, or even that I should be. And I felt no rush or need to sort any of this out. But then we decided to have a child, and that was a different story that would necessitate a different story. About half an hour after my son was born, I went into the waiting room to tell the gathered family the good news. “You said he! So it’s a boy?” “What’s his name?” “Who does he look like?” “Tell us everything!” I answered their questions as quickly as I could, then went to a corner and turned on my cell phone. “Grandma,” I said. “We have a baby.” Her only phone is in the kitchen. She picked up after the first ring, which meant she had been sitting at the table, waiting for the call. It was just after midnight. Had she been clipping coupons? Preparing chicken and carrots to freeze for someone else to eat at some future meal? I’d never once seen or heard her cry, but tears pushed through her voice as she asked, “How much does it weigh?” A few days after we came home from the hospital, I sent a letter to a friend, including a photo of my son and some first impressions of fatherhood. He responded, simply, “Everything is possible again.” It was the perfect thing to write, because that was exactly how it felt. We could retell our stories and make them better, more representative or aspirational. Or we could choose to tell different stories. The world itself had another chance. Eating Animals

PERHAPS THE FIRST DESIRE MY son had, wordlessly and before reason, was the desire to eat. Seconds after being born, he was breastfeeding. I watched him with an awe that had no precedent in my life. Without explanation or experience, he knew what to do. Millions of years of evolution had wound the knowledge into him, as it had encoded beating into his tiny heart, and expansion and contraction into his newly dry lungs. The awe had no precedent in my life, but it bound me, across generations, to others. I saw the rings of my tree: my parents watching me eat, my grandmother watching my mother eat, my great-grandparents watching my grandmother . . . He was eating as had the children of cave painters. As my son began life and I began this book, it seemed that almost everything he did revolved around eating. He was nursing, or sleeping after nursing, or getting cranky before nursing, or getting rid of the milk he had nursed. As I finish this book, he is able to carry on quite sophisticated conversations, and increasingly the food he eats is digested together with stories we tell. Feeding my child is not like feeding myself: it matters more. It matters because food matters (his physical health matters, the pleasure of eating matters), and because the stories that are served with food matter. These stories bind our family together, and bind our family to others. Stories about food are stories about us—our history and our values. Within my family’s Jewish tradition, I came to learn that food serves two parallel purposes: it nourishes and it helps you remember. Eating and storytelling are inseparable—the saltwater is also tears; the honey not only tastes sweet, but makes us think of sweetness; the matzo is the bread of our affliction. There are thousands of foods on the planet, and explaining why we eat the relatively small selection we do requires some words. We need to explain that the parsley is on the plate is for decoration, that pasta is not a “breakfast food,” why we eat wings but not eyes, cows but not dogs. Stories establish narratives, and stories establish rules. At many times in my life, I have forgotten that I have stories to tell about food. I just ate what was available or tasty, what seemed natural, sensible, or healthy—what was there to explain? But the kind of parenthood I always imagined practicing abhors such forgetfulness.

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This story didn’t begin as a book. I simply wanted to know—for myself and my family—what meat is. I wanted to know as concretely as possible. Where does it come from? How is it produced? How are animals treated, and to what extent does that matter? What are the economic, social, and environmental effects of eating animals? My personal quest didn’t stay that way for long. Through my efforts as a parent, I came face-to-face with realities that as a citizen I couldn’t ignore, and as a writer I couldn’t keep to myself. But facing those realities and writing responsibly about them are not the same. I wanted to address these questions comprehensively. So although upwards of 99 percent of all animals eaten in this country come from “factory farms”—and I will spend much of the rest of the book explaining what this means and why it matters—the other 1 percent of animal agriculture is also an important part of this story. The disproportionate amount of this book that is occupied by discussion of the best family-run animal farms reflects how significant I think they are, but at the same time, how insignificant: they prove the rule. To be perfectly honest (and to risk losing my credibility on page 13 [of the original book]), I assumed, before beginning my research, that I knew what I would find—not the details, but the general picture. Others made the same assumption. Almost always, when I told someone I was writing a book about “eating animals,” they assumed, even without knowing anything about my views, that it was a case for vegetarianism. It’s a telling assumption, one that implies not only that a thorough inquiry into animal agriculture would lead one away from eating meat, but that most people already know that to be the case. (What assumptions did you make upon seeing the title of this book?) I, too, assumed that my book about eating animals would become a straightforward case for vegetarianism. It didn’t. A straightforward case for vegetarianism is worth writing, but it’s not what I’ve written here. Animal agriculture is a hugely complicated topic. No two animals, breeds of animals, farms, farmers, or eaters are the same. Looking past the mountains of research—reading, interviewing, seeing firsthand-that was necessary even to begin to think about this stuff seriously, I had to ask myself if it was possible to say something coherent and significant about a practice that is so diverse. Perhaps there is no “meat.” Instead, there is this animal, raised on this farm, slaughtered at this plant, sold in this way, and eaten by this person—but each distinct in a way that prevents them from being pieced together as mosaic. And eating animals is one of those topics, like abortion, where it is impossible to definitively know some of the most important details (When is a fetus a person, as opposed to a potential person? What is animal experience really like?) and that cuts right to one’s deepest discomforts, often provoking defensiveness or aggression. It’s a slippery, frustrating, and resonant subject. Each question prompts another, and it’s easy to find yourself defending a position far more extreme than you actually believe or could live by. Or worse, finding no position worth defending or living by. Then there is the difficulty of discerning the difference between how something feels and what something is. Too often, arguments about eating animals aren’t arguments at all, but statements of taste. And where there are facts—this is how much pork we eat; these are how many mangrove swamps have been destroyed by aquaculture; this is how a cow is killed—there’s the question of what we can actually do with them. Should they be ethically compelling? Communally? Legally? Or just more information for each eater to digest as he sees fit? While this book is the product of an enormous amount of research, and is as objective as any work of journalism can be-I used the most conservative statistics available (almost always from government, and peerreviewed academic and industry sources) and hired two outside fact-checkers to corroborate them—I think of it as a story. There’s plenty of data to be found , but it is often thin and malleable. Facts are important, but they don’t, on their own, provide meaning—especially when they are so bound to linguistic choices. What does a precisely measured pain response in chickens mean? Does it mean pain? What does pain mean? No matter how much we learn about the physiology of the pain—how long it persists, the symptoms it produces, and so forth— none of it will tell us anything definitive. But place facts in a story, a story of compassion or domination, or maybe both —place them in a story about the world we live in and who we are and who we want to be—and you can begin to speak meaningfully about eating animals.

We are made of stories. I’m thinking of those Saturday afternoons at my grandmother’s kitchen table, just the two of us—black bread in the glowing toaster, a humming refrigerator that couldn’t be seen through its veil of family photographs. Over pumpernickel ends and Coke, she would tell me about her escape from Europe, the foods she had to eat and those she wouldn’t. It was the story of her life—”Listen to me,” she would plead—and I knew a vital lesson was being transmitted, even if I didn’t know, as a child, what that lesson was. I know, now, what it was. And though the particulars couldn’t be more different, I am trying, and will try, to transmit her lesson to my son. This book is my most earnest attempt to do so. I feel great trepidation as I begin, because there is so much reverberation. Putting aside, for a moment, the more than ten billion land animals slaughtered for food every year in America, and putting aside the environment, and workers, and such directly related issues as world hunger, flu epidemics, and biodiversity, there is also the question of how we think of ourselves and one another. We are not only the tellers of our stories, we are the stories themselves. If my wife and I raise our son as a vegetarian, he will not eat his great-grandmother’s singular dish, will never receive that unique and most direct expression of her love, will perhaps never think of her as the Greatest Chef Who Ever Lived. Her primal story, our family’s primal story, will have to change. My grandmother’s first words upon seeing my son for the first time were “My revenge.” Of the infinite number of things she could have said, that was what she chose, or was chosen for her. Listen to Me

“WE WEREN’T RICH, BUT WE always had enough. Thursday we baked bread, and challah and rolls, and they lasted the whole week. Friday we had pancakes. Shabbat we always had a chicken, and soup with noodles. You would go to the butcher and ask for a little more fat. The fattiest piece was the best piece. It wasn’t like now. We didn’t have refrigerators, but we had milk and cheese. We didn’t have every kind of vegetable, but we had enough. The things that you have here and take for granted . . . But we were happy. We didn’t know any better. And we took what we had for granted, too. “Then it all changed. During the War it was hell on earth, and I had nothing. I left my family, you know. I was always running, day and night, because the Germans were always right behind me. If you stopped, you died. There was never enough food. I became sicker and sicker from not eating, and I’m not just talking about being skin and bones. I had sores all over my body. It became difficult to move. I wasn’t too good to eat from a garbage can. I ate the parts others wouldn’t eat. If you helped yourself, you could survive. I took whatever I could find. I ate things I wouldn’t tell you about. “Even at the worst times, there were good people, too. Someone taught me to tie the ends of my pants so I could fill the legs with any potatoes I was able to steal. I walked miles and miles like that, because you never knew when you would be lucky again. Someone gave me a little rice once, and I traveled two days to a market and traded it for some soap, and then traveled to another market and traded the soap for some beans. You had to have luck and intuition. “The worst it got was near the end. A lot of people died right at the end, and I didn’t know if I could make it another day. A farmer, a Russian, God bless him, he saw my condition, and he went into his house and came out with a piece of meat for me.” “He saved your life.” “I didn’t eat it.” “You didn’t eat it?” “It was pork. I wouldn’t eat pork.” “Why?” “What do you mean why?” “What, because it wasn’t kosher?” “Of course.” “But not even to save your life?” “If nothing matters, there’s nothing to save.”

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Peter Singer

“Down on the Factory Farm” About the Author: Peter Singer, currently Ira W. DeCamp Professor of Bioethics, University Center for Human Values, Princeton University, is the author of numerous works in ethics, especially in applied ethics. His books include The Expanding Circle, Animal Liberation, Practical Ethics, and most recently, Rethinking Life and Death and How Are We to Live? He has also edited a number of books, including A Companion to Ethics. In his work, Singer sees himself as holding our conventional moral beliefs to a standard of consistency, coherence, and the avoidance of arbitrary distinctions. He finds that many of these traditional beliefs are remnants of earlier, religiously inspired doctrines that he believes many people no longer accept; other beliefs survive only because they promote some form of group selfishness. About the Article: One of the ways in which we avoid dealing with the issue of animal suffering is simply and literally by not seeing it. In this article, Peter Singer describes a number of the practices that are common in contemporary animal farming, concentrating on the treatment of chickens and veal calves. As Your Read, Consider This: 1. How much of the animal suffering that Singer describes were you aware of? Do you think your views on eating meat and factory farming would be changed if you had more direct contact with the reality of such situations? 2. How much does animal suffering count in your life? What moral weight does it have? Are your views on this changing as you read this article?

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or most humans, especially those in modern urban and suburban communities, the most direct form of contact with non-human animals is at meal time: we eat them. This simple fact is the key to our attitudes to other animals, and also the key to what each one of us can do about changing these attitudes. The use and abuse of animals raised for food far exceeds, in sheer numbers of animals affected, any other kind of mistreatment. Hundreds of millions of cattle, pigs, and sheep are raised and slaughtered in the United States alone each year; and for poultry the figure is a staggering 3 billion. (That means that about 5,000 birds—mostly chickens—will have been slaughtered in the time it takes you to read this page.) It is here, on our dinner table and in our neighborhood supermarket or butcher’s shop, that we are brought into direct touch with the most extensive exploitation of other species that has ever existed. In general, we are ignorant of the abuse of living creatures that lies behind the food we eat. Consider the images conjured up by the word “farm”: a house, a barn, a flock of hens, overseen by a strutting rooster, scratching around the farmyard, a herd of cows being brought in from the fields for milking, and perhaps a sow rooting around in the orchard with a litter of squealing piglets running excitedly behind her. Very few farms were ever as idyllic as that traditional image would have us believe. Yet we still think of a farm as a pleasant place, far removed from our own industrial, profit-conscious city life. Of those few who think about the lives of animals on farms, not many know much of modern methods of animal raising. Some people wonder whether animals are slaughtered painlessly, and anyone who has followed a truckload of cattle must know that farm animals are transported in very crowded conditions; but few suspect that transportation and slaughter are anything more than the brief and inevitable conclusion of a life of ease and contentment, a life that contains the natural pleasures of animal existence without the hardships that wild animals must endure in the struggle for survival.

Down on the Factory Farm; reprinted with permission of Peter Singer, Animal Liberation, New York Review of Books, 1975. Copyright © 1975 Peter Singer.

These comfortable assumptions bear little relation to the realities of modern farming. For a start, farming is no longer controlled by simple country folk. It is a business, and big business at that. In the last thirty years the entry of large corporations and assembly-line methods of production have turned farming into “agribusiness.” . . . The first animal to be removed from the relatively natural conditions of the traditional farms and subjected to the full stress of modern intensive farming was the chicken. Chickens have the misfortune of being useful to humans in two ways: for their flesh and for their eggs. There are now standard mass-production techniques for obtaining both these products. Agribusiness enthusiasts consider the rise of the chicken industry to be one of the great success stories of farming. At the end of World War II chicken for the table was still relatively rare. It came mainly from small independent farmers or from the unwanted males produced by egg-laying flocks. Today “broilers”—as table chickens are now usually called—are produced literally by the million from the highly automated factory-like plants of the large corporations that own or control 98 percent of all broiler production in the United States.1 The essential step in turning the chicken from a farmyard bird into a manufactured item was confining them indoors. A broiler producer today gets a load of 10,000, 50,000, or even more day-old chicks from the hatcheries, and puts them straight into a long, windowless shed—usually on the floor, although some producers use tiers of cages in order to get more birds into the same size shed. Inside the shed, every aspect of the birds’ environment is controlled to make them grow faster on less feed. Food and water are fed automatically from hoppers suspended from the roof. The lighting is adjusted according to advice from agricultural researchers: for instance, there may be bright light 24 hours a day for the first week or two, to encourage the chicks to gain quickly; then the lights may be dimmed slightly and made to go off and on every two hours, in the belief that the chickens are readier to eat after a period of sleep; finally there comes a point, around six weeks of age, when the birds have grown so much that they are becoming crowded, and the lights will then be made very dim at all times. The point of this dim lighting is to reduce the effects of crowding. Toward the end of the eight- or nine-week life of the chicken, there may be as little as half a square foot of space per chicken—or less than the area of a sheet of quarto paper for a 3.5-lb. bird. Under these conditions with normal lighting the stress of crowding and the absence of natural outlets for the bird’s energies lead to outbreaks of fighting, with birds pecking at each other’s feathers and sometimes killing and eating one another. Very dim lighting has been found to reduce this and so the birds are likely to live out their last weeks in near-darkness. Feather-pecking and cannibalism are, in the broiler producer’s language, “vices.” They are not natural vices, however—they are the result of the stress and crowding to which the modern broilerman subjects his birds. Chickens are highly social animals, and in the farmyard they develop a hierarchy, sometimes called a “pecking order.” Every bird yields, at the food trough or elsewhere, to those above it in rank, and takes precedence over those below. There may be a few confrontations before the order is firmly established but more often than not a show of force, rather than actual physical contact, is enough to put a chicken in its place. As Konrad Lorenz, a renowned figure in the field of animal behavior, wrote in the days when flocks were still small: Do animals thus know each other among themselves? They certainly do. . . . Every poultry farmer knows that . . . there exists a very definite order, in which each bird is afraid of those that are above her in rank. After some few disputes, which need not necessarily come to blows, each bird knows which of the others she has to fear and which must show respect to her. Not only physical strength, but also personal courage, energy, and even the self-assurance of every individual bird are decisive in the maintenance of the pecking order.2 Other studies have shown that a flock of up to 90 chickens can maintain a stable social order, each bird knowing its place; but 10,000 birds crowded together in a single shed is obviously a different matter.3 The birds cannot establish a social order, and as a result they fight frequently with each other. Quite apart from the inability of the individual bird to recognize so many other birds, the mere fact of extreme crowding probably contributes to irritability and excitability in chickens, as it does in humans and other animals. This is something farming magazines are aware of, and they frequently warn their readers: Feather-pecking and cannibalism have increased to a formidable extent of late years, due, no doubt, to the changes in technique and the swing towards completely intensive management of laying flocks and

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table poultry. . . .The most common faults in management which may lead to vice are boredom, overcrowding in badly ventilated houses. . . . Lack of feeding space, unbalanced food or shortage of water, and heavy infestation with insect pests.4 Clearly the farmer must stop “vices,” because they cost him money; but although he may know that overcrowding is the root cause, he cannot do anything about this, since in the competitive state of the industry, eliminating overcrowding could mean eliminating his profit margin at the same time. He would have fewer birds to sell, but would have had to pay the same outlay for his building, for the automatic feeding equipment, for the fuel used to heat and ventilate the building, and for labor. So the farmer limits his efforts to reducing the consequences of the stress that costs him money. The unnatural way in which he keeps his birds causes the vices; but to control them the poultryman must make the conditions still more unnatural. Very dim lighting is one way of doing this. A more drastic step, though one now almost universally used in the industry, is “de-beaking.” This involves inserting the chick’s head in a guillotine-like device which cuts off part of its beak. Alternatively the operation may be done with a hot knife. Some poultrymen claim that this operation is painless, but an expert British Government committee under zoologist Professor F.W. Rogers Brambell appointed to look into aspects of intensive farming found otherwise: . . . between the horn and the bone is a thin layer of highly sensitive soft tissue, resembling the “quick” of the human nail. The hot knife used in de-beaking cuts through this complex of horn, bone and sensitive tissue, causing severe pain.5 De-beaking, which is routinely performed in anticipation of cannibalism by most poultrymen, does greatly reduce the amount of damage a chicken can do to other chickens. It also, in the words of the Brambell Committee, “deprives the bird of what is in effect its most versatile member” while it obviously does nothing to reduce the stress and overcrowding that lead to this unnatural cannibalism in the first place. . . . “A hen,” Samuel Butler once wrote, “is only an egg’s way of making another egg.” Butler, no doubt, was being humorous; but when Fred C. Haley, president of a Georgia poultry firm that controls the lives of 225,000 laying hens, describes the hen as “an egg producing machine” his words have more serious implications. To emphasize his businesslike attitude Haley adds: “The object of producing eggs is to make money. When we forget this objective, we have forgotten what it is all about.”6 Nor is this only an American attitude. A British farming magazine has told its readers: The modern layer is, after all, only a very efficient converting machine, changing the raw material— feedingstuffs—into the finished product—the egg—less, of course, maintenance requirements.7 Remarks of this kind can regularly be found in the egg industry trade journals throughout the United States and Europe, and they express an attitude that is common in the industry. As may be anticipated, their consequences for the laying hens are not good. Laying hens go through many of the same procedures as broilers, but there are some differences. Like broilers, layers have to be de-beaked, to prevent the cannibalism that would otherwise occur in their crowded conditions; but because they live much longer than broilers, they often go through this operation twice. So we find a poultry specialist at the New Jersey College of Agriculture advising poultrymen to de-beak their chicks when they are between one and two weeks old because there is, he says, less stress on the chicks at this time than if the operation is done earlier, and in addition “there are fewer culls in the laying flock as a result of improper debeaking.” In either case, the article continues, the birds must be de-beaked again when they are ready to begin laying, at around twenty weeks of age.8 Laying hens get no more individual attention than broilers. Alan Hainsworth, owner of a poultry farm in upstate New York, told an inquiring local reporter that four hours a day is all he needs for the care of his 36,000 laying hens, while his wife looks after the 20,000 pullets (as the younger birds not yet ready to lay are called): “It takes her about 15 minutes a day. All she checks is their automatic feeders, water cups and any deaths during the night.”

This kind of care does not make for a happy flock as the reporter’s description shows: Walk into the pullet house and the reaction is immediate—complete pandemonium. The squawking is loud and intense as some 20,000 birds shove to the farthest side of their cages in fear of the human intruders.9 Julius Goldman’s Egg City, 50 miles northwest of Los Angeles, is one of the world’s largest egg producing units, consisting of 2 million hens divided into block long buildings containing 90,000 hens each, five birds to a 16 by 18 inch cage. When the National Geographic magazine did an enthusiastic survey of new farming methods, Ben Shames, Egg City’s executive vice-president, explained to its reporter the methods used to look after so many birds: We keep track of the food eaten and the eggs collected in 2 rows of cages among the 110 rows in each building. When production drops to the uneconomic point, all 90,000 birds are sold to processors for potpies or chicken soup. It doesn’t pay to keep track of every row in the house, let alone individual hens; with 2 million birds on hand you have to rely on statistical samplings.10 Nearly all the big egg producers now keep their laying hens in cages. Originally there was only one bird to a cage; and the idea was that the farmer could then tell which birds were not laying enough eggs to give an economic return on their food. Those birds were then killed. Then it was found that more birds could be housed and costs per bird reduced if two birds were put in each cage. That was only the first step, and as we have seen, there is no longer any question of keeping a tally of each bird’s eggs. The advantages of cages for the egg producer now consist in the greater number of birds that can be housed, warmed, fed, and watered in one building, and in the greater use that can be made of labor-saving automatic equipment. The cages are stacked in tiers, with food and water troughs running along the rows, filled automatically from a central supply. They have sloping wire floors. The slope—usually a gradient of 1 in 5—makes it more difficult for the birds to stand comfortably, but it causes the eggs to roll to the front of the cage where they can easily be collected by hand or, in the more modern plants, carried by conveyor belt to a packing plant. When a reporter from the New York Daily News wanted to see a typical modern egg farm, he visited Frenchtown Poultry Farm, in New Jersey, where he found that Each 18 by 24 inch cage on the Frenchtown farm contains nine hens who seemed jammed into them by some unseen hand. They barely have enough room to turn around in the cages. “Really, you should have no more than eight birds in a cage that size,” conceded Oscar Grossman, the farm’s lessor. “But sometimes you have to do things to get the most out of your stock.”11 Actually, if Mr. Grossman had put only eight birds in his cages they would still have been grossly overcrowded; at nine to a cage they have only 1/3 square foot per bird. In 1968 the farm magazine American Agriculturalist advised its readers in an article headed “Bird Squeezing” that it had been found possible to stock at 1/3 square foot per bird by putting four birds in a 12-by 16-inch cage. This was apparently a novel step at the time; the steady increase in densities over the years is indicated by the fact that a 1974 issue of the same magazine describing the Lannsdale Poultry Farm, near Rochester, New York, mentions the same housing density without any suggestion that it is unusual.12 In reading egg industry magazines I have found numerous reports of similar high densities, and scarcely any that are substantially lower. My own visits to poultry farms in the United States have shown the same pattern. The highest reported density that I have read about is at the Hainsworth farm in Mt. Morris, New York, where four hens are squeezed into cages 12 inches by 12 inches, or just one square foot—and the reporter adds: “Some hold five birds when Hainsworth has more birds than room.”13 This means 1/4, and sometimes 1/5, square foot per bird. At this stocking rate a single sheet of quarto paper represents the living area of two to three hens. Under the conditions standard on modern egg farms in the United States and other “developed nations” every natural instinct the birds have is frustrated. They cannot walk around, scratch the ground, dustbathe, build a nest, or stretch their wings. They are not part of a flock. They cannot keep out of each other’s way and weaker birds have no escape from the attacks of stronger ones, already maddened by the unnatural conditions. . . .

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Intensive production of pigs and cattle is now also common; but of all the forms of intensive farming now practiced, the quality veal industry ranks as the most morally repugnant, comparable only with barbarities like the forcefeeding of geese through a funnel that produces the deformed livers made into pate de foie gras. The essence of veal raising is the feeding of a high-protein food (that should be used to reduce malnutrition in poorer parts of the world) to confined, anemic calves in a manner that will produce a tender, pale-colored flesh that will be served to gourmets in expensive restaurants. Fortunately this industry does not compare in size with poultry, beef, or pig production; nevertheless it is worth our attention because it represents an extreme, both in the degree of exploitation to which it subjects its animals and in its absurd inefficiency as a method of providing people with nourishment. Veal is the flesh of a young calf, and the term was originally reserved for calves killed before they had been weaned from their mothers. The flesh of these very young animals was paler and more tender than that of a calf that had begun to eat grass; but there was not much of it since calves begin to eat grass when they are a few weeks old and still very small. So there was little money in veal, and the small amount available came from the unwanted male calves produced by the dairy industry. These males were a nuisance to the dairy farmers, since the dairy breeds do not make good beef cattle. Therefore they were sold as quickly as possible. A day or two after being born they were trucked to market where, hungry and frightened by the strange surroundings and the absence of their mothers, they were sold for immediate delivery to the slaughterhouse. Once this was the main source of veal in the United States. Now, using methods first developed in Holland, farmers have found a way to keep the calf longer without the flesh becoming darker in color or less tender. This means that the veal calf, when sold, may weigh as much as 325 lbs., instead of the 90-odd lbs. that newborn calves weigh. Because veal fetches a premium price, this has made rearing veal calves a profitable occupation. The trick depends on keeping the calf in highly unnatural conditions. If the calf were left to grow up outside, its playful nature would lead it to romp around the fields. Soon it would begin to develop muscles, which would make its flesh tough. At the same time it would eat grass and its flesh would lose the pale color that the flesh of newborn calves has. So the specialist veal producer takes his calves straight from the auction ring to a confinement unit. Here, in a converted barn or purpose-built shed, he will have rows of wooden stalls. Each stall will be 1 foot 10 inches wide and 4 feet 6 inches long. It will have a slatted wooden floor, raised above the concrete floor of the shed. The calves will be tethered by a chain around the neck to prevent them from turning around in their stalls. (The chain may be removed when the calves grow too big to turn around in such narrow stalls.) The stall will have no straw or other bedding, since the calf might eat it, spoiling the paleness of his flesh. Here the calves will live for the next thirteen to fifteen weeks. They will leave their stalls only to be taken out to slaughter. They are fed a totally liquid diet, based on non-fat milk powder with added vitamins, minerals, and growth-promoting drugs. . . The narrow stalls and their slatted wooden floors are a serious source of discomfort for the calves. The inability to turn around is frustrating. When he lies down, the calf must lie hunched up, sitting almost on top of his legs rather than having them out to one side as he would do if he had more room. A stall too narrow to turn around in is also too narrow to groom comfortably in; and calves have an innate desire to twist their heads around and groom themselves with their tongues. A wooden floor without any bedding is hard and uncomfortable; it is rough on the calves’ knees as they get up and lie down. In addition, animals with hooves are uncomfortable on slatted floors. A slatted floor is like a cattle grid, which cattle will always avoid, except that the slats are closer together. The spaces, however, must still be large enough to allow manure to fall or be washed through, and this means that they are large enough to make the calves uncomfortable.14 The special nature of the veal calf has other implications that show the industry’s lack of genuine concern for the animals’ welfare. Obviously the calves sorely miss their mothers. They also miss something to suck on. The urge to suck is strong in a baby calf, as it is in a baby human. These calves have no teat to suck on, nor do they have any substitute. From their first day in confinement—which may well be only the third or fourth day of their lives—they drink from a plastic bucket. Attempts have been made to feed calves through artificial teats, but the problems of keeping the teats clean and sterile are apparently too great for the farmer to try to

overcome. It is common to see calves frantically trying to suck some part of their stalls, although there is usually nothing suitable; and if you offer a veal calf your finger he will immediately begin to suck on it, as a human baby sucks its thumb. Later on the calf develops a desire to ruminate—that is, to take in roughage and chew the cud. But roughage is strictly forbidden and so, again, the calf may resort to vain attempts to chew the sides of its stall. Digestive disorders, including stomach ulcers, are common in veal calves, as are chronically loose bowel movements. As if this were not enough, there is the fact that the calf is deliberately kept anemic. As one veal producers’ journal has said, Color of veal is one of the primary factors involved in obtaining “topdollar” returns from the fancy veal market . . .”light color” veal is a premium item much in demand at better clubs, hotels and restaurants. “Light color” or pink veal is partly associated with the amount of iron in the muscle of the calves.15 So veal feeds are deliberately kept low in iron. A normal calf would obtain iron from grass or other forms of roughage, but since a veal calf is not allowed this he becomes anemic. Pale pink flesh is in fact anemic flesh. The demand for flesh of this color is a matter of snob appeal. The color does not affect the taste and it certainly does not make the flesh more nourishing—rather the opposite. Calves kept in this manner are unhappy and unhealthy animals. Despite the fact that the veal producer selects only the strongest, healthiest calves to begin with, uses a medicated feed as a routine measure, and gives additional injections at the slightest sign of illness, digestive, respiratory and infectious diseases are widespread. It is common for a veal producer to find that one in ten of a batch of calves do not survive the fifteen weeks of confinement. Ten percent mortality over such a short period would be disastrous for anyone raising calves for beef, but the veal producer can tolerate this loss because of the high price restaurants are prepared to pay for his product. If the reader will recall that this whole laborious, wasteful, and painful process exists for the sole purpose of pandering to would-be gourmets who insist on pale, soft veal, no further comment should be needed.

Notes 1. Harrison Wellford, Sowing the Wind: The Politics of Food, Safety and Agribusiness (New York: Grossman Press, 1971), p. 104. 2. K. Lorenz, King Solomon’s Ring (London: Methuen, 1964), p. 147. 3. Ian Duncan, “Can the Psychologist Measure Stress?” New Scientist, October 18, 1973. 4. The Smallholder, January 6, 1962; quoted by Ruth Harrison, Animal Machines (London: Vincent Stuart, 1964), p. 18. 5. Report of the Technical Committee to Enquire into the Welfare of Animals Kept Under Intensive Livestock Husbandry Systems (London: Her Majesty’s Stationery Office, 1965), para. 97. 6. Poultry Tribune, January 1974. 7. Farmer and Stockbreeder, January 30, 1962; quoted by Ruth Harrison, Animal Machines, p. 50. 8. American Agriculturist, July 1966. 9. Upstate, August 5, 1973, report by Mary Rita Kiereck. 10. National Geographic, February 1970. 11. New York Daily News, September 1, 1971. 12. American Agriculturist, August 1968, April 1974. 13. Upstate, August 5, 1973. 14. Ruth Harrison, Animal Machines, p. 72. 15. The Wall Street Journal, published by Provimi, Inc., Watertown, Wisconsin, November 1973.

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Journal/Discussion Questions ✍ Do you have any direct experience with the raising and slaughtering of animals for food? (Did you grow up on a farm or have you ever visited an animal farm or a slaughterhouse?) How have these experiences affected your views on animal rights? If you have not had any of these experiences, do you think this lack has affected your views? Discuss. 1. If chickens are raised under the conditions that Singer describes, what implications—if any—does that have for eating eggs and meat from chickens under those conditions? 2. Singer stresses that modern animal agriculture is “big business,” not the product of many small farmers. What moral implications, if any, does this have? 3. Why does Singer single out the “quality veal industry as the most morally repugnant” form of animal farming? Do you agree with his assessment? Discuss.

An Introduction to the Moral Issues

The Scope of the Moral Circle 409 Consequentialist Concerns 410 Utilitarian Concerns 410 Speciesism 410 Considerations about Rights 410 Who Has Rights? 410 How Do We Resolve Conflicts about Rights? 411 Concerns about Character 411 Compassion 411 Proximity 412 Common Ground 412 Medical Experimentation: Balancing Competing Concerns The Middle Ground 412 Commercial Animal Agriculture and Eating Meat 412 The Cruelty of Animal Farming 412 The Vegetarian Option 412 Common Ground 413

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The Scope of the Moral Circle In this chapter, we shall examine whether the circle of morality ought to be extended to include animals—and, if so, how this would transform our world. Certainly there are many areas of our daily lives that involve animals either directly or indirectly. Many of us have pets, ride horses, visit zoos and places like Sea World, and perhaps even go hunting or fishing. All of these involve animals directly. Many of us eat meat or fish, wear leather belts and shoes, use prescription medications that were originally tested on animals, and ride in cars with leather seats. Many of these things involve animals directly and indirectly as sources of food, as subjects of medical and safety research, and the like. Our relationship with animals pervades our daily lives in numerous, often unnoticed, ways. Many of these relationships with animals must be revised if we discover that animals are persons, or even that they have a moral status beyond the little that has traditionally been accorded to them. A variety of different types of concerns—religious, rights, consequentialist, and character-based—have been offered as reasons for either modifying or retaining our present view of the moral status of animals. Let’s consider each of these issues. 409

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Consequentialist Concerns For many people, morality is primarily about consequences, about doing the thing that creates the most happiness and the least unhappiness. Yet the crucial question, at least in this context, is: happiness for whom? Is it only happiness for human beings, or does the circle extend beyond this? Utilitarian Concerns

From its origins in the work of Jeremy Bentham, utilitarianism has shown a sensitivity to the suffering of animals not found in, for example, the Kantian tradition. For Bentham, the notable moral fact is suffering, whether that is the suffering of animals or of human beings. Not all versions of utilitarianism share Bentham’s sensitivity to animal suffering. But even when utilitarianism is concerned only with the happiness or pleasure of human beings as such, it does not consign animals to moral oblivion. When we consider consequences solely for human beings, we notice that this by no means justifies all of our harmful treatment of animals in the past. Let’s look at two examples: eating meat and cruelty to animals. First, consider eating meat. Although vegetarianism is often espoused for the sake of animals, there may well be a strong, human-centered case for vegetarianism. What are the consequences of a diet rich in meat, especially red meat, for human beings? This is an empirical question, but it may well be the case that the overall effects of vegetarianism are significantly more healthful than the effects of a diet that contains meat. Second, consider cruelty to animals. Even if we leave aside for the moment the harmful effects on the animals themselves, it may well be the case that treating animals cruelly has harmful effects on human beings. Immanuel Kant, for example, argued that such cruelty makes us less morally sensitive beings and less likely to respond appropriately to the suffering of human beings. Cruelty to animals may well lead to cruelty to human beings, and is therefore to be avoided. Thus, even when we assume a purely human-centered consequentialist approach to moral matters, we do not have to conclude that “anything goes” in regard to our treatment of animals. There may be important, human-centered constraints on our treatment of animals that have nothing to do with the moral status of the animals themselves. Speciesism

The fundamental moral question that was raised in the 1970s by Peter Singer in his book Animal Liberation was whether utilitarianism was being arbitrary when it considered the pleasure and pain of only human beings. If utilitarianism is fundamentally a doctrine about increasing pleasure and reducing pain and suffering, then shouldn’t all pleasure and all pain and suffering count, not just the pleasure and pain of one species?

Considerations about Rights Concerns about the strength of Singer’s proposed utilitarian foundation for our attitude toward animals has led some philosophers, most notably Tom Regan, to shift the focus from the liberation of animals to animal rights. Nonhuman animals, Regan argues in our selection, “The Case for Animal Rights,” and in his book of the same name, have rights, just as human animals do. The crucial factor about rights is that they are, as Ronald Dworkin once suggested, like “trump cards.” In other words, they take precedence over anything else, including considerations of utility. Thus, even if from a utilitarian point of view the killing of animals was sometimes justified, they still may be protected because they have a right to life. Who Has Rights?

Imagine that you were on a Star Trek mission to an unexplored planet and that through a fluke accident you find yourself marooned on a planet that you know nothing about. Able to breathe the atmosphere, but lacking food

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and water, you are immediately faced with the question of what in your environment you may—both safely and morally—consume. Let’s imagine that there is little plant matter, and the little that is available lacks nutritional content. You turn toward the living beings on the planet that are crawling, walking, hopping, running, and flying around. Leaving aside the question of safety, how would you decide which creatures had a right to be respected and which creatures—if any—you were morally justified in eating? As we tried to answer this question, presumably we would look for certain things—such as intelligence, language, culture, and the like—that would indicate these beings are deserving of respect and are not to be used as a mere means to our nutritional goals. Similarly, when we look on earth at the nonhuman animal world around us, we must ask which animals have rights. The answer that animal rights advocates give is simple: the ability to feel pain (sentience) is what confers rights. What if the criterion is the ability to think and use language? Then certain kinds of animals—dolphins, chimps, and others—may qualify for rights, whereas other kinds of animals—slugs, worms, and so on—would not qualify, nor would certain human beings—most notably, those with severe mental disabilities and those in deep comas. The extent of animal rights depends directly on the criterion for conferring rights. How Do We Resolve Conflicts About Rights?

Authors such as Alasdair MacIntyre and Mary Ann Glendon have criticized the growing philosophical and political preoccupation with rights, and they have argued that the language of rights is only fiction and that it leads to polarization and increased conflict. Certainly one of the difficulties is that rights are often presented as absolute, although the philosophically more defensible situation is to see virtually all rights as less than absolute. Otherwise we are left with the irresolvable situation of what to do when one absolute right conflicts with another absolute right. Obviously, we need some kind of hierarchy, some ordering of rights. These considerations have a particular relevance in the area of animal rights. Advocates of animal rights have to answer three questions. First, what particular rights do all animals have? Do all animals have the right to life? The right not to suffer needlessly? The right to liberty? Second, do rights vary by species or do all types of animals have equal rights? Does a worm have the same rights as a chimp and as a baby human being? Third, how do we resolve interspecies conflicts of rights? Is the right to life of a worm equal in moral standing to the right to life of a chimp and the right to life of a human infant? These are difficult questions, although not necessarily unanswerable. A strong defense of animal rights must, however, provide a plausible answer to these questions. In “The Case for Animal Rights,” Tom Regan addresses each of these questions.

Concerns about Character In addition to concerns about religion, consequences, and rights, defenders of animals have often pointed to the issue of moral character as providing a foundation for changing our attitudes toward animals. The argument has been that compassionate people will be more responsive to the suffering of animals and that continuing mistreatment of animals in our society dulls our capacity for compassion in regard to all beings. Compassion

Almost everyone has had the experience of seeing an animal in pain and for most of us our immediate response is to want to relieve the animal’s suffering. We may nurse an injured bird back to health, wash the wounds of a dog that has been in a fight, even try to set the broken leg of a kitten. Sometimes, whether rightly or wrongly, we may conclude that the animal cannot recover, and kill it to end its suffering. (Issues of animal rights prompt a reconsideration of euthanasia, not just abortion.) Yet compassion initially seems to be a shaky foundation for our moral attitude toward animals. Sometimes, sympathy and compassion can turn into mere sentimentality—and some have criticized the animal rights movement for falling into the trap of sentimentality.

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Proximity

Most people who eat meat in modern industrialized societies don’t slaughter their own animals to do so, and this simple fact has important implications for the issue of character. If the cruelty of animal agriculture is kept from view, then sensitive and compassionate people may participate in such cruelty through ignorance. Of course, some would maintain that such ignorance is itself morally blameworthy, and some of the more visible protests by animal rights activists have been aimed at making cruelty to animals inescapably visible.

Common Ground The various moral concerns outlined in the preceding pages come directly into play when we seek a common ground on a number of pressing issues in regard to our moral attitude toward animals. Let’s briefly consider several of these areas: medical experimentation on animals, commercial agriculture, the keeping of pets, and our interactions with wild animals. Medical Experimentation: Balancing Competing Concerns

One of the most difficult areas in which to assert animal rights is medical experimentation. When the choice is simply between preserving the lives of animals versus being able to save the lives of human beings, for most people the choice is easy: the human takes priority over the animal. Few would agree with Ingrid Newkirk, the national director of PETA, who claimed that “Animal liberationists do not separate out the human animal, so there is no rational basis for saying that a human being has special rights. A rat is a pig is a dog is a boy. They’re all mammals.”1 The difficulty is that we are rarely, if ever, presented with such a stark choice between the life of one human being and the life of one animal. The choices are more likely to be between the lives of hundreds of animals and the possible beneficial effects of some new drug for human beings. Often the issue of animal experimentation is about further confirmation of experimental results that are already available or about determining what changes would occur if some small variable were altered. Sometimes the issue is simply training students and laboratory workers in experimental techniques.

The Middle Ground How much should animal suffering count? If we are discontent with the wholesale endorsement of the use of animals in research, and if we have rejected the claim that there is no morally significant difference between human suffering and animal suffering, then where do we stand? The middle ground here would seem to be that animal suffering should be reduced whenever possible. Questions should be raised about whether the research is really necessary, whether it absolutely has to include animals, whether it can involve fewer animals, and whether the suffering of the animals can be reduced in any way. Commercial Animal Agriculture and Eating Meat

The Cruelty of Animal Farming In his selection “Down on the Factory Farm,” Peter Singer gives us a glimpse of what commercial animal agriculture is like, and it is a disturbing picture indeed. Animals are raised under extremely harsh and unnatural conditions that deprive them of many of the natural consolations of their lives, such as sucking, grooming, pecking, and the like. Even if we leave aside the fact that their lives eventually end in slaughter, many of us would find much to object to in the way in which such animals are treated.

The Vegetarian Option Many supporters of animal rights respond to this situation by espousing vegetarianism, because this is clearly the option that eliminates the need to raise and kill animals under these conditions. As we indicated earlier, vegetarianism has much to recommend in addition to the issue of animal suffering. However, if vegetarianism for the entire world is not a realistic option at this time, it is important to ask whether there would be any conditions under which the raising of animals for food would be morally acceptable.

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Common Ground Two distinct issues arise in regard to raising animals for food: their deaths and their lives. Presumably, it is morally better to kill animals painlessly (including a minimum of anticipatory fear as well as a minimum of physical pain) than painfully. If animals are slaughtered, it should be done in a way that minimizes their pain and anticipatory terror. Second, their lives should be (1) as free as possible from pain inflicted by human beings and (2) as natural as possible. The first requirement is clearly utilitarian in character, whereas the second relates to what we might call “quality of life.” Part of respecting a being is that we recognize the natural rhythms and contours of that being’s life and we try to avoid unnecessarily disturbing them. For example, many animals groom themselves and such grooming activity provides them with comfort on a variety of levels, psychological as well as physical. Whenever possible, we should raise animals in ways that allow them to follow their own natural inclinations.

Note 1. K. McCabe, “Who Will Live, Who Will Die?” Washingtonian Magazine (August 1986), p. 115.

Tom Regan

“The Case for Animal Rights” About the Author: Tom Regan is one of the most articulate and powerful spokepersons for animal rights. He has published widely on a range of different topics, but his most influential work has been in the area of animal rights. His book, Animal Rights, is one of the foundational works in that area. About the Article: In this article, Regan argues a case for animal rights, maintaining that those who take animal rights seriously must be committed to abolishing the use of animals in science, animal agriculture, and commercial hunting and trapping. “The fundamental wrong,” he writes, “is the system that allows us to view animals as our resources, here for us—to be eaten, or surgically manipulated, or exploited for sport or money.” Regan considers and rejects several approaches to understanding our relationship to animals: indirect duty, contractarianism, and utilitarianism. Only a rights approach is able to recognize the inherent value of the individual, including the individual animal. As You Read, Consider This: 1. Regan distinguishes between things that “make things worse” and the “fundamental wrong.” If we could eliminate the factors that “make things worse” for animals, do you think that would be enough? Which of Regan’s arguments supports the claim that there is a “fundamental wrong” here? 2. Regan sees the animal rights movement as “cut from the same cloth” as human rights movements that oppose racism and sexism. Are the kinds of arguments that Regan advances for animal rights the same kinds of arguments that were advanced for human rights?

Tom Regan, “The Case for Animal Rights,” In Defense of Animals, edited by Peter Singer (Oxford: Basil Blackwell, 1985), pp. 13–26. Copyright © 1985 Basil Blackwell. Used with permission.

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regard myself as an advocate of animal rights—as a part of the animal rights movement. That movement, as I conceive it, is committed to a number of goals, including:

• the total abolition of the use of animals in science; • the total dissolution of commercial animal agriculture; • the total elimination of commercial and sport hunting and trapping. There are, I know, people who profess to believe in animal rights but do not avow these goals. Factory farming, they say, is wrong—it violates animals’ rights—but traditional animal agriculture is all right. Toxicity tests of cosmetics on animals violates their rights, but important medical research—cancer research for example—does not. The clubbing of baby seals is abhorrent, but not the harvesting of adult seals. I used to think I understood this reasoning. Not any more. You don’t change unjust institutions by tidying them up. What’s wrong—fundamentally wrong—with the way animals are treated isn’t the details that vary from case to case. It’s the whole system. The forlornness of the veal calf is pathetic, heart wrenching; the pulsing pain of the chimp with electrodes planted deep in her brain is repulsive; the slow, torturous death of the raccoon caught in the leg-hold trap is agonizing. But what is wrong isn’t the pain, isn’t the suffering, isn’t the deprivation. These compound what’s wrong. Sometimes—often—they make it much, much worse. But they are not the fundamental wrong. The fundamental wrong is the system that allows us to view animals as our resources, here for us—to be eaten, or surgically manipulated, or exploited for sport or money. Once we accept this view of animals—as our resources—the rest is as predictable as it is regrettable. Why worry about their loneliness, their pain, their death? Since animals exist for us, to benefit us in one way or another, what harms them really doesn’t matter—or matters only if it starts to bother us, makes us feel a trifle uneasy. . . . In the case of animals in science, whether and how we abolish their use . . . are to a large extent political questions. People must change their beliefs before they change their habits. Enough people, especially those elected to public office, must believe in change—must want it—before we will have laws that protect the rights of animals. This process of change is very complicated, very demanding, very exhausting, calling for the efforts of many hands in education, publicity, political organization and activity, down to the licking of envelopes and stamps. As a trained and practicing philosopher, the sort of contribution I can make is limited but, I like to think, important. The currency of philosophy is ideas—their meaning and rational foundation—not the nuts and bolts of the legislative process, say, or the mechanics of community organization. That’s what I have been exploring over the past ten years or so in my essays and talks and, most recently, in my book, The Case for Animal Rights. I believe the major conclusions I reach in the book are true because they are supported by the weight of the best arguments. I believe the idea of animal rights has reason, not just emotion, on its side. In the space I have at my disposal here I can only sketch, in the barest outline, some of the main features of the book. Its main themes—and we should not be surprised by this—involve asking and answering deep, foundational moral questions about what morality is, how it should be understood, and what is the best moral theory, all considered. I hope I can convey something of the shape I think this theory takes. The attempt to do this will be (to use a word a friendly critic once used to describe my work) cerebral, perhaps too cerebral. But this is misleading. My feelings about how animals are sometimes treated run just as deep and just as strong as those of my more volatile compatriots. Philosophers do—to use the jargon of the day—have a right side to their brains. If it’s the left side we contribute (or mainly should), that’s because what talents we have reside there. How to proceed? We begin by asking how the moral status of animals has been understood by thinkers who deny that animals have rights. Then we test the mettle of their ideas by seeing how well they stand up under the heat of fair criticism. If we start our thinking in this way, we soon find that some people believe that we have no duties directly to animals, that we owe nothing to them, that we can do nothing that wrongs them. Rather, we can do wrong acts that involve animals, and so we have duties regarding them, though none to them. Such views may be called indirect duty views. By way of illustration: suppose your neighbor kicks your dog. Then your neighbor has done something wrong. But not to your dog. The wrong that has been done is a wrong to you. After all, it is wrong to upset people, and your neighbor’s kicking your dog upsets you. So you are the one who is wronged, not your dog. Or again: by kicking your dog your neighbor damages your property. And since it is

wrong to damage another person’s property, your neighbor has done something wrong—to you, of course, not to your dog. Your neighbor no more wrongs your dog than your car would be wronged if the windshield were smashed. Your neighbor’s duties involving your dog are indirect duties to you. More generally, all of our duties regarding animals are indirect duties to one another—to humanity. How could someone try to justify such a view? Someone might say that your dog doesn’t feel anything and so isn’t hurt by your neighbor’s kick, doesn’t care about the pain since none is felt, is as unaware of anything as is your windshield. Someone might say this, but no rational person will, since, among other considerations, such a view will commit anyone who holds it to the position that no human being feels pain either—that human beings also don’t care about what happens to them. A second possibility is that though both humans and your dog are hurt when kicked, it is only human pain that matters. But, again, no rational person can believe this. Pain is pain wherever it occurs. If your neighbor’s causing you pain is wrong because of the pain that is caused, we cannot rationally ignore or dismiss the moral relevance of the pain that your dog feels. Philosophers who hold indirect duty views—and many still do—have come to understand that they must avoid the two defects just noted: that is, both the view that animals don’t feel anything as well as the idea that only human pain can be morally relevant. Among such thinkers the sort of view now favored is one or other form of what is called contractarianism. Here, very crudely, is the root idea: morality consists of a set of rules that individuals voluntarily agree to abide by, as we do when we sign a contract (hence the name contractarianism). Those who understand and accept the terms of the contract are covered directly; they have rights created and recognized by, and protected in, the contract. And these contractors can also have protection spelled out for others who, though they lack the ability to understand morality and so cannot sign the contract themselves, are loved or cherished by those who can. Thus young children, for example, are unable to sign contracts and lack rights. But they are protected by the contract nonetheless because of the sentimental interests of others, most notably their parents. So we have, then, duties involving these children, duties regarding them, but no duties to them. Our duties in their case are indirect duties to other human beings, usually their parents. As for animals, since they cannot understand contracts, they obviously cannot sign; and since they cannot sign, they have no rights. Like children, however, some animals are the objects of the sentimental interest of others. You, for example, love your dog or cat. So those animals that enough people care about (companion animals, whales, baby seals, the American bald eagle), though they lack rights themselves, will be protected because of the sentimental interests of people. I have, then, according to contractarianism, no duty directly to your dog or any other animal, not even the duty not to cause them pain or suffering; my duty not to hurt them is a duty I have to those people who care about what happens to them. As for other animals, where no or little sentimental interest is present—in the case of farm animals, for example, or laboratory rats—what duties we have grow weaker and weaker, perhaps to a vanishing point. The pain and death they endure, though real, are not wrong if no one cares about them. When it comes to the moral status of animals, contractarianism could be a hard view to refute if it were an adequate theoretical approach to the moral status of human beings. It is not adequate in this latter respect, however, which makes the question of its adequacy in the former case, regarding animals, utterly moot. For consider: morality, according to the (crude) contractarian position before us, consists of rules that people agree to abide by. What people? Well, enough to make a difference—enough, that is, collectively to have the power to enforce the rules that are drawn up in the contract. That is very well and good for the signatories but not so good for anyone who is not asked to sign. And there is nothing in contractarianism of the sort we are discussing that guarantees or requires that everyone will have a chance to participate equally in framing the rules of morality. The result is that this approach to ethics could sanction the most blatant forms of social, economic, moral and political injustice, ranging from a repressive caste system to systematic racial or sexual discrimination. Might, according to this theory, does make right. Let those who are the victims of injustice suffer as they will. It matters not so long as no one else—no contractor, or too few of them—cares about it. Such a theory takes one’s moral breath away . . . as if, for example, there would be nothing wrong with apartheid in South Africa if few white South Africans were upset by it. A theory with so little to recommend it at the level of the ethics of our treatment of our fellow humans cannot have anything more to recommend it when it comes to the ethics of how we treat our fellow animals.

