Morals and Consent: Contractarian Solutions to Ethical Woes 9780773551817

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m o r a l s a n d conse nt

Morals and Consent Contractarian Solutions to Ethical Woes

m a l c o l m m u r r ay

McGill-­Queen’s University Press Montreal & Kingston • London • Chicago

©  McGill-Queen’s University Press 2017 I SBN I SBN I SBN I SBN

978-0-7735-5110-7 (cloth) 978-0-7735-5111-4 (paper) 978-0-7735-5181-7 (eP DF ) 978-0-7735-5182-4 (eP UB)

Legal deposit third quarter 2017 Bibliothèque nationale du Québec Printed in Canada on acid-free paper that is 100% ancient forest free (100% post-consumer recycled), processed chlorine free This book has been published with the help of a grant from the Canadian Federation for the Humanities and Social Sciences, through the Awards to Scholarly Publications Program, using funds provided by the Social Sciences and Humanities Research Council of Canada. McGill-Queen’s University Press acknowledges the support of the Canada Council for the Arts for our publishing program. We also acknowledge the financial support of the Government of Canada through the Canada Book Fund for our publishing activities.

Library and Archives Canada Cataloguing in Publication Murray, Malcolm, 1959–, author Morals and consent: contractarian solutions to ethical woes / Malcolm Murray. Includes bibliographical references and index. Issued in print and electronic formats. I SBN 978-0-7735-5110-7 (cloth). – IS BN 978-0-7735-5111-4 (paper). – I SBN 978-0-7735-5181-7 (eP DF ). – IS BN 978-0-7735-5182-4 (eP U B ) 1. Contractarianism (Ethics). I. Title. B J 1500.C 65M87 2017    171'.7    C2017-902449-3  C2017-902450-7

This book was typeset by Marquis Interscript in 10.5 / 13 Sabon.

Contents

Acknowledgments vii Preface ix part o ne  T he or e t i c a l B ac k g rou n d 1  The Consent Principle  3 2  Game Theory, Evolution, and Metaethics  31 3  Contractarian Lineage  55 part two   De at h 4  Euthanasia: End-of-Life Choices  67 5  Abortion: Fetuses and Rights  86 6  The Death Penalty: Killing Killers  105 part th r e e  Se x 7  Sex Trades  121 8  Unwanted Sexual Offers  144 9  Prejudice and Affirmative Action  168 part f our   B e ne f i c e nc e 10  Duties of Beneficence?  187

vi Contents

11  Animals and Obligations  205 12  The Environment and Its Future Tenants  220 pa rt fiv e   L i b e rt y 13  Genetic Meddling and Organ Sales  241 14  Terrorism and Torture  260 15  Blackmail and Imprudence  285 Notes 305 Bibliography 351 Index 385

Acknowledgments

I am amazed by the generosity of philosophers. They review others’ works with an attitude of sincere mentorship. Sure, they may wish to convert the author, perhaps to get the author to abandon philosophy altogether, and they may, at times, use trenchant rhetoric, but even at such times, they have given themselves wholly over to someone else’s project, often anonymously and without credit. Beyond my gratitude to anonymous reviewers, I have enormously benefitted from the selfless guidance offered me by the following philosophers, listed alphabetically: E.J. Bond, Nathan Brett, Todd Calder, Richmond Campbell, David Copp, Peter Danielson, Daniel Dennett, Susan Dimock, Joe Ellin, Claire Finkelstein, David Gauthier, Daniel Goldstick, Larry Hayworth, Melvin Lerner, Ann Levey, Duncan MacIntosh, Thaddeus Metz, Chris Morris, Jan Narveson, Kai Neilesen, Jack Sanders, David Schmidtz, Sasa Stankovic, Robert Sugden, James Stacey Taylor, Chris Tucker, Peter Vallentyne, Paul Viminitz, and Sheldon Wein. Thank you. The folk at McGill-Queen’s have been wonderfully patient with me. Mark Abley, in particular, has been marvellously supportive throughout the review process, and Shelagh Plunkett’s exquisite eye has managed to minimize my errata. I also appreciate the dedicated committee members of the Awards to Scholarly Publications Program (A SP P ). My ability to write Morals and Consent has been supported by the University of Prince Edward Island and their Time to Write program. Thanks also to my past family for having some effect in fashioning me, my present family for keeping me grounded, and my future family, depending on the efforts of Emma and Tyler. I love you all.

Preface

A morality rooted in the indefensible is worse than one rooted in the defensible. When we ask which morality would be nicest, then, we are asking the wrong question. We ought to ask, instead, what moral claims are we entitled to make. When we ask that question, we get – so I argue – something akin to contractarianism, specifically a contractarianism viewed through an evolutionary lens. Offering a contractarian analysis of standard moral issues is rarely done. Most applied ethics textbooks, and even some introduction to moral theory texts, exclude contractarian theory altogether, focusing instead on virtue theory, Kantianism, and utilitarianism. Those textbooks that do mention contractarianism tend to dismiss it in a sentence or two, typically because they conflate contractarianism with ethical egoism. My goal is to show why contractarianism is a far more viable moral theory than presently credited. In part 1, I define and defend contractarian moral theory. In parts 2, 3, 4, and 5, I apply contractarian analyses to contemporary moral issues. Part 1 concerns the theoretical background and defence of contractarianism. Chapter 1 presents the consent principle: “Any act is morally permissible if and only if all concerned parties (or their proxies) are competent and suitably informed, and voluntarily, or would voluntarily, consent.” After clarifying each component of the principle, I respond to the standard objections that account for the usual rejection of contractarianism. For example, no morality grounded in instrumental self-interest can generate duties of beneficence or apply to those unable to cooperate or who have nothing to offer would-be cooperators or to those who find themselves in a