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The version of contractarianism just examined is, as I have noted, a crude variety, and in fairness to those of a contractarian persuasion it must be noted that much more refined, subtle and ingenious varieties are possible. For example, John Rawls, in his A Theory of Justice, sets forth a version of contractarianism that forces contractors to ignore the accidental features of being a human being—for example, whether one is white or black, male or female, a genius or of modest intellect. Only by ignoring such features, Rawls believes, can we ensure that the principles of justice that contractors would agree upon are not based on bias or prejudice. Despite the improvement a view such as Rawls’s represents over the cruder forms of contractarianism, it remains deficient: it systematically denies that we have direct duties to those human beings who do not have a sense of justice—young children, for instance, and many mentally retarded humans. And yet it seems reasonably certain that, were we to torture a young child or a retarded elder, we would be doing something that wronged him or her, not something that would be wrong if (and only if) other humans with a sense of justice were upset. And since this is true in the case of these humans, we cannot rationally deny the same in the case of animals. Indirect duty views, then, including the best among them, fail to command our rational assent. Whatever ethical theory we should accept rationally, therefore, it must at least recognize that we have some duties directly to animals, just as we have some duties directly to each other. . . . Some people think that the theory we are looking for is utilitarianism. A utilitarian accepts two moral principles. The first is that of equality: everyone’s interests count, and similar interests must be counted as having similar weight or importance. White or black, American or Iranian, human or animal—everyone’s pain or frustration matters, and matters just as much as the equivalent pain or frustration of anyone else. The second principle a utilitarian accepts is that of utility: do the act that will bring about the best balance between satisfaction and frustration for everyone affected by the outcome. As a utilitarian, then, here is how I am to approach the task of deciding what I morally ought to do: I must ask who will be affected if I choose to do one thing rather than another, how much each individual will be affected, and where the best results are most likely to lie—which option, in other words, is most likely to bring about the best results, the best balance between satisfaction and frustration. That option, whatever it may be, is the one I ought to choose. That is where my moral duty lies. The great appeal of utilitarianism rests with its uncompromising egalitarianism: everyone’s interests count and count as much as the like interests of everyone else. The kind of odious discrimination that some forms of contractarianism can justify—discrimination based on race or sex, for example—seems disallowed in principle by utilitarianism, as is speciesism, systematic discrimination based on species membership. The equality we find in utilitarianism, however, is not the sort an advocate of animal or human rights should have in mind. Utilitarianism has no room for the equal moral rights of different individuals because it has no room for their equal inherent value or worth. What has value for the utilitarian is the satisfaction of an individual’s interests, not the individual whose interests they are. A universe in which you satisfy your desire for water, food and warmth is, other things being equal, better than a universe in which these desires are frustrated. And the same is true in the case of an animal with similar desires. But neither you nor the animal have any value in your own right. Only your feelings do. Here is an analogy to help make the philosophical point clearer: a cup contains different liquids, sometimes sweet, sometimes bitter, sometimes a mix of the two. What has value are the liquids: the sweeter the better, the bitterer the worse. The cup, the container, has no value. It is what goes into it, not what they go into, that has value. For the utilitarian you and I are like the cup; we have no value as individuals and thus no equal value. What has value is what goes into us, what we serve as receptacles for; our feelings of satisfaction have positive value, our feelings of frustration negative value. Serious problems arise for utilitarianism when we remind ourselves that it enjoins us to bring about the best consequences. What does this mean? It doesn’t mean the best consequences for me alone, or for my family or friends, or any other person taken individually. No, what we must do is, roughly, as follows: we must add up (somehow!) the separate satisfactions and frustrations of everyone likely to be affected by our choice, the satisfactions in one column, the frustrations in the other. We must total each column for each of the options before us. That is what it means to say the theory is aggregative. And then we must choose that option which is most likely to bring about

the best balance of totaled satisfactions over totaled frustrations. Whatever act would lead to this outcome is the one we ought morally to perform—it is where our moral duty lies. And that act quite clearly might not be the same one that would bring about the best results for me personally, or for my family or friends, or for a lab animal. The best aggregated consequences for everyone concerned are not necessarily the best for each individual. That utilitarianism is an aggregative theory—different individuals’ satisfactions or frustrations are added, or summed, or totaled—is the key objection to this theory. My Aunt Bea is old, inactive, a cranky, sour person, though not physically ill. She prefers to go on living. She is also rather rich. I could make a fortune if I could get my hands on her money, money she intends to give me in any event, after she dies, but which she refuses to give me now. In order to avoid a huge tax bite, I plan to donate a handsome sum of my profits to a local children’s hospital. Many, many children will benefit from my generosity, and much joy will be brought to their parents, relatives and friends. If I don’t get the money rather soon, all these ambitions will come to naught. The once-ina-lifetime opportunity to make a real killing will be gone. Why, then, not kill my Aunt Bea? Oh, of course I might get caught. But I’m no fool and, besides, her doctor can be counted on to cooperate (he has an eye for the same investment and I happen to know a good deal about his shady past). The deed can be done . . . professionally, shall we say. There is very little chance of getting caught. And as for my conscience being guilt-ridden, I am a resourceful sort of fellow and will take more than sufficient comfort—as I lie on the beach at Acapulco—in contemplating the joy and health I have brought to so many others. Suppose Aunt Bea is killed and the rest of the story comes out as told. Would I have done anything wrong? Anything immoral? One would have thought that I had. Not according to utilitarianism. Since what I have done has brought about the best balance between totaled satisfaction and frustration for all those affected by the outcome, my action is not wrong. Indeed, in killing Aunt Bea the physician and I did what duty required. This same kind of argument can be repeated in all sorts of cases, illustrating, time after time, how the utilitarian’s position leads to results that impartial people find morally callous. It is wrong to kill my Aunt Bea in the name of bringing about the best results for others. A good end does not justify an evil means. Any adequate moral theory will have to explain why this is so. Utilitarianism fails in this respect and so cannot be the theory we seek. What to do? Where to begin anew? The place to begin, I think, is with the utilitarian’s view of the value of the individual—or, rather, lack of value. In its place, suppose we consider that you and I, for example, do have value as individuals—what we will call inherent value. To say we have such value is to say that we are something more than, something different from, mere receptacles. Moreover, to ensure that we do not pave the way for such injustices as slavery or sexual discrimination, we must believe that all who have inherent value have it equally, regardless of their sex, race, religion, birthplace and so on. Similarly to be discarded as irrelevant are one’s talents or skills, intelligence and wealth, personality or pathology, whether one is loved and admired or despised and loathed. The genius and the retarded child, the prince and the pauper, the brain surgeon and the fruit vendor, Mother Teresa and the most unscrupulous used-car salesman—all have inherent value, all possess it equally, and all have an equal right to be treated with respect, to be treated in ways that do not reduce them to the status of things, as if they existed as resources for others. My value as an individual is independent of my usefulness to you. Yours is not dependent on your usefulness to me. For either of us to treat the other in ways that fail to show respect for the other’s independent value is to act immorally, to violate the individual’s rights. Some of the rational virtues of this view—what I call the rights view—should be evident. Unlike (crude) contractarianism, for example, the rights view in principle denies the moral tolerability of any and all forms of racial, sexual or social discrimination; and unlike utilitarianism, this view in principle denies that we can justify good results by using evil means that violate an individual’s rights—denies, for example, that it could be moral to kill my Aunt Bea to harvest beneficial consequences for others. That would be to sanction the disrespectful treatment of the individual in the name of the social good, something the rights view will not—categorically will not—ever allow. The rights view, I believe, is rationally the most satisfactory moral theory. It surpasses all other theories in the degree to which it illuminates and explains the foundation of our duties to one another—the domain of human morality. On this score it has the best reasons, the best arguments, on its side. Of course, if it were possible to show that only human beings are included within its scope, then a person like myself, who believes in animal rights, would be obliged to look elsewhere.

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But attempts to limit its scope to humans only can be shown to be rationally defective. Animals, it is true, lack many of the abilities humans possess. They can’t read, do higher mathematics, build a bookcase or make baba ghanoush. Neither can many human beings, however, and yet we don’t (and shouldn’t) say that they (these humans) therefore have less inherent value, less of a right to be treated with respect, than do others. It is the similarities between those human beings who most clearly, most non-controversially have such value (the people reading this: for example) not our differences, that matter most. And the really crucial, the basic similarity is simply this: we are each of us the experiencing subject of a life, a conscious creature having an individual welfare that has importance to us whatever our usefulness to others. We want and prefer things, believe and feel things, recall and expect things. And all these dimensions of our life, including our pleasure and pain, our enjoyment and suffering, our satisfaction and frustration, our continued existence or our untimely death—all make a difference to the quality of our life as lived, as experienced, by us as individuals. As the same is true of those animals that concern us,. . . they too must be viewed as the experiencing subjects of a life, with inherent value of their own. Some there are who resist the idea that animals have inherent value. “Only humans have such value,” they profess. How might this narrow view be defended? Shall we say that only humans have the requisite intelligence, or autonomy, or reason? But there are many, many humans who fail to meet these standards and yet are reasonably viewed as having value above and beyond their usefulness to others. Shall we claim that only humans belong to the right species, the species Homo sapiens? But this is blatant speciesism. Will it be said, then, that all—and only—humans have immortal souls? Then our opponents have their work cut out for them. I am myself not ill-disposed to the proposition that there are immortal souls. Personally, I profoundly hope I have one. But I would not want to rest my position on a controversial ethical issue on the even more controversial question about who or what has an immortal soul. That is to dig one’s hole deeper, not to climb out. Rationally, it is better to resolve moral issues without making more controversial assumptions than are needed. The question of who has inherent value is such a question, one that is resolved more rationally without the introduction of the idea of immortal souls than by its use. Well, perhaps some will say that animals have some inherent value, only less than we have. Once again, however, attempts to defend this view can be shown to lack rational justification. What could be the basis of our having more inherent value than animals? Their lack of reason, or autonomy, or intellect? Only if we are willing to make the same judgment in the case of humans who are similarly deficient. But it is not true that such humans—the retarded child, for example, or the mentally deranged—have less inherent value than you or I. Neither, then, can we rationally sustain the view that animals, like them in being the experiencing subjects of a life, have less inherent value. All who have inherent value have it equally, whether they be human animals or not. Inherent value, then, belongs equally to those who are the experiencing subjects of a life. Whether it belongs to others—to rocks and rivers, trees and glaciers, for example—we do not know and may never know. But neither do we need to know, if we are to make the case for animal rights. We do not need to know, for example, how many people are eligible to vote in the next presidential election before we can know whether I am. Similarly, we do not need to know how many individuals have inherent value before we can know that some do. When it comes to the case for animal rights, then, what we need to know is whether the animals that, in our culture, are routinely eaten, hunted and used in our laboratories, for example, are like us in being subjects of a life. And we do know this. We do know that many—literally, billions and billions—of these animals are the subjects of a life in the sense explained and so have inherent value if we do. And since, in order to arrive at the best theory of our duties to one another, we must recognize our equal inherent value as individuals, reason—not sentiment, not emotion—reason compels us to recognize the equal inherent value of these animals and, with this, their equal right to be treated with respect. That, very roughly, is the shape and feel of the case for animal rights. Most of the details of the supporting argument are missing. They are to be found in the book to which I alluded earlier. Here, the details go begging, and I must, in closing, limit myself to four final points.

The first is how the theory that underlies the case for animal rights shows that the animal rights movement is a part of, not antagonistic to, the human rights movement. The theory that rationally grounds the rights of animals also grounds the rights of humans. Thus those involved in the animal rights movement are partners in the struggle to secure respect for human rights—the rights of women, for example, or minorities, or workers. The animal rights movement is cut from the same moral cloth as these. Second, having set out the broad outlines of the rights view, I can now say why its implications for . . . science, among other fields, are both clear and uncompromising. In the case of the use of animals in science, the rights view is categorically abolitionist. Lab animals are not our tasters; we are not their kings. Because these animals are treated routinely, systematically as if their value were reducible to their usefulness to others, they are routinely, systematically treated with a lack of respect, and thus are their rights routinely, systematically violated. This is just as true when they are used in trivial, duplicative, unnecessary or unwise research as it is when they are used in studies that hold out real promise of human benefits. We can’t justify harming or killing a human being (my Aunt Bea, for example) just for these sorts of reason. Neither can we do so even in the case of so lowly a creature as a laboratory rat. It is not just refinement or reduction that is called for, not just larger, cleaner cages, not just more generous use of anesthetic or the elimination of multiple surgery, not just tidying up the system. It is complete replacement. The best we can do when it comes to using animals in science is—not to use them. That is where our duty lies, according to the rights view . . . . My last two points are about philosophy, my profession. It is, most obviously, no substitute for political action. The words I have written here and in other places by themselves don’t change a thing. It is what we do with the thoughts that the words express—our acts, our deeds—that changes things. All that philosophy can do, and all I have attempted, is to offer a vision of what our deeds should aim at. And the why. But not the how. Finally, I am reminded of my thoughtful critic, the one I mentioned earlier, who chastised me for being too cerebral. Well, cerebral I have been: indirect duty views, utilitarianism, contractarianism—hardly the stuff deep passions are made of. I am also reminded, however, of the image another friend once set before me—the image of the ballerina as expressive of disciplined passion. Long hours of sweat and toil, of loneliness and practice, of doubt and fatigue: those are the discipline of her craft. But the passion is there too, the fierce drive to excel, to speak through her body, to do it right, to pierce our minds. That is the image of philosophy I would leave with you, not “too cerebral” but disciplined passion. Of the discipline enough has been seen. As for the passion: there are times, and these not infrequent, when tears come to my eyes when I see, or read, or hear of the wretched plight of animals in the hands of humans. Their pain, their suffering, their loneliness, their innocence, their death. Anger. Rage. Pity. Sorrow. Disgust. The whole creation groans under the weight of the evil we humans visit upon these mute, powerless creatures. It is our hearts, not just our heads, that call for an end to it all, that demand of us that we overcome, for them, the habits and forces behind their systematic oppression. All great movements, it is written, go through three stages: ridicule, discussion, adoption. It is the realization of this third stage, adoption, that requires both our passion and our discipline, our hearts and our heads. The fate of animals is in our hands. God grant we are equal to the task.

Journal/Discussion Questions ✍ In your own life, what moral standing or importance do animals have? What difference does animal suffering make to you? How were you affected by Regan’s article? 1. What does Regan mean by “indirect duty views”? What criticisms does he offer of them? In what ways do you agree/disagree with his criticisms? 2. According to Regan, what is “contractarianism”? What criticisms does he offer of the contractarian approach to morality? 3. Why, according to Regan, should we reject utilitarian approaches to the issue of our relationship to animals? 4. Why, according to Regan, is the rights view superior to all other approaches to the issue of our relationship to animals? Do you agree with Regan’s a ssessment?

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Carl Cohen

“The Case for the Use of Animals in Biomedical Research” About the Author: Carl Cohen is Professor of Philosophy at the University of Michigan and also co-author of The Animal Rights Debate (Rowman and Littlefield, 2001), a point-counterpoint volume with Professor Tom Regan. He has also published many essays in moral and political philosophy in philosophical, medical, and legal journals. About the Article: Cohen offers a strong defense of the moral appropriateness of using animals in biomedical research. He offers arguments against those who maintain that animals have rights and suggests that, if we consider consequences, we will realize that these too permit animal use in research. As You Read, Consider This: 1. What arguments does Cohen advance against the claim that animals have rights? 2. Defenders of animal rights and welfare often charge their opponents with “speciesism.” How does Cohen respond to that criticism? 3. What is Cohen’s position on substitution and reduction of animal use in biomedical research?

U

sing animals as research subjects in medical investigations is widely condemned on two grounds: first, because it wrongly violates the rights of animals,1 and second, because it wrongly imposes on sentient creatures much avoidable suffering.2 Neither of these arguments is sound. The first relies on a mistaken understanding of rights; the second relies on a mistaken calculation of consequences. Both deserve definitive dismissal. Why Animals Have No Rights

A right, properly understood, is a claim, or potential claim, that one party may exercise against another. The target against whom such a claim may be registered can be a single person, a group, a community, or (perhaps) all humankind. The content of rights claims also varies greatly: repayment of loans, nondiscrimination by employers, noninterference by the state, and so on. To comprehend any genuine right fully, therefore, we must know who holds the right, against whom it is held, and to what it is a right. Alternative sources of rights add complexity. Some rights are grounded in constitution and law (e.g., the right of an accused to trial by jury); some rights are moral but give no legal claims (e.g., my right to your keeping the promise you gave me); and some rights (e.g., against theft or assault) are rooted both in morals and in law. The differing targets, contents, and sources of rights, and their inevitable conflict, together weave a tangled web. Notwithstanding all such complications, this much is clear about rights in general: they are in every case claims, or potential claims, within a community of moral agents. Rights arise, and can be intelligibly defended, only among beings who actually do, or can, make moral claims against one another. Whatever else rights may be, therefore, they are necessarily human; their possessors are persons, human beings. The attributes of human beings from which this moral capability arises have been described variously by philosophers, both ancient and modern: the inner consciousness of a free will (Saint Augustine)3; the grasp, by human reason, of the binding character of moral law (Saint Thomas)4; the self-conscious participation of human beings in an objective ethical order (Hegel)5; human membership in an organic moral community (Bradley)6; the development of the human self through the consciousness of other moral selves (Mead)7; and the underivative, intuitive cognition of the rightness of an action (Prichard).8 Most influential has been Immanuel Kant’s emphasis on the universal human possession of a uniquely moral will and the autonomy its use entails.9 Humans

Carl Cohen, “The Case for the Use of Animals in Biomedical Research,” New England Journal of Medicine 315, pp. 865–870. Copyright © New England Journal of Medicine. Used with permission.

confront choices that are purely moral; humans—but certainly not dogs or mice—lay down moral laws, for others and for themselves. Human beings are self-legislative, morally autonomous. Animals (that is, nonhuman animals, the ordinary sense of that word) lack this capacity for free moral judgment. They are not beings of a kind capable of exercising or responding to moral claims. Animals therefore have no rights, and they can have none. This is the core of the argument about the alleged rights of animals. The holders of rights must have the capacity to comprehend rules of duty, governing all including themselves. In applying such rules, the holders of rights must recognize possible conflicts between what is in their own interest and what is just. Only in a community of beings capable of self-restricting moral judgments can the concept of a right be correctly invoked. Humans have such moral capacities. They are in this sense self-legislative, are members of communities governed by moral rules, and do possess rights. Animals do not have such moral capacities. They are not morally selflegislative, cannot possibly be members of a truly moral community, and therefore cannot possess rights. In conducting research on animal subjects, therefore, we do not violate their rights, because they have none to violate. To animate life, even in its simplest forms, we give a certain natural reverence. But the possession of rights presupposes a moral status not attained by the vast majority of living things. We must not infer, therefore, that a live being has, simply in being alive, a “right” to its life. The assertion that all animals, only because they are alive and have interests, also possess the “Right to life”10 is an abuse of that phrase, and wholly without warrant. It does not follow from this, however, that we are morally free to do anything we please to animals. Certainly not. In our dealings with animals, as in our dealings with other human beings, we have obligations that do not arise from claims against us based on rights. Rights entail obligations, but many of the things one ought to do are in no way tied to another’s entitlement. Rights and obligations are not reciprocals of one another, and it is a serious mistake to suppose that they are. Illustrations are helpful. Obligations may arise from internal commitments made: physicians have obligations to their patients not grounded merely in their patients’ rights. Teachers have such obligations to their students, shepherds to their dogs, and cowboys to their horses. Obligations may arise from differences of status: adults owe special care when playing with young children, and children owe special care when playing with young pets. Obligations may arise from special relationships: the payment of my son’s college tuition is something to which he may have no right, although it may be my obligation to bear the burden if I reasonably can; my dog has no right to daily exercise and veterinary care, but I do have the obligation to provide these things for her. Obligations may arise from particular acts or circumstances: one may be obliged to another for a special kindness done, or obliged to put an animal out of its misery in view of its condition—although neither the human benefactor nor the dying animal may have had a claim of right. Plainly, the grounds of our obligations to humans and to animals are manifold and cannot be formulated simply. Some hold that there is a general obligation to do no gratuitous harm to sentient creatures (the principle of nonmaleficence); some hold that there is a general obligation to do good to sentient creatures when that is reasonably within one’s power (the principle of beneficence). In our dealings with animals, few will deny that we are at least obliged to act humanely—that is, to treat them with the decency and concern that we owe, as sensitive human beings, to other sentient creatures. To treat animals humanely, however, is not to treat them as humans or as the holders of rights. A common objection, which deserves a response, may be paraphrased as follows: If having rights requires being able to make moral claims, to grasp and apply moral laws, then many humans—the brain-damaged, the comatose, the senile—who plainly lack those capacities must be without rights. But that is absurd. This proves [the critic concludes] that rights do not depend on the presence of moral capacities.11 This objection fails; it mistakenly treats an essential feature of humanity as though it were a screen for sorting humans. The capacity for moral judgment that distinguishes humans from animals is not a test to be administered to human beings one by one. Persons who are unable, because of some disability, to perform the full moral functions natural to human beings are certainly not for that reason ejected from the moral community.

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The issue is one of kind. Humans are of such a kind that they may be the subject of experiments only with their voluntary consent. The choices they make freely must be respected. Animals are of such a kind that it is impossible for them, in principle, to give or withhold voluntary consent or to make a moral choice. What humans retain when disabled, animals have never had. A second objection, also often made, may be paraphrased as follows: Capacities will not succeed in distinguishing humans from the other animals. Animals also reason; animals also communicate with one another; animals also care passionately for their young; animals also exhibit desires and preferences.12 Features of moral relevance—rationality, interdependence, and love—are not exhibited uniquely by human beings. Therefore [this critic concludes], there can be no solid moral distinction between humans and other animals.13 This criticism misses the central point. It is not the ability to communicate or to reason, or dependence on one another, or care for the young, or the exhibition of preference, or any such behavior that marks the critical divide. Analogies between human families and those of monkeys, or between human communities and those of wolves, and the like, are entirely beside the point. Patterns of conduct are not at issue. Animals do indeed exhibit remarkable behavior at times. Conditioning, fear, instinct, and intelligence all contribute to species survival. Membership in a community of moral agents nevertheless remains impossible for them. Actors subject to moral judgment must be capable of grasping the generality of an ethical premise in a practical syllogism. Humans act immorally often enough, but only they—never wolves or monkeys—can discern, by applying some moral rule to the facts of a case, that a given act ought or ought not to be performed. The moral restraints imposed by humans on themselves are thus highly abstract and are often in conflict with the self-interest of the agent. Communal behavior among animals, even when most intelligent and most endearing, does not approach autonomous morality in this fundamental sense. Genuinely moral acts have an internal as well as an external dimension. Thus, in law, an act can be criminal only when the guilty deed, the actusreus, is done with a guilty mind, mens rea. No animal can ever commit a crime; bringing animals to criminal trial is the mark of primitive ignorance. The claims of moral right are similarly inapplicable to them. Does a lion have a right to eat a baby zebra? Does a baby zebra have a right not to be eaten? Such questions, mistakenly invoking the concept of right where it does not belong, do not make good sense. Those who condemn biomedical research because it violates “animal rights” commit the same blunder. In Defense of “Speciesism”

Abandoning reliance on animal rights, some critics resort instead to animal sentience—their feelings of pain and distress. We ought to desist from the imposition of pain insofar as we can. Since all or nearly all experimentation on animals does impose pain and could be readily forgone, say these critics, it should be stopped. The ends sought may be worthy, but those ends do not justify imposing agonies on humans, and by animals the agonies are felt no less. The laboratory use of animals (these critics conclude) must therefore be ended—or at least very sharply curtailed. Argument of this variety is essentially utilitarian, often expressly so;14 it is based on the calculation of the net product, in pains and pleasures, resulting from experiments on animals. Jeremy Bentham, comparing horses and dogs with other sentient creatures, is thus commonly quoted: “The question is not, Can they reason? nor Can they talk? but, Can they suffer?”15 Animals certainly can suffer and surely ought not to be made to suffer needlessly. But in inferring, from these uncontroversial premises, that biomedical research causing animal distress is largely (or wholly) wrong, the critic commits two serious errors. The first error is the assumption, often explicitly defended, that all sentient animals have equal moral standing. Between a dog and a human being, according to this view, there is no moral difference; hence the pains suffered by dogs must be weighed no differently from the pains suffered by humans. To deny such equality,

according to this critic, is to give unjust preference to one species over another; it is “speciesism.” The most influential statement of this moral equality of species was made by Peter Singer: The racist violates the principle of equality by giving greater weight to the interests of members of his own race when there is a clash between their interests and the interests of those of another race. The sexist violates the principle of equality by favoring the interests of his own sex. Similarly the speciesist allows the interests of his own species to override the greater interests of members of other species. The pattern is identical in each case.16 This argument is worse than unsound; it is atrocious. It draws an offensive moral conclusion from a deliberately devised verbal parallelism that is utterly specious. Racism has no rational ground whatever. Differing degrees of respect or concern for humans for no other reason than that they are members of different races is an injustice totally without foundation in the nature of the races themselves. Racists, even if acting on the basis of mistaken factual beliefs, do grave moral wrong precisely because there is no morally relevant distinction among the races. The supposition of such differences has led to outright horror. The same is true of the sexes, neither sex being entitled by right to greater respect or concern than the other. No dispute here. Between species of animate life, however—between (for example) humans on the one hand and cats or rats on the other—the morally relevant differences are enormous and almost universally appreciated. Humans engage in moral reflection; humans are morally autonomous; humans are members of moral communities, recognizing just claims against their own interest. Human beings do have rights; theirs is a moral status very different from that of cats or rats. I am a speciesist. Speciesism is not merely plausible; it is essential for right conduct, because those who will not make the morally relevant distinctions among species are almost certain, in consequence, to misapprehend their true obligations. The analogy between speciesism and racism is insidious. Every sensitive moral judgment requires that the differing natures of the beings to whom obligations are owed be considered. If all forms of animate life—or vertebrate animal life?—must be treated equally, and if therefore in evaluating a research program the pains of a rodent count equally with the pains of a human, we are forced to conclude (1) that neither humans nor rodents possess rights, or (2) that rodents possess all the rights that humans possess. Both alternatives are absurd. Yet one or the other must be swallowed if the moral equality of all species is to be defended. Humans owe to other humans a degree of moral regard that cannot be owed to animals. Some humans take on the obligation to support and heal others, both humans and animals, as a principal duty in their lives; the fulfillment of that duty may require the sacrifice of many animals. If biomedical investigators abandon the effective pursuit of their professional objectives because they are convinced that they may not do to animals what the service of humans requires, they will fail, objectively, to do their duty. Refusing to recognize the moral differences among species is a sure path to calamity. (The largest animal rights group in the country is People for the Ethical Treatment of Animals; its co-director, Ingrid Newkirk, calls research using animal subjects “fascism” and “supremacism.” “Animal liberationists do not separate out the human animal,” she says, “so there is no rational basis for saying that a human being has special rights. A rat is a pig is a dog is a boy. They’re all mammals.”)17 Those who claim to base their objection to the use of animals in biomedical research on their reckoning of the net pleasures and pains produced make a second error, equally grave. Even if it were true—as it is surely not—that the pains of all animate beings must be counted equally, a cogent utilitarian calculation requires that we weigh all the consequences of the use, and of the non-use, of animals in laboratory research. Critics relying (however mistakenly) on animal rights may claim to ignore the beneficial results of such research, rights being trump cards to which interest and advantage must give way. But an argument that is explicitly framed in terms of interest and benefit for all over the long run must attend also to the disadvantageous consequences of not using animals in research, and to all the achievements attained and attainable only through their use. The sum of the benefits of their use is utterly beyond quantification. The elimination of horrible disease, the increase of longevity, the avoidance of great pain, the saving of lives, and the improvement of the quality of lives (for humans and for animals) achieved through research using animals is so incalculably great that the argument of these

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critics, systematically pursued, establishes not their conclusion but its reverse: to refrain from using animals in biomedical research is, on utilitarian grounds, morally wrong. When balancing the pleasures and pains resulting from the use of animals in research, we must not fail to place on the scales the terrible pains that would have resulted, would be suffered now, and would long continue had animals not been used. Every disease eliminated, every vaccine developed, every method of pain relief devised, every surgical procedure invented, every prosthetic device implanted—indeed, virtually every modern medical therapy is due, in part or in whole, to experimentation using animals. Nor may we ignore, in the balancing process, the predictable gains in human (and animal) well-being that are probably achievable in the future but that will not be achieved if the decision is made now to desist from such research or to curtail it. Medical investigators are seldom insensitive to the distress their work may cause animal subjects. Opponents of research using animals are frequently insensitive to the cruelty of the results of the restrictions they would impose.18 Untold numbers of human beings—real persons, although not now identifiable-would suffer grievously as the consequence of this well-meaning but shortsighted tenderness. If the morally relevant differences between humans and animals are borne in mind, and if all relevant considerations are weighed, the calculation of long-term consequences must give overwhelming support for biomedical research using animals. Concluding Remarks

Substitution. The humane treatment of animals requires that we desist from experimenting on them if we can accomplish the same result using alternative methods—in vitro experimentation, computer simulation, or others. Critics of some experiments using animals rightly make this point. It would be a serious error to suppose, however, that alternative techniques could soon be used in most research now using live animal subjects. No other methods now on the horizon—or perhaps ever to be available—can fully replace the testing of a drug, a procedure, or a vaccine, in live organisms. The flood of new medical possibilities being opened by the successes of recombinant DNA technology will turn to a trickle if testing on live animals is forbidden. When initial trials entail great risks, there may be no forward movement whatever without the use of live animal subjects. In seeking knowledge that may prove critical in later clinical applications, the unavailability of animals for inquiry may spell complete stymie. In the United States, federal regulations require the testing of new drugs and other products on animals, for efficacy and safety, before human beings are exposed to them.19 We would not want it otherwise. Every advance in medicine—every new drug, new operation, new therapy of any kind—must sooner or later be tried on a living being for the first time. That trial, controlled or uncontrolled, will be an experiment. The subject of that experiment, if it is not an animal, will be a human being. Prohibiting the use of live animals in biomedical research, therefore, or sharply restricting it, must result either in the blockage of much valuable research or in the replacement of animal subjects with human subjects. These are the consequences—unacceptable to most reasonable persons—of not using animals in research. Reduction

Should we not at least reduce the use of animals in biomedical research? No, we should increase it, to avoid when feasible the use of humans as experimental subjects. Medical investigations putting human subjects at some risk are numerous and greatly varied. The risks run in such experiments are usually unavoidable, and (thanks to earlier experiments on animals) most such risks are minimal or moderate. But some experimental risks are substantial. When an experimental protocol that entails substantial risk to humans comes before an institutional review board, what response is appropriate? The investigation, we may suppose, is promising and deserves support, so long as its human subjects are protected against unnecessary dangers. May not the investigators be fairly asked, Have you done all that you can to eliminate risk to humans by the extensive testing of that drug, that procedure, or that device on animals? To achieve maximal safety for humans we are right to require thorough experimentation on animal subjects before humans are involved.

Opportunities to increase human safety in this way are commonly missed; trials in which risks may be shifted from humans to animals are often not devised, sometimes not even considered. Why? For the investigator, the use of animals as subjects is often more expensive, in money and time, than the use of human subjects. Access to suitable human subjects is often quick and convenient, whereas access to appropriate animal subjects may be awkward, costly, and burdened with red tape. Physician-investigators have often had more experience working with human beings and know precisely where the needed pool of subjects is to be found and how they may be enlisted. Animals, and the procedures for their use, are often less familiar to these investigators. Moreover, the use of animals in place of humans is now more likely to be the target of zealous protests from without. The upshot is that humans are sometimes subjected to risks that animals could have borne, and should have borne, in their place. To maximize the protection of human subjects, I conclude, the wide and imaginative use of live animal subjects should be encouraged rather than discouraged. This enlargement in the use of animals is our obligation. Consistency

Finally, inconsistency between the profession and the practice of many who oppose research using animals deserves comment. This frankly ad hominem observation aims chiefly to show that a coherent position rejecting the use of animals in medical research imposes costs so high as to be intolerable even to the critics themselves. One cannot coherently object to the killing of animals in biomedical investigations while continuing to eat them. Anesthetics and thoughtful animal husbandry render the level of actual animal distress in the laboratory generally lower than that in the abattoir. So long as death and discomfort do not substantially differ in the two contexts, the consistent objector must not only refrain from all eating of animals but also protest as vehemently against others eating them as against others experimenting on them. No less vigorously must the critic object to the wearing of animal hides in coats and shoes, to employment in any industrial enterprise that uses animal parts, and to any commercial development that will cause death or distress to animals. Killing animals to meet human needs for food, clothing, and shelter is judged entirely reasonable by most persons. The ubiquity of these uses and the virtual universality of moral support for them confront the opponent of research using animals with an inescapable difficulty. How can the many common uses of animals be judged morally worthy, while their use in scientific investigation is judged unworthy? The number of animals used in research is but the tiniest fraction of the total used to satisfy assorted human appetites. That these appetites, often base and satisfiable in other ways, morally justify the far larger consumption of animals, whereas the quest for improved human health and understanding cannot justify the far smaller, is wholly implausible. Aside from the numbers of animals involved, the distinction in terms of worthiness of use, drawn with regard to any single animal, is not defensible. A given sheep is surely not more justifiably used to put lamb chops on the supermarket counter than to serve in testing a new contraceptive or a new prosthetic device. The needless killing of animals is wrong; if the common killing of them for our food or convenience is right, the less common but more humane uses of animals in the service of medical science are certainly not less right. Scrupulous vegetarianism, in matters of food, clothing, shelter, commerce, and recreation, and in all other spheres, is the only fully coherent position the critic may adopt. At great human cost, the lives of fish and crustaceans must also be protected, with equal vigor, if speciesism has been forsworn. A very few consistent critics adopt this position. It is the reductio ad absurdum of the rejection of moral distinctions between animals and human beings. Opposition to the use of animals in research is based on arguments of two different kinds—those relying on the alleged rights of animals and those relying on the consequences for animals. I have argued that arguments of both kinds must fail. We surely do have obligations to animals, but they have, and can have, no rights against us on which research can infringe. In calculating the consequences of animal research, we must weigh all the longterm benefits of the results achieved—to animals and to humans—and in that calculation we must not assume the moral equality of all animate species.

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Notes 1. 2. 3. 4. 5. 6. 7. 8. 9. 10. 11. 12. 13. 14. 15. 16. 17. 18. 19.

T. Regan, The Case for Animal Rights (Berkeley, Calif.: University of California Press, 1983). P. Singer, Animal Liberation (New York: Avon Books, 1977). Augustine (A.D. 397), Confessions (New York: Pocketbooks, 1957), bk. 7, pp. 104–26. Aquinas (A.D. 1273), Summa Theologica (Philosophic Texts) (New York: Oxford University Press, 1960), pp. 353–66. G. W. F. Hegel (1821), Philosophy of Right (London: Oxford University Press, 1952), pp.105–10. F. H. Bradley, “Why Should I Be Moral?” in Ethical Theories, ed. A. I. Melden (New York: Prentice-Hall, 1950), pp. 345–59. G. H. Mead (1925), “The Genesis of the Self and Social Control” in Selected Writings, ed. A. J. Reck (Indianapolis: Bobbs-Merrill, 1964), pp. 264–93. H. A. Prichard (1912), “Does Moral Philosophy Rest on a Mistake?” in Readings in Ethical Theory, ed. W. Cellars and J. Hospers (New York: Appleton-Century-Crofts, 1952), pp. 149–63. I. Kant (1785), Fundamental Principles of the Metaphysic of Morals (New York: Liberal Arts Press, 1949). B. E. Rollin, Animal Rights and Human Morality (Buffalo, N.Y.: Prometheus Books, 1981). [See note 1 and] C. Hoff, “Immoral and Moral Uses of Animals,” New England Journal of Medicine 302 (1980): 115–18. [See note 11 and] D. Jamieson, “Killing Persons and Other Beings,” in Ethics and Animals, ed. H. B. Miller and W. H. Williams (Clifton, N.J.: Humana Press, 1983), pp. 135–46. B. E. Rollin, Animal Rights and Human Morality. P. Singer, “Ten Years of Animal Liberation,” New York Review of Books 31 (1985): 46–52. J. Bentham, Introduction to the Principles of Morals and Legislation (London: Athlone Press, 1970). P. Singer, Animal Liberation. K. McCabe, “Who Will Live, Who Will Die?” Washingtonian Magazine, August 1986, 115. P. Singer, Animal Liberation. U. S. Code of Federal Regulations, Title 21, Sect. 505(i). Food, Drug, and Cosmetic Regulations. U. S. Code of Federal Regulations, Title 16, Sect. 1500.40-2. Consumer Product Regulations.

Journal/Discussion Questions 1. Cohen maintains that there are many morally relevant differences between humans and other animals. What are they, according to Cohen? Critically evaluate his argument. 2. Many moderates maintain that, although animals may sometimes be used in biomedical research, this ought to be avoided as much as possible. What does Cohen have to say about this argument?

Concluding Discussion Questions Where Do You Stand Now?

Instructions You have already answered the following questions in your moral problems self-quiz at the beginning of this book. Now that you have studied the material in this section, take a moment to answer the same questions again. You can either enter your answers below or complete the survey on-line at http://ethics.sandiego.edu/ surveys.

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Chapter 10: Living Together with Animals There’s nothing morally wrong with eating veal. It’s morally permissible to cause animals pain to do medical research that benefits human beings. All animals have the same moral standing. Zoos are a morally good thing. There is nothing morally wrong with hunting.

Compare your answers to this self-quiz with the answers to the initial self-quiz. How, if at all, have your answers changed? How have the reasons for your answers changed?

Journal/Discussion Questions ✍ In light of the material in this chapter, how have your views changed on the ethical treatment of animals in regard to issues such as keeping pets, eating meat, wearing fur and animal products (such as leather shoes), using animals for testing shampoos, and using animals for medical research? 1. In light of all the readings in this chapter, what changes (if any) do you think we should make in the ways in which animals are treated in our society? Why should people be motivated to make these changes if they involve some degree of sacrifice on their part? 2. If we grant animals rights, then we are accepting the general principle that non-humans can have

rights. One of the issues in the abortion debate has been the claim that the fetus is not (yet) a human being and thus does not have rights. If animals have rights, does this have moral implications for the rights of fetuses? 3. Drawing on the readings in this and the previous chapter, discuss the relationship between animals rights, vegetarianism, and world hunger. To what extent could problems of world hunger be solved by vegetarianism, an option that would at the same time reduce animal suffering? How would a utilitarian answer this question? How do you answer it?

For Further Reading Web Resources

Survey Articles $ Short Introductions

For extensive resources on ethical issues in our relationships with animals, see the animal rights page of Ethics Updates (http://ethics.sandiego.edu). In addition to the standard journals in ethics discussed in the bibliographical essay at the end of Chapter 1, there are two journals devoted solely to issues related to animals: Between the Species (now available online at http://digitalcommons. calpoly.edu/bts/) and the new The Journal of Animal Ethics, published by the Oxford Center for Animal Ethics.

For an overview of the issues relating to animals, see Lori Gruen, “The Moral Status of Animals,” Stanford Encyclopedia of Philosophy (http://plato.stanford.edu/ entries/moral-animal/); Alasdair Norcross, “Animal Experimentation,” Oxford Handbook of Bioethics, edited by Bonnie Steinbock (New York: Oxford University Press, 2009), 648–68; R. G. Frey, “Animals,” The Oxford Handbook of Practical Ethics, edited by Hugh LaFollette (Oxford: Oxford University Press, 2003), pp. 161–87; Jeff McMahan, “Animals,” A Companion to Applied Ethics: Blackwell Companions to Philosophy,

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edited by R. G. Frey, (Malden, MA: Blackwell Publishing, 2003), pp. 525–36; Bernard E. Rollin, “The Moral Status of Animals and Their Use as Experimental Subjects,” A Companion to Bioethics: Second Edition, edited by Helga Kuhse and Peter Singer (Malden, MA: Blackwell, 2009). For an overview of issues relating to moral status, see Mary-Anne Warren, “Moral Status,” A Companion to Applied Ethics: Blackwell Companions to Philosophy, edited by R. G. Frey (Malden MA: Blackwell Publishing, 2003), pp. 439–50. David DeGrazia’s Animal Rights: A Very Short Introduction (New York: Oxford University Press, 2002) provides a very nicely structured overview. Lori Gruen’s Ethics and Animals: An Introduction (Cambridge: Cambridge University Press, 2011) provides a thoughtful, nuanced introduction to the principal issues in a very accessible manner.

Anthologies There are a number of excellent anthologies dealing with issues of the moral status of animals. Cass Sunstein and Martha C. Nussbaum’s Animal Rights: Current Debates and New Directions (New York: Oxford University Press, 2005) is an excellent starting-point. The journal Social Research devoted an issue to animal ethics entitled “In the Company of Animals,” , Vol. 62, No. 1 (Fall 1995), with articles by Vikki Hearne, Stephen Jay Gould, Daniel Dennett, Cora Diamond, Colin McGinn, Wendy Doniger, and others—an excellent and often overlooked resource. Susan J. Armstrong and Richard G. Botzler, eds., The Animal Ethics Reader, 2nd ed. (New York: Routledge, 2008) is has an excellent, comprehensive selection of articles on a wide range of topics. On the issue of animal experimentation, begin with Vaughan Monamy, Animal Experimentation: A Guide to the Issues, 2nd ed. (Cambridge: Cambridge University Press, 2009), then turn to Hugh Lafollette and Niall Shanks, Brute Science: Dilemmas Animal (London: Routledge, 1997); F. Barbara Orlans, Tom L. Beauchamp, Rebecca Dresser, David B. Morton, and John P. Gluck, The Human Use of Animals, 2nd ed. (New York: Oxford, 2008); Animal Sacrifices: Religious Perspectives on the Use of Animals in Science, edited by Tom Regan (Philadelphia: Temple University Press, 1986) and In Defense of Animals, edited by Peter Singer (New York: Blackwell, 1985) and his In Defense of Animals: The Second Wave (Hoboken, NJ: WileyBlackwell, 2005).

Single-Author Works Peter Singer’s Animal Liberation, now with a new preface (New York: Harper Perennial Modern Classics, 2009), first appeared in 1976 and continues to be a classic source; and see In Defense of Animals: The Second Wave, edited by Peter Singer (New York: Wiley-Blackwell, 2005). Almost as influential has been the work of Tom Regan, whose The Case for Animal Rights, Updated with a New Preface (Berkeley, CA: University of California Press, 2004) and The Thee Generation: Reflections on the Coming Revolution (Philadelphia: Temple University Press, 1991), a collection of his recent essays, including “Christians Are What Christians Eat,” have both had a wide impact. Mary Midgley, Animals and Why They Matter (Athens, GA: University of Georgia Press, 1983) is admirably argued, as is James Rachels, Created from Animals: The Moral Implications of Darwinism (Oxford: Oxford University Press, 1991). Bernard E. Rollin, The Unheeded Cry: Animal Consciousness, Animal Pain, and Science, with a Foreword by Jane Goodall (Oxford: Oxford University Press, 1989) surveys changing attitudes toward animal consciousness and deals specifically with the issue of how we can know and measure animal pain, and his Animal Rights and Human Morality, 3rd edition (Buffalo, NY: Prometheus Books, 2006) is a well-written, articulate defense of animal rights. One of the most recent studies is Jose Luis Bermudez, Thinking Without Words (New York: Oxford University Press, 2003), on the moral implications of animal thinking. Also see Julian H. Franklin, Animal Rights and Moral Philosophy (New York: Columbia University Press, 2005) and Erin McKenna and Andrew Light, Animal Pragmatism: Rethinking Human-Nonhuman Relationships (Bloomington: Indiana University Press, 2004). More recently, please note Dale Jamieson, Morality’s Progress: Essays on Humans, Other Animals, and the Rest of Nature (Oxford: Clarendon Press, 2002); John Dupre, Humans and Other Animals (Oxford: Clarendon , 2002); Tom Regan, Empty Cages: Facing the Challenge of Animal Rights (Lannam, MD: Rowman & Littlefield Publishing, 2004). Matthew Scully’s Dominion: The Power of Man, the Suffering of Animals, and the Call to Mercy (New York: St. Martin’s Griffin, 2003) is probably the only book by a former Bush administration member to deal exclusively with the issue of animal suffering.

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For a fascinating sociological study of the meat slaughtering business in the United States, see Timothy Pachirat Every Twelve Seconds: Industrialized Slaughter and the Politics of Sight (New Haven: Yale University Press, 2011). Pachirat’s prose is compelling, and he

weaves in a conceptually sophisticated account of concealment and transparency that draws on the work of Foucault and others. Paciirat’s work tells us much about the ethics of concealment as well as the ethical treatment of animals.

MySearchLab Connections Sources OnLine READ AND REVIEW Study and Review: Chapter 10 The text explores moral issues surrounding the topic of living together with animals. These readings further explore that theme. 1. Meditations on First Philosophy by René Descartes Written in a partly autobiographical style, Descartes explains how he came upon his method for using “clear and distinct perception” for discovering truth. In the course of his discussion he also offers a detailed discussion of what separates man from the rest of the animals.

life to the body. The thing that distinguishes the human soul from that of animals, for example, is that the human soul possesses the character of rationality. This rationality distinguishes the human soul from the merely nutritive property of the non-human animal soul; although clearly, the human soul shares this nutritive feature as well. RESEARCH AND EXPLORE Explore the following questions using the research tools available on www.mysearchlab.com. Explore on mythinkinglab.com

2. The Metaphysical Elements of Justice by Immanuel Kant In the Metaphysical Elements of Justice, Kant offers an alternative to the utilitarian philosophy that law and social organization should be founded on “the good.” Kant sets himself firmly against the idea that “the good” should be the foundation for social action or should be used to justify injustice both within society and in colonization.

1. The text gives utilitarian arguments for vegetarianism in which the end result, the good, is the benefit to the animal, and also where the good is the benefit to human beings. Explain both arguments. Is either more convincing from a moral standpoint?

3. De Anima by Aristotle The central issue Aristotle treats here is the question of the soul—what it is, what it does, etc. The human soul, on Aristotle’s view, is that which gives

3. It has been suggested that animals have certain rights. How do those rights compare with human rights? Are those rights complemented by any responsibilities? Do animals have duties as well?

2. As stated in the text, Peter Singer leveled the charge of speciesism against utilitarians. Are all species equal, or is there something unique (or different or better) about human beings?

11 Environmental Ethics

The Narratives 431 N. Scott Momaday, “Native American Attitudes toward the Environment” 431 Edward O. Wilson, “Apocalypse Now: A Scientist’s Plea for Christian Environmentalism” 434 An Introduction to the Moral Issues 439 The Central Questions 439 An Overview 440 Human-Centered Approaches 440 Expanded-Circle Approaches 441 Expanded Utilitarianism 441 Biocentrism 441 Ecocentrism 441 The Arguments 442 Peter S. Wenz, “Just Garbage” 442 Ramachandra Guha, “Radical American Environmentalism and Wilderness Preservation: A Third World Critique” 450 Concluding Discussion Questions 459 For Further Reading 460

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“Native American Attitudes toward the Environment” About the Author: N. Scott Momaday is the author of numerous works, including House Made of Dawn and The Way to Rainy Mountain. About the Article: In an informal context, Mr. Momaday discusses the ways in which Native Americans understand their relationship to the natural environment. He focuses on several key ideas: the ways in which the relationship between human beings and the environment is one of mutual appropriation, the ways in which Native Americans understand what an “appropriate” relationship is between a person and the environment, and the important role played by imagination in understanding these issues. As You Read, Consider This: 1. How does Mr. Momaday use stories to develop his ideas? Would you draw the same conclusions from his stories that Mr. Momaday does? 2. What does Mr. Momaday mean by “appropriateness”?

T

he first thing to say about the Native American perspective on environmental ethics is that there is a great deal to be said. I don’t think that anyone has clearly understood yet how the Indian conceives of himself in relation to the landscape. We have formulated certain generalities about that relationship, and the generalities have served a purpose, but they have been rather too general. For example, take the idea that the Indian reveres the earth, thinks of it as the place of his origin and thinks of the sky also in a personal way. These statements are true. But they can also be misleading because they don’t indicate anything about the nature of the relationship which is, I think, an intricate thing in itself. I have done much thinking about the “Indian worldview,” as it is sometimes called. And I have had some personal experience of Indian religion and Indian societies within the framework of a worldview. Sometime ago I wrote an essay entitled “An American Land Ethic” in which I tried to talk in certain ways about this idea of a Native American attitude toward the landscape. And in that essay I made certain observations. I tried to express the notion first that the Native American ethic with respect to the physical world is a matter of reciprocal appropriation: appropriations in which man invests himself in the landscape, and at the same time incorporates the landscape into his own most fundamental experience. That suggests a dichotomy, or a paradox, and I think it is a paradox. It is difficult to understand a relationship which is defined in these terms, and yet I don’t know how better to define it. Secondly, this appropriation is primarily a matter of the imagination. The appropriation is realized through an act of the imagination which is moral and kind. I mean to say that we are all, I suppose, at the most fundamental level what we imagine ourselves to be. And this is certainly true of the American Indian. If you want a definition, you would not go, I hope, to the stereotype which has burdened the American Indian for many years. He is not that befeathered spectacle who is always chasing John Wayne across the silver screen. Rather, he is someone who thinks of himself in a particular way and his idea comprehends his relationship to the physical world, among other things. He imagines himself in terms of that relationship and others. And it is that act of the imagination, that moral act of the imagination, which I think constitutes his understanding of the physical world. Thirdly, this imagining, this understanding of the relationship between man and the landscape, or man and the physical world, man and nature, proceeds from a racial or cultural experience. I think his attitude

“Native American Attitudes toward the Environment,” by N. Scott Momaday [pp. 79-85] from Seeing with a Native Eye, edited by Walter Holden Capps. Copyright 1976 by Walter Holden Capps. Reprinted by permission of HarperCollins Publishers.

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toward the landscape has been formulated over a long period of time, and the length of time itself suggests an evolutionary process perhaps instead of a purely rational and decisive experience. Now I am not sure that you can understand me on this point; perhaps I should elaborate. I mean that the Indian has determined himself in his imagination over a period of untold generations. His racial memory is an essential part of his understanding. He understands himself more clearly than perhaps other people, given his situation in time and space. His heritage has always been rather closely focused, centered upon the landscape as a particular reality. Beyond this, the Native American has a particular investment in vision and in the idea of vision. You are familiar with the term “vision quest” for example. This is another essential idea to the Indian worldview, particularly that view as it is expressed among the cultures of the Plains Indians. This is significant. I think we should not lose the force of the idea of seeing something or envisioning something in a particular way. I happen to think that there are two visions in particular with reference to man and his relationship to the natural world. One is physical and the other is imaginative. And we all deal in one way or another with these visions simultaneously. If I can try to find an analogy, it’s rather like looking through the viewfinder of a camera, the viewfinder which is based upon the principle of the split image. And it is a matter of trying to align the two planes of that particular view. This can be used as an example of how we look at the world around us. We see it with the physical eye. We see it as it appears to us, in one dimension of reality. But we also see it with the eye of the mind. It seems to me that the Indian has achieved a particularly effective alignment of those two planes of vision. He perceives the landscape in both ways. He realizes a whole image from the possibilities within his reach. The moral implications of this are very far-reaching. Here is where we get into the consideration of religion and religious ideas and ideals. There is another way in which I think one can very profitably and accurately think of the Indian in relation to the landscape and in terms of his idea of that relationship. This is to center on such a word as appropriate. The idea of “appropriateness” is central to the Indian experience of the natural world. It is a fundamental idea within his philosophy. I recall the story told to me some years ago by a friend, who is not himself a Navajo, but was married for a time to a Navajo girl and lived with her family in Southern Utah. And he said that he had been told this story and was passing it on to me. There was a man living in a remote place on the Navajo reservation who had lost his job and was having a difficult time making ends meet. He had a wife and several children. As a matter of fact, his wife was expecting another child. One day a friend came to visit him and perceived that his situation was bad. The friend said to him “Look, I see that you’re in tight straits, I see you have many mouths to feed, that you have no wood and that there is very little food in your larder. But one thing puzzles me. I know you’re a hunter, and I know, too, there are deer in the mountains very close at hand. Tell me, why don’t you kill a deer so that you and your family might have fresh meat to eat?” And after a time the man replied, “No, it is inappropriate that I should take life just now when I am expecting the gift of life.” The implications of that idea, and the way in which the concept of appropriateness lies at the center of that little parable is a central consideration within the Indian world. You cannot understand how the Indian thinks of himself in relation to the world around him unless you understand his conception of what is appropriate; particularly what is morally appropriate within the context of that relationship. Question: Could you probe a little deeper into what lies behind the idea of appropriate or inappropriate behavior regarding the natural world. Is it a religious element? Is it biological or a matter of survival? How would you characterize what makes an action appropriate or inappropriate? Momaday: It is certainly a fair question but I’m not sure that I have the answer to it. I suspect that whatever it is that makes for the idea of appropriateness is a very complex thing in itself. Many things constitute the idea of appropriateness. Basically, I think it is a moral idea as opposed to a religious one. It is a basic understanding of right within the framework of relationships, and, within the framework of that relationship I was talking about a moment ago, between man and the physical world. That which is appropriate within this context is that which is natural. This is another key word. My father used to tell me of an old man who has lived a whole life. I have often thought of this image. The old man used to come to my grandfather’s house periodically to pay visits, and my father has very vivid recollections of this man whom I never knew. But his name was Chaney. Father says that Chaney would come to the house and he would make himself perfectly at home. He would be passing by going from one place to another, exercising

his ethnic prerogative for nomadism. But he would make my grandfather’s house a kind of resting place. He stayed there on many occasions. My father says that every morning when Chaney was there as a guest he would get up in the first light, paint his face, go outside, face the east, and bring the sun out of the horizon. Then he would pray. He would pray aloud to the rising sun. He did that because it was appropriate that he should do that. He understood. Or perhaps I should say that in terms of his own understanding, the sun was the origin of his strength. He understood the sun, within a more formal religious context, similar to the way someone else understands the presence of a deity. And in the face of that recognition, he acted naturally or appropriately. Through the medium of prayer, he returned some of his strength to the sun. He did this everyday. It was a part of his daily life. It was as natural and appropriate to him as anything could be. There is in the Indian worldview this kind of understanding of what is and what is not appropriate. It isn’t a matter of intellection. It is respect for the understanding of one’s heritage. It is a kind of racial memory and it has its origin beyond any sort of historical experience. It reaches back to the dawn of time. Question: When talking about vision, you said that the Indians saw things physically and also with the eye of the mind, I think this is the way you put it. You also said that this was a whole image, and that it had certain moral implications. Would you elaborate further? Momaday: I think there are different ways of seeing things. I myself am particularly interested in literature, and in the traditions of various peoples, the Indians in particular. I understand something of how this works within the context of literature. For example, in the nineteenth century in America, there were poets who were trying very hard to see nature and to write about it. This is one kind of vision. They succeeded in different ways, some succeeding more than others. They succeeded in seeing what was really there on the vision plain of the natural world and they translated that vision, or that perception of the natural world, into poetry. Many of them had a kind of scientific training. Their observations were trained through the study of botany, astronomy, or zoology, etc. This refers, of course, to one kind of vision.But, obviously, this is not the sort of view of the landscape which characterizes the Indian world. His view rather is of a different and more imaginative kind. It is a more comprehensive view. When the Native American looks at nature, it isn’t with the idea of training a glass upon it, or pushing it away so that he can focus upon it from a distance. In his mind, nature is not something apart from him. He conceives of it, rather, as an element in which he exists. He has existence within that element, much in the same way we think of having existence within the element of air. It would be unimaginable for him to think of it in the way the nineteenth century “nature poets” thought of looking at nature and writing about it. They employed a kind of “esthetic distance,” as it is sometimes called. This idea would be alien to the Indian. This is what I meant by trying to make the distinction between two sides of a split image. Question: So then, presumably in moral terms, the Indian would say that a person should not harm nature because it’s something in which one participates oneself. Momaday: This is one aspect of it. There is this moral aspect, and it refers to perfect alignment. The appropriation of both images into the one reality is what the Indian is concerned to do: to see what is really there, but also to see what is really there. This reminds me of another story. It is very brief. It was told to me by the same fellow who told me about the man who did not kill the deer. (To take a certain liberty with the title of a novel that I know well.) He told me that while he himself was living in southern Utah with his wife’s family, he became very ill. He contracted pneumonia. There was no doctor, no physician nearby. But there was a medicine man close at hand. The family called in a diagnostician (the traditional thing to do), who came and said that my friend was suffering from a particular malady whose cure would be the red-ant ceremony. So a man who is very well versed in that ceremony, a seer, a kind of specialist in the red-ant ceremony, came in and administered it to my friend. Soon after that my friend recovered completely. Not long after this he was talking to his father-in-law, and he was very curious about what had taken place. He said, “I wonder about the red-ant ceremony. Why is it that the diagnostician prescribed that particular ceremony for me?” His father-in-law looked at him and said, “Well, it was obvious to him that there were red ants in your system, and so we had to call in a seer to take the red ants out of your system.” At this point, my friend became very incredulous, and said, “Yes, but surely you don’t mean that there were red ants inside of me.” His father-in-law looked at him for a moment, then said, “Not ants, but ants.” Unless you understand this distinction, you might have difficulty understanding something about the Indian view of the natural world.

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Endnote This paper was adapted from transcriptions of oral remarks Professor Momaday made on this subject, informally, during a discussion with faculty and students.

Journal/Discussion Questions ✍ Mr. Momaday suggests that “appropriateness” is a central concept in terms of which Native Americans understand their relationship to the natural world. In your own life, what role—if any—does this notion play in your understanding of your own relationship to the natural world. Does this concept shed light on any parts of your experience that you hadn’t reflected on before? 1. Explain what Mr. Momaday means by appropriateness. How could this idea be used to develop environmental policies? 2. Think about the way in which Mr. Momaday responds to questions. He usually tells a story. What does this suggest about the way in which Native Americans maintain and transmit moral wisdom? How does this relate to the role of imagination?

Edward O. Wilson

“Apocalypse Now: A Scientist’s Plea for Christian Environmentalism” About the Author: Edward O. Wilson is a Harvard biologist, the founder of a discipline called sociobiology which studies behavior—including human behavior—within an evolutionary biological framework. His book Sociobiology: A New Synthesis (originally published in 1975, updated in 2000) defined the field, and his book On Human Nature (1979) presented it to a wider, nonscientific audience. Among many other honors, he has twice won the Pulitzer Prize for nonfiction and has also been awarded the National Medal of Science. Among many other issues, he has been concerned with the sociobiological foundations of altruism. He was born in Birmingham, Alabama. About the Article: Wilson is known as a secular humanist, and has often been criticized by some on the religious right for his views. In this letter to an imagined Southern Baptist pastor and to the larger evangelical community, Wilson attempts to find common ground with some of his traditional critics. As You Read, Consider These Questions: 1. In the opening paragraphs, Wilson states what separates him from the Southern Baptist pastor, but also discusses that which they may share. If you were to add your voice to this discussion, which things would you share with Wilson? With the pastor? 2. What does Wilson mean when he asks whether he and the pastor “can meet on the near side of metaphysics”? 3. What does Wilson present as a “universal value.” What is it that makes this value universal?

Dear Pastor, We have not met, yet I feel I know you well enough to call you a friend. First of all, we grew up in the same faith. As a boy, I, too, answered the altar call; I went under the water. Although I no longer belong to that faith, I am confident that, if we met and spoke privately of our deepest beliefs, it would be in a spirit of mutual respect and goodwill. I know we share many precepts of moral behavior. Perhaps it also matters that we are both Americans and, insofar as it might still affect civility and good manners, we are both Southerners. From "The Creation: An Appeal to Save Life on Earth" by Edward O. Wilson. Copyright © 2006 by Edward O. Wilson. Used by permission of W.W. Norton, Inc.

I write to you now for your counsel and help. Of course, in doing so, I see no way to avoid the fundamental differences in our worldviews. You are a strict interpreter of Christian Holy Scripture; I am a secular humanist. You believe that each person’s soul is immortal, making this planet a waystation to a second, eternal life; I think heaven and hell are what we create for ourselves, on this planet. For you, the belief in God made flesh to save mankind; for me, the belief in Promethean fire seized to set men free. You have found your final truth; I am still searching. You may be wrong; I may be wrong. We both may be partly right. Do these differences in worldview separate us in all things? They do not. You and I and every other human being strive for the same imperatives of security, freedom of choice, personal dignity, and a cause to believe in that is larger than ourselves. Let us see, then, if we can meet on the near side of metaphysics in order to deal with the real world we share. You have the power to help solve a great problem about which I care deeply. I hope you have the same concern. I suggest that we set aside our differences in order to save the Creation. The defense of living nature is a universal value. It doesn’t rise from, nor does it promote, any religious or ideological dogma. Rather, it serves without discrimination the interests of all humanity. Pastor, we need your help. The Creation—living nature—is in deep trouble. Scientists estimate that, if habitat-conversion and other destructive human activities continue at their present rates, half the species of plants and animals on earth could be either gone or at least fated for early extinction by the end of the century. The ongoing extinction rate is calculated in the most conservative estimates to be about 100 times above that prevailing before humans appeared on earth, and it is expected to rise to at least 1,000 times greater (or more) in the next few decades. If this rise continues unabated, the cost to humanity—in wealth, environmental security, and quality of life–will be catastrophic. Surely we can agree that each species, however inconspicuous and humble it may seem to us at this moment, is a masterpiece of biology and well worth saving. Each species possesses a unique combination of genetic traits that fits it more or less precisely to a particular part of the environment. Prudence alone dictates that we act quickly to prevent the extinction of species and, with it, the pauperization of earth’s ecosystems. With all the troubles that humanity faces, why should we care about the condition of living nature? Homo sapiens is a species confined to an extremely small niche. True, our minds soar out to the edges of the universe and contract inward to subatomic particles—the two extremes encompassing 30 powers of ten in space. In this respect, our intellects are godlike. But, let’s face it, our bodies stay trapped inside a proportionately microscopic envelope of physical constraints. Earth provides a self-regulating bubble that sustains us indefinitely without any thought or contrivance of our own. This protective shield is the biosphere, the totality of life, creator of all air, cleanser of all water, manager of all soil—but is itself a fragile membrane that barely clings to the face of the planet. We depend upon its razorthin health for every moment of our lives. We belong in the biosphere, we were born here as species, we are closely suited to its exacting conditions—and not all conditions, either, but just those in a few of the climatic regimes that exist upon some of the land. Environmental damage can be defined as any change that alters our surroundings in a direction contrary to humanity’s inborn physical and emotional needs. We must be careful with the environment upon which our lives ultimately depend. In destroying the biosphere, we are destroying unimaginably vast sources of scientific information and biological wealth. Opportunity costs, which will be better understood by our descendants than by ourselves, will be staggering. Gone forever will be undiscovered medicines, crops, timber, fibers, soil-restoring vegetation, petroleum substitutes, and other products and amenities. Critics of environmentalism forget, if they ever knew, how the rosy periwinkle of Madagascar provided the alkaloids that cure most cases of Hodgkin’s disease and acute childhood leukemia; how a substance from an obscure Norwegian fungus made possible the organ transplant industry; how a chemical from the saliva of leeches yielded a solvent that prevents blood clots during and after surgery; and so on through the pharmacopoeia that has

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stretched from the herbal medicines of Stone Age shamans to the magic-bullet cures of present-day biomedical science. These are just a few examples of what could be lost if Homo sapiens pursue our current course of environmental destruction. Earth is a laboratory wherein nature—God, if you prefer, pastor—has laid before us the results of countless experiments. We damage her at our own peril. You may well ask at this point, Why me? Simply because religion and science are the two most powerful forces in the world today, and especially in the United States. If religion and science could be united on the common ground of biological conservation, the problem might soon be solved. It may seem far-fetched for a secular scientist to propose an alliance between science and religion. But the fact is that environmental activists cannot succeed without you and your followers as allies. The political process in American democracy, with rare exceptions, does not start at the top and work its way down to the voting masses. It proceeds in the opposite direction. Political leaders are compelled to calculate as precisely as they can what it will take to win the next election. The United States is an intensely religious nation. It is overwhelmingly Judeo-Christian, with a powerful undercurrent of evangelism. We secularists must face reality. The National Association of Evangelicals has 30 million members; the three leading American humanist organizations combined have, at best, a few thousand. Those who, for religious reasons, believe in saving the Creation, have the strength to do so through the political process; acting alone, secular environmentalists do not. An alliance between science and religion, forged in an atmosphere of mutual respect, may be the only way to protect life on earth, including, in the end, our own. Yes, the gulf separating our worldviews is wide. The Abrahamic religions—Judaism, Christianity, and Islam—believe that the universe was constructed to be relevant to humanity. The discoveries of science, in unintended opposition, have reduced earth to an infinitesimal speck within an immensity of space unrelated to human destiny. The Abrahamic religions envisage a supreme ruler who, while existing outside the material universe, nevertheless oversees an agenda for each and every one of our immortal souls. Science can find no evidence of an agenda other than that fashioned by the complex interaction of genes and environment within parallel evolving cultures. Religious creation stories have a divinely engineered beginning and a divinely ordained ending. According to science, in contrast, humans descended from apish ancestors; our origin was basically no different from that of other animals, played out over geological time through a tortuous route of mutation and environmentally driven natural selection. In addition, all mainstream religious belief, whether fundamentalist or liberal, is predicated upon the assumption that humanity is not alone, and we are here for a life and purpose beyond our earthly existence. Science says that, as far as verifiable evidence tells, we are alone, and what significance we have is therefore of our own making. This is the heart of the agonizing conflict between science and religion that has persisted for the past 500 years. I do not see how the difference in worldview between these two great productions of human striving can be closed. But, for the purposes of saving the Creation, I am not sure that it needs to be. To make the point in good gospel manner, let me tell the story of a young man, newly trained for the ministry and so fixed in his Christian faith that he referred all questions of morality to readings from the Bible. When he visited the Atlantic rainforest of Brazil, he saw the manifest hand of God, and in his notebook he wrote, “It is not possible to give an adequate idea of the higher feelings of wonder, admiration, and devotion which fill and elevate the mind.” That was Charles Darwin in 1832, early into the voyage of the HMS Beagle, before he had given any thought to evolution. And here is Darwin, concluding On the Origin of Species in 1859, having first abandoned Christian dogma and then, with his newfound intellectual freedom, formulated the theory of evolution by natural selection: “There is grandeur in this view of life, with its several powers, having been originally breathed into a few forms or into one; and that, whilst this planet has gone cycling on according to the fixed law of gravity, from so simple a beginning endless forms most beautiful and most wonderful have been, and are being, evolved.” Darwin’s reverence for life remained the same as he crossed the seismic divide that separated his religious phase and his scientific

one. And so it can be for the divide that, today, separates mainstream religion and scientific humanism. And that separates you and me. Indeed, despite all that divides science from religion, there is good reason to hope that an alliance on environmental issues is possible. The spiritual reach of evangelical Christianity is nowadays increasingly extended to the environment. While the Old Testament God commands humanity to take dominion over the earth, the decree is not (as one evangelical leader recently affirmed) an excuse to trash the planet. The dominant theme in scripture as interpreted by many evangelicals is instead stewardship. Organizations like the Green Cross and the Evangelical Environmental Network (the latter a coalition of evangelical Christian agencies and institutions) are expanding their magisterium to include conservation—in religious terms, protection of the living Creation. This evangelical interest in the environment is part of a worldwide trend among religions. In the United States, the umbrella National Religious Partnership for the Environment works with evangelical groups and other prominent organizations, including the U.S. Conference of Catholic Bishops, the National Council of Churches of Christ, and the Coalition on the Environment and Jewish Life. In 2001, the Archbishop of Canterbury urged that “it may not be time to build an Ark like Noah, but it is high time to take better care of God’s creation.” Three years earlier, Bartholomew I, Patriarch of the Greek Orthodox Church, had gone further: “For humans to cause species to become extinct and to destroy the biological diversity of God’s creation . . . these are sins.” He and Pope John Paul II later issued a “Common Declaration” that “God has not abandoned the world. It is His will that His Design and our hope for it will be realized through our co-operation in restoring its original harmony. In our own time we are witnessing a growth of an ecological awareness which needs to be encouraged, so that it will lead to practical programs and initiatives.” Unfortunately, a corresponding magnitude of engagement has not yet occurred in Islam or the Eastern religions. Every great religion offers mercy and charity to the poor. The poor of the world, of whom nearly a billion exist in the “poverty trap” of absolute destitution, are concentrated in the developing countries—the home of 80 percent of the world’s population and most of Earth’s biodiversity. The solution to the problems of both depends on the recognition that each depends on the other. The desperately poor have little chance to improve their lives in a devastated environment. Conversely, natural environments, where most of the Creation hangs on, cannot survive the press of land-hungry people who have nowhere else to go. To be sure, some leaders of the religious right are reluctant to support biological conservation, an opposition sufficient to create a wedge within the evangelical movement. They may be partly afraid of paganism, by which worship of nature supplants worship of God. More realistically and importantly, opposition rises from the perceived association of environmental activism with the political left. For decades, conservatives have defined environmentalism as a movement bent on strangling the United States with regulations and bureaucratic power. This canard has dogged the U.S. environmental movement and helped keep it off the agenda of the past two presidential campaigns. Finally, however, opinion may be changing. The mostly evangelical religious right, which, along with big business, has been the decisive source of power in the Republican Party, has begun to move care of the Creation back into the mainstream of conservative discourse. The opportunity exists to make the environment a universal concern and to render it politically nonpartisan. Still, for all the positive signs, I remain puzzled that so many religious leaders have hesitated to make protection of the Creation an important part of their magisterium. Pastor, help me understand: Do they believe that human-centered ethics and preparation for the afterlife are the only things that matter? Do they believe that the Second Coming is imminent and that, therefore, the condition of the planet is of little consequence? These and other similar doctrines are not gospels of hope and compassion. They are gospels of cruelty and despair. You and I are both humanists in the broadest sense: Human welfare is at the center of our thought. So forget our disagreements, I say, and let us meet on common ground. That might not be as difficult as it first seems. When you think about it, our metaphysical differences have remarkably little effect on the conduct of our separate lives. My guess is that you and I are about equally ethical, patriotic, and altruistic. We are products of a civilization that rose from both religion and the science-based Enlightenment. We would gladly serve on

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the same jury, fight the same wars, and sanctify human life with the same intensity. Surely we also share a love of the Creation—and an understanding that, however the tensions play out between our opposing worldviews, however science and religion wax and wane in the minds of men, there remains the earthborn yet transcendental obligation we are both morally bound to share. Warmly and respectfully, Edward O. Wilson

For Further Discussion 1. Wilson discusses the importance of each individual species. He writes as someone who knows more about individual species than most of us. What is his argument in favor of the preservation of individual species? How is this different from the protection of individual animals or plants? 2. In his letter, Wilson suggests that the main position in evangelical Christianity in regard to the environment is stewardship. Explain what is meant by this key notion. Drawing on your own knowledge and background, do you think that Wilson’s analysis is accurate? To what extent do you believe in the obligations of stewardship over the environment? What follows from this? 3. In the background—and often even the foreground—of Wilson’s letter is the tension between science and religion. Discuss your own position in regard to this issue. Do you believe there is necessarily a conflict between the two? How do you understand the origins of humanity?

An Introduction to the Moral Issues

An Introduction to the Moral Issues 439 The Central Questions 439 An Overview 440 Human-Centered Approaches 440 Expanded-Circle Approaches 441 Expanded Utilitarianism 441 Biocentrism 441 Ecocentrism 441

An Introduction to the Moral Issues Perhaps more than any of the other issues that we have considered in this book, questions about our relationships with animals and the environment take us to the heart of a fundamental clash of worldviews. It is, moreover, not like the familiar clashes between liberal and conservative, theist and atheist, or the like; it is, rather, a clash between a scientific and technological worldview—that encompasses liberal and conservative, theist and atheist, and other divisions familiar to us—and a diverse set of natural worldviews—many of them echoing the cultures of indigenous peoples—that emphasize the continuity and interdependence of human beings and the natural world. One of the by-products of this clash of worldviews is that much of environmental ethics calls into question the foundations of traditional (i.e., Western European) ethics. This has been both an asset and a liability for the development of environmental ethics. On the plus side, it has resulted in a number of interesting discussions that illuminate aspects of the foundations of Western ethics that might not otherwise be brought as sharply into focus. In particular, it has called attention to the ways in which Western ethics conceptualizes the natural world and understands the place of human beings in it. On the negative side, however, the concern with such foundational questions has detracted, at least in the eyes of some, from environmental ethic’s principal task as applied ethics. Rather than concentrating on specific moral issues facing those concerned with the environment (as well as those who are not concerned with it!), environmental ethics has concentrated on issues that exist on such a high level of abstraction that they are not immediately fruitful for making decisions about the specific environmental issues.

The Central Questions As we turn toward a consideration of environmental ethics, three questions present themselves:

1. Who, or what, has moral weight (i.e., is deserving of direct moral consideration)? 2. How much moral weight does each (type of) entity have? 3. How do we make decisions when there are conflicts among different types of beings, each of which have moral weight?

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An adequate environmental ethic must eventually provide answers to all three of these questions. In recent work by environmentalists, considerable attention has been paid to the first of these questions.2 Here the debate has centered on the question of whether individual animals, species, plants, rivers, and the like have moral weight (i.e., whether we should give moral consideration to the question of their well-being or continued flourishing). Sometimes this question is posed in relation to individuals (e.g., this specific plant) and sometimes it is posed in relation to species (e.g., the spotted owl). In the next section of this introduction, we examine a number of specific answers to these questions. The second question—how much moral standing something has—is both crucial and usually neglected. It is crucial because ethics must eventually provide guidance for our actions, and if we have no way of ranking how much moral consideration a given entity merits, we are left without assistance in resolving conflicts among morally considerable beings. The answer to the third question obviously presupposes an answer to the first two questions. We shall consider each of these three questions here, but first sketch out an overview of the main schools of thought in environmental ethics.

An Overview Because this is relatively uncharted territory for many of us, it may be helpful to see an overview of the conceptual terrain and the various positions that have been marked out on it by the current participants in the discussion of environmental ethics. We may initially divide these approaches into two categories. Human-centered approaches to the environment take human beings as their moral point of reference and consider questions of the environment solely from that perspective. They ask, in other words, environmental questions from the standpoint of the effects of the answers to such questions on human beings in one way or another. In contrast to these approaches, we find in recent years that a number of expanded-circle approaches (to borrow a term from the title of Peter Singer’s The Expanding Circle) have come into the circle of morally considerable beings—that is, entities deserving of moral respect in some way—with an increasingly wide radius. Let’s examine each of these in somewhat more detail.1 Human-Centered Approaches

Human-centered approaches to the environment do not necessarily neglect the environment, but typically they recognize as valid moral reasons only those acceptable to traditional moral theories. These theories are of the various types we discussed in the Introduction to this book. Ethical egoists recognize only reasons of self-interest as an adequate moral justification for treating the environment in a particular way. For example, ethical egoists could well imagine people wanting a particular landscape preserved because it provided them personally with an aesthetically pleasing view, but it would also see those who wanted to strip-mine that particular landscape as morally justified if it maximized their own self-interest. Group egoists are also concerned with self-interest, but the net of self-interest is more broadly cast to include not only one’s personal interests but also the interests of the group with which one most strongly affiliates. The boundaries of the group may be comparatively narrow (one’s family), intermediate (one’s neighborhood, one’s corporation, one’s church group), or quite broad (one’s nation, all those who share one’s religious beliefs). What is characteristic of these approaches is that only the interests of one’s group are to be given moral weight in making decisions. Similarly, there are approaches in virtue ethics that concentrate on developing those character traits that contribute to the welfare of the group: loyalty, a spirit of self-sacrifice, obedience to authority, and so on. Aristotle, for example, sought to determine those character traits that would make a person a good member of the polis, the Greek city-state. Much more recently, William Bennett and others have sought to determine the virtues we should foster to have a better civic and communal life in the United States. One of the principal differences between group egoist and virtue ethics is that egoism focuses on the question of what actions we should perform, whereas virtue ethics looks at the kind of person we should be. Utilitarians, like egoists, are consequentialists; that is, they determine whether particular actions are right or wrong by looking at their consequences. However, whereas the ethical egoist looks at consequences only insofar as they affect the egoist personally, the utilitarian looks at consequences insofar as they affect all human beings.

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Often courses of action that would be justified from the standpoint of ethical egoism are not morally justified from a utilitarian standpoint, because they may benefit the egoist but not provide sufficient benefit to humanity as a whole (when judged in relation to competing courses of action). Preserving the natural environment may be an important value to utilitarians if doing so provides the maximal benefit to humanity. There are a variety of ways in which this could be so. For example, preservation—or at least careful management—of the natural environment may provide long-term resources for all of humanity. Thus, we may want to preserve the rain forests because, even though destroying them might bring short-term profit to a small group of people, preserving them provides irreplaceable benefits to humanity in terms of air quality, natural resources, and the like. Notice that there is no claim here that the rain forest is valuable in itself; its value derives from the ways in which it contributes to human well-being. If in the long-run human well-being would best be served by destroying the rain forests, then utilitarianism would not only permit this, it would require it. Expanded-Circle Approaches

Expanded Utilitarianism Utilitarianism has often been concerned with the effects of various actions on the well-being of human beings. The underlying rationale has been that the whole point of ethics is to increase pleasure or happiness and to decrease pain, suffering, or unhappiness. As we saw in the previous chapter, a number of philosophers, most notably Peter Singer, have taken the next step and asked why only human suffering counts in the utilitarian calculus. If we are concerned with reducing suffering, should we be concerned with reducing the suffering of all sentient beings. Thus this version of utilitarianism has expanded the circle of morally considerable beings to include nonhuman animals. Although this is far from a full-fledged environmental ethic, it is an important step beyond a purely anthropocentric ethic.

Biocentrism Biocentrism represents the first step toward a genuinely environmental ethic, for it maintains that all living beings—this includes plants, fauna, and so on, as well as human and nonhuman animals—are deserving of moral consideration in their own right. Biocentric approaches focus on individual entities and the premise here seems to be primarily a teleological one. All living beings have some telos or final goal, and this is usually understood in terms of flourishing or growing in some sense. They are thus entitled to moral consideration from us; that is, we should not act in ways that thwart their movement toward their natural goal.

Ecocentrism Ecocentrism, which is often called deep ecology by its supporters, expands the circle to its maximal terrestrial limits by taking the entirety of what exists on the earth as morally considerable, inanimate as well as animate. It comes in two versions, the latter of which is much more plausible than the former. Individualistic ecocentrism gives moral weight to each and every entity within the ecosystem. The difficulty with this approach flows from the fact that individualistic ecocentrism has been unable to provide a criterion for assigning different weights to different individuals—and if everything has an equal moral weight, then it is virtually impossible to arrive at a decision procedure in particular cases in which precedence must be given to one individual over another. The more plausible variant of ecocentrism is to be found in holistic ecocentrism, which gives moral weight to each species, type, and so forth in the ecosystem. Thus holistic ecocentrism is concerned with the preservation of species, and concern about individuals is only a means to the end of species-preservation. Similarly, ecocentric environmentalists may be concerned about the preservation of particular types of environments—wetlands, sand dunes, rain forest—both in their own right and insofar as they are parts of larger ecosystems. The ultimate ecosystem is the earth as a whole. As we saw in Chapter 10, many philosophers have argued that the moral circle ought to be expanded to include nonhuman animals. As we see in this chapter, some philosophers want to expand this circle even further to include the entire natural environment.

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Notes 1. This typology draws on several sources, most notably Carolyn Merchant’s “Environmental Ethics and Political Conflict,” and J. Baird Callicott’s “Environmental Ethics,” Encyclopedia of Ethics, edited by Lawrence and Charlotte Becker (New York: Garland, 1992), Vol. I, pp. 311–315. 2. Kenneth E. Goodpaster, “On Being Morally Considerable,” Journal of Philosophy, Vol. LXXV, No. 6 (June 1978), pp. 308–324; W. Murray Hunt, “Are Mere Things Morally Considerable?” Environmental Ethics, Vol. 2 (Spring 1980), pp. 59–65.

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The Arguments Peter S. Wenz

“Just Garbage” About the Author: Peter S. Wenz, Professor of Philosophy and Legal Studies at the University of Illinois at Springfield and Adjunct Professor of Medical Humanities at the Southern Illinois University School of Medicine, is author of four books, Environmental Justice (SUNY 1988), Abortion Rights as Religious Freedom (Temple 1992), Nature’s Keeper (Temple 1996), and Environmental Ethics Today (Oxford 2001). He is currently working on issues at the intersection of environmental protection, political philosophy, human rights, and globalization. About the Article: In this article, Wenz examines some of the ways in which environmental policies place disproportionate burdens on the poor and people of color, exposing them to more potential harms and giving them fewer potential benefits. Wenz assesses these practices from the standpoint of justice, and suggests an alternative approach that more fully meets the demands of justice. As You Read, Consider This: 1. What are LULUs? 2. What, precisely, is the principle of the double effect? What role does this principle play in the defense of current environmental policies? 3. What is the principle of commensurate burdens and benefits? What role does it play in Wenz’s arguments? 4. What is Wenz’s Lowerarchy of Worry? 5. What is NIMBYism?

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nvironmental racism is evident in practices that expose racial minorities in the United States, and people of color around the world, to disproportionate shares of environmental hazards.1 These include toxic chemicals in factories, toxic herbicides and pesticides in agriculture, radiation from uranium mining, lead from paint on older buildings, toxic wastes illegally dumped, and toxic wastes legally stored. In this article, which concentrates on issues of toxic waste, both illegally dumped and legally stored, I will examine the justness of current practices as well as the arguments commonly given in their defense. I will then propose an alternative practice that is consistent with prevailing principles of justice.

Peter S. Wenz, “Just Garbage,” Faces of Environmental Racism, edited by Laura Westra and Bill E. Lawson, Second Edition (Lanham: Rowman & Littlefield, 2001), pp. 57–72 . Copyright © 2001 Rowman & Littlefield Publishing. Used with permission.

A Defense of Current Practices

Defenders often claim that because economic, not racial, considerations account for disproportionate impacts on nonwhites, current practices are neither racist nor morally objectionable. Their reasoning recalls the Doctrine of Double Effect. According to that doctrine, an effect whose production is usually blameworthy becomes blameless when it is incidental to, although predictably conjoined with, the production of another effect whose production is morally justified. The classic case concerns a pregnant woman with uterine cancer. A common, acceptable treatment for uterine cancer is hysterectomy. This will predictably end the pregnancy, as would an abortion. However, Roman Catholic scholars who usually consider abortion blameworthy consider it blameless in this context because it is merely incidental to hysterectomy, which is morally justified to treat uterine cancer. The hysterectomy would be performed in the absence of pregnancy, so the abortion effect is produced neither as an end-in-itself, nor as a means to roach the desired end, which is the cure of cancer. Defenders of practices that disproportionately disadvantage non-whites seem to claim, in keeping with the Doctrine of Double Effect, that racial effects are blameless because they are sought neither as ends in-themselves nor as means to reach a desired goal. They are merely predictable side effects of economic and political practices that disproportionately expose poor people to toxic substances. The argument is that burial of toxic wastes, and other locally undesirable land uses (LULUs), lower property values. People who can afford to move elsewhere do so. They are replaced by buyers (or renters) who are predominantly poor and cannot afford housing in more desirable areas. Law professor Vicki Been puts it this way: “As long as the market allows the existing distribution of wealth to allocate goods and services, it would be surprising indeed if, over the long run, LULUs did not impose a disproportionate burden upon the poor.” People of color are disproportionately burdened due primarily to poverty, not racism.2 This defense against charges of racism is important in the American context because racial discrimination is illegal in the United States in circumstances where economic discrimination is permitted.3 Thus, legal remedies to disproportionate exposure of nonwhites to toxic wastes are available if racism is the cause, but not if people of color are exposed merely because they are poor. There is strong evidence against claims of racial neutrality. Professor Been acknowledges that even if there is no racism in the process of siting LULUs, racism plays at least some part in the disproportionate exposure of African Americans to them. She cites evidence that “racial discrimination in the sale and rental of housing relegates people of color (especially African Americans) to the least desirable neighborhoods, regardless of their income level.”4 Without acknowledging for a moment, then, that racism plays no part in the disproportionate exposure of nonwhites to toxic waste, I will ignore this issue to display a weakness in the argument that justice is served when economic discrimination alone is influential. I claim that even if the only discrimination is economic, justice requires re-dress and significant alteration of current practices. Recourse to the Doctrine of Double Effect presupposes that the primary effect, with which a second effect is incidentally conjoined, is morally justifiable. In the classic case, abortion is justified only because hysterectomy is justified as treatment for uterine cancer. I argue that disproportionate impacts on poor people violate principles of distributive justice, and so are not morally justifiable in the first place. Thus, current practices disproportionately exposing nonwhites to toxic substances are not justifiable even if incidental to the exposure of poor people. Alternate practices that comply with acceptable principles of distributive justice are suggested below. They would largely solve problems of environmental racism (disproportionate impacts on nonwhites) while ameliorating the injustice of disproportionately exposing poor people to toxic hazards. They would also discourage production of toxic substances, thereby reducing humanity’s negative impact on the environment. The Principle of Commensurate Burdens and Benefit

We usually assume that, other things being equal, those who derive benefits should sustain commensurate burdens. We typically associate the burden of work with the benefit of receiving money, and the burdens of monetary payment and tort liability with the benefits of ownership. There are many exceptions. For example, people can inherit money without working, and be given ownership without purchase. Another exception, which dissociates the benefit of ownership from the burden of tort

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liability, is the use of tax money to protect the public from hazards associated with private property, as in Superfund legislation. Again, the benefit of money is dissociated from the burden of work when governments support people who are unemployed. The fact that these exceptions require justification, however, indicates an abiding assumption that people who derive benefits should shoulder commensurate burdens. The ability to inherit without work is justified as a benefit owed to those who wish to bequeath their wealth (which someone in the line of inheritance is assumed to have shouldered burdens to acquire). The same reasoning applies to gifts. Using tax money (public money) to protect the public from dangerous private property is justified as encouraging private industry and commerce, which are supposed to increase public wealth. The system also protects victims in case private owners become bankrupt as, for example, in Times Beach, Missouri, where the government bought homes made worthless due to dioxin pollution. The company responsible for the pollution was bankrupt. Tax money is used to help people who are out of work to help them find a job, improve their credentials, or feed their children. This promotes economic growth and equal opportunity. These exceptions prove the rule by the fact that justification for any deviation from the commensuration of benefits and burdens is considered necessary. Further indication of an abiding belief that benefits and burdens should be commensurate is grumbling that, for example, many professional athletes and corporate executives are overpaid. Although the athletes and executives shoulder the burden of work, the complaint is that their benefits are disproportionate to their burdens. People on welfare are sometimes criticized for receiving even modest amounts of taxpayer money without shouldering the burdens of work, hence recurrent calls for “welfare reform.” Even though these calls are often justified as means to reducing government budget deficits, the moral issue is more basic than the economic. Welfare expenditures are minor compared to other programs, and alternatives that require poor people to work are often more expensive than welfare as we know it. The principle of commensuration between benefits and burdens is not the only moral principle governing distributive justice, and may not be the most important, but it is basic. Practices can be justified by showing them to conform, all things considered, to this principle. Thus, there is no move to “reform” the receipt of moderate pay for ordinary work, because it exemplifies the principle. On the other hand, practices that do not conform are liable to attack and require alternate justification, as we have seen in the cases of inheritance, gifts, Superfund legislation, and welfare. Applying the principle of commensuration between burdens and benefits to the issue at hand yields the following: In the absence of countervailing considerations, the burdens of ill health associated with toxic hazards should be related to benefits derived from processes and products that create these hazards. Toxic Hazards and Consumerism

In order to assess, in light of the principle of commensuration between benefits and burdens, the justice of current distributions of toxic hazards, the benefits of their generation must be considered. Toxic wastes result from many manufacturing processes, including those for a host of common items and materials, such as paint, solvents, plastics, and most petrochemical-based materials. These materials surround us in the paint on our houses, in our refrigerator containers, in our clothing, in our plumbing, in our garbage pails, and elsewhere. Toxins are released into the environment in greater quantities now than ever before because we now have a consumer-oriented society where the acquisition, use, and disposal of individually owned items is greatly desired. We associate the numerical dollar value of the items at our disposal with our “standard of living,” and assume that a higher standard is conducive to, if not identical with, a better life. So toxic wastes needing disposal are produced as by-products of the general pursuit of what our society defines as valuable, that is, the consumption of material goods. Our economy requires increasing consumer demand to keep people working (to produce what is demanded). This is why there is concern each Christmas season, for example, that shoppers may not buy enough. If demand is insufficient, people may be put out of work. Demand must increase, not merely hold steady, because commercial competition improves labor efficiency in manufacture (and now in the service sector as well), so fewer workers can produce desired items. More items must be desired to forestall labor efficiency-induced unemployment, which is grave in a society where people depend primarily on wages to secure life’s necessities.

Demand is kept high largely by convincing people that their lives require improvement, which consumer purchases will effect. When improvements are seen as needed, not merely desired, people purchase more readily. So our culture encourages economic expansion by blurring the distinction between wants and needs. One way the distinction is blurred is through promotion of worry. If one feels insecure without the desired item or service, and so worries about life without it, then its provision is easily seen as a need. Commercials, and other shapers of social expectations, keep people worried by adjusting downward toward the trivial what people are expected to worry about. People worry about the provision of food, clothing, and housing without much inducement. When these basic needs are satisfied, however, attention shifts to indoor plumbing, for example, then to stylish indoor plumbing. The process continues with needs for a second or third bathroom, a kitchen disposal, and a refrigerator attached to the plumbing so that ice is made automatically in the freezer, and cold water can be obtained without even opening the refrigerator door. The same kind of progression results in cars with CD players, cellular phones, and automatic readouts of average fuel consumption per mile. Abraham Maslow was not accurately describing people in our society when he claimed that after physiological, safety, love, and (self-) esteem needs are met, people work toward self-actualization, becoming increasingly their own unique selves by fully developing their talents. Maslow’s Hierarchy of Needs describes people in our society less than Wenz’s Lowerarchy of Worry. When one source of worry is put to rest by an appropriate purchase, some matter less inherently or obviously worrisome takes its place as the focus of concern. Such worrysubstitution must be amenable to indefinite repetition in order to motivate purchases needed to keep the economy growing without inherent limit. If commercial society is supported by consumer demand, it is worry all the way down. Toxic wastes are produced in this context. People tend to worry about ill health and early death without much inducement. These concerns are heightened in a society dependent upon the production of worry, so expenditure on health care consumes an increasing percentage of the gross domestic product. As knowledge of health impairment due to toxic substances increases, people are decreasingly tolerant of risks associated with their proximity. Thus, the same mindset of worry that elicits production that generates toxic wastes, exacerbates reaction to their proximity. The result is a desire for their placement elsewhere, hence the NIMBY syndrome—Not In My Back Yard. On this account, NIMBYism is not aberrantly selfish behavior, but integral to the cultural value system required for great volumes of toxic waste to be generated in the first place. Combined with the principle of Commensurate Burdens and Benefits, that value system indicates who should suffer the burden of proximity to toxic wastes. Other things being equal, those who benefit most from the production of waste should shoulder the greatest share of burdens associated with its disposal. In our society, consumption of goods is valued highly and constitutes the principal benefit associated with the generation of toxic wastes. Such consumption is generally correlated with income and wealth. So other things being equal, justice requires that people’s proximity to toxic wastes be related positively to their income and wealth. This is exactly opposite to the predominant tendency in our society, where poor people are more proximate to toxic wastes dumped illegally and stored legally. Rejected Theories of Justice

Proponents of some theories of distributive justice may claim that current practices are justified. In this section I will explore such claims. A widely held view of justice is that all people deserve to have their interests given equal weight. John Rawls’s popular thought experiment in which people choose principles of justice while ignorant of their personal identities dramatizes the importance of equal consideration of interests. Even selfish people behind the “veil of ignorance” in Rawls’s “original position” would choose to accord equal consideration to everyone’s interests because, they reason, they may themselves be the victims of any inequality. Equal consideration is a basic moral premise lacking serious challenge in our culture, so it is presupposed in what follows. Disagreement centers on application of the principle. Libertarianism. Libertarians claim that each individual has an equal right to be free of interference from other people. All burdens imposed by other people are unjustified unless part of, or consequent upon, agreement by

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the party being burdened. So no individual who has not consented should be burdened by burial of toxic wastes (or the emission of air pollutants, or the use of agricultural pesticides, etc.) that may increase risks of disease, disablement, or death. Discussing the effects of air pollution, libertarian Murray Rothbard writes, “The remedy is simply to enjoin anyone from injecting pollutants into the air, and thereby invading the rights of persons and property. Period.”5 Libertarians John Hospers and Tibor R. Machan seem to endorse Rothbard’s position.6 The problem is that implementation of this theory is impractical and unjust in the context of our civilization. Industrial life as we know it inevitably includes production of pollutants and toxic substances that threaten human life and health. It is impractical to secure the agreement of every individual to the placement, whether on land, in the air, or in water, of every chemical that may adversely affect the life or health of the individuals in question. After being duly informed of the hazard, someone potentially affected is bound to object, making the placement illegitimate by libertarian criteria. In effect, libertarians give veto power to each individual over the continuation of industrial society. This seems a poor way to accord equal consideration to everyone’s interests because the interest in physical safety of any one individual is allowed to override all other interests of all other individuals in the continuation of modern life. Whether or not such life is worth pursuing, it seems unjust to put the decision for everyone in the hands of any one person. Utilitarianism. Utilitarians consider the interests of all individuals equally, and advocate pursuing courses of action that promise to produce results containing the greatest (net) sum of good. However, irrespective of how “good” is defined, problems with utilitarian accounts of justice are many and notorious. Utilitarianism suffers in part because its direct interest is exclusively in the sum total of good, and in the future. Since the sum of good is all that counts in utilitarianism, there is no guarantee that the good of some will not be sacrificed for the greater good of others. Famous people could receive (justifiably according to utilitarians) particularly harsh sentences for criminal activity to effect general deterrence. Even when fame results from honest pursuits, a famous felon’s sentence is likely to attract more attention than sentences in other cases of similar criminal activity. Because potential criminals are more likely to respond to sentences in such cases, harsh punishment is justified for utilitarian reasons on grounds that are unrelated to the crime. Utilitarianism suffers in cases like this not only from its exclusive attention to the sum total of good, but also from its exclusive preoccupation with future consequences, which makes the relevance of past conduct indirect. This affects not only retribution, but also reciprocity and gratitude, which utilitarians endorse only to produce the greatest sum of future benefits. The direct relevance of past agreements and benefits, which common sense assumes, disappears in utilitarianism. So does direct application of the principle of Commensurate Burdens and Benefits. The merits of the utilitarian rejection of common sense morality need not be assessed, however, because utilitarianism seems impossible to put into practice. Utilitarian support for any particular conclusion is undermined by the inability of anyone actually to perform the kinds of calculations that utilitarians profess to use. Whether the good is identified with happiness or preference-satisfaction, the two leading contenders at the moment, utilitarians announce the conclusions of their calculations without ever being able to show the calculation itself. When I was in school, math teachers suspected that students who could never show their work were copying answers from other students. I suspect similarly that utilitarians, whose “calculations” often support conclusions that others reach by recourse to principles of gratitude, retributive justice, commensuration between burdens and benefits, and so forth, reach conclusions on grounds of intuitions influenced predominantly by these very principles. Utilitarians may claim that, contrary to superficial appearances, these principles are themselves supported by utilitarian calculations. But, again, no one has produced a relevant calculation. Some principles seem prima facie opposed to utilitarianism, such as the one prescribing special solicitude of parents for their own children. It would seem that in cold climates more good would be produced if people bought winter coats for needy children, instead of special dress coats and ski attire for their own children. But utilitarians defend the principle of

special parental concern. They declare this principle consistent with utilitarianism by appeal to entirely untested, unsubstantiated assumptions about counterfactuals. It is a kind of “Just So” story that explains how good is maximized by adherence to current standards. There is no calculation at all. Another indication that utilitarians cannot perform the calculations they profess to rely upon concerns principles whose worth is in genuine dispute. Utilitarians offer no calculations that help to settle the matter. For example, many people wonder today whether or not patriotism is a worthy moral principle. Detailed utilitarian calculations play no part in the discussion. These are some of the reasons why utilitarianism provides no help to those deciding whether or not disproportionate exposure of poor people to toxic wastes is just. Free Market Approach. Toxic wastes, a burden, could be placed where residents accept them in return for monetary payment, a benefit. Since market transactions often satisfactorily commensurate burdens and benefits, this approach may seem to honor the principle of commensuration between burdens and benefits. Unlike many market transactions, however, whole communities, acting as corporate bodies, would have to contract with those seeking to bury wastes. Otherwise, any single individual in the community could veto the transaction, resulting in the impasse attending libertarian approaches.7 Communities could receive money to improve such public facilities as schools, parks, and hospitals, in addition to obtaining tax revenues and jobs that result ordinarily from business expansion. The major problem with this free market approach is that it fails to accord equal consideration to everyone’s interests. Where basic or vital goods and services are at issue, we usually think equal consideration of interests requires ameliorating inequalities of distribution that markets tend to produce. For example, one reason, although not the only reason, for public education is to provide every child with the basic intellectual tools necessary for success in our society. A purely free market approach, by contrast, would result in excellent education for children of wealthy parents and little or no education for children of the nation’s poorest residents. Opportunities for children of poor parents would be so inferior that we would say the children’s interests had not been given equal consideration. The reasoning is similar where vital goods are concerned. The United States has the Medicaid program for poor people to supplement market transactions in health care precisely because equal consideration of interests requires that everyone be given access to health care. The 1994 health care debate in the United States was, ostensibly, about how to achieve universal coverage, not about whether or not justice required such coverage. With the exception of South Africa, every other industrialized country already has universal coverage for health care. Where vital needs are concerned, markets are supplemented or avoided in order to give equal consideration to everyone’s interests. Another example concerns military service in time of war. The United States employed conscription during the Civil War, both world wars, the Korean War, and the war in Vietnam. When the national interest requires placing many people in mortal danger, it is considered just that exposure be largely unrelated to income and market transactions. The United States does not currently provide genuine equality in education or health care, nor did universal conscription (of males) put all men at equal risk in time of war. In all three areas, advantage accrues to those with greater income and wealth. (During the Civil War, paying for a substitute was legal in many cases.) Imperfection in practice, however, should not obscure general agreement in theory that justice requires equal consideration of interests, and that such equal consideration requires rejecting purely free market approaches where basic or vital needs are concerned. Toxic substances affect basic and vital interests. Lead, arsenic, and cadmium in the vicinity of children’s homes can result in mental retardation of the children.8 Navajo teens exposed to radiation from uranium mine tailings have seventeen times the national average of reproductive organ cancer.9 Environmental Protection Agency (EPA) officials estimate that toxic air pollution in areas of South Chicago increase cancer risks 100 to 1,000 times.10 Pollution from Otis Air Force base in Massachusetts is associated with alarming increases in cancer rates.11 Non-Hodgkin’s Lymphoma is related to living near stone, clay, and glass industry facilities, and

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leukemia is related to living near chemical and petroleum plants.12 In general, cancer rates are higher in the United States near industries that use toxic substances and discard them nearby.13 In sum, the placement of toxic wastes affects basic and vital interests just as do education, health care, and wartime military service. Exemption from market decisions is required to avoid unjust impositions on the poor, and to respect people’s interests equally. A child dying of cancer receives little benefit from the community’s new swimming pool. Cost-Benefit Analysis (CBA). CBA is an economist’s version of utilitarianism, where the sum to be maximized is society’s wealth, as measured in monetary units, instead of happiness or preference satisfaction. Society’s wealth is computed by noting (and estimating where necessary) what people are willing to pay for goods and services. The more people are willing to pay for what exists in society, the better off society is, according to CBA. CBA will characteristically require placement of toxic wastes near poor people. Such placement usually lowers land values (what people are willing to pay for property). Land that is already cheap, where poor people live, will not lose as much value as land that is currently expensive, where wealthier people live, so a smaller loss of social wealth attends placement of toxic wastes near poor people. This is just the opposite of what the Principle of Commensurate Burdens and Benefits requires. The use of CBA also violates equal consideration of interests, operating much like free market approaches. Where a vital concern is at issue, equal consideration of interests requires that people be considered irrespective of income. The placement of toxic wastes affects vital interests. Yet CBA would have poor people exposed disproportionately to such wastes.14 In sum, libertarianism, utilitarianism, free market distribution, and cost-benefit analysis are inadequate principles and methodologies to guide the just distribution of toxic wastes. LULU Points

An approach that avoids these difficulties assigns points to different types of locally undesirable land uses (LULUs) and requires that all communities earn LULU points. In keeping with the Principle of Commensurate Benefits and Burdens, wealthy communities would be required to earn more LULU points than poorer ones. Communities would be identified by currently existing political divisions, such as villages, towns, city wards, cities, and counties. Toxic waste dumps are only one kind of LULU. Others include prisons, half-way houses, municipal waste sites, low-income housing, and power plants, whether nuclear or coal fired. A large deposit of extremely toxic waste, for example, may be assigned twenty points when properly buried but fifty points when illegally dumped. A much smaller deposit of properly buried toxic waste may be assigned only ten points, as may a coal-fired power plant. A nuclear power plant may be assigned twenty-five points, while municipal waste sites are only five points, and one hundred units of low-income housing are eight points. These numbers are only speculations. Points would be assigned by considering probable effects of different LULUs on basic needs, and responses to questionnaires investigating people’s levels of discomfort with LULUs of various sorts. Once numbers are assigned, the total number of LULU points to be distributed in a given time period could be calculated by considering planned development and needs for prisons, power plants, low-income housing, and so on. One could also calculate points for a community’s already existing LULUs. Communities could then be required to host LULUs in proportion to their income or wealth, with new allocation of LULUs (and associated points) correcting for currently existing deviations from the rule of proportionality. Wherever significant differences of wealth or income exist between two areas, these areas should be considered part of different communities if there is any political division between them. Thus, a county with rich and poor areas would not be considered a single community for purposes of locating LULUs. Instead, villages or towns may be so considered. A city with rich and poor areas may similarly be reduced to its wards. The purpose of segregating areas of different income or wealth from one another is to permit the imposition of greater LULU burdens on wealthier communities. When wealthy and poor areas are considered as one larger community, there is the danger that the community will earn its LULU points by placing hazardous waste near its poorer

members. This possibility is reduced when only relatively wealthy people live in a smaller community that must earn LULU points. Practical Implications

Political strategy is beyond the scope of this chapter, so I will refrain from commenting on problems and prospects for securing passage and implementation of the foregoing proposal. I maintain that the proposal is just. In a society where injustice is common, it is no surprise that proposals for rectification meet stiff resistance. Were the LULU points proposal implemented, environmental racism would be reduced enormously. To the extent that poor people exposed to environmental hazards are members of racial minorities, relieving the poor of disproportionate exposure would also relieve people of color. This is not to say that environmental racism would be ended completely. Implementation of the proposal requires judgment in particular cases. Until racism is itself ended, such judgment will predictably be exercised at times to the disadvantage of minority populations. However, because most people of color currently burdened by environmental racism are relatively poor, implementing the proposal would remove 80 to 90 percent of the effects of environmental racism. While efforts to end racism at all levels should continue, reducing the burdens of racism is generally advantageous to people of color. Such reductions are especially worthy when integral to policies that improve distributive justice generally. Besides improving distributive justice and reducing the burdens of environmental racism, implementing the LULU points proposal would benefit life on earth generally by reducing the generation of toxic hazards. When people of wealth, who exercise control of manufacturing processes, marketing campaigns, and media coverage, are themselves threatened disproportionately by toxic hazards, the culture will evolve quickly to find their production largely unnecessary. It will be discovered, for example, that many plastic items can be made of wood, just as it was discovered in the late 1980s that the production of many ozone-destroying chemicals is unnecessary. Similarly, necessity being the mother of invention, it was discovered during World War II that many women could work in factories. When certain interests are threatened, the impossible does not even take longer. The above approach to environmental injustice should, of course, be applied internationally and intranationally within all countries. The same considerations of justice condemn universally, all other things being equal, exposing poor people to vital dangers whose generation predominantly benefits the rich. This implies that rich countries should not ship their toxic wastes to poor countries. Since many poorer countries, such as those in Africa, are inhabited primarily by nonwhites, prohibiting shipments of toxic wastes to them would reduce significantly worldwide environmental racism. A prohibition on such shipments would also discourage production of dangerous wastes, as it would require people in rich countries to live with whatever dangers they create. If the principle of LULU points were applied in all countries, including poor ones, elites in those countries would lose interest in earning foreign currency credits through importation of waste, as they would be disproportionately exposed to imported toxins. In sum, we could reduce environmental injustice considerably through a general program of distributive justice concerning environmental hazards. Pollution would not thereby be eliminated, since to live is to pollute. But such a program would motivate significant reduction in the generation of toxic wastes, and help the poor, especially people of color, as well as the environment.

Journal/Discussion Questions 1. What examples of environmental racism have you witnessed in your own community? What was the general reaction to these cases? Do you perceive them at the as instances of environmental racism? 2. Wenz criticizes utilitarian approaches to toxic waste management. On what basis? Do you agree? Discuss. 3. Wenz offers an alternative approach to the issue of the distribution of burdens such as toxic waste, one that centers on what he calls LULU points. Critically evaluate his approach.

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Ramachandra Guha

“Radical American Environmentalism and Wilderness Preservation: A Third World Critique” About the Author: Ramachandra Guha is an Indian historian and environmentalist, has published widely, including his books The Unquiet Woods (1989) and How Much Should a Person Consume? Thinking Through the Environment (2006). In 2008, he was named by Foreign Policy at one of the top 100 intellectuals in the world. About the Article: In this essay, Professor Guha presents a Third World critique of the trend in American environmentalism known as deep ecology, analyzing each of deep ecology’s central tenets: the distinction between anthropocentrism and biocentrism, the focus on wilderness preservation, the invocation of Eastern traditions, and the belief that it represents the most radical trend within environmentalism. He argues that the anthropocentrism-biocentrism distinction is of little use in understanding the dynamics of environmental degradation, that the implementation of the wilderness agenda is causing serious deprivation in the Third World, that the deep ecologist’s interpretation of Eastern traditions is highly selective, and that in other cultural contexts (e.g., West Germany and India) radical environmentalism manifests itself quite differently, with a far greater emphasis on equity and the integration of ecological concerns with livelihood and work. He concludes that despite its claims to universality, deep ecology is firmly rooted in American environmental and cultural history and is inappropriate when applied to the Third World. As You Read, Consider This: 1. Often, those outside our own culture can help us see things about ourselves that would not otherwise have been visible to us. In what ways does Guda help you to see things about the American environment movement more clearly? 2. According to Guha, many of us in the West have misperceptions of Eastern spirituality. What are some of these misperceptions?

Even God dare not appear to the poor man except in the form of bread. —Mahatma Gandhi I. Introduction

The respected radical journalist Kirkpatrick Sale recently celebrated “the passion of a new and growing movement that has become disenchanted with the environmental establishment and has in recent years mounted a serious and sweeping attack on it—style, substance, systems, sensibilities and all.”15 The vision of those whom Sale calls the “New Ecologists”—and what I refer to in this article as deep ecology—is a compelling one. Decrying the narrowly economic goals of mainstream environmentalism, this new movement aims at nothing less than a philosophical and cultural revolution in human attitudes toward nature. In contrast to the conventional lobbying efforts of environmental professionals based in Washington, it proposes a militant defense of “Mother Earth,” an unflinching opposition to human attacks on undisturbed wilderness. With their goals ranging from the spiritual to the political, the adherents of deep ecology span a wide spectrum of the American environmental movement. As Sale correctly notes, this emerging strand has in a matter of a few years made its presence felt in a number of fields: from academic philosophy (as in the journal Environmental Ethics) to popular environmentalism (for example, the group Earth First!). In this article I develop a critique of deep ecology from the perspective of a sympathetic outsider. I critique deep ecology not as a general (or even a foot soldier) in the continuing struggle between the ghosts of Gifford Pinchot and John Muir over control of the U.S. environmental movement, but as an outsider to these battles. I Ramachandra Guha, “Radical American Environmentalism and Wilderness Preservation. A Third World Critique,” Environmental Ethics, Vol. 11 (Spring 1989), pp. 71–83. Reprinted with permission.

speak admittedly as a partisan, but of the environmental movement in India, a country with an ecological diversity comparable to the U.S., but with a radically dissimilar cultural and social history. My treatment of deep ecology is primarily historical and sociological, rather than philosophical, in nature. Specifically, I examine the cultural rootedness of a philosophy that likes to present itself in universalistic terms. I make two main arguments: first, that deep ecology is uniquely American, and despite superficial similarities in rhetorical style, the social and political goals of radical environmentalism in other cultural contexts (e.g., West Germany and India) are quite different; second, that the social consequences of putting deep ecology into practice on a worldwide basis (what its practitioners are aiming for) are very grave indeed. II. The Tenets of Deep Ecology

While I am aware that the term deep ecology was coined by the Norwegian philosopher Arne Naess, this article refers specifically to the American variant.16 Adherents of the deep ecological perspective in this country, while arguing intensely among themselves over its political and philosophical implications, share some fundamental premises about human-nature interactions. As I see it, the defining characteristics of deep ecology are fourfold: First, deep ecology argues, that the environmental movement must shift from an “anthropocentric” to a “biocentric” perspective. In many respects, an acceptance of the primacy of this distinction constitutes the litmus test of deep ecology. A considerable effort is expended by deep ecologists in showing that the dominant motif in Western philosophy has been anthropocentric—i.e., the belief that man and his works are the center of the universe—and conversely, in identifying those lonely thinkers (Leopold, Thoreau, Muir, Aldous Huxley, Santayana, etc.) who, in assigning man a more humble place in the natural order, anticipated deep ecological thinking. In the political realm, meanwhile, establishment environmentalism (shallow ecology) is chided for casting its arguments in human-centered terms. Preserving nature, the deep ecologists say, has an intrinsic worth quite apart from any benefits preservation may convey to future human generations. The anthropocentric-biocentric distinction is accepted as axiomatic by deep ecologists, it structures their discourse, and much of the present discussion remains mired within it. The second characteristic of deep ecology is its focus on the preservation of unspoilt wilderness—and the restoration of degraded areas to a more pristine condition—to the relative (and sometimes absolute) neglect of other issues on the environmental agenda. I later identify the cultural roots and portentous consequences of this obsession with wilderness. For the moment, let me indicate three distinct sources from which it springs. Historically, it represents a playing out of the preservationist (read radical) and utilitarian (read reformist) dichotomy that has plagued American environmentalism since the turn of the century. Morally, it is an imperative that follows from the biocentric perspective; other species of plants and animals, and nature itself, have an intrinsic right to exist. And finally, the preservation of wilderness also turns on a scientific argument—viz., the value of biological diversity in stabilizing ecological regimes and in retaining a gene pool for future generations. Truly radical policy proposals have been put forward by deep ecologists on the basis of these arguments. The influential poet Gary Snyder, for example, would like to see a 90 percent reduction in human populations to allow a restoration of pristine environments, while others have argued forcefully that a large portion of the globe must be immediately cordoned off from human beings.17 Third, there is a widespread invocation of Eastern spiritual traditions as forerunners of deep ecology. Deep ecology, it is suggested, was practiced both by major religious traditions and at a more popular level by “primal” peoples in non-Western settings. This complements the search for an authentic lineage in Western thought. At one level, the task is to recover those dissenting voices within the Judeo-Christian tradition; at another, to suggest that religious traditions in other cultures are, in contrast, dominantly if not exclusively “biocentric” in their orientation. This coupling of (ancient) Eastern and (modern) ecological wisdom seemingly helps consolidate the claim that deep ecology is a philosophy of universal significance. Fourth, deep ecologists, whatever their internal differences, share the belief that they are the “leading edge” of the environmental movement. As the polarity of the shallow/deep and anthropocentric/biocentric distinctions makes clear, they see themselves as the spiritual, philosophical, and political vanguard of American and world environmentalism.

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III. Toward a Critique

Although I analyze each of these tenets independently, it is important to recognize, as deep ecologists are fond of remarking in reference to nature, the interconnectedness and unity of these individual themes. 1. Insofar as it has begun to act as a check on man’s arrogance and ecological hubris, the transition from an anthropocentric (human-centered) to a biocentric (humans as only one element in the ecosystem) view in both religious and scientific traditions is only to be welcomed.18 What is unacceptable are the radical conclusions drawn by deep ecology, in particular, that intervention in nature should be guided primarily by the need to preserve biotic integrity rather than by the needs of humans. The latter for deep ecologists is anthropocentric, the former biocentric. This dichotomy is, however, of very little use in understanding the dynamics of environmental degradation. The two fundamental ecological problems facing the globe are (i) overconsumption by the industrialized world and by urban elites in the Third World and (ii) growing militarization, both in a short-term sense (i.e., on-going regional wars) and in a long-term sense (i.e., the arms race and the prospect of nuclear annihilation). Neither of these problems has any tangible connection to the anthropocentric-biocentric distinction. Indeed, the agents of these processes would barely comprehend this philosophical dichotomy. The proximate causes of the ecologically wasteful characteristics of industrial society and of militarization are far more mundane: at an aggregate level, the dialectic of economic and political structures, and at a micro-level, the life style choices of individuals. These causes cannot be reduced, whatever the level of analysis, to a deeper anthropocentric attitude toward nature; on the contrary, by constituting a grave threat to human survival, the ecological degradation they cause does not even serve the best interests of human beings! If my identification of the major dangers to the integrity of the natural world is correct, invoking the bogey of anthropocentricism is at best irrelevant and at worst a dangerous obfuscation. 2. If the above dichotomy is irrelevant, the emphasis on wilderness is positively harmful when applied to the Third World. If in the U.S. the preservationist/utilitarian division is seen as mirroring the conflict between “people” and “interests,” in countries such as India the situation is very nearly the reverse. Because India is a long settled and densely populated country in which agrarian populations have a finely balanced relationship with nature, the setting aside of wilderness areas has resulted in a direct transfer of resources from the poor to the rich. Thus, Project Tiger, a network of parks hailed by the international conservation community as an outstanding success, sharply posits the interests of the tiger against those of poor peasants living in and around the reserve. The designation of tiger reserves was made possible only by the physical displacement of existing villages and their inhabitants; their management requires the continuing exclusion of peasants and livestock. The initial impetus for setting up parks for the tiger and other large mammals such as the rhinoceros and elephant came from two social groups: first, a class of ex-hunters turned conservationists belonging mostly to the declining Indian feudal elite and, second, representatives of international agencies, such as the World Wildlife Fund (WWF) and the International Union for the Conservation of Nature and Natural Resources (IUCN), seeking to transplant the American system of national parks onto Indian soil. In no case have the needs of the local population been taken into account, and as in many parts of Africa, the designated wildlands are managed primarily for the benefit of rich tourists. Until very recently, wildlands preservation has been identified with environmentalism by the state and the conservation elite; in consequence, environmental problems that impinge far more directly on the lives of the poor—e.g., fuel, fodder, water shortages, soil erosion, and air and water pollution— have not been adequately addressed.19 Deep ecology provides, perhaps unwittingly, a justification for the continuation of such narrow and inequitable conservation practices under a newly acquired radical guise. Increasingly, the international conservation elite is using the philosophical, moral, and scientific arguments used by deep ecologists in advancing their wilderness crusade. A striking but by no means atypical example is the recent plea by a prominent American biologist for the takeover of large portions of the globe by the author and his scientific colleagues. Writing in a prestigious scientific forum, the Annual Review of Ecology and Systematics, Daniel Janzen argues that only biologists have the competence to decide how the tropical landscape should be used. As “the representatives of the

natural world,” biologists are “in charge of the future of tropical ecology,” and only they have the expertise and mandate to “determine whether the tropical agroscape is to be populated only by humans, their mutualists, commensals, and parasites, or whether it will also contain some islands of the greater nature—the nature that spawned humans, yet has been vanquished by them.” Janzen exhorts his colleagues to advance their territorial claims on the tropical world more forcefully, warning that the very existence of these areas is at stake: “if biologists want a tropics in which to biologize, they are going to have to buy it with care, energy, effort, strategy, tactics, time, and cash.”20 This frankly imperialist manifesto highlights the multiple dangers of the preoccupation with wilderness preservation that is characteristic of deep ecology. As I have suggested, it seriously compounds the neglect by the American movement of far more pressing environmental problems within the Third World. But perhaps more importantly, and in a more insidious fashion, it also provides an impetus to the imperialist yearning of Western biologists and their financial sponsors, organizations such as the WWF and IUCN. The wholesale transfer of a movement culturally rooted in American conservation history can only result in the social uprooting of human populations in other parts of the globe. 3. I come now to the persistent invocation of Eastern philosophies as antecedent in point of time but convergent in their structure with deep ecology. Complex and internally differentiated religious traditions—Hinduism, Buddhism, and Taoism—are lumped together as holding a view of nature believed to be quintessentially biocentric. Individual philosophers such as the Taoist Lao Tzu are identified as being forerunners of deep ecology. Even an intensely political, pragmatic, and Christian influenced thinker such as Gandhi has been accorded a wholly undeserved place in the deep ecological pantheon. Thus the Zen teacher Robert Aitken Roshi makes the strange claim that Gandhi’s thought was not human-centered and that he practiced an embryonic form of deep ecology which is “traditionally Eastern and is found with differing emphasis in Hinduism, Taoism and in Theravada and Mahayana Buddhism.”21 Moving away from the realm of high philosophy and scriptural religion, deep ecologists make the further claim that at the level of material and spiritual practice “primal” peoples subordinated themselves to the integrity of the biotic universe they inhabited. I have indicated that this appropriation of Eastern traditions is in part dictated by the need to construct an authentic lineage and in part a desire to present deep ecology as a universalistic philosophy. Indeed, in his substantial and quixotic biography of John Muir, Michael Cohen goes so far as to suggest that Muir was the “Taoist of the [American] West.”22 This reading of Eastern traditions is selective and does not bother to differentiate between alternate (and changing) religious and cultural traditions; as it stands, it does considerable violence to the historical record. Throughout most recorded history the characteristic form of human activity in the “East” has been a finely tuned but nonetheless conscious and dynamic manipulation of nature. Although mystics such as Lao Tzu did reflect on the spiritual essence of human relations with nature, it must be recognized that such ascetics and their reflections were supported by a society of cultivators whose relationship with nature was a far more active one. Many agricultural communities do have a sophisticated knowledge of the natural environment that may equal (and sometimes surpass) codified “scientific” knowledge; yet, the elaboration of such traditional ecological knowledge (in both material and spiritual contexts) can hardly be said to rest on a mystical affinity with nature of a deep ecological kind. Nor is such knowledge infallible; as the archaeological record powerfully suggests, modern Western man has no monopoly on ecological disasters. In a brilliant article, the Chicago historian Ronald Inden points out that this romantic and essentially positive view of the East is a mirror image of the scientific and essentially pejorative view normally upheld by Western scholars of the Orient. In either case, the East constitutes the Other, a body wholly separate and alien from the West; it is defined by a uniquely spiritual and nonrational “essence,” even if this essence is valorized quite differently by the two schools. Eastern man exhibits a spiritual dependence with respect to nature—on the one hand, this is symptomatic of his prescientific and backward self, on the other, of his ecological wisdom and deep ecological consciousness. Both views are monolithic, simplistic, and have the characteristic effect—intended in

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one case, perhaps unintended in the other of denying agency and reason to the East and making it the privileged orbit of Western thinkers. The two apparently opposed perspectives have then a common underlying structure of discourse in which the East merely serves as a vehicle for Western projections. Varying images of the East are raw material for political and cultural battles being played out in the West; they tell us far more about the Western commentator and his desires than about the “East.” Inden’s remarks apply not merely to Western scholarship on India, but to Orientalist constructions of China and Japan as well: Although these two views appear to be strongly opposed, they often combine together. Both have a similar interest in sustaining the Otherness of India. The holders of the dominant view, best exemplified in the past in imperial administrative discourse (and today probably by that of “development economics”), would place a traditional, superstition-ridden India in a position of perpetual tutelage to a modern, rational West. The adherents of the romantic view, best exemplified academically in the discourses of Christian liberalism and analytic psychology, concede the realm of the public and impersonal to the positivist. Taking their succor not from governments and big business, but from a plethora of religious foundations and self-help institutes, and from allies in the “consciousness industry,” not to mention the important industry of tourism, the romantics insist that India embodies a private realm of the imagination and the religious which modern, Western man lacks but needs. They, therefore, like the positivists, but for just the opposite reason, have a vested interest in seeing that the Orientalist view of India as “spiritual,” “mysterious,” and “exotic” is perpetuated.23 4. How radical, finally, are the deep ecologists? Notwithstanding their self-image and strident rhetoric (in which the label “shallow ecology” has an opprobrium similar to that reserved for “social democratic” by Marxist-Leninists), even within the American context their radicalism is limited and it manifests itself quite differently elsewhere. To my mind, deep ecology is best viewed as a radical trend within the wilderness preservation movement. Although advancing philosophical rather than aesthetic arguments and encouraging political militancy rather than negotiation, its practical emphasis—viz., preservation of unspoilt nature—is virtually identical. For the mainstream movement, the function of wilderness is to provide a temporary antidote to modern civilization. As a special institution within an industrialized society, the national park “provides an opportunity for respite, contrast, contemplation, and affirmation of values for those who live most of their lives in the workaday world.”24 Indeed, the rapid increase in visitations to the national parks in postwar America is a direct consequence of economic expansion. The emergence of a popular interest in wilderness sites, the historian Samuel Hays points out, was “not a throwback to the primitive, but an integral part of the modern standard of living as people sought to add new ‘amenity’ and ‘aesthetic’ goals and desires to their earlier preoccupation with necessities and conveniences.”25 Here, the enjoyment of nature is an integral part of the consumer society. The private automobile (and the lifestyle it has spawned) is in many respects the ultimate ecological villain, and an untouched wilderness the prototype of ecological harmony; yet, for most Americans it is perfectly consistent to drive a thousand miles to spend a holiday in a national park. They possess a vast, beautiful, and sparsely populated continent and are also able to draw upon the natural resources of large portions of the globe by virtue of their economic and political dominance. In consequence, America can simultaneously enjoy the material benefits of an expanding economy and the aesthetic benefits of unspoilt nature. The two poles of “wilderness” and “civilization” mutually coexist in an internally coherent whole, and philosophers of both poles are assigned a prominent place in this culture. Paradoxically as it may seem, it is no accident that Star Wars technology and deep ecology both find their fullest expression in that leading sector of Western civilization, California.

Deep ecology runs parallel to the consumer society without seriously questioning its ecological and sociopolitical basis. In its celebration of American wilderness, it also displays an uncomfortable convergence with the prevailing climate of nationalism in the American wilderness movement. For spokesmen such as the historian Roderick Nash, the national park system is America’s distinctive cultural contribution to the world, reflective not merely of its economic but of its philosophical and ecological maturity as well. In what Walter Lippman called the American century, the “American invention of national parks” must be exported worldwide. Betraying an economic determinism that would make even a Marxist shudder, Nash believes that environmental preservation is a “full stomach” phenomenon that is confined to the rich, urban, and sophisticated. Nonetheless, he hopes that “the less developed nations may eventually evolve economically and intellectually to the point where nature preservation is more than a business.”26 The error which Nash makes (and which deep ecology in some respects encourages) is to equate environmental protection with the protection of wilderness. This is a distinctively American notion, borne out of a unique social and environmental history. The archetypal concerns of radical environmentalists in other cultural contexts are in fact quite different. The German Greens, for example, have elaborated a devastating critique of industrial society which turns on the acceptance of environmental limits to growth. Pointing to the intimate links between industrialization, militarization, and conquest, the Greens argue that economic growth in the West has historically rested on the economic and ecological exploitation of the Third World. Rudolf Bahro is characteristically blunt: The working class here [in the West] is the richest lower class in the world. And if I look at the problem from the point of view of the whole of humanity, not just from that of Europe, then I must say that the metropolitan working class is the worst exploiting class in history. . . . What made poverty bearable in eighteenth or nineteenth-century Europe was the prospect of escaping it through exploitation of the periphery. But this is no longer a possibility, and continued industrialism in the Third World will mean poverty for whole generations and hunger for millions.27 Here the roots of global ecological problems lie in the disproportionate share of resources consumed by the industrialized countries as a whole and the urban elite within the Third World. Since it is impossible to reproduce an industrial monoculture worldwide, the ecological movement in the West must begin by cleaning up its own act. The Greens advocate the creation of a “no growth” economy, to be achieved by scaling down current (and clearly unsustainable) consumption levels.28 This radical shift in consumption and production patterns requires the creation of alternate economic and political structures—smaller in scale and more amenable to social participation—but it rests equally on a shift in cultural values. The expansionist character of modern Western man will have to give way to an ethic of renunciation and self-limitation, in which spiritual and communal values play an increasing role in sustaining social life. This revolution in cultural values, however, has as its point of departure an understanding of environmental processes quite different from deep ecology. Many elements of the Green program find a strong resonance in countries such as India, where a history of Western colonialism and industrial development has benefited only a tiny elite while exacting tremendous social and environmental costs. The ecological battles presently being fought in India have as their epicenter the conflict over nature between the subsistence and largely rural sector and the vastly more powerful commercialindustrial sector. Perhaps the most celebrated of these battles concerns the Chipko (Hug the Tree) movement, a peasant movement against deforestation in the Himalayan foothills. Chipko is only one of several movements that have sharply questioned the nonsustainable demand being placed on the land and vegetative base by urban centers and industry. These include opposition to large dams by displaced peasants, the conflict between small artisan fishing and large-scale trawler fishing for export, the countrywide movements against commercial forest operations, and opposition to industrial pollution among downstream agricultural and fishing communities.29 Two features distinguish these environmental movements from their Western counterparts. First, for the sections of society most critically affected by environmental degradation—poor and landless peasants,

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women, and tribals—it is a question of sheer survival, not of enhancing the quality of life. Second, and as a consequence, the environmental solutions they articulate deeply involve questions of equity as well as economic and political redistribution. Highlighting these differences, a leading Indian environmentalist stresses that “environmental protection per se is of least concern to most of these groups. Their main concern is about the use of the environment and who should benefit from it.”30 They seek to wrest control of nature away from the state and the industrial sector and place it in the hands of rural communities who live within that environment but are increasingly denied access to it. These communities have far more basic needs, their demands on the environment are far less intense, and they can draw upon a reservoir of cooperative social institutions and local ecological knowledge in managing the “commons”—forests, grasslands, and the waters—on a sustainable basis. If colonial and capitalist expansion has both accentuated social inequalities and signaled a precipitous fall in ecological wisdom, an alternate ecology must rest on an alternate society and polity as well. This brief overview of German and Indian environmentalism has some major implications for deep ecology. Both German and Indian environmental traditions allow for a greater integration of ecological concerns with livelihood and work. They also place a greater emphasis on equity and social justice (both within individual countries and on a global scale) on the grounds that in the absence of social regeneration environmental regeneration has very little chance of succeeding. Finally, and perhaps most significantly, they have escaped the preoccupation with wilderness preservation so characteristic of American cultural and environmental history.31 IV. A Homily

In 1958, the economist J.K. Galbraith referred to overconsumption as the unasked question of the American conservation movement. There is a marked selectivity, he wrote, “in the conservationist’s approach to materials consumption. If we are concerned about our great appetite for materials, it is plausible to seek to increase the supply, to decrease waste, to make better use of the stocks available, and to develop substitutes. But what of the appetite itself? Surely this is the ultimate source of the problem. If it continues its geometric course, will it not one day have to be restrained? Yet in the literature of the resource problem this is the forbidden question. Over it hangs a nearly total silence.”32 The consumer economy and society have expanded tremendously in the three decades since Galbraith penned these words; yet his criticisms are nearly as valid today. I have said “nearly,” for there are some hopeful signs. Within the environmental movement several dispersed groups are working to develop ecologically benign technologies and to encourage less wasteful life styles. Moreover, outside the self-defined boundaries of American environmentalism, opposition to the permanent war economy is being carried on by a peace movement that has a distinguished history and impeccable moral and political credentials. It is precisely these (to my mind, most hopeful) components of the American social scene that are missing from deep ecology. In their widely noticed book, Bill Devall and George Sessions make no mention of militarization or the movements for peace, while activists whose practical focus is on developing ecologically responsible life styles (e.g., Wendell Berry) are derided as “falling short of deep ecological awareness.”33 A truly radical ecology in the American context ought to work toward a synthesis of the appropriate technology, alternate life style, and peace movements.34 By making the (largely spurious) anthropocentric-biocentric distinction central to the debate, deep ecologists may have appropriated the moral high ground, but they are at the same time doing a serious disservice to American and global environmentalism.35 Acknowledgments

This essay was written while the author was a visiting lecturer at the Yale School of Forestry and Environmental Studies. He is grateful to Mike Bell, Tom Birch, Bill Burch, Bill Cronon, Diane Mayerfeld, David Rothenberg, Kirkpatrick Sale, Joel Seton, Tim Weiskel, and Don Worster for helpful comments.

Notes 1. See the introduction to Faces of Environmental Racism for studies indicating the disproportionate burden of toxic wastes on people of color. 2. Vicki Been, “Market Forces, Not Racist Practices, May Affect the Siting of Locally Undesirable Land Uses,” in At Issue: Environmental Justice, ed. by Jonathan Petrikin (San Diego, Calif.: Greenhaven Press, 1995), 41. 3. See San Antonio Independent School District v. Rodriguez, 411 R.S. 1 (1973) and Village of Arlington Heights v. Metropolitan Housing Development Corporation, 429 U.S. 252 (1977). 4. Been, 41. 5. Murray Rothbard, “The Great Ecology Issue,” The Individualist 21, no. 2 (February 1970): 5. 6. See Peter S. Wenz, Environmental Justice (Albany, N.Y.: State University of New York Press, 1988), 65–67 and associated endnotes. 7. Christopher Boerner and Thomas Lambert, “Environmental Justice Can Be Achieved Through Negotiated Compensation,” in At Issue: Environmental Justice. 8. F. Diaz-Barriga et al., “Arsenic and Cadmium Exposure in Children Living Near to Both Zinc and Copper Smelters,” summarized in Archives of Environmental Health 46, no. 2 (March/April 1991): 119. 9. Dick Russell, “Environmental Racism,” Amicus Journal (Spring 1989): 22–32, 24. 10. Marianne Lavelle, “The Minorities Equation,” National Law Journal 21 (September 1992): 3. Christopher Hallowell, “Water Crisis on the Cape,” Audubon (July/August 1991): 65–74, especially 66 and 70. 11. Athena Linos et al., “Leukemia and Non-Hodgkin’s Lymphoma and Residential Proximity to Industrial Plants,” Archives of Environmental Health 46, no. 2 (March/April 1991): 70–74. 12. L. W. Pickle et al., Atlas of Cancer Mortality among Whites: 1950—1980, HHS publication # (NIH) 87-2900 (Washington, D.C.: U.S. Department of Health and Human Services, Government Printing Office: 1987). 13. Wenz, 216–18. 14. The idea of LULU points comes to me from Frank J. Popper, “LULUs and Their Blockage,” in Confronting Regional Challenges: Approaches to LULUs, Growth, and Other Vexing Governance Problems, ed. by Joseph DiMento and Le Roy Graymer (Los Angeles, Calif.: Lincoln Institute of Land Policy, 1991), 13–27, especially 24. 15. Kirkpatrick Sale, “The Forest for the Trees: Can Today’s Environmentalists Tell the Difference,” Mother Jones 11, no. 8 (November 1986): 26. 16. One of the major criticisms I make in this essay concerns deep ecology’s lack of concern with inequalities within human society. In the article in which he coined the term deep ecology, Naess himself expresses concerns about inequalities between and within nations. However, his concern with social cleavages and their impact on resource utilization patterns and ecological destruction is not very visible in the later writings of deep ecologists. See Arne Naess, “The Shallow and the Deep, Long-Range Ecology Movement: A Summary,” Inquiry 16 (1973): p. 96 (I am grateful to Tom Birch for this reference). 17. Gary Snyder, quoted in Sale, “The Forest for the Trees,” p. 32. See also Dave Foreman, “A Modest Proposal for a Wilderness System,” Whole Earth Review, no. 53 (Winter 1986–1987): 42–45. 18. See, for example, Donald Worster, Nature’s Economy: The Roots of Ecology (San Francisco, Sierra Club Books, 1977). 19. See Centre for Science and Environment, India: The State of the Environment 1982: A Citizens Report (New Delhi: Centre for Science and Environment, 1982); R. Sukumar, “Elephant-Man Conflict in Karnataka,” in Cecil Saldanha, ed., The State of Karnataka’s Environment (Bangalore: Centre for Taxonomic Studies, 1985). For Africa, see the brilliant analysis by Helge Kjekshus, Ecology Control and Economic Development in East African History (Berkeley: University of California Press, 1977). 20. Daniel Janzen, “The Future of Tropical Ecology,” Annual Review of Ecology and Systematics 17 (1986): 305– 306; emphasis added. 21. Robert Aitken Roshi, “Gandhi, Dogen, and Deep Ecology,” reprinted as appendix C in Bill Devall and George Sessions, Deep Ecology: Living as if Nature Mattered (Salt Lake City: Peregrine Smith Books, 1985).

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22. 23.

24.

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26. 27. 28.

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30. 31.

32. 33. 34.

For Gandhi’s own views on social reconstruction, see the excellent three volume collection edited by Raghavan Iyer, The Moral and Political Writings of Mahatma Gandhi (Oxford: Clarendon Press, 1986–1987). Michael Cohen. The Pathless Way (Madison: University of Wisconsin Press, 1984), p. 120. Ronald Inden, “Orientalist Constructions of India,” Modern Asian Studies 20 (1986): 442. Inden draws inspiration from Edward Said’s forceful polemic, Orientalism (New York: Basic Books, 1980). It must be noted, however, that there is a salient difference between Western perceptions of Middle Eastern and Far Eastern cultures respectively. Due perhaps to the long history of Christian conflict with Islam, Middle Eastern cultures (as Said documents) are consistently presented in pejorative terms. The juxtaposition of hostile and worshipping attitudes that Inden talks of applies only to Western attitudes toward Buddhist and Hindu societies. Joseph Sax, Mountains Without Handrails: Reflections on the National Parks (Ann Arbor: University of Michigan Press, 1980), p. 42. Cf. also Peter Schmitt, Back to Nature: The Arcadian Myth in Urban America (New York: Oxford University Press, 1969), and Alfred Runte, National Parks: The American Experience (Lincoln: University of Nebraska Press, 1979). Samuel Hays, “From Conservation to Environment: Environmental Politics in the United States since World War Two,” Environmental Review 6 (1982): 21. See also the same author’s book entitled Beauty, Health and Permanence: Environmental Politics in the United States, 1955–1985 (New York: Cambridge University Press, 1987). Roderick Nash, Wilderness and the American Mind, 3rd ed. (New Haven: Yale University Press, 1982). Rudolf Bahro, From Red to Green (London: Verso Books, 1984). From time to time, American scholars have themselves criticized these imbalances in consumption patterns. In the 1950s, William Vogt made the charge that the United states, with one-sixteenth of the world’s population, was utilizing one-third of the globe’s resources. (Vogt, cited in E.F. Murphy, Nature, Bureaucracy and the Rule of Property [Amsterdam: North Holland, 1977, p. 29].) More recently, Zero Population Growth has estimated that each American consumes thirty-nine times as many resources as an Indian. See Christian Science Monitor, 2 March 1987. For an excellent review, see Anil Agarwal and Sunita Narain, eds., India: The State of the Environment 1984–1985: A Citizens Report (New Delhi: Centre for Science and Environment, 1985). Cf. Also Ramachandra Guha, The Unquiet Woods: Ecological Change and Peasant Resistance in the Indian Himalaya (Berkeley: University of California Press, forthcoming). Anil Agarwal, “Human-Nature Interactions in a Third World Country,” The Environmentalist 6. no. 3 (1986): 167. One strand in radical American environmentalism, the bioregional movement, by emphasizing a greater involvement with the bioregion people inhabit, does indirectly challenge consumerism. However, as yet, bioregionalism has hardly raised the questions of equity and social justice (international, intranational, and intergenerational) which I argue must be a central plank of radical environmentalism. Moreover, its stress on (individual) experience as the key to involvement with nature is also somewhat at odds with the integration of nature with livelihood and work that I talk of in this paper. Cf. Kirkpatrick Sale, Dwellers in the Land: The Bioregional Vision (San Francisco: Sierra Club Books, 1985). John Kenneth Galbraith, “How Much Should a Country Consume?” in Henry Jarrett, ed., Perspectives on Conservation (Baltimore: Johns Hopkins Press, 1958), pp. 91–92. Devall and Sessions, Deep Ecology, p. 122. For Wendell Berry’s own assessment of deep ecology, see his “Amplications: Preserving Wildness,” Wilderness 50 (Spring 1987): 39–40, 50–54. See the interesting recent contribution by one of the most influential spokesmen of appropriate technology—Barry Commoner, “A Reporter at Large: The Environment,” New Yorker, 15 June 1987. While Commoner makes a forceful plea for the convergence of the environmental movement (viewed by him primarily as the opposition to air and water pollution and to the institutions that generate such pollution)

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and the peace movement, he significantly does not mention consumption patterns, implying that “limits to growth” do not exist. 35. In this sense, my critique of deep ecology, although that of an outsider, may facilitate the reassertion of those elements in the American environmental tradition for which there is a profound sympathy in other parts of the globe. A global perspective may also lead to a critical reassessment of figures such as Aldo Leopold and John Muir, the two patron saints of deep ecology. As Donald Worster has pointed out, the message of Muir (and, I would argue, of Leopold as well) makes sense only in an American context; he has very little to say to other cultures. See Worster’s review of Sterchen Fox’s John Muir and His Legacy, in Environmental Ethics 5 (1983): 277–281.

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Journal/Discussion Questions ✍ What experience have you had in third world countries? How does your experience shed light on what Guha says in this article? 1. Explain the difference between an anthropocentric and a biocentric perspective. 2. What are Guha’s principal objections to deep ecology? Critically assess his objections. 3. How do you think environmental issues should best be handled in developing countries? What are the principal factors to consider? How does your answer to this relate to Guha’s?

Concluding Discussion Questions Where Do You Stand Now?

Instructions

Strongly Agree

Agree

Undecided

Disagree

Strongly Disagree

You have already answered the following questions in your moral problems self-quiz at the beginning of this book. Now that you have studied the material in this section, take a moment to answer the same questions again. You can either enter your answers below or complete the survey on-line at http://ethics.sandiego.edu/surveys.

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Chapter 11: Environmental Ethics Nature is just a source of resources for us. The government should strictly regulate toxic waste. We should make every effort possible to avoid infringing on the natural environment any more than we already have. We owe future generations a clean and safe environment. We should not impose our environmental concerns on developing nations.

Compare your answers to this self-quiz with the answers to the initial self-quiz. How, if at all, have your answers changed? How have the reasons for your answers changed?

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For Further Reading Journals In addition to the standard journals in ethics discussed in the bibliographical essay at the end of Chapter 1, see especially • Environmental Ethics (a rich source of scholarship and theory on issues of environmental ethics) • Environmental Philosophy • Environmental Values • Ethics, Place, and Environment • Between the Species • The Journal of Agricultural and Environmental Ethics • Science, Technology, and Human Values • Journal of Business Ethics

Review Articles See the review articles by Andrew Brennan and YeukSze Lo, “Environmental Ethics,” Stanford Encyclopedia of Philosophy, ed. Edward Zalta (http://plato.stanford. edu/entries/ethics-environmental/); Lisa Newton, “Environmental Ethics and Business,” The Oxford Handbook of Business Ethics (New York: Oxford University Press, 2010); for a continental perspective on this issue, see Iain Thomson, “Environmental Philosophy,” A Companion to Phenomenology and Existentialism (Oxford: Blackwell, 2008); Kristin Shrader-Frechette, “Environmental Ethics,” The Oxford Handbook of Practical Ethics, edited by Hugh LaFollette (Oxford: Oxford University Press, 2003), pp. 188–215; Andrew Light, “Environmental Ethics,” A Companion to Applied Ethics: Blackwell Companions to Philosophy, edited by R. G. Frey (Malden, MA: Blackwell Publishing, 2003), pp. 633–49; Holmes Rolston III, “Environmental Ethics,” The Blackwell Companion to Philosophy, 2nd ed., edited by Nicholas Bunnin (Malden, MA: Blackwell Publishing, 2003), pp. 517–530.

Anthologies Paul Pojman and Luis P. Pojman, Environmental Ethics (Belmont: Wadsworth, 2010); David R. Keller, Environmental Ethics: The Big Questions (Malden, MA: WileyBlackwell, 2010); and Andrew Light and Holmes Rolston III, eds., Environmental Ethics: An Anthology (Malden, MA: Blackwell Publishing, 2003) all provide fine starting points for the literature in environmental ethics. Environmental Philosophy: From Animal Rights to Radical Ecology, edited by Michael E. Zimmerman et al.,

3rd ed. (Englewood Cliffs, NJ: Prentice Hall, 2000) is a fine collection of essays, with introductions for individual sections done by representatives of each tradition, including ecofeminism, deep ecology, and social ecology. Also see A Companion to Environmental Philosophy, edited by Dale Jamieson (Oxford: Blackwell, 2003) for an excellent collection of articles as well as Jamieson’s Ethics and the Environment: An Introduction (Cambridge Applied Ethics) (Cambridge: Cambridge University Press, 2008).

Obligations to Future Generations On our obligations to future generations, see Tim Mulgan, Future People: A Moderate Consequentialist Account of Our Obligations to Future Generations (Oxford: Clarendon Press, 2006) considers the thorny issue of what obligations we have to future generations, a topic also discussed in Roger Crisp’s Ethics and International Environmental Law (Oxford: Oxford University Press, 2010) and Wilfred Beckerman and Joanna Pasek’s Justice, Posterity, and the Environment (New York: Oxford University Press, 2001).

Classics Aldo Leopold’s A Sand County Almanac: With Essays on Conservation from Round River (New York: Ballantine Books, 1970) is a classic of the environmental movement; J. Baird Callicott’s In Defense of the Land Ethic: Essays in Environmental Philosophy (Albany: State University of New York Press, 1988) is a development of, and defense of, Leopold’s land ethic. In this same tradition is Holmes Rolston III, A New Environmental Ethics: The Next Millennium for Life on Earth (London: Routledge, 2011); J. Baird Callicott and Michael P. Nelson, American Indian Environmental Ethics: An Ojibwa Case Study (Upper Saddle River, NJ: Prentice Hall, 2003); Andrew Light and Avner De Shalit, eds., Moral and Political Reasoning in Environmental Practice (Cambridge, MA: MIT Press, 2003). For a different perspective on these questions, see Ronald Sandler and Philip Cafaro, Environmental Virtue Ethics (Lanham: Rowman & Littlefield, 2005).

Environmental Justice For an excellent overview, see Claudia Mills and Robert Figueroa “Environmental Justice,” A Companion to Environmental Philosophy, edited by Dale Jamieson

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(2001) as well as Jamieson’s earlier article “Global Environmental Justice,” Philosophy and the Natural Environment, edited by Robin Attfield and Andrew Belsey (New York: Cambridge University Press, 1994). One of the first philosophical works in this area was Peter Wenz’s Environmental Justice (Stony Brook: SUNY Press, 1988). Kristin Shrader-Frechette’s Environmental Justice: Creating Equality, Reclaiming Democracy (Oxford, Oxford University Press, 2005) provides an excellent starting point in this area. Also see Environmental Justice and Environmentalism: The Social Justice Challenge to the Environmental Movement, edited by Ronald Sandler and Phaedra C. Pezzullo

(Cambridge: MIT Press, 2007) and David Schlosberg’s Defining Environmental Justice: Theories, Movements, and Nature (New York: Oxford University Press, 2009).

Case Studies For two interesting case studies, see David Naguib Pellow, Garbage Wars: The Struggle for Environmental Justice in Chicago (Urban and Industrial Environments; Cambridge, MA: MIT Press, 2002); and Race, Place, and Environmental Justice After Hurricane Katrina: Struggles to Reclaim, Rebuild, and Revitalize New Orleans and the Gulf Coast, edited by Robert D. Bullard and Beverly Wright (Boulder: Westview Press, 2009)

MySearchLab Connections Sources OnLine READ AND REVIEW Study and Review: Chapter 11 The text explores moral issues surrounding the topic of environmental ethics. These readings further explore that theme. 1. Opus Majus by Roger Bacon Roger Bacon, a medieval philosopher, describes the importance of the study of mathematics as a fundamental science. In addition, Bacon argues for the importance of experiments to support theoretical findings. It is for thinking such as this that Bacon is known as an early forerunner of modern science. 2. Discourse on Method by René Descartes The Discourse reflects the emerging discussion of the relation between science and theology that is mediated historically by philosophy. The focus on how to do science by engaging with the natural world directly is distinctive and marks in part the emergence of modern philosophy and modern science. And the way in which he uses his method to argue for particular theological truths is also distinctive of the emergence of modern philosophy. 3. Principle of Utility by Jeremy Bentham Jeremy Bentham provides one of the first formulations of the doctrine known as utilitarianism. That

doctrine draws a crucial connection between pleasure and pain on the one hand, and right and wrong on the other. Bentham intended by means of his doctrine to demystify vexed questions about what is the right thing to do, both on the individual level and on the level of social policy. RESEARCH AND EXPLORE Explore the following questions using the research tools available on www.mysearchlab.com. Explore on mythinkinglab.com

1. What is the nature of the relationship between philosophy and natural science? What role have philosophers played in the development of modern science? 2. How does philosophy mediate between science and theology? What are the issues of contention, and how does philosophy try to resolve them? 3. Compare and contrast a teleological, or egoist, approach to environmental ethics with a deontological, or duty, approach. Which do you favor, and why?

12 CyberEthics

The Narrative 463 Joseph Menn, “Hackers Live by Own Code” 463 An Introduction to the Moral Issues 466 Introduction 466 Moore’s Law and the Growth of Computer Technology 467 Living in a Computer-Mediated World 467 Shopping 467 Driving 468 Social Relationships: Privacy, Intimacy, and Trust 468 Searching for Knowledge: The Ethics of Search Engines 469 Ethics in a Policy Vacuum 471 Privacy and Control of Personal Information 471 BigBrother.gov or BigBrother.com? 471 Free Speech, Privacy, and Censorship 472 Property Rights and Intellectual Property 472 Responsibility 473 Computers and the Stock Market 473 The Flash Crash of 2010 473 High-frequency Trading 474 The 1987 Flash Crash 474 The Diffusion of Responsibility 475 The Digital Divide 475 The Arguments 475 Luciano Floridi, “The Ethical Evaluation of WikiLeaks” 475 James M. Moor, “Should We Let Computers Get under Our Skins?” 477 Frances S. Grodzinsky and Herman T. Tavani, “Ethical Reflections on Cyberstalking” Richard A. Spinello, “Ethical Reflections on the Problem of Spam” 495 Concluding Discussion Questions 503 For Further Reading 503 462

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Joseph Menn

“ Hackers Live by Own Code ” About the Author: Joseph Menn is a journalist who specializes in cyber-crime issues. His book Fatal System Error: The Hunt for the New Crime Lords Who Are Bringing Down the Internet (2010) explores the links between hacking and international crime. About the Article: This article considers some of the codes of ethics that hackers use to describe their own activities online and some of the various justifications they offer for their activities.

I

t wasn’t Mary Ann Davidson’s worst nightmare, but it was close.

A fax from a hacker in the Middle East landed on her desk at Oracle Corp., proclaiming the discovery of a hole in the company’s database software through which he could steal crucial information from such customers as Boeing Co., Ford Motor Co. and the CIA. The fax warned Davidson, the company’s chief security officer, to contact the hacker immediately—or else. Luckily, the hacker hadn’t found a real hole; he’d just misinterpreted a function of the program. More surprisingly, he meant no harm. “The sort of threatening tone he took was really only to get our attention,” Davidson said. “He actually turned out to be a nice guy.” The confrontational style of Davidson’s hacker isn’t unusual. As they troll through other people’s computer networks, hackers abide by their own quirky rules of etiquette. What would strike most folks in corporate America as bad manners or worse may be considered the height of courtesy in hackerdom. In large part, that disconnect stems from the fierce individualism of hackers—they are, after all, the sort of people who set aside the instruction manual and take a machine apart to see how it works. Though they inhabit a lawless domain where no data are considered private and “No Trespassing” signs are meaningless, they adhere to their own codes of ethics that vary depending largely on what motivates the hacker to hack. Sometimes it’s fame. Now and then it’s money. Often it’s a selfless desire to make software more secure. And occasionally it’s a yearning to wreak senseless havoc. The frequency of such attacks is on the rise, capped by the Blaster worm and SoBig virus that overpowered e-mail programs and crashed computer systems this summer. Computer Economics Inc. of Carlsbad, Calif., estimates that damage caused by hackers will cost companies and consumers $12.5 billion this year, up 13% from 2002. Most hackers aren’t malicious, security experts agree. But from afar, it can be difficult to distinguish the saboteurs from the merely curious, because they use the same tools, travel in the same virtual circles and often share a disdain for the rule of law. Their philosophy predates personal computers, going back to the days when pranksters manipulated the telephone system to make free long-distance calls and cause other mischief. The personal rules that guide them today generally allow them to break laws, as long as they believe nobody will get hurt.

Firms Are Fair Game

This maverick outlook is best personified by Kevin Mitnick, either the most notorious hacker or the most demonized, depending on your point of view. He stole millions of dollars’ worth of software after cracking into Joseph Menn, “Hackers Live By Own Code,” Los Angeles Times, November 19, 2003, page 1. Copyright © 2003. Used with permission.

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the computer systems of big companies such as Sun Microsystems Inc. and Motorola Inc. But he said he never sold any of it or otherwise profited from his electronic theft. Mitnick, now 40, served five years in federal prison. Yet that hasn’t deterred a younger generation of hackers who view private companies as fair game as long as no data are destroyed or profit turned. For many of them, hacking is just something their curiosity compels them to do. Adrian Lamo, a 22-year-old hacker from Sacramento, always viewed his hacking habit as harmless at worst and helpful at best. If he has a chance to inform people about a security flaw in a company’s internal network, he considers the disclosure a form of public service. Lamo says he can’t help it. He just starts wondering, then he looks for holes in a company’s infrastructure, and he’s in. “When I’m curious about something, it’s difficult to not seek out security problems,” he said. Working sporadically during long nights in Kinko’s copy shops two years ago, Lamo used his battered Toshiba laptop computer to burrow deep into WorldCom Inc.’s internal networks. By the time he was done, he could have redirected the phone giant’s employee paychecks to his own account or shut down the system of WorldCom customer Bank of America Corp. Lamo did neither. Instead, he recounted his exploits to a hacker turned journalist at SecurityFocus.com, a Web site devoted to tracking hacks, holes and fixes. SecurityFocus then called WorldCom executives and told them Lamo was happy to answer any of their questions. After Lamo showed WorldCom what he had done and how to prevent it from happening again, the company publicly thanked him for improving its security. Part of Lamo’s creed is a refusal to take financial advantage of anything he finds. The biggest compensation he’s ever accepted from a company he’s broken into, he said, was a bottle of water. Chris Wysopal used to feel the same way when he worked at an outfit known as the L0pht, a band of security enthusiasts in a Boston apartment strewn with spare computer parts salvaged from area trash bins. Claiming a dedication to telling software buyers the unvarnished truth, the L0pht crew published free security warnings on its Web site and in e-mail newsletters. Those warnings often were accompanied by programs to help people test whether their computers were vulnerable to attack. In Wysopal’s view, hacker etiquette didn’t require him to give software makers advance warning before publishing his discoveries—even though his reports could aid the unscrupulous. Without the threat of public exposure and the fear that malicious hackers would use the newfound information, he figured, software makers wouldn’t have incentive to make fixes in a timely manner. “They dealt with security like a feature request—they would get around to it in the next version,” Wysopal said. The shaming tactics started working, so well that by 1999, Wysopal was forced to reconsider what constituted appropriate hacker behavior. After the L0pht publicized a problem with a piece of Microsoft Corp. software for server computers, the company responded that it would have been happy to fix the mistake if only it had been given the chance. Instead, Microsoft had to race to develop a fix and get it to customers in time to head off an assault. End to Free-for-All

Wysopal, along with a great number of his fellow hackers, realized the days of the free-for-all should end. It was no longer morally defensible to tell malicious teens how to hurt firms and their customers before they had the tools to defend themselves. Now he works with software makers to develop patches before blowing the whistle. “It isn’t as much fun,” said Wysopal, who helped the L0pht morph into a computer security company called @stake Inc. “But if we publish right away, we are really arming the bad guys.” For other hackers, proper etiquette is dictated by the pursuit of money. The most direct angle is simply to tell the software company there’s a bug, then request a fee to explain it. “If I come up with a vulnerability and I inform the source that I’ve discovered it, but I say, ‘Would you mind paying me $5,000 to help you close it?’ from my perspective that’s a very reasonable request,” said Bob Weiss, president of Password Crackers, Inc., in North Potomac, Md., which helps companies recover information hidden on their machines.

But what looks like a reasonable request to a hacker is often perceived as extortion by the company being asked to shell out. That’s how one California software firm reacted after it heard from a hacker who had found a hole in its Web-messaging system and offered to explain it—for $10,000. “The company got pretty mad,” said Jennifer Granick, a cyber law specialist at Stanford University who represented the hacker in 2000. “It’s very difficult for some cocky 18-year-old kid to approach a company without it feeling threatened.” After Granick smoothed things over, the company agreed not to press charges. There’s also the loss-leader approach. After identifying a problem and explaining it, many hackers offer to look for additional glitches in exchange for a consulting fee. Even that strategy backfired on a Boxboro, Mass., security group called SnoSoft. In 2002, SnoSoft researchers found a hole in a version of the Unix operating system made by Hewlett-Packard Co. The hackers told HP they would explain it for free, but they also asked to be paid for additional work. “We made it clear we wouldn’t charge [for the initial bug], because that would be extortion,” SnoSoft cofounder Adriel Desautels said. HP declined to offer SnoSoft a contract. Instead, the company threatened to sue under the Digital Millennium Copyright Act of 1998, which prohibits some attempts to tinker with programs to see how they work. To computer security experts—including some inside HP—that threat amounted to a gross violation of etiquette on the part of HP. The company backed down and recently said it would never use the digital copyright law to stifle research. The Palo Alto computing giant declined to discuss the SnoSoft case. For a few hackers, there is only one principle that matters: Do as much damage as possible. That may have been the goal of a group of Chinese hackers who reverse-engineered a patch designed to fix a devastating hole in most versions of Microsoft’s Windows operating system for PCs and servers. Within days, the hackers published a program to seize control of unsuspecting computers, which was used by others in the Blaster worm attack this summer. Counterattacks Increase

With malevolent programs on the rise, large software companies are trying to get a handle on the problem. A consortium of software giants including Microsoft and Oracle has joined with security firms such as Symantec Corp. to formalize the etiquette of hacking so that software makers have time to patch holes before they are disclosed to the world at large. The rules proposed by the new Organization for Internet Safety would give companies a month or so to develop and distribute a patch. Then another month is supposed to elapse before the hacker can disclose any details about the problem that the patch was designed to fix. But hackers say they are unlikely to sign off on the rules, especially because they would neutralize the biggest weapon in their arsenal—the threat of public exposure. In the meantime, companies that find themselves victimized by hackers are stepping up their counterattacks. The New York Times wasn’t amused when Lamo, the hacker who helped WorldCom beef up its network security, bragged to SecurityFocus that he had wriggled into the newspaper’s computers. Once inside, Lamo perused records of contributors to the paper’s Op-Ed page (including the Social Security numbers and home phone numbers of former heads of state), conducted database searches using the paper’s Lexis-Nexis account and added himself to a list of expert sources on hacking. Unlike WorldCom, the New York Times called the FBI. In September, federal prosecutors in New York charged Lamo with the electronic equivalent of breaking and entering. Out on bail, Lamo said he had no regrets about the way he hacked. “I always knew that the things I did could have consequences,” he said.

Journal/Discussion Questions 1. What elements of the hacker’s codes do you think are legitimate? Which ones do you reject? Why?

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Living Together in cyberspace An Introduction to the Moral Issues

Introduction 466 Moore’s Law and the Growth of Computer Technology 467 Living in a Computer-Mediated World 467 Shopping 467 Driving 468 Social Relationships: Privacy, Intimacy, and Trust 468 Searching for Knowledge: The Ethics of Search Engines 469 Ethics in a Policy Vacuum 471 Privacy and Control of Personal Information 471 BigBrother.gov or BigBrother.com? 471 Free Speech, Privacy, and Censorship 472 Property Rights and Intellectual Property 472 Responsibility 473 Computers and the Stock Market 473 The Flash Crash of 2010 473 High-frequency Trading 474 The 1987 Flash Crash 474 The Diffusion of Responsibility 475 The Digital Divide 475

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If you are in your twenties or younger, you probably don’t even remember a time when computers were not part of your life. In fact, for much of your life you have probably had ready access to the Internet. Today, the Web is everywhere, beginning with the phone that you are carrying. We are always connected, always on. One of the consequences of growing up with ready access to the Internet is that we hardly realize the extent to which it has changed our lives. Nowhere is this more evident than in the realm of privacy. In previous

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generations, individuals typically expected much of their lives to be private. This was, in effect, the default position. Now all individuals are much more likely to expect their lives to be continually on display. Moore’s Law and the Growth of Computer Technology

Computer and information technologies have grown exponentially over the last two decades, and promise to continue to do so. Moore’s law—developed by Gordon Moore, a co-founder of Intel—states (in everyday language) that computing power will double every 18 months, and this has proved to be a slightly conservative estimate. If you put $1,000 in the bank in the year 2000, and it grew at the same rate as computing power, you would have over $250,000 at the end of the year 2012, and you would break the $1,000,000 mark three years later. Moore’s law is what allows you to buy a new computer every couple of years and get one that is twice as powerful as your old one, often for a little less money than you paid the last time. Of course, it is also what makes your current computer almost worthless on the used-computer market!

Living in a Computer-Mediated World The result of this tremendous growth in computing power has been the emergence of what I will call here a computer-mediated world. Relationships that had previously been direct, either directly to another person or to a physical object, have now become relationships that occur with the computer in between. Sometimes we may notice the presence of the computer, but increasingly the computer mediation slips into the background and remains unnoticed by most of us in everyday situations. Let me give you a few examples. Shopping

Let’s begin with shopping. Increasingly, many of us do our shopping online. I am certainly no exception to that rule. It is far easier to simply click on an item and have it delivered to my door a couple days later than to go to the store and go through the hassle of trying to find the right item at the right price. And this is, I think, a tremendous advantage: I’m able to save time and money and I am much more likely to get exactly the product that I want. In the traditional mode of shopping, when I used to go to the stores themselves, my relationship to the objects that I might buy was either unmediated or mediated by a salesperson. Let me explain. If I’m walking around the store, picking up items, looking at them closely, perhaps trying them on if they are items of clothing, I am relating to those objects in a direct, unmediated way. If I walk into a higher priced store, it is more likely that I will be greeted by a salesperson who will show me possible objects or products to buy after I explain what I am looking for that day. In online shopping, however, my relationship to the possible objects that I may purchase is mediated by a computer system. The computer presents possible objects for purchase and provides additional information about choices and models, colors, quantity, and the like. Yet it does so in a way that makes itself invisible. We simply see the pictures, the text, and the drop-down boxes and check boxes on the screen. Sometimes this computer mediation is a good thing; at other times, it may be of more benefit to the seller than to the consumer. In either case, it remains largely invisible. Consider a single example of the situation in which this computer mediation may work to your disadvantage. Several years ago I was sending flowers to a cousin in another city for her birthday. There was a nice selection of flower arrangements from as low as $35 to as high as $200. Not wanting to appear to be totally cheap, I chose to send a nice arrangement that cost $60. When I returned to the same site a year later, I was surprised by the range of choices. Now floral arrangements stretched from $60 to $250. Had flowers gone up so much? No, the computer has simply recognized me from my previous purchase and displayed only those choices that it wanted me to consider. They still had floral arrangements at $35, but the cookie implanted on my machine told them that I was willing to pay $60, so they made sure that they did not show me the cheaper arrangements. Of course, not all computer-mediated shopping works this way, and often by shopping online I am able to save money rather than spend more than I want. But it is important to note here that the computer mediation

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largely disappears into the background, hiding itself from view. As savvy consumers, this is something that we should recognize and treat appropriately. One of the ethical issues here falls into the domain of business ethics: to what extent is this process of hiding certain items from view an acceptable business practice? This leads to another important ethical question: to what extent should such practices be regulated by the government in order to protect consumers from practices that are largely invisible to them? Driving

Even something as simple as driving is now increasingly computer mediated. For years now, American cars have had antilock brakes. When you press on the brake pedal, the tiny computer devoted to this task translates your steady pressure into an intermittent pressure on the brakes that more effectively slows down the car without a risk of putting it into a skid. Recently in some new cars, cruise control has achieved a new dimension. Cruise control was already a computer-mediated way of driving for it automatically kept the car at a constant speed whether growing up- or downhill, accelerating or braking as needed. Now, in some cars it keeps track of the cars in front of you, slowing down your car when it gets too close to a vehicle ahead of you. Some cars will now alert you if you begin to drift out of your lane by voice or some type of vibration alert. A few cars even park themselves. Navigation has become increasingly computer-dependent as well. Many cars come with built-in navigation systems, and for those without such systems, drivers often depend upon their cell phones for navigation directions. Again, what had previously been an unmediated relationship between driver and destination now becomes a mediated one, a relationship structured through a computer. In most cases this works very well. In cities that are not laid out on a grid, such as San Diego, the systems are particularly helpful. But the help comes at a price. As we increasingly depend upon the computer to give us directions, we become less skilled in orienting ourselves to the landscape. Moreover, anyone who has had the experience of following the commands of a navigation system when they are clearly in error knows how difficult it is to switch back to the mode of thinking for yourself. In a world of computer mediation, basic human skills often begin to atrophy. Anyone who has seen Google’s self-driving car—just search for the YouTube video about this—has had a glimpse of the future. This is a car that can drive itself in cities as well as the countryside for tens of thousands of miles without an accident. Imagine getting in your car, giving it a voice command for the destination, and sitting back and relaxing until you arrive at your chosen destination. Even though Americans may be hesitant to give up their sense of personal freedom associated with driving, it is easy to see the economic forces that will push us in this direction. First, fewer accidents will mean lower insurance rates, and this alone will establish a certain degree of pressure to move in this direction. Moreover, this is not simply a financial gain, it is also a moral gain. It is reasonable to imagine that as this technology becomes increasingly reliable, we may be morally obligated to use it because of the number of lives it will save. In 2009, there were almost 36,000 deaths related to motor vehicle accidents in the United States according to the U.S. Census Bureau. In other words, more people die every month in the United States by traffic accidents than died in the 9/11 attacks. Other economic factors are going to contribute to this move toward computer-mediated driving. The reaction time of computer systems is far faster than human reaction time, and as a result it will be possible for computer-driven cars to follow much more closely than they would be able safely to do if the cars were driven by a human being. Imagine if we could simply double the number of cars in the given lane, the need to widen freeways would decrease dramatically, saving taxpayer dollars and preventing encroachment on private property by expanding freeways. Social Relationships: Privacy, Intimacy, and Trust

Interpersonal relationships have become increasingly computer mediated as well. The advent and subsequent rise of Facebook, Twitter, and other social networking media has transformed the way human beings relate to one another. The result has been a world in which people are more connected than ever before, able to maintain friendships halfway around the globe without the barriers of time and space getting in the way. Moreover, with life online becoming the norm, we find that our notion of privacy has been transformed in ways that were unimaginable a generation ago. As Facebook and other social networking sites continue to fine-tune the

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structures of privacy regulation in an online world, we find that there is simply less and less of an expectation of privacy in this new world. This has left many people divided over the nature and function of privacy. Sometimes this is along generational lines, but not always. Defenders of traditional notions of privacy have advanced several interesting arguments, but the most intriguing of these relates to the connection between privacy, trust, and intimacy. The argument goes as follows. We have numerous relationships with people throughout our day that fall into the category of public relationships. However, most of us have a few people—at least one or two—with whom we have a special relationship. These are people we trust with information about ourselves that we would not necessarily divulge to the general public. This may be information about our deepest fears and hopes, about our vulnerabilities, and similar types of information about ourselves. None of this information is necessarily bad, but it is not intended for public consumption. Indeed, a key component of being a close friend to someone is precisely the willingness to share this type of information in a reciprocal fashion. Privacy establishes a zone of intimacy with a select number of people within which we can express those aspects of ourselves that are most vulnerable and sometimes most important. Indeed, these relationships of trust are typically our most important relationships. There is, in other words, a deep connection among privacy, intimacy, and trust, and if we value intimacy and trust in our lives, then privacy is necessary to protect such intimacy and trust. Searching for Knowledge: The Ethics of Search Engines

One of the areas in which our lives have become increasingly mediated by computers is the search for knowledge. Search engines play an absolutely vital role in almost all aspects of our everyday lives now, but rarely do we stop and reflect upon these roles and upon the ethical constraints that should govern the operation of search engines. Search engines are, to put it metaphorically, the keys to the kingdom of knowledge, yet in a typical day we hardly notice the search engines we use. If they work well, and they usually do, they are as transparent as the clear glass in the window, revealing what lies beyond but concealing itself in the process. Moreover, the centrality of search engines grows day by day as our access to all kinds of knowledge shifts increasingly toward the World Wide Web and away from traditional print sources. Consider just a few of the ethical issues relating to this. When you do a Web search on Google or some other search engine, you have undoubtedly learned that it doesn’t pay to be coy: when searching for something, you need to be direct and specific. This has a very interesting consequence: if you look at the history of someone’s Web searches during a day, you practically have a direct pipeline into that person’s mind. Our search history tells us what we have been thinking about, and it also tells other people what we have been thinking about as well. Search histories are typically tracked closely by search engine companies, Internet providers, and anyone to whom they can sell this information, particularly advertisers. This information is gold to them, which is why they are happy to provide search capabilities to you for free. What they get in return is knowledge about your search habits, your preferences, your buying habits, and many other things of great interest to potential advertisers. How private should this information be? Should there be government regulations limiting the uses to which it can be put? Is it sufficient simply to provide this information in the end-user license agreement that you sign but probably never read? What if your searches relate to potentially sensitive issues such as concerns about health, economic prospects, or even relationships? Continuing along the same lines, we can ask how long a search company should be allowed to retain such information about you. In some countries, they are mandated to destroy such information after a period of several months. In the United States, there are far fewer regulations governing the operations of search engines. Or consider another ethical issue relating to search engines: which sites should come up first? This is not as easy a question to answer as you might at first think. The success of Google has been in its ability to match up your query with the information that you were searching for. The site that comes up first might not be the most popular, but in Google’s very sophisticated opinion it is most likely to be the site that you are actually looking for. Indeed, Google makes no claim to the objectivity of its results, because there is nothing to be objective about. Their genius lies precisely in their ability to discern your subjectivity, that is, your subjective intent, and to match that up with the relevant Web sites.

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You can see the possibility for abuse here, although I think there is absolutely no reason to suspect that Google in any way slants its search results. The possibility of abuse however lies in the fact that there simply is no objective standard by means of which the accuracy of the results can be measured. The search is successful simply if the search engine provides you with the information you want—or at least appears to do so. In the very early days of Internet searches, there was a disturbing blurring of the lines between paid advertisements and actual search results, but now search providers typically draw a clear distinction between the two types of results. However, we can see that these are murky waters, for there is no clear criterion for determining which site should come up first. Popularity is important, but the most popular sites are not necessarily the ones that you’re looking for. The number of other sites that link to a particular site, what are called back links, is another important indicator, but that alone is hardly a guarantee that a particular site is the one that you are most interested in looking at. Typically, it is going to be some combination of factors—a complicated formula called an “algorithm”—that determines which sites come up first. In fact, the problem was more complicated than this description suggests. These algorithms are highly sophisticated formulas for ranking Web sites, and as such they are closely guarded secrets that search companies are not going to divulge to the general public. In fact, there are two very good reasons why they should be kept secret. First, these are proprietary trade secrets that give one company an edge over its competitors, and they would be foolish to divulge such secrets to the general public. In doing so, they would lose their competitive edge. Second, it is important to keep these algorithms secret in order to prevent unscrupulous Web site operators from manipulating the formulas so that they can increase the rating of their sites. Major search firms continually guard against such manipulation, for this would undermine public trust in the reliability of the results. Now we are in a position to recognize the complexity of this issue: search engines are crucial to the quest for knowledge, but by their very nature they cannot be transparent in their operation to the average Web user. As a result, we can never look “behind the screen,” as it were, to see what’s really going on and to make sure that the search results that we are viewing have not been manipulated. In other words, we just have to trust the Web search firms to present the results honestly. Yet there is one more wrinkle in this entire fabric: increasingly, search engines have tended to tailor their results to particular users. For example, if I often read conservative columnists on the New York Times Web site, when I do a search on a particular topic in the political domain, search engines are now more likely to deliver conservative results to me before they display results from columnists at the other end of the political spectrum. Or, to take a less controversial issue, if my search engine knows that I am a Mac user—and it inevitably does know this—it may be more likely to yield results of a software search in such a way that priority is given to Mac software. All of this contributes presumably to making me more satisfied with my search results, but it does so at the cost of blurring even more fundamentally the criteria for what comes up first in a Web search. These questions would be less important if it weren’t for the fact that the Web is increasingly not simply our dominant source of information, but often our only source of information. At the very heart of our societal search for knowledge is a black box into which we cannot peer; it is the hidden engine that controls the whole process but whose rules are hidden from our view. Even for those of us who at a personal level have tremendous confidence in both the ability and integrity of search firms such as Google, this is a dangerous situation. Google, like many such firms, bears the imprint of its founders and has been shaped by their vision. Yet we have seen how time after time founding executives eventually retire. At first, their successors might be brought up from within the ranks of the company, but eventually they are replaced by outsiders who share neither understanding nor loyalty to the vision that the founders of the company originally had. At that point, the company becomes one more largely anonymous corporate entity, indistinguishable from hundreds of others—and no more trustworthy than those others. The preceding remarks are simply a small sampler of the many, many ways in which we live in a computermediated world. This is a world that creates an array of new moral issues, issues that in some cases have never existed in the past, and issues to which in the future we will need to provide new answers. You will see some of these new issues as well as some of these new answers in the readings that follow in this chapter.

Chapter 12. CyberEthics

Ethics in a Policy Vacuum Given this exponential growth, it is not surprising that computing has transformed our world; nor is it surprising that it has brought about changes so quickly that it has outstripped the ethical rules that usually guide our decisions. Computer ethics arises in response to what James H. Moor, a noted computer ethicist at Dartmouth, has called a policy vacuum. Technology gets out ahead of us, and we have to work hard on our policies and ethical guidelines to catch up with the new technology. In the area of computing, some of the challenges are novel enough that, in attempting to address them, we may find ourselves transforming, not just developing, ethical theory. Although the area of computer ethics covers a wide range of topics, many of the specific issues fall into one or more of several major categories: privacy, ownership of information, and security. In addition, there are important, more general ethical questions about the ways in which computers and the Internet have transformed our lives. Some of these issues are treated in James Moor’s article, reprinted here, “Should We Let Computers Get under Our Skins?” Before looking at those, let’s consider some of the specific moral problems raised by these technological advances.

Privacy and Control of Personal Information The distinction between public and private is central to the American democratic tradition, for the private domain has long been considered the domain within which individual freedom is most fully exercised. In particular, the private has long been considered comparatively safe from government scrutiny. BigBrother.gov or BigBrother.com?

Computers have changed all that, and they have done so in a very interesting way. Various computer-based technologies allow governments, corporations, and even individuals to collect an amazing amount of information about people. Imagine all the ways in which an average person leaves electronic footprints during the day. Using computers at home and work, individuals leave a vast amount of information about themselves, their reading and buying habits, their business dealings, their personal likes and dislikes, and so forth. Prior to the advent of computers, one person could perhaps have followed another person around, noting the other person’s actions, contacts, and the like. The rise of computers now allows a single individual to track thousands of people simultaneously, finding a range of details about them that would previously been impossible. In the UK, the use of closed-circuit television (CCTV) cameras is more extensive than anywhere else in the world. Part of this is due to the fact that in the UK there are fewer constitutional protections of privacy, and another part is due to the fact that they endured decades of terrorist attacks on their own soil by the IRA. The result has been an extensive network of CCTV cameras not only in the major cities, but even in the small villages in the UK. Typically, the average resident appears on dozens, if not hundreds, of CCTV cameras on any given day. Moreover, video cameras that read and record the license plate numbers are now in place on all British roads, so it is a simple matter to keep track of a given car’s movements throughout a specific day. This type of surveillance was already well established by 2010, and this massive use of video surveillance promises to become even more pervasive and finely tuned for the 2012 Olympic Games in London. In some cities, British authorities have already begun using two-way surveillance that allows them over a loudspeaker to speak to a potential lawbreaker. For example, if you toss an empty beer bottle on the ground in the UK, don’t be surprised if you hear a voice asking you to please pick it up and dispose of it in the proper trash bin. Being under surveillance has simply become a part of everyday life in the UK. What limits, if any, ought to be placed on the power of individuals, corporations, and governments to engage in such surveillance? Often we see doomsday scenarios in which government—a virtual Big Brother—controls the lives of ordinary citizens through increasingly extensive data collection. Since the 9/11 attacks, there have been growing political pressures in the United States to combat terrorism, often at the price of removing restrictions to the government’s acquisition of information. However, this is not an issue limited solely to governments. Private corporations

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often have access to information that could have a profound effect on the lives of individuals. Insurance companies and HMOs have been ethical hotspots for the privacy and control of information in recent years, and this has been a particularly thorny area insofar as insurance and health care are tied to employment. To what extent, if any, can insurance companies and employers and others share information about individuals with whom they deal? As the ability to share information increases, the need for clear and enforceable guidelines in this area increases as well. Consider the following example. In Lancaster, Pennsylvania, local citizens got together and privately established a CCTV surveillance system that covers the entire town. They established a central video monitoring area, hired staff, and now the entire town is under twenty-four hour a day real-time video surveillance and the video feeds are then archived. Interestingly, there is nothing illegal about this. None of this was done by the government or with government funds. Those who monitor the cameras are not shorn peace officers, but simply employees of a private company. In some cities, private companies have opened small, boutique-like shops that sell a variety of items. As is the case with most stores, there are small signs that indicate that there is video surveillance occurring, but this hardly tells the whole story. The purpose of the stores is not to sell products, although they do this, but rather to closely observe the customers to see what things they find interesting and what things they don’t. Thus customers’ online movements and other behaviors are closely tracked for research purposes in order to determine which packaging they find most interesting, which displays draw their attention, and the like.

Free Speech, Privacy, and Censorship Consider some of the thorny issues relating to pornography. In the United States, pornography is defined in terms of the violation of local standards. But what counts as local? Is it the standards of the community of the person viewing the pornography? Or the standards of the community in which the purveyor of the pornography resides? What responsibility does the Internet Service Provider (ISP) have in hosting such a site? What restrictions, if any, ought to be placed on pornography sites? What rights do individuals have to keep information about themselves off the Internet? In one case, critics of a police chief started putting personal information about him on the Web—pictures of his house, his address and phone number, and anything else they could find. Does the police chief have a right to privacy? Or, to take another example, in some cases anti-abortion activists have posted similar information about abortion providers. Again, to what extent—if any—do individuals have a right to privacy? Closely related to this issue is the problem of data mining. The tremendous growth of computer power and storage, coupled with the vast increase in the amount of information stored in databases, has opened the door to powerful database searches that reveal more about individuals than they would have believed possible. Think of the many ways in which average individuals leave information about themselves in computers during a typical day: all swipes of cards for credit or identification purposes, preferred customer cards at the grocery store, all use of any computer they are logged onto, all telephone calls made or received—not to mention the countless surveillance cameras that may have picked up their images during the day. If all these pieces can be put together (and this is what advances in computing power and storage make possible), then an amazingly detailed picture of an individual’s day begins to emerge. Encryption plays an important role in this discussion as well. To what extent should individuals be allowed to encrypt their communications? Some levels of encryption (e.g., 128 bit) are virtually impossible to break. If criminals and terrorists can use such encryption, they can effectively prevent the government from monitoring their communications. What restrictions, if any, should the government be allowed to impose on encryption programs?

Property Rights and Intellectual Property The rapid rise of file sharing Websites was the most dramatic signal of a change ushered in by the computer revolution: because digital media can be shared so easily and cheaply and without diminishing the original and without loss of quality, digitized property—most notably, music and video—began to speed around the Internet with an undreamed-of volume and speed.

Chapter 12. CyberEthics

As this happened, the traditional notion of private property—based on the paradigm of land and other physical objects—and property rights came under serious challenge. Our understanding of property rights was based on this traditional model, one in which giving a piece of property to someone else meant that you yourself lost something. For example, if I give a book to my friend, I no longer possess that book. I could, of course, xerox a copy of the book, but that would be a lot of work and the copy would not be as good as the original. In the digital world, however, this is no longer the case. If I have an electronic copy of a book (or a piece of music), I can send that to all of my friends and still not lose anything, and the copy they receive will be as good as mine. Intellectual property is not exactly like a physical object, but we still have laws and policies based on the old paradigm of physical objects and there is significant disagreement about where to go from here. On the one hand, many maintain that the traditional laws of property ought to continue to apply unchanged and see all attempts to alter the law as a threat. On the other hand, some in the Internet community are fervently committed to the idea that all information ought to be freely available—and that means, among other things, removing restrictions on copying and duplicating materials, including music and video.

Responsibility In the age of the Internet, responsibility has become more diffuse in several ways. First, the Web allows the possibility of anonymity (or at least the illusion of anonymity), and this makes it easier for people to deny responsibility for their actions, even to themselves. Online pornography and Internet plagiarism are but two of the most obvious examples of the way in which the anonymity of the Web allows people to engage in behavior that, at least often, they would not perform in the public world of everyday life. Moreover, the lines of responsibility in such cases are complex. What, for example, is the responsibility of ISPs for the actions of their clients? Do they, for example, have a responsibility to protect customers from cyber stalkers? From unwanted pornography? From unwanted advertisements? Or, to take another example, what responsibilities do college network administrators have if, for example, students are using college Internet connections to download pirated music and video? To order plagiarized term papers? Responsibility issues have been transformed in another way as well. Increasingly, computer systems perform actions, and they do so with such speed that no human being can adequately monitor them. Let’s look at an example from the stock market. Computers and the Stock Market

One of the areas in which we see computers as permeating the work process is the stock market. In 1998, the Securities and Exchange Commission opened the market to electronic exchanges, ostensibly to allow the average citizen with a desktop computer to compete. Soon, however, small traders dwindled into insignificance (and often poverty) when major traders began computerized trading on a massive scale. Let’s take a closer look.

The Flash Crash of 2010 On May 6, 2010, the day at the New York Stock Exchange looked routine until about 3:00 in the afternoon. Stocks were down about 180 points, but that was not unexpected, given fears about the Greek debt crisis at that time. Suddenly, over the next twenty minutes, the Dow dropped over 1000 points in a period of a few minutes— slicing about one trillion dollars off the total value of the U.S. stock market—and then soared back up, recovering much of what had been lost. The precise cause of the crash remains unclear, a disturbing enough fact, but it seems to have been an unanticipated interaction among different exchanges with rules to slow down trading kicking in at different moments. This was possible because much of the trading on the stock market is now done with computers. Indeed, much of it never even goes through the New York Stock Exchange (NYSE) any longer, thus avoiding many regulatory restrictions that might apply to the NYSE.

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High-frequency Trading At the beginning of the twenty-first century, stock trading underwent a radical transformation. Literally for centuries, stock trading was a human endeavor with actual human beings on the trading floor, buying and selling sometimes huge quantities of stocks back and forth. A giant billboard—the “Big Board”—kept track of current prices for buying and selling particular stocks. The most prestigious of these stock exchanges was the New York Stock Exchange, and only a limited number of stocks were traded on that exchange and only a limited number of traders were allowed on the floor. Essentially, it was unchanged except for minor upgrades to the hardware of the Big Board for many decades. The advent of computerized trading changed all that. The brightest young mathematicians no longer went into research in science or into teaching at universities; they went to Wall Street, where they became known as “the Quants.” (There are numerous books both by and about the quants.) They developed computerized trading formulas or algorithms (“algos” for short) that allowed them to discover tiny pockets of profit within a mountain of data and to quickly exploit the opportunities that thus emerge. One regulator has dubbed those who engage in such high-frequency trading “the Cheetahs,” for they are both fast and fearless. High-frequency trading now accounts for over sixty percent of the stock transactions every day in the United States. This is a realm in which humans cannot compete with computers except that humans write the algorithms upon which they are based. These algorithms allow computerized trading systems to purchase thousands of shares of stock in a nanosecond and sell them again a fraction of a second later, reaping a very small profit per-share that mushrooms into a much more substantial profit when we add in the number of shares traded and the number of trades that occur per minute. This is a world in which nanoseconds matter, that is, a world in which trading transactions are measured in billions of a second. Before you can blink, the computer may have made dozens of transactions, buying and selling again almost instantaneously, picking up small pockets of profit that would have been indiscernible to the human eye and acting on those opportunities with the speed that far outpaces human deliberation. This type of trading began with supercomputers early in the twenty-first century, and by 2009 was being noticed by Securities and Exchange Commission (SEC) regulators, for such lightning fast massive trades threatened to upset the market by what are called “flash crashes.” Moreover, regulators began to get nervous when highfrequency traders began to move away from the established exchanges and to trade instead on what are called “dark pools,” unregulated electronic trading exchanges in which high-frequency computerized trading is the norm. One of the ethical concerns that regulators have expressed is that the rise of computerized high-frequency trading has left all others in the dust. This not only includes the average amateur day trader at home on a PC, but also includes many of the professional traders in established financial houses around the country. High-frequency trading depends on massive supercomputers, often located in buildings quite close to the exchange computers, to shave a few nanoseconds off the transmission time needed to execute trades, enabling such quick buying and selling that no one else can even keep up and track their progress. Moreover, loopholes in market regulation allow such supercomputers slightly faster access to market data than is given to other traders, with the result that these supercomputer trading systems are already a fraction of a second ahead of their competitors. The result, in the eyes of many, is a playing field that is no longer level, one that gives an unfair advantage to the high frequency supercomputers.

The 1987 Flash Crash This was not, by the way, the only time such computer-driven trading had driven down the Dow. Back on October 19, 1987, computer-drive trading programs pushed the Dow to its knees, causing a 22.6 percent loss of value. It was the biggest percentage loss suffered on a single day by the Dow. Again, due to computers. That time it was “portfolio insurance” trading programs. Under pressure from regulators, new safeguards were introduced to slow the cascading effect of automated trading, but these were keyed to the time of day. There was less protection at 2:00 pm, and after 2:30 pm there was no protection against the cascade effect. The May 6, 2010, tumble occurred at 2:45 pm. This is just one of many ways in which ethical issues are deeply interwoven into the ways in which computers are used in our world today.

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The Diffusion of Responsibility

Computer systems often make decisions for us in daily life. Some of these decisions are relatively minor, but in some cases they highly significant. In some instances, computers may even decide when a missile is to be fired, especially in situations when an immediate response is crucial. In naval warfare, for example, where opposing ships are only a few miles apart and response time is correspondingly brief, we can imagine scenarios in which a ship’s computerized fire system might retaliate on its own. In Iraq and Afghanistan, we have had little robots—dubbed “R2D2” by grateful soldiers—that fire an incoming mortar rounds. Since they need to respond immediately to incoming mortar attacks, they do not require a human operator to authorize each response. To whom do we attribute responsibility when something goes wrong? In the past, designers have built in a moment at which a human being must confirm the decision, but this is increasingly impractical. Even when a human being is involved, that person is often depending on information supplied by the computer. We can imagine a human being “in the loop” and necessary to confirm a decision to fire a missile, but the human being may be receiving information from computer-mediated sources. As computer-driven systems become increasingly autonomous, responsibility becomes more and more elusive.

The Digital Divide This is not the only pervasive issue. While many (especially in education) find their lives permeated by computers in many ways, others are effectively barred from access to computers, primarily for economic reasons. The world is splitting into the haves and the have-nots, based in significant measure on access to computing power. Young children from middle and upper class families grow up comfortable with computers, happy to use them and confident of their own ability to figure out and solve problems. In an increasingly computerized world, they have an immediate advantage over children who do not grow up with such skills. Similarly, significant portions of the industrialized world are highly computerized, whereas many parts of the developing world lack even the basic necessities of life, much less access to computers.

Luciano Floridi

“ The Ethical Evaluation of WikiLeaks ” About the author: Luciano Floridi is a contemporary philosopher whose work has defined the field of the philosophy of information. After a number of years teaching at Oxford, Floridi now holds a Research Chair at the University of Hertfordshire and the UNESCO Chair in Information and Computer Ethics. His most recent book, The Fourth Revolution: The Impact of Information and Communication Technologies on Our Lives (New York: Oxford University Press, forthcoming) deals with the broad impact of the information revolution. His Philosophy of Information was published by Oxford in 2011. About the article: The publication of classified government documents by WikiLeaks under the leadership of Julian Assange raised a number of ethical issues, both about the dubious practices they sometimes revealed and about Assange’s practice of publishing such documents. In this piece, Luciana Floridi examines some of the ethical issues underlying Assange’s project. As You Read, Consider This: 1. What are the two questions that Floridi focuses on in beginning of his analysis? 2. Explain what Floridi means by saying that confidential communication is a three-player game. 3. Whistleblowing, Floridi suggests, establishes a new, meta-game. Explain what he means by this. Luciano Floridi, “The Ethics of WikiLeaks,” Reprinted with the kind permission of the author. This is available online at http://philosophyofinformation.net/Blog/Entries/2011/1/5_Travels_through_the_east.html.

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4. How does the new meta-game destroy the relationship of confidentiality? 5. What happens to the phenomenon of accountability in the new meta-game? 6. What does Floridi mean when he says that information liberation arguments are not universalisable?

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he Wikileaks phenomenon is intricate, but suppose we reduce its ethical evaluation to two questions: is whistleblowing ethical, even when motivated by resentment and the desire to harm its target? And is the facilitation of whistleblowing ethical, even if it might put at risk innocent people? A deontologist, convinced that telling the truth and never lying is an absolute must, is likely to appreciate whistleblowing as the right thing to do, independently of the reasons behind it. And a consequentialist may support Wikileaks as a means to maximise the welfare of the largest number of people, especially if risks are minimized by censuring sensitive information. So current answers in the mass media seem to converge: Wikileaks is a good thing. I am not entirely convinced. Confidential communication is a three-player game—sender, receiver and referent—in which sender and receiver trust each other. The receiver, not the referent, trusts and holds responsible the sender for the truth of what is communicated about the referent. The referent may know about such communication and may even easily guess its contents (imagine a letter of reference), but there is confidentiality only if the receiver, not the referent, has access to the information exchanged. Accountability is present and connects sender and receiver. Whistleblowing disrupts such a three-player game. In the new, metagame the sender is the whistleblower through Wikileaks, the whole world is the potential receiver, and the referents are the players in the previously confidential communication. This is problematic. The relation of confidentiality of the original game is destroyed: the new referents are also among the new world-receiver, which now holds the old sender responsible for what is communicated, not only for its truth (if you say that the moon is made of blue cheese, that is false, if I report that you said so then what I say is true). The metagame reinstates, somewhat hypocritically, the same rules it criticises: Wikileaks, quite rightly but inconsistently, defends the anonymity and confidentiality of its sources, which are likely to make an exception about the information transparency of their own identity, frowning upon MetaWikileaks, with leaks on leaks. Finally, the relation of accountability is missing. In the metagame, the whistleblower and Wikileaks might be good-willed and well-intentioned but are not bounded by professional codes of conduct or legal requirements. So the receiver, which is also the referent, is at the mercy of the sender. Wikileaks knows this and that is why it “whitemails” the world, i.e., it blackmails it by threatening to disclose even more damaging information through its “insurance file”, should anything happens to Wikileaks or its spokesman Julian Assange. Wikileaks itself shows that, without confidential communication, there would often be no communication at all. Thus, any argument in favour of Wikileaks to the effect that most of the information was already public or suspected anyway misses the point, which is that Wikileaks may undermine the possibility of future frank communication. Imagine an Academic Wikileaks that regularly publishes confidential information about the assessment of grants, the evaluation of book proposals, the reviewing of journal submissions, letters of reference for candidates and so forth. After the initial embarrassment, the whole system would come to a standstill. Finally, “information liberation” arguments are not universalisable. The new Wikileaks’ About file1 holds that “publishing improves transparency, and this transparency creates a better society for all people”. Yet this is naïve at best. First, because the value of information is not absolute, but relative to its use. Judas’ kiss tells the truth about the identity of the kissed, but it hardly creates a better society. And second, because the value of the use of information is not absolute either, but relative to the goals that one is seeking to achieve, and the sort of possible world that one is trying to bring about. This is why personal details about religious and sexual orientations must be protected. Information “macht frei”, but also doubles as a necessary condition for discrimination. The lesson is simple: facilitating whistleblowing is morally good not absolutely, but only if the whistleblowing itself is morally good; and the latter is morally good not absolutely, but only if the specific cause it fosters is morally good. So the two conditionals call for an explicit, ethical commitment. And Wikileaks old About file2 acknowledged this much: “Our primary interest is in exposing oppressive regimes in Asia, the former Soviet bloc, Sub-Saharan Africa and the Middle East, but we also expect to be of assistance to people of all regions who wish to reveal unethical behavior in their governments and corporations. We aim for maximum political impact.” Unfortunately, this strong and explicit ethical statement has disappeared (Wikileaks is not a Wiki, so

old versions are no longer available from its website). Luckily, so far Wikileaks has picked up causes judged by most morally good. Support for Wikileaks would quickly vanish if the leaks undermined a cause such as the democratic movement in China. Yet the real ethical debate must concern the moral value of the causes supported by Wikileaks. And the concern remains: those who defend accountability should themselves be accountable. Who will whistleblow the whistleblowers, if their behaviour will become unethical? 1

retrieved 12.12.10, http://www.wikileaks.ch/about.html archived 10.03.08, http://web.archive.org/web/20080314204422/www.wikileaks.org/wiki/Wikileaks:About

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Journal/Discussion Questions 1. Floridi suggests that whistleblowers cannot universalize their position. Explain what is meant by this claim. What philosopher is Floridi implicitly referring to here? 2. Discuss the difference between deontological and consequentialist analyses of whistleblowing in general and WikiLeaks in particular. 3. Floridi ends his essay with a question: who will blow the whistle on the whistleblowers? How would you answer this question? What consequences flow from your answer to this question, especially in regard to privacy and censorship?

James H. Moor

“ Should We Let Computers Get under Our Skins? ” About the Author: James Moor is a Professor of philosophy at Dartmouth College, he is a primary figure in the growing area of computer ethics. His award winning article, “What is Computer Ethics?” is widely reprinted and regarded as a milestone for the study of computer ethics. He was an early pioneer in computer-assisted instruction in logic, including work on Bertie, Venn, and Proof Designer. He is co-author of The Logic Book and has written widely on the philosophy of artificial intelligence. Most recently, he is co-editor of The Digital Phoenix: How Computers Are Changing Philosophy. About the Article: In this article, Moor looks at the question of whether we are gradually becoming cyborgs—part human, part computer—and what ethical limits ought to be imposed on this. As You Read, Consider This: 1. What are cyborgs? In what ways are we already moving toward becoming cyborgs? 2. Explain the therapy/enhancement distinction. What is its significance in this article? What criticisms of this distinction does Moor consider? 3. Explain what Moor means by “the Borg argument.” 4. What, according to Moor, are the three main areas in which we should be particularly sensitive to the coming of age of cyborgs?

Being connected with the passions also, the moral virtues must belong to our composite nature; and the virtues of our composite nature are human; so, therefore, are the life and the happiness which correspond to these. —Aristotle Being a human was ok, I even enjoyed some of it. But being a Cyborg has a lot more to offer. —Kevin Warwick

Reprinted by permission from The Impact of the Internet on Our Moral Lives , edited by Robert J. Cavalier, the Statue University of New York Press © 2005, State University of New York. All rights reserved.

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The Case for Becoming a Cyborg

Aristotle suggests that human nature is fixed. Our human intellectual and moral virtues depend on our having this nature. If we changed our nature, we would change our virtues (excellences). Aristotle believed that if a friend became a god, for example, friendship with that person would cease because a god has a different nature than a human being. In the wake of evolutionary theory and modern genetics, the claim that human nature is fixed is not very plausible, but Aristotle’s belief that shifting human nature might well alter moral virtue remains defensible. In today’s scientifically changing world we need to confront this issue: if we change the kind of thing we are, what will be the consequences for ethics? We will change ourselves genetically and we will change ourselves computationally as well. We will become cybernetic organisms—cyborgs—part human, part computer. The logical malleability of computers will allow us to go beyond what can be accomplished through genetic manipulation alone. The human body is the ultimate platform from which to launch new computer applications. It is likely that in the coming decades more and more computer hardware and software will be embedded in us. To what extent it should happen is the ultimate question, of course, but certainly there will be increasing pressure to produce cyborgs. Today the rationale and technology already coexist. First, we humans as creative creatures continually seek new ways to perform routine and not so routine tasks. Not infrequently our creative task solving involves the development of new tools. Second, the computer is the best master tool we have. The general-purpose computer is a meta-tool, a tool for making tools. If we have a task to do and we can express the task in terms of an appropriate algorithm to connect inputs to appropriate outputs, then in principle a computer can do it. In fact, even if we do not know an appropriate algorithm, computers using neural nets or genetic algorithms can sometimes evolve satisfactory computational structures for us. Third, considerable knowledge has been gained in recent years about interfaces between computers and living systems. We know that organic and inorganic structures can effectively interact at many levels—the organism level, the organ level, and the cell level. Someday nanomachines may interact in our bodies at the atomic level. Given that naturally curious humans love to find better solutions for problems, have a great master tool (the computer), and possess the perfect location (the human body) on which to store and operate the new devices, the gradual transformation of many humans into cyborgs, humans with computer parts, is all but certain. Simply forbidding the implantation of computer chips because they are not natural, only artifacts, is not a plausible policy. This overly broad approach would not only prevent the use of beneficial computer implants but would rule out beneficial noncomputer implants such as artificial hip joints and dental crowns. Still, the thought of becoming a cyborg may seem rather repulsive. Who would want to have computer parts implanted? To become part computer? The idea of having a computer implanted may seem unnatural, possibly even grotesque, or at least something that undermines human dignity. But such a negative reaction is not defensible upon close examination. In fact, the transformation of humans into cyborgs has been taking place with no loss of dignity for years, although we do not commonly think of it in those terms. For example, hundreds of thousands of people have cardiac pacemakers and defibrillators implanted to maintain regular heartbeats and heart rhythms (Lu, Anderson, and Steinhaus, 1995, Pinski and Trohman, 2000). Such implants not only promote life but also the quality of life. Totally implantable pacemakers have been in use since 1960, and programmable pacemakers were developed in the mid-1970s. The newest pacemakers can communicate via phone and the Internet. A patient needs only to wave a wand over his chest to pick up signals from the generator and then plug the wand into the phone line to send his physician an update on how the device and patient are doing. It would be hard to raise a principled objection against such beneficial devices. Implanting computerized cardiac devices is no more unnatural than putting other products of technology, like medicines or processed food, into our bodies. Given the alternatives for the cardiac patient, these vital, portable computer implants considerably enhance human dignity, not reduce it (Ocampo, 2000). A similar case can be made for the benefits of implanting computer chips for vision. There are various projects underway to develop bionic eyes that will restore some level of vision to blind patients. Some approaches put chips on or under the retina and others connect computer chips to other parts of the visual system. In 2002, a Canadian farmer, who had lost his sight eighteen years earlier, had a bionic implant. A digital camera mounted on his glasses sent an image to a computer worn on his belt. The image was processed and sent to electrodes implanted in his

visual cortex. His vision was not fully restored, but he was not totally blind anymore. He was able to see well enough to navigate through rooms and even drive a car to a limited extent (Gupta, and Petersen, 2002). Some diseases, such as retinitis pigmentosa or age-related macular degeneration, damage the rods and cones in retinas but leave the rest of their visual wiring, the ganglia cells that process information from the rods and cones and the optic nerve, intact. The various visual bionics under development hold great promise for bypassing the damaged areas of the visual system and restoring vision to the patient. In the United States, over a million people are legally blind and worldwide millions more. These cutting-edge bionic implants will offer enormous benefit. More examples of beneficial computer implants can be marshaled, but I believe the case for the benefits of some computer implants is established. The debate is not whether humans should ever become cyborgs because in some cases, particularly where beneficial implants help overcome severe disabilities, justification for becoming a cyborg is clear. The transformation of some humans into cyborgs will continue to happen and it should. People who wish to have such helpful computer implants should be allowed to have them. But how far should the conversion of humans into cyborgs go? What are the ethical boundaries? Could we find ourselves in a position that we would want to get away from computer implants but couldn’t? Could the implants be used to track us? Reduce our autonomy? Give us freakish powers? In this paper I want to explore some potential ethical pitfalls of computer implants as well as the impact that computer implants might have on ethical theory itself. Therapy versus Enhancement

The therapy versus enhancement distinction suggests a basis for a policy that would limit unnecessary computer implants. Given that the human body has natural functions, it might be argued that implanting chips in the body is acceptable as long as such implants maintain or restore the body’s natural functions. In this spirit, consider the remarks of Michael Dertrouzos, a director of the MIT Laboratory for Computer Science, regarding the possibility of implants connected to the brain: Even if it would someday be possible to convey such higher-level information to the brain—and that is a huge technical “if ”—we should not do it. Bringing light impulses to the visual cortex of a blind person would justify such an intrusion, but unnecessarily tapping into the brain is a violation of our bodies, of nature, and for many, of God’s design. (Dertrouzos, 1997, p. 77) The distinction between therapeutic applications and enhancing applications offers a criterion for limiting computer implants. Under this policy, pacemakers, defibrillators, and bionic eyes that maintain and restore natural bodily functions are acceptable. But giving patients additional pairs of robotic arms or infrared vision would be prohibited. It would endorse the use of a chip that reduced dyslexia but would forbid the implanting of a deep blue chip for superior chess play. It would permit a chip implant to assist the memory of Alzheimer’s patients but would not license the implanting of a miniature digital camera that would record and play back what the implantee had just seen and heard. In a later book Dertrouzos stresses his point again, “Few people would implant a chip into their brain for less than life-and-death reasons. We have wisely set a high threshold for tampering with the core of our being, not just because of fear, but because of natural, moral, and spiritual beliefs” (Dertrouzos, 2001, p. 46). Of course, even therapeutic applications raise ethical questions if they are not safe and effective or the patient has not given informed consent. But, let us assume safety, effectiveness, and informed consent. Does the therapy/enhancement distinction give a proper limit to computer implants? Although this policy generally avoids unethical implants, I believe it is too conservative and cannot be defended. First Objection: Unclear Distinction The line between therapy and enhancement is not always agreed upon. Consider the example of cochlear implants (Spelman, 1999). A microphone is worn behind the ear and a microcomputer filters and analyzes the sound from the microphone converting the sound into digital signals. These signals are sent by radio waves to a

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receiver implanted under the skin, then via a wire to electrodes embedded in the cochlea in the patient’s ear, which in turn stimulate nerves that carry sound to the brain. When cochlear implants became available in 1985, they could help approximately 35 percent of patients; today they can improve hearing in about 80%. Receiving a cochlear implant, a bionic ear, may seem obviously therapeutic. However, within the deaf community the issue of whether to get a cochlear implant has been controversial. Some deaf individuals have questioned whether these implants are desirable or even therapeutic. Some challenge the standard assumption of the medical community that deafness is a disability that can be “fixed” by having a cochlear implant. At the heart of the debate is the importance and normalcy of the deaf culture. Within the deaf community many find solidarity with others who are deaf and share a common language of signing. Therefore, some in the deaf community believe the acquisition of hearing through cochlear implants needlessly threatens to undermine an adequately functioning culture. These views are held strongly as illustrated by the fact that one member of the deaf community found her tires slashed when she refused to speak out against cochlear implants (Yaffe, 1999). Some in the deaf community believe that deafness is a disability, but they maintain that it is not worth correcting given the damaged caused to the deaf community. But another position is that deafness is not a disability at all given the availability and success of sign language within the community. Much of the debate about cochlear implants turns on whether one takes the absence of hearing as a disability. If it is, then having a cochlear implant is therapeutic, and, if it is not, then having a cochlear implant is an enhancement. There are many things that we cannot do, and yet we do not classify them as disabilities. We cannot digest steel and we cannot breathe underwater without special equipment. It would be strange for someone, other than superman, to claim he had a disability because he could not leap tall buildings in a single bound. These sorts of actions are in the realm of inabilities, not disabilities. A disability is a lack of normal ability in reference to a class of individuals. Adults living today are disabled if they do not understand some language, but they are not disabled if they do not understand an extinct language. Those strongly opposed to cochlear implants might argue that within the deaf culture there is normal functioning with full use of language that happens to be a sign language, not an oral one. If the members of the deaf culture are picked as the reference class, then hearing should be regarded as an inability, not a disability. Given this standard, a cochlear implant would not be therapeutic and might be regarded as unnecessary and possibly detrimental. My purpose here is not to argue for or against cochlear implants. Rather, it is to point out that the distinction between therapy and enhancement is not as straightforward as might be assumed. The decision about getting a cochlear implant is a personal choice and sometimes a difficult one that requires careful consideration of all the consequences. Families of deaf children may find themselves choosing between communities and are sometimes sharply divided within themselves on this issue. The decision can be agonizing because if the implant is to be most effective it must be implanted early in the deaf child’s life, preferably before language development occurs. The cochlear implant debate illustrates that the lack of agreement on what counts as a disability and what does not. However, even if there were agreement on what counts as therapy and what constitutes enhancement, implanted chips can offer a bit of both. For example, an implanted defibrillator can monitor a heart and deliver a shock within 30 seconds after life-threatening irregularities in rhythm are detected. The defibrillator restores normal heart function, but it does so through an enhancing functionality that people without defibrillators do not have. Or, consider an Alzheimer’s patient who has a chip embedded that allows her to be located by others and perhaps even guides her back by global positioning satellites. Is this chip therapeutic or enhancing? Suppose a paralyzed patient has a chip implanted that allows him to control the lights in his room by shifting his neural patterns. Is this implant therapeutic or enhancing? Second Objection: Limitation of Freedom The second argument against the policy of allowing therapeutic but not enhancing implants is that it arbitrarily limits personal freedom. As long as the implantee and others are not being harmed by the implant, what is the objection to allowing it? In other matters we routinely allow, if not encourage, people to have enhancements. Generally speaking, education enhances as does exercise and a good diet. They enhance the body and the mind and we encourage all of them. Freedom is a core good and we properly allow people the freedom to exercise it. People, at least in a

liberal state, are at liberty to have cosmetic surgery, belly-button rings, and tattoos. Enhancement is what many of us strive for much of the time. As a simple illustration, consider laser eye surgery guided by computer that can enhance vision beyond the normal 20/20. It would seem perverse to insist that a patient should not have the freedom to correct her vision to a better than normal 20/15 but had to stop at 20/20. Similarly, it seems perverse not to give people freedom to enhance themselves in other ways, including the implantation of computer chips if they wish. In 1998, Kevin Warwick, a cybernetics professor from the University of Reading in the United Kingdom, had a chip implanted that permitted sensors in his laboratory to detect his location and motion. In March, 2002, he had a much more sophisticated computer implant (Warwick, 2002). An array with 100 spikes was implanted in Warwick’s wrist to connect his median nerve with a computer. The median nerve travels along the arm and contains both sensory neurons that detect pressure and temperature and motor neurons that connect the spinal cord with muscle groups in the hand. The spikes of the array were implanted in these sensory and motor neurons in the median nerve. Wires from the array traveled up Warwick’s arm and surface through a skin puncture in his forearm. The wires were connected to a gauntlet, a transmitting/receiving device, located externally on Warwick’s arm. The gauntlet sent information about neural firing to an external computer. The computer, properly calibrated, distinguished neural impulses when Warwick’s left hand was open and when it was closed. This provided sufficient binary information for Warwick to guide miniature robots, manipulate a robotic hand, light up specially wired jewelry, and steer an adapted wheelchair. Warwick could feel the impulse if the information flow was reversed and the computer sent a signal to the gauntlet that transferred it to the implant in his median nerve. In an interesting experiment Warwick wore a baseball cap with an ultrasonic transmitter and receiver. Ultrasonic impulses were sent out from the cap and bounced back quickly if objects were close. In this situation a rapid series of pulses were sent to the computer, to the gauntlet, and to his median nerve. If objects were farther away, the pulses were less rapid. This gave Warwick an extrasensory input. When blindfolded, but hooked up to the ultrasonic device, he could guide himself around his laboratory using bat-like echolocation. In another experiment his wife, Irena, who had a simpler neural connection, and he could exchange binary information back and forth from one nervous system to the other via the Internet. Warwick has raised the possibility that one day more sophisticated information and possibly emotional responses could be communicated from nervous system to nervous system via the Internet. Warwick’s reports on his body image were interesting. Warwick makes it quite clear that having the implant under his skin was important as compared with simply putting on wearable computing that can easily be removed. “[F]rom the very start, I regarded the array and wires as being a part of me. Having it extracted, I knew, would be like losing part of my body, almost an amputation” (Warwick, 2002, p. 292). But he also had some sense of his body’s being extended by the machine attachments like the robotic hand. “The articulated hand felt like a part of me, yet, because it was remote, in another sense it didn’t” (Warwick, 2002, pp. 233–234). Warwick acknowledges the potential risks but believes the eventual benefits of computer implant enhancements outweigh these risks. Ethically, should Warwick enhance himself with computer implants? Some believe not. Langdon Winter suggests that such experiments are “profoundly amoral” (Vogel, 2002, p. 1020). Although becoming a cyborg may eventually raise questions about human nature, it is hard to see how the experiments that Warwick performed are beyond straightforward moral judgment. If he is not causing harm to others and not violating any particular duties, why should he not have the freedom to do it? His wife is at some risk of harm, but she freely gave her informed consent. Both his implant procedure and her procedure passed hospital ethics committee evaluation. The experiments may strike some as grotesque, scientifically ill defined, or grandstanding, but such judgments, assuming they were correct, would still not make the experiments amoral or immoral. The Borg Argument

The fear remains that allowing freedom of enhancement through computer chip implants will take us down a slippery slope to some very undesirable results. To imagine a worst case scenario, consider the Borg from the science fiction series Star Trek. The Borg is a collection of cyborgs that travels through space in a large cube that has the ability to assimilate new species that it encounters. The Borg’s menacing conduct is indicated by its foreboding mottoes: “Resistance is futile” and “We will assimilate you.” The inhabitants of the Borg have numerous

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unattractive appliances attached to them, have no personal autonomy, and are controlled by the directives of a collective consciousness. The inhabitants of the Borg do not have individual lives worth living, at least not as intelligent creatures. They neither examine their lives nor personally flourish. And so, the argument runs, we do not want to end up like the inhabitants of the Borg. How do we prevent sliding down the slope to such an existence once we give people the freedom to implant chips? Slippery slope arguments are not very convincing, particularly if the slope is rather long and stopping along it seems possible. There is considerable slope between allowing people the freedom to implant chips and becoming a Borg culture. But can we easily brake on the slope? I believe we can, but the Borg argument has some force. A Borg culture in which people become slave cyborgs is not something that sane people would choose for themselves. However, other mechanisms might push us toward such a state. Here are two: The Sleepwalking Scenario: We might inadvertently fall into a Borg-like state if we are not careful. Imagine that people for good reasons decide to have chips implanted in order to communicate with their children or do their jobs better or receive the latest music and sports information or have medication automatically released. Eventually, almost everyone is hooked up to the Web internally and wirelessly. It is the way life is conducted. Babies are given chips as routinely as vaccinations. Such interconnections are useful in organizing our lives. Gradually, for practical, not evil, motives the Web/human system begins to take on a life of its own, coordinating people’s activities by sending information tantamount to instructions for where to be and when to be there. Under such a condition the population might look better than the inhabitants of the Star Trek Borg, but its behavior might have an uncanny similarity. The Totalitarian State Scenario: The Borg culture might come into existence through the directives of a dictator of a totalitarian state. Dictators want to control their population. What better way than putting their subjects to work with implants that track their locations and force their labor? Neither the sleepwalking scenario nor the totalitarian state scenario is likely to happen in the immediate future, but these developments are real possibilities. We have yet to produce an Orwellian 1984 society, but that is probably due to a shortage of the right kind of information technology. That technological shortcoming is rapidly being overcome and a Borg culture is something to be on guard against. Freedom with Responsibility

In general, I am advocating a policy of responsible freedom. People should have the freedom to implant computer chips in themselves, including implants for enhancements. As with all our actions, we should be alert if harm or the risk of harm is a factor. If harm or the risk of harm would occur to either the person being implanted or to others, we need to consider whether the action is justified. Harm does not automatically curtail freedom of action, but it does require justification. Exercising such freedom requires evaluating consequences and formulating relevant policies that can be advocated impartially and publicly so that anyone is permitted to follow them in similar circumstances (Moor, 1999). Harm can result in many ways when implanting computer chips, but there are three general areas of major concern, three ethical hot spots, to which we should be particularly sensitive in the coming age of cyborgs. These areas are privacy, control, and fairness. Some computer implants will enhance privacy or control or fairness. Some will undermine them. Privacy

In May 2002, Jeff and Leslie Jacobs and their son, Derek, were the first to have VeriChips implanted in their arms. These chips, little bigger than a grain of rice, store six lines of text. Information is read from the chip by a handheld computer. Such medical information could be lifesaving in giving emergency physicians information about allergies and special medical needs before they administered treatment. In the case of the Jacobs, the chips contain phone numbers and information about previous medications. The U.S. Federal Food and Drug Administration (FDA) ruled a month earlier that it did not regard the chip as a medical device and would not regulate it. The chip is not very useful unless the implantee is at a hospital that has the appropriate handheld computer reader, but the technology is likely to spread because it is relatively inexpensive. The chip itself is dormant, but

when the right radio frequency energy passes through the skin it activates the chip that in turn emits a radio signal containing an identification number. This number can be sent to an FDA secure data storage site via telephone or the Internet. Given our flourishing Information Age, the demand for implanted chips to store personal, medical, and financial information as well as any information whatsoever is likely to increase. Implanted chips can be more sophisticated than memory chips. VeriChip is the product of Applied Digital Solutions (ADS) that has for several years been working on another product called the “Digital Angel.” The Digital Angel is a tracking device that uses Global Positioning System (GPS) technology. The Digital Angel technology potentially can be used to track almost anyone or anything from children, convicts, and cats to lost hikers and lost luggage. ADS has a bold vision of what the chip might be able to do. According to one early projection, the future chip, if implanted, will be powered by a piezoelectric device that converts energy from normal bodily movements into electricity. The chip will send information to receivers connected to various networks. In addition, the device will be able to collect information about the possessor’s body, such as temperature and blood pressure. Blood oxygen and glucose level detection are promised as well. Its designers propose that pulse detection will be based on infrared radiation naturally emitted from the bloodstream. In this vision of the future, solid state accelerometers and gyroscopes will allow the Digital Angel to sense the posture and gait of the possessor to detect sudden falls. EKG and EEG detection are claimed to be in the works. If this information gathering comes to fruition, the objective is to transmit the information to receivers that make it available on the Internet through Web-enabled desktop, laptop, or wireless devices. Depending on the configuration a Digital Angel device could be turned on or off by the possessor, the possessor’s body, or remotely by radio signal. The device would not need to be on and transmitting at all times, but would have the ability to turn on automatically if it sensed, for example, a heart attack or was sent an instruction to do so. Digital Angel is the brainchild of Peter Zhou, who is enthusiastic about the future of implanted chip technology. Despite Zhou’s enthusiasm, critics have expressed concerns. Civil rights groups compared the use of implanting these chips to Nazi tattooing and some Christians compared the implanting of the chips to the mark of the beast mentioned in the Bible. Thus far, ADS has brought out the first generation of the Digital Angel as a product to be worn as a wristband or carried. Its initial capability is limited to establishing the location of its possessor. Regardless of the current stage of development of this implant, the concept of a chip that actively gathers data about its owner as well as sending and receiving information is technologically feasible and such chips will come onto the market for particular uses at some point. Potential uses are plentiful. A person who suffers from arrhythmia could be assisted when the chip monitoring her pulse notifies medical authorities of her location and her condition. A firearm could be programmed to fire only when the chip identifies its user as the proper owner. Herds of animals, not to mention millions of pets, could be tracked so that no animal is lost. Every soldier in a battle unit could be monitored for his or her location and health status. A kidnapped child possessing such a chip could be located and checked for life signs. Such a chip could serve as an ID for business and other human interactions. A potential customer could be positively identified biometrically through transmissions from the chip. Her transaction then would be charged automatically to or deducted from her account based on information passed along by the chip. A world with implanted personal data chips will generate an enormous flow of personal information in novel ways that will require new protection plans for the privacy of individuals. New policies will need to be created to safeguard the collection of all the up-to-the minute information about people’s health, location, financial condition, and other matters transmitted and received by these chips. It is not that personal privacy cannot in principle be protected with the use of such chips. The concern is that the technology will be developed and deployed without establishing privacy protection. Control

Another ethical hot spot in which implanted chips can provide enormous benefits but put us at risk is control. Respect for the agency of others is a hallmark of ethics. Implanted computer chips hold great promise for both giving and taking away human agency. In the United States over a million patients suffer from Parkinson’s disease, a degenerative neurological disorder that causes them to shake uncontrollably. Another two million suffer from essential tremor that causes

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similar violent shaking. The shaking is so debilitating that these patients often have trouble working, eating, and simply getting dressed. In the past the drug L-dopa has been given to Parkinson’s patients, though its effectiveness wanes over time. Less than half of the patients with essential tremor are improved with medication. Sometimes patients undergo surgery to destroy parts of their brains that cause the shaking, but this procedure is not reversible and not always effective. An alternative for these patients is to have a chip implanted. Physicians implant an electrode in a patient’s thalamus and run a wire under the scalp to the patient’s collarbone where a pulse generator is implanted. This device sends electrical signals customized for each patient to the electrode in the thalamus. A constant stream of electrical shocks blocks the tremors. The device is effective in stopping the shaking in both Parkinson’s patients and essential tremor patients. The procedure is reversible and the device can be turned on and off by the patient. The results of such an implant are nothing short of spectacular. A Parkinson’s patient whose hands are shaking violently can run a magnet over his chest activating the pulse generator, and within a few seconds his hands become steady. With another swipe of the magnet, the device is turned off, and his hands will begin to shake again. In one case a typical Parkinson’s patient, who had lost her mobility and whose medications made her arms and legs move out of control, could sit down and play complex pieces on the piano after her implant was installed (Freudenheim, 1997). This Deep Brain Stimulation technique using the pulse generator is now being used for a variety of other medical conditions—even for psychiatric conditions such as obsessive compulsive disorder. One seriously ill patient had repetitive thoughts for hours and would wash his hands seventy times per day. After having a chip implant he stopped his compulsive hand washing and returned to work (Carmichael, 2002). What is striking about these examples of implants is that they restore agency to the patients. Patients regain control of their lives. The sinister side is the threat that computer implants might be used to remove agency. Chips might be developed to induce uncontrollable shaking, cause obsessive-compulsive disorder. Consider the recent development of a ratbot. Three electrodes were placed in a rat’s brain: two in the somatosensory cortical where the rat’s brain processes touch from its right and left whiskers, and one in the medial forebrain bundle where the rat processes pleasure. When one of the two electrodes in the sensory region is stimulated, the rat experiences an apparent touch. If it turns in the direction of its right or left whisker depending on which side is stimulated, it is electrically rewarded in its pleasure center. With this setup and some radio controls to send the signals researchers were able to guide the rat. Using a laptop, researchers maneuvered the rat through a difficult three-dimensional maze that included ladders, filing cabinets, and thin wooden boards. As one researcher appropriately remarked, “I certainly don’t think it would be a good idea to put these in primates, or especially in humans” (Cook, 2002). Rat brains are not human brains, but humans do have pleasure centers in their brains and one can easily imagine the use of implants to control humans. Could such a device be offered to help people stop smoking or lose weight? The military and the penal system might consider using the technology to produce loyal troops and obedient prisoners. Computer implants can potentially elevate human agency or severely reduce it. Continual vigilance regarding the deployment of such devices is necessary to ensure that respect for human agency is maintained. Fairness

A final ethical hot spot to consider is fairness. Implanted chips can tip the scales of justice in various ways. For example, implanted chips can encourage fairness by giving those with disabilities more power to interact in the world. Consider the case of Johnny Ray who suffered a brainstem stroke in 1997. He has locked-in syndrome and no muscle control. Although he is cognitively intact, he is totally paralyzed and cannot make a motion. Researchers have inserted a subcranial cortical implant. Parts of the implant in the motor cortex are surrounded with tissue culture to encourage brain cells to grow toward the contacts. The patient is asked to think about distinctive conditions such as hot versus cold. The corresponding brain outputs are captured, amplified, and used to control an external device such as a cursor on a computer screen. “By reproducing the same brain pattern, Ray eventually was able to move the cursor at will to choose screen icons, spell, and even generate musical tones” (Hockenberry, 2001, p. 96).

When computer implants improve access and interactive capabilities for those who are disadvantaged, fairness is served. But there are easily imagined situations in which future implants might give the implantee unfair advantages. Just imagine a grandmaster chess chip that contained book openings and generated excellent chess moves. Suppose it were developed, giving its owner superior ability in playing chess. Presumably, such chips would need to be banned in championship play just as steroids are outlawed in Olympic competition. Chip implants that facilitated an athlete’s coordination might be banned for similar reasons. Fairness will be an ongoing concern as chip implants get better and more useful. Eventually, a chip implant divide will emerge between those who have chip implants versus those who do not (Macguire and McGee, 1999). Parents, as parents always do, will want to give their children the best abilities and opportunities possible. Those who can afford chip implants and chip upgrades will have a distinct advantage over those who cannot. Viewing the Distant Future

Thus far I have been considering the matter of computer implants in light of common morality in the short run. I have been focusing on ethical concerns for and against implanting chips in the near future. Now I wish to reverse direction and consider the possible implications of computer implants on metaphysical issues and ethical theory in the long run. The possibility of enhancing humans through computer implants raises the question of what human nature could and should be. Traditionally, essentialist philosophers like Aristotle maintain that humans have a fixed nature. Some existentialist philosophers like Sartre argue that existence precedes essence and that human nature is radically free. We can change our essence by making different choices. In an era of increasing understanding of genetics and neurology, neither position seems quite right. Human nature does not appear to be irrevocably fixed or completely open. Computer implants offer us an opportunity to adjust at least some of our nature. Our essence as humans may not be radically open, but, if we are clever enough in developing implants, we can, if we choose, significantly change our nature from what it is now. Accurate prediction of what computer implants will be available in the distant future is, of course, impossible. But let’s speculate a bit. With implants we can change our internal functioning in ways that are not possible, using variations of our genetic code. We might enhance our sense of sight to access parts of the electromagnetic spectrum far beyond what any humans or other animals can. Similarly our sense of hearing could be radically extended. Artificial devices for touch, taste, and smell already exist and these senses could be great enhanced. We could develop new senses. We might continue to experiment with implants for echolocation, for example, and discover at least in part what it is like to be a bat. Communicating with other humans may be more direct than ever before. We could have sensors installed in our bodies that would let us know if our loved ones were in danger. We could lock and unlock doors, turn appliances on and off, and adjust the heat in our houses through computers that monitor neural patterns. And our cognition could be greatly enhanced with better memory and more accurate recall (Eisenberg, 2002). Perhaps education and physical conditioning could be done by downloads, not tedious schooling and training. Improving our abilities to create music or make inferences might be possible. Although all of this is speculation, nothing seems to preclude these possibilities. However the future develops, it seems likely that human nature as we currently conceive it could be modified. Martha Nussbaum, defending an Aristotelean position, has argued against such aspirations. . . . What my argument urges us to reject as incoherent is the aspiration to leave behind altogether the constitutive conditions of our humanity, and to seek for a life that is really the life of another sort of being—as if it were higher and better life for us. It asks us to bound our aspirations by recalling that there are some very general conditions of human existence that are also necessary conditions for the values that we know, love, and appropriately pursue. (Nussbaum, 1990, p. 379) Of course, everything depends on what constitutes the conditions of our humanity. The example she uses to illustrate the point is mortality. She cites Odysseus’s decision to choose the life of a mortal human being who returns to his marriage to a mortal woman although Calypso has offered him immortality and agelessness, a life of

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no fatigue and no cessation of calm pleasure if only he would remain on the island with her. Nussbaum grants that we strive for excellence within our capabilities but we should not strive to change those constitutive conditions. Aiming for immortality may be aiming a little high, but why shouldn’t we change our nature if we have good reasons to believe we would be better off with an improved nature? There is the danger that if some changed and others did not there could be a division of the species or at least significant new groupings within them. Today we have Human Nature version 1.0, but why not use implants to move to Human Nature 2.0, especially if the latter gives us longer life, more happiness, and increased freedom of action? And if Human Nature 2.0 is acceptable, why not Human Nature 3.0 in which some of the traditional abilities of Human Nature 1.0 are given up and replaced with new ones. The judgment to move to Human Nature 3.0 is made from the vantage of Human Nature 2.0 that understands the importance of some modifications differently than Human Nature 1.0. We might through this process bootstrap ourselves into a condition in which Human Nature 17.3 was quite different from Human Nature 1.0. Such a transition in human nature could have a serious impact on the application of ethical theories. First, there is the moral scope issue. By “moral scope” I mean what kind of entities are regarded as moral agents and what kind as moral patients. We usually count normally functioning adult humans as moral agents. We assign them duties and hold them accountable. But other less sophisticated entities are sometimes treated as moral patients, that is, entities deserving moral protection, such as small children, fetuses, animals, and the environment. For many, moral patients are thought to merit less protection than moral agents. It is better to kill a tree than take a human life. Would humans of nature 17.3 regard humans 1.0 as full-fledged moral agents or as merely moral patients or as entities outside the scope of moral protection altogether? Another difficulty raised for ethical theory if human nature were transformed is the creation of new values and the assignment of new weights to old values. Now, although there is variation in how much weight we give to various values, there is a shared structure of human experience in which these values play a role. Other humans experience pain and pleasure as we do. When other humans speak of excruciating pain, we know the experience they are having, even if we haven’t suffered exactly that kind of pain ourselves, and we know it is something to be avoided if possible. But if human nature is divergent, the understanding and sympathy factors so important in ethics may begin to wane. How values are weighted may differ enormously. In this regard consider J. S. Mill’s test to establish that some states are better than others. Mill imagined that a human had only to try both states and would know which is better. As Mill put it in his very famous comparison, “It is better to be a human being dissatisfied than a pig satisfied; better to be Socrates dissatisfied than a fool satisfied. And if the fool, or the pig, are of a different opinion, it is because they only know their own side of the question. The other party to the comparison knows both sides” (Mill, 1979, p. 10). But, assuming radical differences in human nature, we, who come with original equipment (i.e., Human Nature 1.0) may find ourselves in the role of the pig or the fool. Indeed, if the differences are significant enough, then no party may be able to experience both states and compare them. And some of the consequences of computer implants might be truly bizarre and a challenge for ethical theory. Imagine that with the right implants some humans contribute wirelessly to a group mind. Unlike the Borg scenario, each individual thinks and acts freely on his or her own but part of his brain is used by a group mind that is connected through a computer implant. Different parts of the brains of different individuals might make different contribution. The actions of the group person might be carried out through some computerized device connected to the network. Such a collective might be treated ethically as a group person in terms of responsibility—not simply in the sense that it is a group made out of individuals who cooperate, say, as the members of a corporation do, but as a group that is made up of closely interacting parts in the way the parts of the brain make up a normal individual person. Within such a group there might not be any easy assignment of responsibility and no particular individual who was in charge anymore than there is a homunculus guiding the activity of an individual brain. If this strange configuration of brain parts and computer implants were to develop, our accountability procedures would likely require adjustment. Conclusion

Are there good reasons to limit the evolution of human nature with computer implants? Of course, there are good reasons to limit some kinds of implants. It would be ethically unacceptable to implant a chip that would do

nothing other than put someone in intense pain. And there are good reasons to be extremely cautious in changing human nature that has been shaped by the merciless forces of evolution. Human nature is not arbitrary. Out of a history of seven million years of hominid evolution, Homo sapiens are the ones who are left. But limits and caution do not preclude carefully considered advancement. We advance ourselves in many ways. Computer implants are only one of the latest methods of development. Simply put, ethical theory and computer implants may affect each other. On the one hand, our common morality allows us to assess the use of computer implants. It can instruct us about when and when not to implant and how and how not to use computer implants. On the other hand, the implantation of computer chips may gradually change human nature enough that ethical theories will need to be adjusted. Aristotle was right to emphasize the close dependence of ethics on human nature. What is less clear is whether we should pursue a path that leads to transformation of this nature. Ethically speaking, there may be no nonquestion-begging way of judging the proper direction for the evolution of human nature. At the very least, the development of chip implants will put pressure on our ethical considerations. The concept of life may be understood less in organic terms and more in functional terms as our bodies contain more inorganic computerized parts. Replacement parts may become easier to obtain and hence some severe disabilities may be considered much less harmful. Some new abilities may become essential in order to flourish. Distinctions between mental acts and physical acts may begin to blur as our minds directly influence and are influenced by physical objects around us. Our responsibility standards may shift if we regularly obtain information via daily Internet downloads into implanted memory chips or group identity gains precedence over individual identity. Whatever our cyborg future will hold, it is coming. Many of us born human will die cyborgs. The question we must re-evaluate continually is not whether we should become cyborgs, but rather what sort of cyborgs should we become?

References Carmichael, M. (2002). Healthy Shocks to the Head. Newsweek, June 24, pp. 56–57. Cook, G. (2002). Scientists Produce “ratbot”: First Radio-Controlled Animal. The Boston Globe, May 2, 2002, pp. A1 and A24. Dertrouzos, M. L. (1997). What Will Be: How the New World of Information Will Change Our Lives. New York: HarperCollins. Dertrouzos, M. L. (2001). The Unfinished Revolution: Human-Centered Computers and What They Can Do for Us. New York: HarperCollins. Eisenberg, A. (2002). A Chip That Mimics Neurons, Firing Up the Memory. The New York Times, June 20, p. G7. Freudenheim, M. (1997). New Technique Offers Promise in Treating Parkinson’s Disease. The New York Times, October 28, p. F9. Gupta, S., & Petersen, K. (2002). Could Bionic Eye End Blindness? http://www.cnn.com/2002/HEALTH/06/13/ bionic.eye/index.html. Hockenberry, J. (2001). The Next Brainiacs. Wired, 9, 94–105. Lu, R., Anderson, J., & Steinhaus, B. 1995, The Evolution of the Implanted Pacemaker’s Window to the World. Biomedical Sciences Instrumentation, 31, 241–246. Macguire, Jr, G. Q., & McGee, E. M. (1999). Implantable Brain Chips. Hastings Center Report, 29, 7–13. Mill, J. S. (1979). Utilitarianism. Indianapolis, IN: Hackett Publishing Company, Inc. Moor, J. H. (1999). Just Consequentialism and Computing. Ethics and Information Technology, 1, 65–69. Nussbaum, M. C. (1999). Love’s Knowledge: Essays on Philosophy and Literature, England: Oxford: Oxford University Press. Ocampo, C. M. (2000). Living with an Implantable Cardoverter Defibrillator. Nursing Clinics of North America, 35, 1019–1030. Pinski, S. L., & Trohman, R. G. (2000). Permanent Pacing via Implantable Defibrillators. Pacing and Clinical Electrophysiology, 23, 1667–1682.

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Spelman, F. A. (1999). The Past, Present, and Future of Cochlear Prostheses. IEEE Engineering in Medicine and Biology, May/June, 27–33. Vogel, G. (2002). Part Man, Part Computer: Researcher Test the Limits. Science, 29, 1020. Warwick, K. (2002). I, Cyborg. London: Century. Yaffe, S. (1999). To Hear or Not to Hear. Toronto Sun, March 7, p. 4

Journal/Discussion Questions 1. Who do you know that has some computer components implanted under his or her skin? Talk with them. Are they disturbed by any of the considerations Moor discusses in this article? 2. It seems that we are headed almost inevitably toward a future in which computer implants are increasingly common. For yourself and for those you love, what limits—if any—would you impose on the use of computer implants? Why? Discuss.

Frances S. Grodzinsky and Herman T. Tavani

“Ethical Reflections on Cyberstalking” About the Authors: Frances S. Grodzinsky is a Professor of Computer Science and Information Technology at Sacred Heart University in Fairfield, CT in the Computer Science/Information Technology department. She is a frequent contributor to computer ethics journals. Herman T. Tavani is Professor and Chair of the Philosophy Department and Director of the Liberal Studies Program at Rivier College in Nashua, NH. The author of numerous publications in applied ethics, his recent books include Ethics and Technology: Ethical Issues in Information and Communication Technology (John Wiley & Sons, 2004) and two anthologies co-edited with Richard Spinello: Readings in CyberEthics (Jones and Bartlett Publishers, 2004); and Intellectual Property Rights in a Networked World: Theory and Practice (Information Science Publishing, 2005). About this Article: Grodzinsky and Tavani examine some ethical aspects of stalking behavior in cyberspace, concentrating on the implications that cyberstalking has for our notion of moral responsibility. They also examine questions about the moral responsibilities of Internet Service Providers. As You Read, Consider This: 1. What is the difference between cyberstalking and harassment? 2. Who was Amy Boyer? Describe what happened to her. 3. In what ways, if any, does cybertechnology make a moral difference in assessing cases such as Amy Boyer’s? 4. What is the Spinello view? How does that contrast with the Vedder view?

1. Introduction: Stalking Incidents in Cyberspace

What is cyberstalking? And how do stalking incidents in cyberspace raise ethical concerns? In answering these questions, we begin with a definition of stalking in general. According to Webster’s New World Dictionary of the American Language, to engage in stalking is “to pursue or approach game, an enemy, etc. stealthily, as from cover.” In the context of criminal activities involving human beings, a stalking crime is generally considered to Frances S Grodzinsky, Herman T Tavani, “Ethical Reflections on Cyberstalking,” Ethics and Information Technology, Vol. 4(2) (2002), pp. 123–132. Copyright © 2002 Springer-Verlag. Used with permission.

be one in which an individual (“the stalker”) clandestinely tracks the movements of another individual or individuals (“the stalkee[s]”). Cyberstalking can be understood as a form of behavior in which certain types of stalking-related activities, which in the past have occurred in physical space, are extended to the online world. We should note, however, that criteria used in determining which kinds of behavior should count as stalking crimes in the physical realm has been neither consistent nor clear. Hence, it has been even more difficult to determine what the criteria should be for determining a stalking crime in the cyber-realm. One difficulty in understanding some of the essential features of cyberstalking crimes is that they sometimes border on, and thus become confused with, broader forms of “harassment crimes” in cyberspace. Consider a recent incident involving twenty-year-old Christian Hunold, who was charged with terrorizing Timothy McGillicuddy, a high school principal in the state of Massachusetts. Hunold constructed a Web site that included “hit lists” of teachers and students at that Massachusetts school, on which he also included a picture of the school that was displayed through “the cross hairs of a rifle.” Using various pseudonyms, Hunold corresponded with several eighth graders in the school. He then made specific threats to these Massachusetts students, who had no idea that they were communicating with a person who lived in Missouri (“The Web’s Dark Side,” 2000). Should this particular criminal incident be viewed as a case of cyberstalking? Or is it better understood under a different description such as “cyber-harassment?” A criminal incident involving Randi Barber and Gary Dellapenta is sometimes also included under the category of cyberstalking. In 1996, Barber met Dellapenta, a security guard, through a friend. Although Dellapenta wanted a relationship with Barber, she spurned his advances. A few months later, Barber began to receive telephone solicitations from men; and in one instance, a “solicitor” actually appeared at the door of her residence. Barber seemed to be unaware of how potentially dangerous her situation had become. For example, she had no idea that Dellapenta had assumed her identity in various Internet chat rooms, when soliciting “kinky sex.” Anonymity and pseudonymity tools, available to any Internet user, allowed Dellapenta to represent himself as Barber, via screen names such as a “playfulkitty4U” and “kinkygal30.” Barber became aware of what was going on only after she asked one caller why he was phoning her (Foote, 1999). Note that in this alleged case of cyberstalking, Dellapenta engaged others to “stalk” his intended victim in physical space. So once again, we can ask whether the Barber/Dellapenta incident is a genuine case of cyberstalking or whether it can be more appropriately described as instance of a harassment involving the use of Internet technology. Thus far we have briefly described two different criminal incidents that some authors have referred to as examples of cyberstalking. It is perhaps worth noting that no physical harm resulted to victims in either incident; and in both cases, it was difficult to separate certain harassment activities (in general) from stalking behavior in particular. Also, in the Barber/Dellapenta case, the stalking-related activities involved both physical space and cyberspace. We next examine a stalking incident involving Amy Boyer, which we believe is a clearer case of cyberstalking. 2. The Amy Boyer Cyberstalking Case

On October 15, 1999, Amy Boyer, a twenty-year-old resident of Nashua, NH, was murdered by a young man who had stalked her via the Internet. Her stalker, Liam Youens, was able to carry out most of the stalking activities that eventually led to Boyer’s death by using a variety of online tools available to any Internet user. Through the use of online search facilities, for example, Youens was able to find out where Boyer lived, where she worked, what kind of vehicle she drove, and so forth. Youens was also able to use other kinds of online tools, typically provided by Internet service providers (ISPs), to construct two Web sites. On one site, he posted personal information about Boyer, including a picture of her; and on another site, Youens described, in explicit detail, his plans to murder Boyer. The Amy Boyer case raises several ethical and social questions, independent of the important fact that the stalking behavior in this incident eventually led to Boyer’s death. For example, some have argued that Boyer’s privacy was violated. We could ask whether Boyer was the victim of online defamation. We could also ask whether Youens had a right to post information about Boyer on his Web site, and whether such a “right” is one that ought to be protected by free speech. Or should such “speech” be controlled in cyberspace? Also, we could ask whether issues raised in the Boyer case are more ethically significant than those in other online stalking incidents because

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of the physical harm caused to Boyer resulting in her death. Although the Amy Boyer case raises several ethical issues, we can ask whether there is anything unique or even special about these issues from a moral point of view. 3. What, if Anything, Is Ethically Significant about Cyberstalking Crimes?

From an ethical perspective, an interesting question is whether there is anything unique or even special about the Amy Boyer case in particular, or cyberstalking in general. On the one hand, we do not claim that cyberstalking is a new kind of crime; nor, for that matter, do we argue that cyberstalking is a “genuine” computer crime” (Tavani, 2000). Yet we can reasonably ask whether Internet technology has made a relevant difference in the stalking case involving Amy Boyer. Perhaps the more important question, however, is: Has cybertechnology made a moral difference? One might be inclined to answer no. For example, one could argue that “murder is murder,” and that whether a murderer uses a computing device that included Internet tools to assist in carrying out a particular murder is irrelevant from an ethical point of view. One could further argue that there is nothing special about cyberstalking incidents in general—irrespective of whether or not those incidents result in the death of the victims—since stalking activities have had a long history of occurrence in the “offline” world. According to this line of reasoning, the use of Internet technology could be seen as simply the latest in a series of tools or techniques that have become available to stalkers to assist them in carrying out their criminal activities. However, it could also be argued that the Internet has made a relevant difference with respect to stalkingrelated crimes because of the ways in which stalking activities can now be carried out. For example, Internet stalkers can operate anonymously or pseudononymously while online. Also consider that a cyberstalker can stalk one or more individuals from the comfort of his or her home, and thus does not have to venture out into the physical world to stalk someone. So Internet technology has provided stalkers with a certain mode of stalking that was not possible in the pre-Internet era (Tavani, 2002). It could also be argued that cyberstalking has made possible certain kinds of behavior that challenge our conventional moral and legal frameworks. These challenges have to do primarily with issues of scale and scope. For example, a cyberstalker can stalk multiple victims simultaneously through the use of multiple “windows” on his or her computer. The stalker can also stalk victims who happen to live in states and countries that are geographically distant from the stalker. So, potentially, both the number of stalking incidents and the range of stalking activities can increase dramatically because of the Internet. However, we leave open the question of whether any of these matters make a moral difference. In the remainder of this essay, we focus on two questions involving issues of moral responsibility in the Boyer case: (1) Should the two ISPs that permitted Youens to post information about Amy Boyer on Web sites that reside in their Internet “space” be held morally accountable? (2) Do ordinary users who happen to come across a Web site that contains a posting of a death threat directed at an individual (or group of individuals) have a moral responsibility to inform those individuals whose lives are threatened? 4. Moral Responsibility and Internet Service Providers (ISPs)

As noted above, Youens set up two Web sites about Amy Boyer: one containing descriptive information about Boyer, as well as a photograph of her, and another on which he described in detail his plans to murder Boyer. To what extent, if any—either legally or morally, or both—should the ISPs that hosted the Web sites created by Youens be held responsible? Because this question is very complex, it would be beneficial to break it down into several shorter questions. For example, we first need to understand what is meant by “responsibility” in both its legal and moral senses. We also have to consider whether we can attribute moral blame (or praise) to an organization or collectivity (i.e., a group of individuals), such as an ISP. We begin by briefly examining some recent laws and court challenges that either directly or indirectly pertain to questions involving responsibility and liability for ISPs. In Stratton Oakmont v. Prodigy Services Company (1995), the court determined that Prodigy could be held legally liable since it had advertised that it had “editorial control” over the content in the computer bulletin board system (BBS) it hosted. In the eyes of the court, Prodigy’s claim to have editorial control over its BBS

made that ISP seem similar to a newspaper, in which case the standard of strict legal liability used for original publishers could be applied. In response to the decision in the Prodigy case, many ISPs have since argued that they should not be understood as “original publishers,” but rather as “common carriers,” similar in relevant respects to telephone companies. Their argument for this view rested in part on the notion that ISPs provide the “conduits for communication but not the content.” This view of ISPs would be used in later court decisions (such as Zeran v. America Online Inc. 1997). In Section 230 of the Communications Decency Act (CDA), the function of ISPs was interpreted in such a way that would appear to protect them from lawsuits similar to the one filed against Prodigy. Here the court specifically stated, “No provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider.” Although the U.S. Supreme Court eventually struck down CDA, Section 230 of that Act has remained intact. While ISPs are not legally liable for the content of their Web sites or for the content of other electronic forums that they also might host—e.g., forums such as bulletin boards, chat rooms, and list servers—they have nonetheless been encouraged to monitor and filter, to the extent that they can, the content of these electronic forums. But this has presented ISPs with a thorny legal problem. Consider, for example, that the more an ISP edits content, the more it becomes like a publisher (such as a newspaper). And the more it becomes like a publisher, with editorial control, the more liable an ISP becomes from a legal perspective. So, effectively, there could be some disincentive for ISPs to monitor and filter content. This, in turn, raises a moral dilemma for ISPs. Should Internet Service Providers be held morally accountable for objectionable behavior that occurs in their forums? Deborah Johnson (2001) notes that while it might be easier to make a utilitarian case for holding ISPs legally liable in certain instances, it would be much more difficult to make the case that ISPs should be morally responsible for the behavior of their customers. Recently, however, Richard Spinello (2001) and Anton Vedder (2001) have tried to show, via different very different kinds of arguments, why ISPs also should be held morally accountable to some extent. Neither Spinello nor Vedder address the issue of cyberstalking per se; however, we believe that Spinello’s remarks regarding “on-line defamation” and Vedders’s comments regarding online “harm,” both of which are associated with ISPs, can help shed some light on the question before us. We briefly examine both arguments. 4.1 The Spinello View. Arguing that ISPs should be held morally accountable in cases involving defamation, Spinello first distinguishes between “moral responsibility” and “moral accountability.” In making this distinction, he uses a model advanced by Helen Nissenbaum (1994). According to Nissenbaum’s scheme, accountability, unlike responsibility, does not require causality or a causal connection. Spinello points out that because ISPs do not cause defamation, they cannot be held responsible in the strict or narrow sense of the term. However, he argues that they could, nonetheless, be held accountable—i.e., “answerable”—in the sense that they “provide an occasion or forum” for defamation. Spinello is careful to point out that simply because an ISP presents an “occasion for defamation,” it does not necessarily follow that an ISP is accountable. Rather, for an ISP to be accountable, two further conditions are required: (a) the ISP must also have some capability to do something about the defamation, and (b) the ISP failed to take action once it had been informed. Spinello believes that this standard of accountability takes into consideration what ISPs can reasonably do—i.e., what they are capable of doing—to prevent defamation or at least to limit its damage. So the fact that an ISP might not have caused the defamation does not rule out the possibility that the ISP can be held accountable in some sense for defamatory remarks. Spinello concedes that technical and economic factors make it virtually impossible for ISPs to take preventative, or what he calls “pre-screening,” measures that would detect or filter out defamatory messages. Thus we cannot hold ISPs responsible in a causal sense for defamation. Assuming that Spinello’s overall argument is correct, however, we might hold ISPs accountable if they fail to take certain actions once they are informed that a victim has been defamed. For Spinello, these steps would include three actions: (i) prompt removal of the defamatory remarks; (ii) the issuance of a retraction on behalf of the victim; and (iii) the initiation of a good faith effort to track down the originator so that the defamation does not reoccur.

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Does this threefold requirement provide us with a standard of accountability that is a “reasonable middle ground,” as Spinello suggests? Or is it an unreasonable expectation for ISPs? Spinello notes that in the current system, a victim of defamation has no legal recourse because of the absolute immunity given to ISPs. On the other hand, the strict legal liability that was applied in the Prodigy case seems unduly harsh for ISPs. So Spinello believes that his alternative scheme provides the appropriate middle ground needed, because it grants some protection to victims of defamation without burdening the ISP. So even if the law does not require ISPs to take any action, Spinello believes that “post-screening” in a “diligent fashion” for content along the lines of the threefold criteria described above is the morally right thing to do. He concedes, however, that ISPs do not have the capability to “pre-screen” content for defamation. 4.2 The Vedder Argument. Anton Vedder (2001) has recently advanced a very different kind of argument for why we should consider holding ISPs morally responsible for harm caused to individuals. Vedder suggests that we begin by drawing an important distinction between two senses of moral responsibility: prospective and retrospective responsibility. Whereas retrospective responsibility tends to be “backward looking,” prospective responsibility is “forward looking.” Vedder believes that in the past, arguments that have been used to ascribe legal liability to ISPs have tended to be prospective in nature. This is because the primary objective of liability laws has been to deter future on-line abuses rather than punish past offenses. Vedder also notes that even though ISPs are not legally liable for their content under current US law, the mere threat of legal liability can be used to deter ISPs from becoming lax about “policing” their electronic forums to some reasonable extent. So underlying the reasoning for arguments for applying strict legal liability to ISPs is the utilitarian principle that having liability laws in place will deter harm to ISP users in the future. And this legal argument, in turn, is based on a notion of moral responsibility that is essentially prospective in nature. Vedder also points out that we are hesitant to attribute a retrospective sense of responsibility to ISPs because this sense of moral responsibility: a. is usually applied to individuals (as opposed to organizations or what he calls “collectivities”), and b. it also often implies guilt. And as Vedder correctly notes, the notion of guilt is typically attributed to individuals and not to organizations or collectivities. He suggests, however, that in some cases it also makes sense to attribute the notion of guilt to a collectivity such as an ISP. Attributing some moral accountability to ISPs makes sense, in Vedder’s scheme, because of the connection that exists between retrospective and prospective responsibility. Vedder argues that it makes no sense to hold an agent (i.e., either an individual or a collectivity) responsible for an act in a prospective sense if that agent could not also be held responsible for the act in a retrospective sense as well. So Vedder concludes that if we assume that collectivities such as ISPs can be held responsible in a prospective sense—a rationale that has been used as the basis for utilitarian arguments in attributing legal liability for ISPs—then we can also ascribe retrospective responsibility to ISPs. So, as in the case of Spinello, Vedder believes that ISPs can be held morally accountable to some extent for speech that is communicated in their electronic forums. 4.3 Implications for the Amy Boyer Case. We can now apply Vedder’s and Spinello’s arguments to the Amy Boyer cyberstalking case. Should Tripod and Geocities, the two ISPs that enabled Liam Youens to set up his Web sites about Boyer, be held morally accountable for the harm caused to Boyer and to her family? And should those two ISPs be held morally accountable, even if they were not responsible (in the narrow sense) for causing harm to Boyer and even if they can be exonerated from charges of strict legal liability? If the arguments by Vedder and Spinello succeed, then it is reasonable to hold these ISPs morally accountable if it also could be shown that Tripod and Geocities were capable of limiting the harm that resulted to Boyer. (Tim Remsberg, Amy Boyer’s stepfather, has recently filed a wrongful death suit against both ISPs.) Of course, one might ask what the purpose would be in attributing moral responsibility to ISPs if no legal action could be taken against them. At least two different replies are possible to this question, both of which

might also cause us to be more careful in our thinking about moral issues involving cyberspace. First, an analysis of moral issues in this light could help us to distinguish further between moral and legal aspects of controversial cyberspace issues. Second, such an analysis can also help to consider some ways in which moral responsibility can be applied at the collective, as well as at the individual, level. 5. Individual Moral Responsibility at the Level of Ordinary Internet Users

We next examine questions of moral responsibility that apply at the individual level, i.e., at the level of individual users in online communities. For example, do ordinary Internet users have a moral responsibility to inform “would-be victims” of their imminent danger to online stalkers? If an Internet user had been aware of Boyer’s situation, should that user have notified Boyer that she was being stalked? In other words, should that user be morally obligated to do so? Various proposals for controlling individual behavior in online communities have resulted in a conflict between those who wish to regulate strictly by law and those who wish to preserve the practice of self-regulation. Of course, this dispute is sometimes also at the base of arguments involving claims having to do with a “safe” social space vs. a “restrictive” one. In the case of cyberstalking, should we assist others based strictly on formal legal regulations, or should we assist them because it is the morally right thing to do? 5.1 A Minimalist Sense of Moral Obligation vs. an “Ethic of Care”. Some have argued that while morality can demand of an agent that he or she “do no harm” to others, it cannot require that an agent actively “prevent harm,” or “do good.” In one sense, to do no harm is to act in accordance with the rules of a moral system. But is doing so always sufficient for complying with what is required of us as moral agents? In other words, if it is in our power to prevent harm and to do good, should we do so? Some theoretical frameworks suggest that individuals should prevent harm (and otherwise do good) whenever it is in their power to do so. For example, if one believes, as some natural law theorists assert, that the purpose of morality is to alleviate human suffering and to promote human flourishing, whenever possible, then clearly we would seem obligated to prevent harm in cyberspace. An interesting account of this view has been advanced by Louis Pojman (2001). Unfortunately, we are not able to present Pojman’s argument here in the detail that it deserves, since doing so would take us beyond the scope of this paper. But we can see how, based on a model like Pojman’s, one might develop a fuller theory in which individuals have an obligation to “assist” others in the act of preventing harm from coming to those persons. We recognize the difficulties of defending a natural law theory; and we are not prepared to do so here. However, we also believe that the kind of limited or “moderate” natural law theories that can be found in Pojman, and to some extent in James Moor (1998), can be very useful in making the case for an extended sense of moral obligation at the level of individuals. Another moral framework that implies an expanded sense of moral responsibility on the part of individuals is the “ethic of care,” introduced in a seminal work by Carol Gilligan (1982). Complying with a “care ethic,” individuals would assist one another whenever it is in their power to do so. As such, an ethic based on care is more robust than a mere “non-interference” notion of ethics that simply involves “doing no harm to others”—i.e., it is concerned with a sense of commitment to others that Virginia Held (1995) describes as “above and beyond the floor of duty.” Gilligan’s ethic of care has been contrasted with traditional ethical systems, such as utilitarian and Kantian theories. Alison Adam (2000) points out that traditional ethical theories are often based simply on following formal rules and that they tend to engender a sense of individualism (as opposed to community). Adam (2001, 2002) has also argued that an ethic of care, in particular, and feminist ethical theory in general, can help us to understand more clearly some of the social and ethical implications of cyberstalking behavior in ways that traditional ethical theories cannot. Adopting an “ethic of care” in cyberspace would mean that individuals, i.e., ordinary Internet users, would be prone to assist others whenever they can help to prevent harm from coming to them. From this perspective, individuals would assist one another, even though there may be no specific laws or rules that require them to do so. In what sense would such an expectation on the part of individuals expand our conventional notion of moral obligation?

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5.2 Expanding the Sphere of Moral Responsibility: A Duty to Assist. Questions concerning whether individuals have a “duty to assist” others often arise in the aftermath of highly publicized crimes such as the one involving in the Kitty Genovese case in 1964. Genovese, a young woman, was murdered on the street outside her apartment building in Queens, New York, as thirty-eight of her neighbors watched. None of her neighbors called the police during the 35-minute period of repeated stabbings. Some have since referred to this refusal to assist a neighbor in critical need as “the Genovese Syndrome.” Police involved in the Genovese case believe that the witnesses were morally obligated to notify the police, even though there may have been no formal law or specific statute requiring them to do so. Drawing an analogy between the Genovese and Boyer cases, we can ask whether users who might have been able to assist Boyer should have done so (i.e., whether they were morally obligated to assist her). We can also ask what kind of community cyberspace will become, if people refuse to assist users who may be at risk to predators and murderers. First, we need to consider the potential harm that could come to members of the online community if we fail to act to prevent harm from coming to those individuals, when it is in our power to help and when doing so would neither cause us any great inconvenience nor put our safety at risk. What would have happened to Randi Barber if no one had intervened in her behalf? In the cyberstalking case involving Barber and Dellapenta, Barber’s father, with the cooperation of the men who were soliciting her, provided evidence that led to Dellapenta’s arrest. In the case of Amy Boyer, however, the same sense of individual moral responsibility and concern was not apparent. Consider that some Internet users had, in fact, viewed the Youens Web site but did not inform Boyer that she was being stalked and that her life was in imminent danger. Like Kitty Genovese, who received no assistance from members of her physical community, Amy Boyer received no assistance from members of the online community. Because of what happened to Amy Boyer, and because of what could happen to future victims of online stalking, we argue that ordinary users, as members of an online community, should adopt a notion of moral responsibility that involves assisting fellow users. Doing so would help to keep cyberspace a safer place for everyone, but especially for women and children who are particularly vulnerable to stalking activities. Failing to embrace such a notion of moral responsibility, on the other hand, could result in users disconnecting themselves from their responsibilities towards fellow human beings. 6. Conclusion

We have examined some ethical concerns involving cyberstalking in general, and the Amy Boyer case in particular. We saw that stalking activities in cyberspace raise questions about the sphere of moral responsibility, both for ISPs and ordinary Internet users. We argued that ISPs and individual users, each in different ways, should assume a more robust sense of moral responsibility, which goes beyond a mere “non-interference ethic,” in order to help to prevent harm from coming to individuals targeted by cyberstalkers. Acknowledgments

We are grateful to Anton Vedder for some very helpful comments on an earlier version of this paper. We also wish to thank Detective Sergeant Frank Paison of the Nashua, NH Police Department, who was the chief investigator in the Amy Boyer cyberstalking case, for some helpful information that he provided during an interview with him. Portions of this essay are extracted from Tavani (2004). We are grateful to John Wiley & Sons, Publishers for permission to reprint that material.

References Adam, Alison (2000). “Gender and Computer Ethics.” Computers and Society, Vol. 30, No. 4, pp. 17–24. Adam, Alison (2001). “Cyberstalking: Gender and Computer Ethics.” In Eileen Green and Alison Adam, eds. Virtual Gender: Technology, Consumption, and Identity. London: Routledge, pp. 209–234. Adam, Alison (2002). “Cyberstalking and Internet Pornography: Gender and the Gaze.” Ethics and Information Technology, Vol. 4, No. 2, pp. 133–142. Foote, D. (1999). “You Could Get Raped,” Newsweek, Vol. 133, No. 6, Feb. 8, pp. 64–65.

Gilligan, Carol (1982). In a Different Voice. Cambridge: Harvard University Press. Grodzinsky, Frances S., and Herman T. Tavani (2001). “Is cyberstalking a Special Type of Computer crime?” In Terrell Ward Bynum, et al., eds, Proceedings of ETHICPMP 2001: The Fifth International Conference on the Social and Ethical Impacts of Information and Communication Technology. Vol. 2. Gdansk, Poland: Wydawnicktwo Mikom Publishers, pp.72–81. Grodzinsky, Frances S., and Herman T. Tavani (2002). “Cyberstalking, Moral Responsibility, and Legal Liability Issues for Internet Service Providers.” In Joseph Herkert, ed. Proceedings of ISTAS 2002: The International Symposium on Technology and Society. Los Alamitos, CA: IEEE Computer Society Press, pp. 331–339. Held, Virginia (1995). “The Meshing of Care and Justice,” Hypatia, University of Indiana Press, Spring. Johnson, Deborah G. (2001). Computer Ethics. 3rd. ed. Upper Saddle River, NJ: Prentice Hall. Moor, James H. (1998). “Reason, Relativity, and Responsibility in Computer Ethics.” Computers and Society, Vol. 28, No. 1, 1998, pp. 14–21. Nissenbaum, Helen (1994). “Computing and Accountability,” Communications of the ACM, Vol. 37, No. 1, pp. 73–80. Pojman, Louis P. (2001). Ethics: Discovering Right and Wrong. 4th ed. Belmont, CA: Wadsworth. Spinello, Richard A. (2001). “Internet Service Providers and Defamation: New Standards of Liability.” In R. A. Spinello and H. T. Tavani, eds. Readings in CyberEthics. Sudbury, MA: Jones and Bartlett, pp. 198–209. Tavani, Herman T. (2000). “Defining the Boundaries of Computer Crime: Piracy, Break-ins and Sabotage in Cyberspace.” Computers and Society, Vol. 30, No. 4, 2000, pp. 3–9. Tavani, Herman T. (2002). “The Uniqueness Debate in Computer Ethics: What Exactly Is at Issue, and Why Does it Matter?” Ethics and Information Technology, Vol. 4, No. 1, pp. 37–54. Tavani, Herman T. (2004). Ethics and Technology: Ethical Issues in an Age of Information and Communication Technology. New York: John Wiley and Sons. Tavani, Herman T., and Frances S. Grodzinsky (2002). “Cyberstalking, Personal Privacy, and Moral Responsibility,” Ethics and Information Technology, Vol. 4, No. 2, pp. 123–132. “The Web’s Dark Side: In the Shadows of Cyberspace, an Ordinary Week is a Frightening Time,” U.S. News & World Report, Vol. 129, No. 8, Aug. 28, 2000. Vedder, Anton H. (2001). “Accountability of Internet Access and Service Providers: Strict Liability Entering Ethics.” Ethics and Information Technology, Vol. 3, No. 1, pp. 67–74.

Journal/Discussion Questions 1. Have you known anyone who was the object of cyberstalking? What special dimensions were present because the incident occurred in cyberspace? 2. Cyberstalking is only one of several questionable things that happen in cyberspace. What do you think the responsibilities of Internet Service Providers should be in this regard?

Richard A. Spinello

“ Ethical Reflections on the Problem of Spam ” About the Author: Richard Spinello teaches at the Carroll School of Management, Boston College. He has written extensively in the area of cyberethics and the law. His books include Cyberethics: Morality and Law in Cyberspace, Case Studies in Information Technology Ethics, 4th edition (Jones & Bartlett, 2010), and, with Maria Bottis, A Defense of Intellectual Property Rights (Edward Elgar Pub, 2009). About this Article: In this article, Spinello looks at some of the legal and ethical issues surrounding spam. Richard A. Spinello, “Ethical Reflections on the Problem of Spam,” Ethics and Information Technology, Vol. 1(3) (1999), pp. 185–191. Copyright © 1999 Springer-Verlag. Used with permission.

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As You Read, Consider This: 1. What is spam? Why does it make a difference how we define it? 2. What does Spinello mean by “significant externalities”? 3. What conclusions does Spinello draw about the legality of spam? Is it ethical? What limits should be placed on it?

1. Introduction

In a recent New York Times article spam was described as a “betrayal of all that mail once stood for” (Slatella, 1998). This quote captures the negative sentiment that most users have cultivated about spam, a derogatory name for unsolicited, promotional electronic mail. Spam messages flood into mailboxes all over the ‘Net and sell everything from education to sex. Spam is communicated to users either by postings to Usenet newsgroups or through bulk electronic mail delivered to Internet mailing lists. Spam may seem to be a trivial matter, nothing more than a minor nuisance and hardly a serious ethical problem. However, many users regard it as an invasive form of commercial advertising that perversely shifts some of its costs from the advertiser to the consumer. This cost shifting along with the deceptive tactics of “spammers” has given spam a moral stigma that seems well deserved. Moreover, the problem of unsolicited advertisements in cyberspace is likely to intensify in light of two important and converging trends: the rapid growth of electronic commerce and the continued reliance on direct marketing techniques deployed by advertisers soliciting a targeted or select group of consumers. The ethical propriety of sending bulk promotional e-mail is not a simple matter to adjudicate since it does represent a form of free speech. How do we balance the right of commercial free speech with other rights at stake in this controversy such as the privacy rights of users? In addition, is the right to free speech curtailed when certain costs are imposed on those to whom that speech is directed? Does my right to send someone an advertisement cease when the recipient has to incur some costs for receiving that ad? And if we agree that the consumer can absorb a trivial cost, where and how do we draw the line? At what point does cost shifting become truly burdensome for typical end users on the Internet? We will attempt to address these and other salient moral issues about spam in this paper. Our primary theme is that the transmission of spam poses a considerable moral problem for two reasons: under some circumstances it constitutes a violation of personal autonomy, and because of its volume spam also has a disruptive effect on the fragile ecology of the Internet. 2. What’s Wrong with Spam?

To begin with, how precisely should we define “spam”? Spam refers to unsolicited, promotional electronic mail usually sent in bulk to thousands or millions of Internet users. Quite simply, it is junk e-mail which is usually a significant annoyance to its recipients. But is all unsolicited commercial e-mail a form of spam? Spam has typically been associated with “get rich quick” schemes and other marginal businesses, but that is changing. As more and more individuals conduct business in cyberspace, mainstream advertisers and political organizations are beginning to rely on bulk e-mail to sell their products or solicit donations. The Democratic Party of California, for instance, uses e-mail to promote its activities and communicate endorsements. Do these unsolicited communications also constitute spam? We seem to be in a nebulous area and the deployment of unsolicited e-mail by legitimate groups surely compounds the problem. Obviously, some unsolicited communications will have more merit than others based upon the sender and the content. We should keep this in mind throughout the course of this discussion, but for our purposes in this paper we will consider all forms of unsolicited promotional e-mail as spam. Some of those vendors which do rely on spam maintain that this whole controversy is blown out of proportion by purists who want to see the Internet liberated from excessive commercial use. They argue that spam is no different from conventional junk mail which does not receive the same level of scrutiny or the same trenchant criticism. Opponents of spam, on the other hand, complain that it robs users and Internet providers of resources and sullies the ‘Net just as litter or pollutants sully the physical environment.

Do the pro-spammers have a point? After all, why single spam out when there are so many other forms of “junk” communication such as regular junk mail and unsolicited phone calls? What makes spam so pernicious and costly? The major difference between electronic junk mail and paper junk mail is that the per copy cost of sending the former is so much lower. There are paper, printing, and postage charges for each piece of regular junk mail but the marginal cost of sending an additional piece of junk e-mail is negligible. For instance, Jeffrey Slaton, a direct marketer who specializes in spam, charges his clients a flat fee of $425 to send out several million messages. As he explains in a recent interview in Wired, “It’s just as cost effective to send to 6 million e-mail addresses as to 1 million e-mail addresses, so why bother being selective?” (Garfinkel, 1996). But spam is not cost-free. The problem is that the lion’s share of these costs are externalities, that is, they are costs borne involuntarily by others. As Raisch (1995) has observed, spam is “postage-due marketing.” The biggest cost associated with spam is the consumption of computer resources. For example, when someone sends out spam the messages must sit on a disk somewhere, and this means that valuable disk space is being filled with unwanted mail. Also, many users must pay for each message received or for each disk block used. Others pay for the time they are connected to the Internet, time which can be wasted downloading and deleting spam. As the volume of spam grows and commercial use of the Internet expands, these costs will continue their steady increase. Further, when spam is sent through Internet Service Providers (ISPs), they must bear the costs of delivery. This amounts to wasted network bandwith and the utilization of system resources such as disk storage space along with the servers and transfer networks involved in the transmission process. Despite its efforts to control junk e-mail, America Online reports that 2.5 million pieces of spam still engulf its system each day. According to the ISP/C (1997), the ISP’s trade group, “Although the cost for a single UCE [unsolicited commercial e-mail] message may be small, when messages to be processed swell into the thousands or millions, that cost becomes both significant and burdensome.” In addition to these technical costs imposed by spam there are also administrative costs. Users who receive these unwanted messages are forced to waste time reading and deleting them. If a vendor sends out 6 million messages and it takes 6 seconds to delete each one, the total cost of this one mailing is 10,000 person hours of lost time. Spam is also a disutility because it clutters mailboxes and usegroup postings. If a business is forced to deal with and delete a large volume of electronic junk mail every day, that unwanted mail may be interfering with the timely receipt and disposition of its regular mail. If the volume of spam continues its rapid growth rate, it could seriously attenuate the utility of electronic mail. Finally, junk mailers often use questionable practices to gather names and addresses. The spammers have been accused of violating privacy rights by distributing e-mail addresses without consent, by harvesting e-mail addresses left at web sites, by ignoring those who submit requests to have their names removed from mailing lists, and by making it virtually impossible to submit those requests by using forged addresses. 3. Defending Spam

Those who defend the right to send out unsolicited junk electronic mail might concede that spam does impose some costs on its recipients. They claim, however, that those costs are trivial and that many users enjoy and benefit from this form of advertising. Unsolicited advertising does not necessarily mean that it is unwanted. Spam represents an efficient and inexpensive way to advertise many worthwhile products. In addition, it stands to reason that if firms are going to do business in cyberspace they must be allowed to advertise there, and direct electronic mail campaigns are an effective means of accomplishing this. Spam also makes it much easier for small entrepreneurs to get their message out in a cost effective way and to thereby compete on a more level playing field with their larger and more established counterparts. The chance to advertise to millions of prospective customers on the Internet represents a significant economic opportunity especially for the growth market of electronic commerce, and it should not be undermined by meddlesome and restrictive regulations.

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Proponents of spam also contend that this is simply another form of commercial free speech which deserves the same level of First Amendment protection as traditional advertising. They point out, perhaps correctly, that a ban on spam would not only be impractical but also unconstitutional since it would violate their constitutional right to communicate. The right to commercial forms of speech has stood on tenuous ground and has never been seen as morally equivalent to political speech. In recent years, however, the Court has tended to offer more substantial protection for commercial speech than it did several decades ago. According to Carroll (1996), “With the development of our information economy, the Court has come to read the First Amendment to provide broader protection over the nexus between the marketplace of ideas and the marketplace for goods and services.” Finally, defenders of spam also support any legal, albeit questionable, methods of collecting e-mail addresses. They believe that they have every right to gather e-mail addresses from various sources (such as AOL’s member directory) and to use them for commercial purposes. In a Computerworld interview David Silver, a direct marketer who uses spam, contends that e-mail addresses are just as public as phone numbers: “If I look up a phone number in the White Pages, I have the right to call that number because it’s public information. So is the e-mail address that’s posted anywhere on the ‘net. If I had to break in with a password to get that address, that would be illegal. But what I do is the same as opening the phone book. If someone doesn’t want bulk e-mail, they shouldn’t place their address anywhere that’s publicly accessible.” (Goff, 1997). 4. The Legal Status of Spam

Prior to this current controversy over spam, unsolicited commercial advertisements transmitted by facsimile machines posed the same sort of challenge to public policy makers. The response was the Telephone Consumer Protection Act or TCPA (1991) which banned any such solicitations that contained advertising: It shall be unlawful for any person within the United States to use any telephone facsimile machine, computer, or other device to send an unsolicited advertisement to a telephone facsimile machine. The rationale behind this legislation was based on a recognition of cost-shifting: there is some expense involved in receiving faxes (such as the consumption of paper and toner) so the recipient is implicitly subsidizing the advertiser. These costs are unavoidable and constitute enough of a burden to warrant regulatory protection. The more significant problem with unsolicited faxes, however, was perceived to be message preclusion: faxes often involve the transmission of time sensitive material and that transmission might be disrupted if one is “forced” to consistently receive junk faxes. Thus, the primary difficulty with unsolicited faxes is that they can too easily prevent the timely reception of critically important material. Although many see an analogy between these two forms of junk communication, electronic junk mail is not covered by the TCPA. There may be some cost shifting involved with spam especially for those who pay for their on-line services by the minute. But there are many others who pay a flat fee to be connected to the Internet. Hence from a legal point of view it is difficult to make a strong case that cost shifting is as serious a problem for spam as it is for junk faxes. Likewise, the preclusion problem poses a more notable difficulty for a fax machine than it does for electronic mail. If a fax machine is forced to receive a piece of junk mail all other incoming faxes are on hold. It is highly unlikely, however, that a critical piece of electronic mail could not be delivered because a user’s mail box was filled with useless spam messages. It seems evident that the Internet provides a more flexible mode of communication than telephones and fax machines, and hence it is difficult to draw an exact comparison between junk e-mail and junk faxes. As a result, since spam does not cause the same level of cost shifting and message preclusion as do junk faxes, and therefore is not as burdensome to individual users, legislators in the U.S. have concluded that it should not be subject to the restrictions imposed by the TCPA. 5. Ethical Issues and Spam

Spam may indeed be perfectly legal, but is the practice of sending bulk promotional e-mail within the bounds of ethical propriety? In my estimation, a strong case can be put forth demonstrating that spam is morally objectionable in its current form. There are two basic problems with spam—its negative effects on the Internet

environment which can lead to an electronic version of a “tragedy of the commons,” and its potential for violating the rights of the individual recipients of this junk mail. Let us first deal with the latter concern. On one level this issue can be seen as a conflict of rights: the right of the vendor or advertiser to communicate with others by means of unsolicited electronic mail in conflict with the right to autonomy and privacy. Do vendors actually have such a right in this context? Let us assume for the sake of this argument that unsolicited, promotional e-mail is a rare occurrence in cyberspace and therefore does not amount to a widespread problem. Let us also assume that there are no measurable direct costs involved, i.e., the recipient pays a flat fee to be connected to the Internet. Under these conditions, one can certainly argue that the isolated act of sending a piece of unsolicited electronic mail, advertising a legitimate product or service, is perfectly reasonable and hardly amounts to a transgression of commonly accepted ethical norms. Vendors are simply exercising their right of free expression within an open medium of communication. Some anti-spammers have asserted that all Internet communications should be “consensual” (Harmon, 1998). But this is an extreme and untenable position that would be difficult to justify from any ethical standpoint. The heavy costs of such an exclusionary policy would far outweigh any benefits. Do the majority of Internet users really want to preclude any communications to which they have not given their consent? Wouldn’t they be impoverished by such a restriction? For instance, if I’m a novelist and a colleague writes without my consent to offer some thoughtful reflections on my latest book, wouldn’t I be quite eager to read his e-mail? How could such communications fall under the category of useless spam? The open communications and democratic expression enabled by the Internet would be seriously undermined if we insisted that all exchanges had to be consensual. However, although advertisers do have a right to send this mail they do not have a right to force it upon someone. The right to communicate in this fashion must be balanced with the right of privacy which is essentially defined as the right to be left alone within one’s own personal domain. In order to effect some compromise in this situation individuals must be allowed to maintain their autonomy by exercising some measure of control over this unwanted mail. Each individual should have the right to control his or her domain or private space. This should include the prerogative to protect it from unwanted mail whether it be regular mail sent to one’s house or electronic mail sent to one’s electronic mailboxes which should also be regarded as an extension of one’s private physical space. This is derived from the more basic right of autonomy over one’s person and possessions which is violated by the coercive activity of making someone a captive audience to another’s communications. Of course, the user can exercise control simply by deleting the unwanted message. It also seems reasonable, however, that the user should be able to go a step further and tell the sender to stop sending any more messages or mailings. The right to communicate must be limited by the preferences of an unreceptive consumer. Vendors and advertisers, therefore, must respect this right and not impose their mailings on unwilling recipients. For regular mail this amounts to providing people with the opportunity to have their names removed from a mailing list, and this same opportunity must be provided by spammers. At a minimum, they too must allow users a convenient opportunity to “opt out” of future mailings. Vendors should not send unsolicited electronic mail unless they have the facility and willingness to expediently remove names from their lists, enabling them to respect the rights of those who reject this mail. Thus, the transmission of spam could be an unethical act if (a) it is carelessly or intentionally sent to someone who has opted out or (b) there is no intention to comply with requests to opt out and thereby respect the rights and autonomy of the recipients. What about the cost factor for the individual who receives junk e-mail? Should the right to commercial free speech be curtailed when that “speech” is not exactly free to its recipients? It must be recognized that most types of junk communication, including phone calls and regular mail, entail certain costs for the recipients. These might include time lost answering the phone or sifting through piles of junk mail. To some extent, they represent the cost of living in a free and open society and do not impose a heavy burden on the vast majority of individuals. An occasional piece of junk e-mail would also fall within this category. Even if users do pay for their Internet time by the minute, the miniscule costs involved in deleting a piece of unwanted mail does not seem to warrant the suppression of another’s right to free speech. Such a solution would be disproportionate to the

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gravity of the problem. Thus, we still conclude that it is not really unethical for a vendor to send out unsolicited e-mail even if there is a minimal cost imposed upon the recipient. The real problem arises, of course, when users are forced to contend with a large volume of junk e-mail, but we have been assuming up to now that spam is an infrequent occurrence. Even if we reach the conclusion that the transmission of electronic junk mail is not an unethical act per se as long as the mailer does not coerce his or her message and provides a reasonable opportunity to opt out, there are still problems with spam when one considers its overall collective effect in cyberspace. The conditions described above do not exist since spam is quite common on the Internet. Unfortunately, spam is growing at an exponential rate as direct mailers seek to capitalize on the Internet’s expanding population, and this raises the ethical stakes quite considerably. This brings us to the second moral issue concerning the social costs or externalities imposed by spam, that is, costs forced upon third parties in the Internet community as well as the direct recipients of spam. As we have already pointed out, spam shifts costs from the advertiser to several other parties including the recipients of the ad, the Internet Service Providers, and even to other users of the Internet who are indirectly inconvenienced by this practice. In addition to this significant cost shifting, there is another externality involving a threat to the integrity and smooth functioning of the Internet. This is posed by the unabated growth of unsolicited commercial e-mail. There is a cumulative social cost to the sending of junk electronic mail, not unlike the social costs incurred when the environment is polluted. Indeed the analogy between environmental degradation and the propagation of unsolicited junk e-mail in cyberspace is worth pursuing. Just as businesses have had a tendency to regard the environment (air, water, land) as a free and unlimited good, there has also been a tendency on the part of spammers to regard the Internet in the same way. But the conviction that these resources are unlimited and free sometimes promotes their wasteful consumption. The end result is what Garrett Hardin (1996) has characterized as a “tragedy of the commons”: Picture a pasture open to all. It is expected that each herdsman will try to keep as many cattle as possible on the commons. As a rational being, each herdsman seeks to maximize his gain [and]… concludes that the only sensible course to pursue is to add another animal to the herd. And another, and another. But this is the conclusion reached by each and every rational herdsman sharing a commons. Therein is the tragedy. Each man is locked into a system that compels him to increase his herd without limit—in a world that is limited. Ruin is the destination toward which all men rush, each pursuing his own best interest in a society that believes in the freedom of the commons. Freedom in commons brings ruin to all. The moral of this story is clear enough: for any common good, problems can develop if individuals exclusively pursue their own rational self-interest and do not take into account the good of the whole (i.e., the commons). Each person rationalizes that their consumption of the resource is marginal and inconsequential but the combined result is the deterioration of that common resource. Thus, acting in concert they gradually destroy the natural environment or impair a pivotal public domain. The situation in cyberspace is, of course, somewhat different since we are not talking about a physical resource that can be consumed or physically degraded. Nevertheless, like Hardin’s pasture, the Internet is an open, free, and publicly accessible environment; just as there is no cost to use the pasture, there is virtually no cost to sending out a few extra pieces of junk e-mail. Consequently, if each small business in America and Europe decided to send out several hundred thousand advertising messages the cumulative effect of this on disk resources, bandwith, and the general Internet infrastructure would be devastating. The Internet’s viability as a common resource for exchanging valuable information would be seriously eroded and millions of people would be adversely affected by much slower response time and cluttered mailboxes. Further, given the complicated interdependencies we find in our economy, the negative ramifications of widespread spamming will be diffuse, unpredictable, and potentially quite damaging.

The presence of both externalities, cost shifting and the erosion of the Internet’s viability, cannot be casually ignored by spammers. Companies and individuals must assess and be accountable for all the short and longrange costs of their activities or transactions. It is morally unacceptable to thrust burdensome external costs on to third parties (such as the ISPs) against their will. Moreover, all users have an obligation to respect the common good (in this case, the viability of Internet communications) which enables them to operate in the first place. They cannot maximize their short-term, private advantage by abetting the destruction of a common resource. There is no such thing as a purely private business that is not interconnected with and accountable to a greater whole. Instead there is a shared responsibility for preserving the efficiency and reliability of common communications systems such as the Internet. The Internet functions efficiently precisely because the majority of its users are cooperative and refrain from asocial activities like spamming. It is unfair, therefore, for spammers to dismiss or ignore the social costs of sending unsolicited bulk e-mail and to thereby benefit from the self restraint and moral decency of others. We can undoubtedly find support for this position in several ethical frameworks, especially those that emphasize fairness or one’s duty to abide by the legitimate norms of the community. For example, let us consider the nonconsequentialist framework of Immanuel Kant (1959). Spamming clearly violates the spirit of Kant’s categorical imperative (“Act according to a maxim which is at the same time valid as a universal law”), which requires us to perform only those actions that can be universalized. According to Kant, the test of moral correctness is the rational acceptability of a hypothetical, but universal, conformity to a policy or practice. In other words, the universalization process usually demands that we imagine a counterfactual situation. In this case, we must imagine what would happen if all organizations and vendors which had an interest in on-line advertising adopted a policy of spamming, that is, transmitting large volumes of bulk e-mail through cyberspace on a regular basis. Beyond any doubt, the Internet would become hopelessly congested and the entire system would rapidly become dysfunctional. Spamming therefore is not a coherently universalizable practice, since it entails a pragmatic contradiction to the categorical imperative. To avoid such contradictions, one must not pursue actions “whose efficacy in achieving their purposes depends upon their being exceptional” (Korsgaard, 1996). Spamming, of course, can only be efficacious if it is an exception to the norm. At the heart of Kant’s ethical system is the notion that there are rational constraints on what we can do. We may want to engage in some action (such as sending millions of unsolicited electronic mail messages) but we are inconsistent and hence unethical unless we accept the implications of everyone doing the same thing. According to Kant, it is unethical to make arbitrary exceptions for ourselves, which is exactly what the spammers are implicitly doing. As a result, they are violating the basic rule of fair play which is expressed in the categorical imperative as well as in other ethical principles. In the simplest terms, the categorical imperative suggests the following question: what if everybody did what you are doing? In this case if everybody practiced spamming the end result would be a calamity for the Internet and a debilitating effect on electronic commerce. Hence from a Kantian perspective and from the perspective of similar theories that emphasize fairness and consistency, there is a moral duty to eschew this questionable activity. We conclude therefore that because spamming does entail these substantial social costs that burden others and could bring about a tragedy of the commons, it is a morally objectionable activity. It unfairly exploits the Internet and the majority of its users who refrain from spamming, and it is disrespectful of the common good. Imprudent practices like spamming that ignore the good of the community and treat its members as commodities are certainly problematic from an ethical perspective. In order to be morally and socially responsible, all Internet users must therefore be much more sensitive to the ecological nature of the ‘Net, which, as the root of that word (Greek: oikos or house) connotes, is a sort of “household” or community. Such sensitivity precludes spamming and similar disruptive activities out of deference to the welfare of the community. 6. Conclusions

We might conclude by observing that spam is also a troubling public policy issue. From a public policy viewpoint spammers represent a classic example of free riders, since they do not pay for disseminating their advertis-

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ing message the way traditional advertisers do. The individuals or companies who use spam benefit from the servers and transfer networks that make up the Internet and from the efforts of others to make it an environment hospitable to electronic commerce. But they “ride for free” by failing to contribute in a way that is proportionate to their consumption of Internet resources and by refusing to accept the obvious rules which enables the Internet and ISPs to function efficiently. A discussion of the public policy issues associated with spam is well beyond the scope of this paper and we refer interested readers to Carroll (1996) for a thorough treatment of this issue. Suffice it to say that there should always be room for certain forms of advertising and promotional mailings on the Internet as long as users are willing to receive them and absorb their costs. But the exact limits on purely unsolicited commercial e-mail will be difficult to establish, and consequently the public policy debate on what to do about spam will not be settled any time soon. We have simply tried to demonstrate here that if Internet users objectively reflect upon the moral implications of using spam they will reach the conclusion that its transmission is an asocial and selfish act. Even if the volume of spam were not an issue, spam would still be unethical if there is no intention of honoring the users request not to receive these mailings. This is based on the principle that no one should be forced to receive unwanted materials. Moreover, as we have been at pains to insist, because of the present and projected volume of spam it is also morally objectionable because it has the potential to bring about a tragedy of the commons for the Internet. It undermines the sense of shared responsibility which all users should assume for this important communications medium.

References Carroll, M. (1996). Garbage In: Emerging Media and Regulation of Unsolicited Commercial Solicitations. Berkeley Technology Law Journal, 11, Fall. Garfinkel, S. (1996). Spam King! Your Source for Spams Netwide. Wired, February, 84–92. Goff, L. (1997). A Line in the SPAM. Computerworld, August, 88–89. Hardin, G. (1996). The Tragedy of the Commons. In Business and Society (ed., B. Castro), Oxford University Press, New York. Harmon, A. (1998). American Way of Spam: An E-Mail Battleground. The New York Times, May 7, E8. Internet Service Providers Consortium (1997). ISP/C Position on Unsolicited Commercial E-Mail. (http:// www.mids.org). Kant, I. (1959). Foundations of the Metaphysics of Morals (trans. Lewis White Beck), Bobbs-Merrill Company, Indianapolis, IN. Korsgaard, C. (1996). Creating the Kingdom of Ends, Cambridge University Press, New York. Raisch, R. (1995). Postage Due Marketing: An Internet Company White Paper. (http://www.Internet.com:2010/ marketing/postage.html). Slatella, M. (1998). Hunting the Elusive Spammer. The New York Times, March 19, E 11. The Telephone Consumer Protection Act (1991), 47 USC #227 (b) (1).

Journal/Discussion Questions 1. What new developments have occurred in regard to legal restrictions on spam? How effective have they been? 2. Has the issue of externalities grown more important in the last three years in regard to spam? What do you think is the best way of dealing with spam? Why?

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Concluding Discussion Questions Where Do You Stand Now?

Instructions

Disagree

Strongly Disagree

❑ ❑ ❑ ❑ ❑

Undecided

56. 57. 58. 59. 60.

Agree

Strongly Agree

You have already answered the following questions in your moral problems self-quiz at the beginning of this book. Now that you have studied the material in this section, take a moment to answer the same questions again. You can either enter your answers below or complete the survey on-line at http://ethics.sandiego.edu/surveys.

❑ ❑ ❑ ❑ ❑

❑ ❑ ❑ ❑ ❑

❑ ❑ ❑ ❑ ❑

❑ ❑ ❑ ❑ ❑

Chapter 12: CyberEthics All spam should be outlawed. Hackers only want to cause trouble. Cyberstalking is not really different from regular stalking. There’s nothing wrong with downloading music from the Internet. We should ban cyborgs.

Compare your answers to this self-quiz with the answers to the initial self-quiz. How, if at all, have your answers changed? How have the reasons for your answers changed?

For Further Reading Web Resources

Handbooks and Review Articles

The Computer Ethics page of Ethics Updates (http:// ethics.sandiego.edu) contains numerous online resources relating to poverty and world hunger. In addition to PowerPoint presentations relating to computer ethics, this page includes links to online articles and videos by noted philosophers and many other resources for understanding these emerging issues.

The best way to approach this fast-changing field is through the handbooks relating to this field, especially The Cambridge Handbook of Information and Computer Ethics, edited by Luciano Floridi (Cambridge: Cambridge University Press, 2010); A Companion to the Philosophy of Technology, edited by Jan Kyrre Berg Olsen, Stig Andur Pedersen and Vincent F. Hendrick (Cambridge: Cambridge University Press, 2010); and The Handbook of Information and Computer Ethics, edited by Kenneth E. Hinma and Herman T. Tavani (Hoboken, NJ: WileyInterscience, 2008) For a concise overview, see Deborah G. Johnson, “Computer Ethics,” A Companion to Applied Ethics: Blackwell Companions to Philosophy, edited by R. G. Frey (Malden, MA: Blackwell Publishing, 2003), pp. 608–619. Also see Johnson’s Computer Ethics, Forth Edition (Upper Saddle River, NJ: Prentice Hall, 2009), an excellent introductory text that helped to define

Journals In addition to the standard ethics journals mentioned in the bibliographical essay at the end of Chapter 1, also see the journals: • • • • •

IRIE, International Review of Information Ethics; Ethics and Information Technology; Philosophy & Technology Science and Engineering Ethics; Minds and Machines: Journal for Artificial Intelligence, Philosophy, and Cognitive Science; • Communication and Ethics in Society.

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the field. Sara Baase’s A Gift of Fire, 3rd ed. (Upper Saddle River, NJ: Prentice Hall, 2008) provides a great introduction to a number of key issues. On privacy, see especially Helen Nissenbaum, Privacy in Context: Technology, Policy, and the Integrity of Social Life (Stanford: Stanford Law Books, 2009); Daniel J. Solove, Understanding Privacy (Cambridge: Harvard University Press, 2010); and the essays is The Right to Privacy, edited by Ellen Frankel Paul, Fred D. Miller, Jr., and Jeffrey Paul (Cambridge: Cambridge University Press, 2000). Luciano Floridi’s work has set the context for the contemporary discussion of the philosophy and ethics of information; see his The Philosophy of Information (New York: Oxford University Press, 2011) as well as his Information: A Very Short Introduction (New

York: Oxford University Press, 2010). One of the most influential voices in the field of information, the web and the law is Lawrence Lessig, whose The Future of Ideas: The Fate of the Commons in a Connected World (Vintage, 2002) and subsequent books have shaped the debate about access to information. There are a number of valuable anthologies that contain key articles on many of the topics contained in this chapterhere. Among the most helpful are Richard Spinello, Cyberethics: Morality and Law in Cyberspace, 4th ed. (Sudbury, MA: Jones & Bartlett Publisher, 2010); Herman T. Tavani, Ethics and Technology: Ethical Issues in an Age of Information and Communication Technology, 3rd ed. (New York: Wiley Text Books, 2010); and Richard Spinello, Readings in CyberEthics, 2nd ed. (Sudbury, MA: Jones & Bartlett, 2004).

MySearchLab Connections Sources OnLine READ AND REVIEW Study and Review: Chapter 12 The text explores moral issues surrounding the topic of cyberethics. These readings further explore that theme. 1. Leviathan by Thomas Hobbes Thomas Hobbes is a mechanistic philosopher who focuses on the nature of bodies in order to articulate and evaluate the origins and limits of our knowledge of the natural world. Likewise he focuses on the nature of humans in order to articulate and evaluate the origins and limits on our understanding of the nature of a civil society and the role of the sovereign in it. 2. De Anima by Aristotle The central issue Aristotle treats here is the question of the soul—what it is, what it does, etc. The human soul, on Aristotle’s view, is that which gives life to the body. The thing that distinguishes the human soul from that of animals, for example, is that the human soul possesses the character of rationality. This rationality distinguishes the human soul from the merely nutritive property of the non-human animal soul; although clearly, the human soul shares this nutritive feature as well. 3. Foundation for the Metaphysics of Morals by Immanuel Kant Kant’s purpose here is directed to moral philosophy, and he focuses on the following question: Is

it not of the utmost necessity to construct a pure moral philosophy which is completely freed from everything which may be only empirical and thus belong to anthropology? 4. Two Treatises of Government by John Locke In this writing, the seventeenth-century writer John Locke describes the natural condition of mankind and discusses the origins of property. The Second Treatise, from which most of this selection is taken, is best known for its defense of individual property rights and a limited government whose powers stem from the consent of the people. Most controversial in his day was the defense of a limited right of revolution. RESEARCH AND EXPLORE Explore the following questions using the research tools available on www.mysearchlab.com. Explore on mythinkinglab.com

1. In what ways is human nature fixed, and in what ways is it not? 2. What limits, if any, ought to be placed on the power of individuals, corporations, and governments to acquire information? Do individual property rights extend to ideas expressed in e-mails or blogs? To information about what web sites they visit? 3. What responsibility do individuals have towards the other members of their online community? Is it different than the responsibility we have towards those with whom we have an “in-person” relationship?

Index

A Abortion, 37, 48–85, 49–85 and compromise, 69–70 controversy, 56 debate on, 60 late-term, 59–60 law associated with, 57–58 as means of sex selection, 69 and moral differences, 70 moral questions related to, 67–69 natural law tradition, 66 as non-intentional killing, 82–85 partial-birth, 58 principle of double effect and, 66–67 public funding of, 67–68 rights of pregnant woman and, 64–65 and sorrow, 70 statistics, 56–57 unwanted pregnancies and, 69–70 woman’s right to, 65 “Abortion and the Concept of a Person” (English), 64, 71–76 Absolute poverty level, 365 Abuse argument, 67 Acceptance, sexual orientation, 339 “Achieving Democratic Equality: Forgiveness, Reconciliation, and Reparations” (McGary), 250–259 “Achieving Global and Local Justice” (Walzer), 384–390 Achieving Our Country: Leftist Thought in Twentieth Century America (Rorty), 251 Acoma Pueblo, 215 Active euthanasia vs. passive euthanasia, 114, 121–125 conceptual clarity, 114–115 moral significance, 115 Acute need, 364 Adams, Niki, 289 ADS. See Applied Digital Solutions (ADS) Affirmative Action in college admissions, 247–248 four senses of, 246–247 African Americans, 251–257, 443. See also race/ethnicity cultural assimilation, 215 right to vote, 253

unemployment among, 214 vulnerabilities, 269–270 “Against Homosexual Marriage” (Wilson), 352–357 “Against the Death Penalty” (Reiman), 155–161 Agribusiness, 403 Aid to impoverished/poor people/countries, 375–377. See also Poverty basic rights argument, 371 complicity, 369–370 effectiveness argument, 376–377 group egoist argument, 370 Kantian perfect and imperfect duty argument, 371 liberal state argument, 377 libertarian argument, 377 lifeboat argument, 375–376 particularity argument, 377 utilitarian argument, 370–371 virtue of compassion, argument, 367–369 Air pollution, 447 Air Transportation Safety and System Stabilization Act, 2 Allen, Amy, 290 American Agriculturalist, 405 American and European affluence, and poverty, 366 American Civil War end of, and peace, 188 American Exceptionalism, 135–136 America Online, 497 Animal farming, 402–407, 412–413 calves, 406–407 chicken, 403–405 cruelty of, 412 egg, 404–405 intensive, 406–407 pig, 406 Animal Liberation (Singer), 410 Animal rights, 410–411, 414–419 conflict resolution, 411 contractarianism, 415–416 indirect duty views, 414–415 utilitarianism, 416–417 505

506

Index

Animals circle of morality, 409 compassion for, 411 contractarianism and, 415 having no rights, 420–422 medical experimentation on, 412, 420–425 moral character issue, 411–412 reducing use of, 424–425 utilitarianism and, 410, 413, 416–417, 419 Annual Review of Ecology and Systematics, 452–453 “Apocalypse Now: A Scientist’s Plea for Christian Environmentalism” (Wilson), 434–438 Applied Digital Solutions (ADS), 483 Aquinas, Thomas, St., 62, 66, 174, 354 Arab Spring, 223 “The Argument about Humanitarian Intervention” (Walzer), 195–203 Aristotle, 354, 367, 478 Arkes, Hadley, 354 Ashrams, 215 Assimilationist history, 215 Assimilationist model, 215 Associations, defined, 268 Asymmetrical warfare, and uniforms, 180–181 Atala, Anthony, 39 Autonomy, 4 as gays/lesbians right, 339

B Backward-looking approaches, punishment lex talionis, 136–137 retribution/revenge, 137 retributivism/deontology, 137 Baker, Robert, 277 Baldwin, James, 251 Band-Aids, 374. See also Disaster relief Barber, Randi, 489 Basic needs, 365 Basic Rights, 371 Been, Vicki, 443 Bell, Shannon, 289 Benatar, David, 296–311 Bentham, Jeremy, 410 Berkowitz, Richard, 50–51 Bernardin, Joseph Cardinal, 5, 119 “Beyond Mestizaje: The Future of Race in America” (Trianosky), 228–238 Bill of Rights, 223 Biocentrism, 441

Biological father role in abortion decision, 67 Biomedical research, animal use in. See medical experimentation, on animals Blacks. See African Americans Blastocyst, 59 Bloomfield, Naomi, 53 Borg. See Cyborgs The Bottom Billion (Collier), 387 Boyer, Amy (cyberstalking case), 489–490, 492–493 Brambell, F.W. Rogers, 404 Brambell Committee, 404 Brazil, 382 Broilers, 403. See also Chicken Brotz, Howard, 251 Brown, Louise Joy, 32 Brown v. Board of Education, 246 Brutalization effect, 147 Butler, Samuel, 404 Byrd, Robert, 343

C Calves, 406–407 Cannibalism, 403–404 Capital punishment, 145–150 common sense argument, 147–148 deterrence/publicity, 148 effects of, 147–148 irrevocability of, 148 level of certitude, 148–149 moral issue, 148 Carter, Stephen L., 203–204 “The Case for Animal Rights” (Regan), 413–419 “The Case for the Use of Animals in Biomedical Research” (Cohen), 420–426 CCTV. See closed-circuit television (CCTV) cameras Chapkis, Wendy, 287 Cheetahs, 474 Chemotherapy, 60 Chicken, 403–404 prodcution, 403 “Child in utero ,” 68 Children of privilege, 248 Chronic need, 364 Civilian casualties war and, 179–181 Civil Rights Act of 1964, 246 Clinton, Bill, 253, 336 Clinton, Hillary Rodham, 324–328 Cloning, 11–42

507

Index

Closed-circuit television (CCTV) cameras, 471, 472 Cohen, Carl, 420–426 College admissions, affirmative action in, 247–248 Collier, Paul, 387 Commensurate burdens and benefit, principle of, 443–444 Commercial animal agriculture, 412. See also animal farming Commission on Safety and Abuse in America’s Prisons, 144 Common sense argument capital punishment, 147–148 Communications Decency Act (CDA), 491 Compensation and just peace, 190 Computer implants, 478–487 argument, 481–482 control, 483–484 fairness, 484–485 future, 485–486 privacy, 482–483 responsible freedom, 482 sleepwalking scenario, 482 slippery slope arguments, 482 therapy vs. enhancement, 479–481 totalitarian state scenario, 482 Computerized trading. See Stock market, computers and Computer-mediated world computer implants, 478–487 cyberstalking, 488–494 driving in, 468 privacy in, 468–469 search engines, 469–470 shopping in, 467–468 social relationships in, 468–469 spam, 496–502 stock market in (See Stock market, computers and) Computer technology, growth of, 467 Computerworld, 498 Conceived-by-humans criterion, 62 Conception, 59 “Confronting Physician-Assisted Suicide and Euthanasia: My Father’s Death” (Wolf), 108–112 Congressional Partial-Birth Abortion Ban Act, 58 Connell, R. W., 290 Consensual rape vs. nonconsensual rape, 291–292 Consequentialism and torture, 185 vs. deontology, 6–7, 115–116 Conservatism family values tradition, 226 libertarian tradition, 225–226

Conservative model, sexual orientation in society, 338–339 Conservatives on abortions, 70, 71 Consumerism, toxic hazards and, 444–445 Cook, Martin L., 206–209 Cost-benefit analysis (CBA), 448 Costs-of-dominance argument and objections to second sexism, 308 “Crime Victims on the Anvil of Pain” (Prejean), 130–132 Cruelty, punishment and, 145 Cultural identity, 230–236 Cultural or identity groups, 268. See also Oppressed groups Cultural resistance, 236–238 Culture gender and, 313–315 Cyberethics. See Computer-mediated world Cyberstalking, 488–494 Boyer, Amy (cyberstalking case), 489–490, 492–493 description of, 488–489 ethical perspective, 490 Internet Service Provider (ISP) and, 490–493 moral responsibility, individual, 493–494 Cyborgs, 478–487. See also Computer implants

D Data mining, 472 Davidson, O’Connell, 290–291 Death penalty effects of, 147–148 and international relations, 150 opponents of, 147 Reiman’s objection to, 146 Scott Turow on, 149 variations among states among, 149 Death rate abortion, 57 Declaration of the Rights of Man and Citizen (France), 223 Deep Brain Stimulation technique, 484 Deep ecology, 450–456 tenets of, 451 “A Defense of Abortion” (Thomson), 64 Defense of Marriage Act (1996), 336, 345 debates over, 343 Dellapenta, Gary, 489 Deontology consequentialism vs., 6–7, 115–116 pacifism and, 193 retributivism and, 137 Dershowitz, Alan M., 185, 204–206

508

Index

Designer babies, 39 Deterrence and consequentialism/deontology, 141 creative, 139–141 general, 138–139 as goal of punishment, 138–140 and publicity, 148 specific, 138 Devall, Bill, 456 Dewey, John, 252 Dichotomies and sexual orientation, 330 Dickey–Wicker Amendment, 38 Digital Angel, 483 Digital divide, 475 Disaster relief, 373–375. See also Aid to impoverished/ poor people/countries; Poverty and local distribution, 373 and national pride, 373–374 Disasters. See also Poverty Hurricane Katrina, 372–373 relief (See Disaster relief) Sichuan earthquake, 373 Discrimination. See also Sex discrimination against gays/lesbians, 335–336 Disproportionate vulnerabilities, 269–270. See also vulnerabilities Distraction argument and objections to second sexism, 304–305 Distributive justice economic inequality and, 221–222 egalitarian theories, 219 liberal theory, 220–221 libertarian theories, 219–220 utilitarian theories, 220 Diversity, 214. See also race/ethnicity; racism analytical framework (five questions), 214–218 distributive justice (See Distributive justice) Diversity, sexual orientation, 339–340 Divorcing couples embryos of, 35–36 DNR order. See Do Not Resuscitate (DNR) order Doctrine of Double Effect, 443 Doe v. Bolton, 57–58 Domination theory, 289–292 power and, 290 Do Not Resuscitate (DNR) order, 114 Double effect, principle of, 8 abortion and, 66–67 Douglass, Frederick, 251

“Down on the Factory Farm” (Singer), 402–407 Dresden, firebombing of, 10 Driving, in computer-mediated world, 468 Drones usage in war, 186–187 Due Process clause, 350 Duke, Katy, 12–14 Dworkin, Ronald, 410 “Dyadic model,” 290

E Early embryo, 34–35 Earthquake, 373 “Eating Animals” (Foer), 396–401 Ecocentrism, 441 holistic, 441 individualistic, 441 Economic inequalities, 217 Educational inequality, 217 Egg City, 405 Eggs, 404–405 Embryo, 59. See also Fetus dualist version, 79–80 evaluative version, 80–82 as human being, 78–79 Emotional intimacy, 232–233 Empirical findings on effects of capital punishment, 147 Encryption, 472 End-of-life care consequentialist approach and, 7 Endorsement, sexual orientation, 339 English, Jane, 64, 71–76 English language, 215 Enhancement, 40–42 treatment and, 38 Environment, 430–459 commensurate burdens and benefit, 443–444 cost-benefit analysis (cba), 448 deep ecology, 450–456 expanded-circle approaches, 441 free market approach, 447–448 human-centered approaches to, 440–441 libertarianism, 445–446 LULU points, 448–449 practical implications, 449 toxic hazards and consumerism, 444–445 utilitarianism, 446–447 Environmental Protection Agency (EPA), 447 Equal Protection clause, 349

509

Index

Equal Rights Amendment (ERA), 277 Equal rights approaches, 245–246 Equal treatment, right to, 224 ERA. See Equal Rights Amendment (ERA) Erotic labor, 287 Establishment Clause, 346 ETA (Euskadi Ta Askatasuna), 191 Ethical egoists, 440 “The Ethical Evaluation of WikiLeaks” (Floridi), 475–477 “Ethical Issues in Counterterrorism Warfare” (Cook), 206–209 “Ethical Reflections on Cyberstalking” (Grodzinsky and Tavani), 488–495 “Ethical Reflections on the Problem of Spam” (Spinello), 495–502 Ethnicity. See Race/ethnicity Euthanasia, 92–125 active vs. passive, 114, 121–125 assisted vs. unassisted, 117–118 as compassion, 118 conceptual clarity, 114–115 consequentialist vs. deontological approaches, 115–116 debate over, 118–120 distinctions, 117 moral significance, 115 nonvoluntary vs. involuntary, 116 overview, 113–114 slippery slope argument, 120 voluntary, 116 Evans, Mark, 50 Evils, war, 181–187 genocide, 182–183 mustard gas/WMDs, 181–182 rape, 182 torture, 183–186 (See also Torture) Expanded-circle approaches, to environment, 441 biocentrism, 441 ecocentrism, 441 utilitarianism, 441 Exploitation. See Sexual exploitation, women Extreme poverty, 365

F Facebook, 468–469 Family resemblance, 63 Family values tradition, 226 Faxes, 498 Feather-pecking, 403–404. See also Chicken Feinberg, Ken, 2 Fetal development, 58–60

human form, 59 primitive streak, 59 viability, 59–60 Fetal harm, 68–69 Fetal homicide, 68 Fetus. See also Embryo moral status of, 61, 68 Finnis, John, 354 Firebombing, of Dresden, 10 The Fire Next Time (Baldwin), 251 Fisher, John Martin, 65 Floridi, Luciano, 475–477 Foer, Jonathan Safran, 396–401 Forward-looking approaches, punishment, 137–141 deterrence, 138–139 Fourteenth Amendment, 349 France cultural assimilation in, 215–216 Free market approach, to environment, 447–448 French National Constituent Assembly, 223 Fried, Charles, 346 Future-of-value-like-ours, 62–63

G GAATW. See Global Alliance Against Trafficking in Women (GAATW) Gaddafi, Muammar, 223 Galbraith, J. K., 456 Gawande, Atul, 93–107, 144 Gay, lesbian, bisexual, and transgender (LGBT) human rights, issues associated with, 325–328 Gays/lesbians. See also Homosexuality; Sexual orientation behavior/identity, 333 discrimination against, 335–336 guilt/shame, 333 marriage, 336–338 in military, 336 Gelernter, David, 146–147, 151–154 Gender. See also Men; Women culture and, 313–315 defined, 331 discrimination based on (See Sex discrimination) equality, international dimension, 281–283 place in family, 281 roles in society, models of, 279–281 (See also Models, gender roles in society) sex vs., 330–332 Gender Equality and Development (World Bank), 283 Gender imbalance, 69 Gender-neutral language, 276–277

510

Index

Genetic blueprint, 58 Genetic manipulation, 37 Genetic selection, 37 Genetic structure, 62 Genetic testing, 37 Geneva Convention, 187 Genocide, as evil of war, 182–183 Geocities, 492 George, Robert, 354 George, Robert P., 77–85 German Holocaust, 379 Gestation, 59 Giftedness of life, 41 Ginsburg, Ruth Bader, 65 Glendon, Mary Ann, 411 Global Alliance Against Trafficking in Women (GAATW), 287 Global justice, for poverty, 379–390. See also poverty Global Positioning System (GPS), 483 Goldhagen, Daniel, 182 Goldman, Julius, 405 Gonzalez v. Carhart, 58 Google, 248, 469, 470 self-driving car of, 468 Government-sanctioned racism, 241–242 GPS. See Global Positioning System (GPS) Gradualist View, 60 Green, Judith, 252 Grodzinsky, Frances S., 488–495 Groundwork of a Metaphysics of Morals (Kant), 2, 119 Group egoists, 440 Guha, Ramachandra, 450–456 Guilt, gays/lesbians, 333 Guilt and denial, poverty and, 365 Guinier, Lani, 253

H Hacker, Andrew, 252 “Hackers Live by Own Code” (Menn), 463–465 Hainsworth, Alan, 404 Hainsworth farm in Mt. Morris, New York, 405 Haley, Fred C., 404 Happiness, right to have, 225 Harassment. See Sexual harassment Hardin, Garrett, 375, 500. See also lifeboat metaphor, of Hardin

Harper, Joyce, 13 Harris, George W., 67 Hate crime laws, 216, 260–270. See also race/ethnicity argument for from greater harm, 261–264 from liberal democratic values, 264–267 from more culpable mental states, 263–264 from opression, 267–270 overview, 260 “Hate Crimes Laws: Progressive Politics or Balkanization?” (Reidy), 260–270 Hate speech, 248–249 Hawaii’s Opportunity Probation with Enforcement (HOPE), 139–140 Healing, punishment and, 142–143 Health care as rights, 226 Hermaphrodites, 330–331 Heterosexual couples, 214 HFEA. See Human Fertilsation and Embryology Authority (HFEA) HGH. See Human growth hormone (hGH) Hierarchy of Needs (Maslow), 4 High-frequency trading, 474. See also Stock market, computers and Hiroshima/Nagasaki atomic bombs on, 179–180 Hispanics unemployment among, 214 Hitler’s Willing Executioners (Goldhagen), 182 Hochschild, Adam, 178 Holistic ecocentrism, 441 Homosexuality, 38. See also Gays/lesbians; Sexual orientation argument from nature against, 332–334 religion and, 333–334 scientific concept, 334 as unnatural activity, 334–335 as Western invention, 326 HOPE. See Hawaii’s Opportunity Probation with Enforcement (HOPE) Hostile work environment sexual harassment and, 279 Housing projects, in United States, 216 How the Irish Became White (Ignatiev), 231 Human Fertilsation and Embryology Authority (HFEA), 13 Human Genome Project, 33, 37 Human growth hormone (hGH), 38 Humanitarianism, 386–387. See also poverty

511

Index

Human life giftedness of, 41 innocent, 5–6 as priceless, 2–5 respect for, 4–5, 119 and right to die, 119 sanctity of, 5, 118–119, 146–147 value, 9/11 settlement, 2 Human rights LGBT, issues associated with, 325–328 Human rights. See rights Human trafficking, 282–283 Hunger. See Poverty Hurricane Katrina, 372–373 Hussein, Saddam, 179 Hvistendahl, Mara, 283 Hyde amendment, 58 Hysterectomy, 443

I Ideal society, 214–216 Ignatiev, Noel, 231 Immigrants children of, 232–235 cultural assimilation of, 215–216 in France, 215–216 home culture of, 231–233 Imperfect duties (Kantian perspective), 371 Implantation, 59 Implantation of computer chips. See Computer implants Income Distribution, 366 Income gap, and poverty, 366 Inden, Ronald, 453 Individual choice and social policy, 38 Individualistic ecocentrism, 441 Induced pluripotent stem cells (iPSC), 39 Inequality, and poverty, 380 Informed consent, 5 Institutional racism, 242 Institutional sexism, 275–276 Intel, 467 Intellectual property, 472–473 Intermediate version, Realpolitik, 193, 194 International Union for the Conservation of Nature and Natural Resources (IUCN), 452 Internet. See Computer-mediated world

Internet Service Provider (ISP), 472. See also Computermediated world Boyer case, 492–493 cyberstalking and, 490–493 Spinello on, 491–492 Vedder on, 492 Intersexual persons, 330–331 Inversion argument and objections to second sexism, 305–307 In vitro fertilization (IVF), 12, 32–36, 54 access to, 35 historical overview, 32–33 introduction, 33–35 and moral issues, 36 objections to, 36 Involuntary euthanasia nonvoluntary euthanasia vs., 116 IPSC. See Induced pluripotent stem cells (iPSC) IRA. See Irish Republican Army (IRA) Irish immigrants, 231 Irish Republican Army (IRA), 191 “Is Multiculturalism Bad for Women?” (Okin), 311–318 “Is There a Tortuous Road to Justice?” (Dershowitz), 204–206 IUCN. See International Union for the Conservation of Nature and Natural Resources (IUCN) IVF. See In vitro fertilization (IVF) Iyengar, Sheena, 52

J Jacobs, Derek, 482 Jacobs, Jeff, 482 Jacobs, Leslie, 482 Jaffa, Harry V, 354 Janzen, Daniel, 452–453 Jim Crow laws, 251, 252–253, 254, 256 Johnston, Josephine, 52 Josephine Chuen-Juei HO, 287 Junk email. See Spam Jus ad bellum, 174–178 last resort, 177 probability of success, 177 proportionality, 178 public declaration by lawful authority, 175–177 right intention, 175 right of self-defense, 174–175 Jus in bello, 178–187 discriminate between combatants/civilians, 179–181 evils and, 181–187 (See also Evils, war) principle of proportionality, 181

512

Index

Jus post bellum, 188–190 conditions of, 189–190 historical examples, 188–189 Just and Unjust Wars (Walzer), 174 “Just Garbage” (Wenz), 442–449 Justice, Gender, and the Family (Okin), 281 Just peace. See Jus post bellum Just war theory history of, 173–174 implications for, 191–192 just peace and, 190 terrorism and, 190–192 Juveniles treatment of, 143

K Kahlo, Frida, 235 Kant, Immanuel, 2–10, 119–120, 384, 501 and consequences, 9 Kelly, Liz, 289–290 Kempadoo, Kamala, 287 Kerner Commission, 228 Kierstead, Hans, 39 Killing vs. letting die, 7–8 King, Martin Luther, 214 Kissinger, Henry, 193, 194 Kittay, Eva Feder, 14–30 Kittay, Leo, 14–30 Kleiman, Mark, 139, 140–141 Kristof, Nicholas, 283 Kristol, Elizabeth, 353 Kymlicka, Will, 316–317

L Lack of consensus, 63 LaFollette, Hugh, 369 Language, and sexism, 276–277 Lannsdale Poultry Farm, Rochester, New York, 405 Late-term abortions, 59–60 Lawful authority and public declaration of war, 175–177 Lee, Patrick, 77–85 Lesser Evil argument, 67 Let’s Not Be Arbitrary argument, 63 Let’s Play It Safe argument, 63 Letting die, killing vs., 7–8 “Letting Go. What Should Modern Medicine Do When It Can’t Save Your Life?” (Gawande), 93–107 Leukemia, 448

Lex talionis, 136–137, 145–146 Liberal approach, to race/ethnicity, 250 Liberalism, 285–286 Liberal model, sexual orientation in society, 339 Liberals on abortions, 70, 71 Libertarian approach, to race/ethnicity, 249 Libertarianism, 445–446 aid to impoverished/poor people/countries, 377 race/ethnicity, 249 Libertarian theories, of distributive justice, 219–220 Libertarian tradition, 225–226 Liberty, right to, 224 Libya, 223 Life, right to, 224 Lifeboat metaphor, of Hardin, 375 evaluation of, 375 Life expectancy, 365 The Life You Can Save: Acting Now to End World Poverty Singer, 365 Liptak, Adam, 135–136 Local justice for poverty, 389 Locally undesirable land uses (LULUs), 443, 448–449 Locke, John, 253–254 Lorenz, Konrad, 403 Loving v. Virginia, 345, 348

M MacIntyre, Alasdair, 411 MacKinnon, Catharine, 276, 278, 279 Mandela, Nelson, 142 Mao’s Great Leap Forward, 379 Market-based approaches, 249–250 Marquis, Don, 62–63, 68 Maslow, Abraham, 445 Maslow’s Hierarchy of Needs, 445 May, Bill, 42 May, Larry, 369 McCain, John, 184 McGary, Howard, 250–259 Medicaid, 447 Medical experimentation, on animals, 412, 420–425 animals rights, 420–422 reducing, 424–425 substitution, 424 Men. See also Gender disadvantage, 297–299 prejudicial attitudes, 299–300 Menn, Joseph, 463–465 Meritor Savings Bank v. Vinson, 279

513

Index

Mestizaje in Latin America, 228–229 in United States, 229–230 Meyer v. Nebraska, 349 Mill, J. S., 486 Miriam, Kathy, 284–295 “Missing Women” (Sen), 283 Mizuko Kuyo, 70 Models, gender roles in society, 279–281 androgynous model, 280 maximal choice model, 280–281 traditional model, 279–280 Models, sexual orientation in society, 338–339 conservatives, 338–339 liberal, 339 polymorphous, 339 Modern Liberty and the Limits of Government (Fried), 346 Momaday, N. Scott, 431–434 Moor, James H., 477–488 Moore, Gordon, 467 Moore’s law, 467 “The Moral Demands of Global Justice” (Pögge), 378–384 Morales, Aurora Levins, 229–230 Moral status of fetus, 61, 68 gradualist theories of, 64 Morula, 59 Multiculturalism, 215 Mustard gas as evil of war, 181–182 Myanmar, 373

N Nagasaki. See Hiroshima/Nagasaki National Geographic, 405 National identity torture and, 184–185 “Native American Attitudes toward the Environment” (Momaday), 431–434 Native Americans, 215 Naturalistic fallacy, 334 Natural law tradition and abortion, 66 Necessary condition, personhood, 61 Negative rights, 225–226 Newkirk, Ingrid, 412 New York Stock Exchange, 473 NIMBY (Not In My Back Yard) syndrome, 445 Nissenbaum, Helen, 491 Nixon, Richard, 194

No-discrimination argument and objections to second sexism, 301–304 Nonconsensual rape consensual rape vs., 291–292 Non-Hodgkin’s Lymphoma, 447–448 Nonvoluntary euthanasia vs. involuntary euthanasia, 116 Nussbaum, Martha, 340–352, 485

O Obama, Barack, 328 OEF. See Operation Enduring Freedom (OEF) Okin, Susan Moller, 281, 311–318 Online shopping, 467–468 “On the Expressivity and Ethics Selective Abortion for Disability: Conversations with My Son” (Kittay and Kittay), 14–30 Operation Enduring Freedom (OEF), 173 Operation Pressure Point, 140–141 Oppressed groups, 268–269 Ordeal of Total War (Wright), 181 Oregon, physician-assisted dying in, 120 Orend, Brian, 188 Overt discrimination, 277 Overt sexism, 275–276

P Pacifism, 192–193. See also Peace deontology and, 193 Padawer, Ruth, 48–54 “Palermo Protocol,” 284 Parental consent and abortion, 67 Parkinson’s patient, 484 Partial-birth abortions, 58 Passive euthanasia, active euthanasia vs., 114, 121–125 conceptual clarity, 114–115 moral significance, 115 Pateman, Carole, 285–286, 290 Patterson, Charlotte, 356 Peace, 188–190. See also Jus post bellum; Pacifism Pen, Jan, 366 Per capita income, 379 Perfect duties (Kantian perspective), 371 Perkinson, Robert, 144 Personhood criteria of, 61–64 relevance of, 64 PGD. See Pre-implantation genetic diagnosis (PGD)

514

Index

Physical resemblance criterion, 62 Physician-administered euthanasia, 117 Physician-assisted euthanasia, 117 Pigs, 406 Planned Parenthood of Southeastern Pa. v. Casey, 58 Pluralist model, 215 Pögge, Thomas W., 378–384 Political responsibility, and poverty, 387–388 Polymorphous model, sexual orientation in society, 339 Pornography, 472 Positive rights, 225–226 “Postage-due marketing.” See Spam Poverty absolute poverty level, 365 aid to poor people/countries (See Aid to impoverished/ poor people/countries) American and European affluence, 366 consequences, 379 eradication, 381–384 extreme, 365 geographical distribution of, 365 global justice for, 379–390 guilt and denial, 365 humanitarianism and, 386–387 income and wealth gap, 366 inequality and, 380 local justice for, 389 long-term assistance, 378 per capita income, 379 political responsibility and, 387–388 short-term relief, 377–378 SmartAid, 372–375 virtue of compassion (See virtue) Power, and domination, 290 Power, Samantha, 182, 194 Practical wisdom, 141, 143 Prager, Dennis, 353 Pregnancy burdens of, 85 and fetal development, 58–60 trimesters, and abortion laws, 57 Pregnant woman, 59. See also Pregnancy rights of, 64–65 Pre-implantation genetic diagnosis (PGD), 12–14 Prejean, Helen, C.S.J., 130–132 Prejudicial attitudes, men, 299–300 Presence-of-a-soul criterion, 62 “Pricks and Chicks: A Plea for Persons” (Baker), 277 Primacy of the family argument, 67 Primitive streak, 59

Principle of double effect, 8, 115 abortion and, 66–67 and civilian casualties, 180 Principle of equivalent proportionality, 136 Principle of meritocracy, 247 Principle of proportionality and war conduction, 181 Principle of retribution, 136 Prisoners, of war treatment of, 187 Prisoner Without a Name, Cell Without a Number (Timerman), 183 Privacy in computer-mediated world, 468–469, 471, 472 as gays/lesbians right, 339 A Problem from Hell: America and the Age of Genocide (Power), 182 Pro-choice, 60 Pro-life, 60 Property rights, 472–473 Proportionality and just peace, 189 and war conduction, 181 Pro-sex-work, 284, 287 Prostitution, 290–291 Protection program, for race/ethnicity, 248–250 Public declaration, war lawful authority and, 175–177 Public funding, abortion, 67–68 Publicity deterrence and, 148 and just peace, 189 Pueblos, 215 Puerto Rican Americans, 235 Punishment, 134–160 backward-looking approaches to, 136–137 (See also Backward-looking approaches, punishment) capital, 145–150 diversity/consensus, 150 forward-looking approaches to, 137–141 issues about, 143–145 level of cruelty, 145 race and, 144 and reconciliation/healing, 142–143 rehabilitation, 141–142 statistics, 134–135 uniformity, in individual states, 144–145 Purchasing power parity, 379 Puzo, Mario, 232

Index

Q “Quants,” 474 Quid pro quo, 278

R Race/ethnicity, 331 affirmative Action, 246–248 assimilationist models, 244–245 compensatory programs, 242–244 cultural assimilation and, 215–216 cultural identity, 230–236 cultural resistance, 236–238 defined, 240–241 equal rights approaches, 245–246 hate crime laws and, 260–270 liberal approach, 250 libertarian approach, 249 market-based approaches, 249–250 minimally acceptable condition, 216, 217 oppressed groups, 268–269 pluralistic models, 245 present social condition, 216 protection program, 248–250 punishment and, 144 separatist models, 244 taxation and the redistribution of wealth, 249 vulnerabilities, 269 Rachels, James, 114, 121–125 Racial categories, construction of, 230–231 Racial ideology, 231 Racism as descriptive term, 241 economic inequalities, 242 as evaluative term, 241 government-sanctioned, 241–242 institutional, 242 Radiation therapy, 59–60 “Radical American Environmentalism and Wilderness Preservation: A Third World Critique” (Guha), 450–456 Radical feminists theory of domination, 289–292 Rape, 291 consensual vs. nonconsensual, 291–292 as evil of war, 182 Rawls, John, 416, 445 Reagan, Ronald, 249 Realpolitik, 193–194 Reconciliation, punishment and, 142–143 Regan, Tom, 410, 413–419

515

Rehabilitation as goal in punishment, 141–142 and just peace, 190 Rehmann-Sutter, Christoph, 13 Reidy, David A., 260–270 Reign of Terror, France, 191 Reiman, Jeffrey H., 155–161 objection to death penalty, 146 Religion and homosexuality, 333–334 and reproductive technologies, 36 Reproductive technologies, 11–42 religious traditions and, 36 in vitro fertilization, 32–36 (See also In vitro fertilization (IVF)) Resistance, of race. See cultural resistance Retribution, 137 Retributivism and deontology, 137 Retributivist, 4 Revenge, 137 Rich, Adrienne, 232 Rich, Arnold, 232 The Rich Get Richer and the Poor Get Prison (Reiman), 146 Right intention as condition to enter into war, 175 Right of self-defense, 174–175 Rights, 216, 223. See also animal rights health care as, 226 historical impact on notion of, 223 negative, 225–226 positive, 225–226 reestablishment, just peace and, 189 right to be happy, 225 right to equal treatment, 224 right to liberty, 224 right to life, 224 right to security, 224 as trump card, 223 Right to be happy, 225 Right to die, human being, 119 Right to equal treatment, 224 Right to liberty, 224 Right to life, 224 Right to marry, 349–350 “A Right to Marry? Same–Sex Marriage and Constitutional Law” (Nussbaum), 340–352 Right to ownership of one’s own body, 65 Right to privacy, 64–65 Right to security, 224

516

Index

Robots usage in war, 186–187 Rodriguez, Richard, 233–234 Roe v. Wade, 56, 57, 64–65 Romer v. Evan, 346 Roper v. Simmons, 149 Rorty, Richard, 251 Roshi, Robert Aitken, 453 Rouge, Khmer, 379 Rubin, Gayle, 288

S Sale, Kirkpatrick, 450 Same-sex marriage, 336–338, 340–352 future of, 351–352 legal issues, 351 objection to, 346–347 panic over, 345–349 right to marry and, 349–350 Sanctity, of human life, 5, 118–119, 146–147 Sandel, Michael J., 40–42 “A ‘Savior’ Baby” (Duke), 12–14 Search engines, 469–470 “The Second Sexism” (Benatar), 296–311 Securities and Exchange Commission (SEC), 473, 474 Security, right to, 224 Self-determination, 65 Self-driving car, of Google, 468 Self-ownership, 65 Sen, Amartya, 283 Separatist communities, 215 September 11 attacks and torture, 183–184 victims, compensation for, value on human life and, 2 Sermon, Karen, 12, 13 Sessions, George, 456 Sex defined, 330 vs. gender, 330–332 Sex discrimination, 277–278 and disadvantage, 297–299 legal protection, 278 Sexism defined, 275 and language, 276–277 overt/institutional, 275–276 Sexist language, 276–277 Sex selection, 283 Sexual agents, 288 Sexual exploitation, women, 282 Sexual harassment, 278–279

Sexual Harassment of Working Women: A Case of Sex Discrimination (MacKinnon), 276 Sexual orientation, 323–357. See also Gays/lesbians; Homosexuality debate about, religion/science and, 334 defined, 330, 332 determination, 332 and dichotomous thinking, 330 diversity/consensus, 339–340 in society, models of, 338–339 (See also Models, sexual orientation in society) “Sex work,” 286–289 Shame, gays/lesbians, 333 Shames, Ben, 405 Sherman, Nancy, 167–171, 177 Sherman, William Tecumseh, 173 Shopping, in computer-mediated world, 467–468 Short-term relief, 377–378 “Should We Let Computers Get under Our Skins?” (Moor), 477–488 Shue, Henry, 371 on torture, 186 Sichuan earthquake, 373 Silver, David, 498 Singer, P. W., 187 Singer, Peter, 365, 370, 402–407, 410 Skinner v. Oklahoma, 349 Slaton, Jeffrey, 497 Slippery slope argument, on euthanasia, 120 SmartAid, 372–375. See also Poverty Social networking, 468–469 Social policy individual choice and, 38 Social relationships, in computer-mediated world, 468–469 Society gender roles in, models of, 279–281 (See also Models, gender roles in society) ideal, 214–216 minimally acceptable conditions, 216 sexual orientation in, models of, 338–339 (See also Models, sexual orientation in society) “Soldiers’ Moral Wounds” (Sherman), 167–171 Solitary confinement, 143–144 Sorrow, abortion and, 70 South Africa, 142–143 Spam, 496–502 basic problems with, 498–499 concept of, 496 defending, 497–498 ethical issues and, 498–502 legal status of, 498

517

Index

Speciesism. See Animals Spheres of Justice (Walzer), 385 Spinello, Richard, 491–492, 495–502 Stalin, Josef, 379 Starry Night (van Gogh), 3 Steinberg, Donna, 53 Steinbock, Bonnie, 52–53 Stem cell research, 38–39, 59 Stock market, computers and, 473–474 high-frequency trading, 474 “Stopping the Traffic in Women: Power, Agency and Abolition in Feminist Debates over Sex-Trafficking” (Miriam), 284–295 Stratton Oakmont v. Prodigy Services Company, 490–491 Strong feminists, on abortions, 70 Strong version, Realpolitik, 193, 194 Sufficient conditions, personhood, 61 Sullivan, Andrew, 353–357

T Taos Pueblo, 215 Taranissi, Mohammed, 13–14 Tavani, Herman T., 488–495 Taxation, race/ethnicity and, 249 Tax money, 444 TCPA. See Telephone Consumer Protection Act (TCPA) Teleological view of the world, 66 Telephone Consumer Protection Act (TCPA), 498 Terminal sedation, 115 Terrorism, 191 Terrorist, 191 Texas Tough: The Rise of America’s Prison Empire (Perkinson), 144 Thailand, 374 A Theory of Justice (Rawls), 416 Thomson, Judith Jarvis, 64, 80 Ticking bomb argument, 185 Timerman, Jacobo, 183 Tolerance, and sexual orientation, 339 Tooley, Michael, 76 Torture 9/11 attack and, 183–184 consequentialism and, 185 defined, 185 as evil of war, 183–186 Henry Shue on, 186 and national identity, 184–185 objectionable about, 184 treaty argument, 185

“Torture Can be Wrong and Still Work” (Carter), 203–204 Toxic hazards, and consumerism, 444–445 Toxins, 444 Trading. See Stock market, computers and Traditions conflict of, euthanasia and, 119 Transgenders, 331 Treatment and enhancement, 38 Treaty argument, and torture, 185 Treaty of Versailles (1919), 188 Trianosky, Gregory Velazco y, 228–238 Tripod, 492 Troublemakers, 144 Trump card defined, 223 rights as, 223 Truth and Reconciliation Commission, 142–143 Tunisia, 223 Turing, Alan, 10 Turner v. Safley, 349, 350 Turow, Scott, 149, 185 Tuskegee Syphilis Experiment, 4 Tutu, Bishop Desmond, 142 “The Two-Minus-One Pregnancy” (Padawer), 48–54

U Ultimate Punishment (Turow), 149 Unborn Victims of Violence Act, 68 UN Food and Agriculture Organization (FAO), 381 Uniforms, military and asymmetrical warfare, 180–181 United Nations Millennium Development Goals, 365 Unnatural Selection: Choosing Boys Over Girls, and the Consequences of a World Full of Men (Hvistendahl), 283 Unsolicited advertising, 497. See also spam UN Universal Declaration of Human Rights, 382 Unwanted pregnancies and abortion, 69–70 U.S. Agency for International Development (USAID), 380 U.S. Census Bureau, 468 U.S. Federal Food and Drug Administration (FDA), 482 Utilitarianism aid to impoverished/poor people/countries, 370–371 and animals, 410, 413, 416–417, 419 and environment, 441, 446–447 expanded-circle approaches, 441 Utilitarians, 440–441 Utilitarian theories, of distributive justice, 220

518

Index

V van Gogh, 3 Veal, 406 Vedder, Anton, 492 Vegetarianism, 410, 412 Venter, Craig, 33 VeriChip, 482–483 Viability, 59–60, 62 Violence against women, 282 Virtually Normal (Sullivan), 353 Virtue, 367–369 Aristotle’s account of, 367 compassion, 367–368 suffering, 367 Virtue ethics, 440 Voluntary euthanasia, 116 Vulnerabilities, 269–270. See also race/ethnicity

W Walzer, Michael, 9, 174, 195–203, 384–390 Wapner, Ronald, 51 War conditions for entering into, 174–178 (See also Jus ad bellum) conduction of, 178–187 (See also Jus in bello) prisoners, treatment of, 187 Warhol, Andy, 233 Warwick, Kevin, 481 Weak version, Realpolitik, 193, 194 Wealth gap, and poverty, 366 Wealth redistribution, race/ethnicity and, 249 Weapons of Mass Destruction (WMD) as evil of war, 181–182 Wenz, Peter S., 442–449 “What Do Murderers Deserve? The Death Penalty in Civilized Societies” (Gelernter), 151–154 “What’s Wrong with Enhancement?” (Sandel), 40–42 When Brute Force Fails: How to Have Less Crime and Less Punishment (Kleiman), 139

Whistleblowing, 476. See also Wikileaks Wikileaks, 476–477 Wilson, Edward O., 434–438 Wilson, James Q., 352–357 Wired for War (Singer), 187 Wittgenstein, Ludwig, 63 WMD. See Weapons of Mass Destruction (WMD) Wolf, Naomi, 70 Wolf, Susan M., 108–112 Women. See also Gender educational opportunity to, 282 human trafficking, 282–283 pregnant, rights of, 64–65 (See also Pregnancy) reproductive freedom, 282 sexual exploitation, 282 violence against, 282 World Bank, 365, 374–375 World Development Report on Gender Equality and Development, 2012, 69 World Food Summit in Rome (1996), 381 World War II end of, and peace, 188–189 World Wide Web. See Computer-mediated world World Wildlife Fund (WWF), 452 Worse than War: Genocide, Eliminationism, and the Ongoing Assault on Humanity (Goldhagen), 182–183 Wright, Gordon, 181 “The Wrong of Abortion” (Lee and George), 77–85

Y Youens, Liam, 489

Z Zablocki v. Redhail, 349 Zhou, Peter, 483 Zygote, 59