x Preface

situation where they can get away with defection. In chapter 2, I provide the epistemic grounding for contractarianism by appeal to evolutionary game theory and metaethical analyses. The main idea is that we are not going to find morality as an objective fact in the world. As a result, whether we like it or not, we are left with a contingent, self-interested conception of morality, and contractarianism best fits the bill. By emphasizing evolutionary support for moral traits, I am more Humean, or Darwinian, than traditional rational contractarians. I believe this gives me an advantage in responding to some of the standard criticisms of contractarianism, perhaps especially the worry about generating duties of beneficence. In chapter 3, I defend my derivation of the applied contractarian principle from contractarian moral theory. For those outside the contractarian network, this may seem an unambitious project. The two are not obvious bedfellows, however. As mentioned above, contractarians focus on what reasonable people would consent to under suitable circumstances. I, on the other hand, suggest that such ex ante reasonable people would agree on a principle of consent. Part 2 examines three ethical concerns revolving around death: abortion, euthanasia, and capital punishment. I argue in favour of abortion and euthanasia, and against capital punishment. Not all contractarian thinkers (Christopher Morris and Jan Narveson, for example) agree with my view on capital punishment, and even some who do agree with my conclusion (Claire Finkelstein, for example) do so for reasons I think fail. The argument in favour of euthanasia is straightforward: let competent people voluntarily decide their own life choices. With abortion, I appeal to the empirical claim that pain sensation develops in the second semester of human fetus growth. The motive to constrain one’s own life to satisfy something that has no ability to currently feel pain, let alone have conscious interests, will be lacking in ex ante bargainers. I also follow Judith Jarvis Thomson in detailing how granting positive and negative rights to human fetuses still would not be enough to show how such rights would trump our own negative rights. Part 3 examines our moral thinking concerning matters related to sex. This includes pornography, prostitution, rape, date rape, quid pro quo threats, quid pro quo offers, lewd propositions, and affirmative action. Contractarians permit homosexuality, pornography, and prostitution but frown upon rape, date rape, quid pro quo threats, and quid pro quo offers. The concern over date rape is not whether it

Preface xi

is wrong but whether it occurs. I side more with Lois Pineau’s conception of communicative sex than she thinks contractarians allow. The contractarian concern over quid pro quo offers, meanwhile, cannot be for the standard complaints. Instead, I claim such offers are a  violation of prior contracted obligations. A teacher has a prior responsibility to record fair grades, for example. Contractarians cannot object to lewd propositions if we read them as a case of informing a potential cooperator. After all, proper consent requires proper information. Concerning affirmative action, contractarians can applaud the intention but despair of the practice. This goes against Narveson’s contention that contractarians cannot complain about prejudicial hiring practices. I argue that affirmative action is a procedural violation, and even if it works, and works quicker than simply trying not to be prejudiced, mere effectiveness is not sufficient for moral approval. Some vigilantism is quicker and more effective than due process. Part 4 concerns the matter of beneficence. I examine helping people in need, helping animals, protecting the environment, and protecting future peoples. I conclude that contractarians can recognize no duties of beneficence. While such a result is the reason many reject contractarianism out of hand, my argument focuses on why no ethical theory can sensibly maintain duties of beneficence. My arguments hinge on the metaethical arguments of chapter 2. The embarrassment I feel here is offset by a move my evolutionarily ­supported contractarianism can offer that rational contractarians ­cannot. I offer an “extended heuristic” account of beneficence. This does not make beneficence a duty, but it helps explain the strong feelings we have that it is a duty. Part 5 focuses on liberty. The importance of liberty makes appearances throughout, of course, but here I examine genetic enhancement, organ sales, terrorism, torture, and blackmail. Genetic enhancement and organ sales get approval from contractarians, whereas terrorism and torture do not. A Hobbesian line might seem to permit torture. If we can think of renegers to the contract as forfeiting their rights, then it looks like anything goes with them – including torture. I argue, instead, that self-interested ex ante bargainers will opt for due process, and this may severely curtail any opportunity for torture. In my  final chapter, on blackmail, I argue that contractarians cannot complain about standard cases of blackmail, since the “offer” satisfies the contractarian principle of informed, voluntary consent of all

xii Preface

competent, concerned parties. I soften this conclusion, slightly, by pointing out how imprudent succumbing to blackmail is, and I suggest that it is this imprudence we wish to protect ourselves from when we call blackmail immoral.

P art On e Theoretical Background

1 The Consent Principle

1 . 1 .  A H a p py Medi um Morality is not a mystery. It helps us get along with people. The alternatives are fighting and acquiescing. To fight is to risk losing. Given rough equality between people in intelligence, strength, and weaponry, the risk may be too great. Assuming one’s greatest desire is not the fighting itself, one could more likely achieve a better life for oneself while at peace. Sometimes people think the best way to achieve peace is to vanquish all one’s enemies. Such a trait arouses displeasure in others, and the fight is endless. Other people think acquiescence is the meaning of morality. Turn the other cheek, for example. Nietzsche was right to grumble about this conception of morality, although he was wrong to assume moral theory advocated it.1 An evolutionary account of morality, for example, could never find acquiescence an adaptation. Even if what you take to be good happens to accord with your acquiescing to someone else’s conception of the good, you could have done that without a rule to do so. If you want to turn the other cheek, go ahead. To demand that you must will benefit only the cheek slapper. We can disagree about what is important in life, while agreeing that we need the space that best enables us to achieve whatever it is we deem to be important. A rule of acquiescence is not going to give us that space. To follow the rule of acquiescence is to deny you have any space at all. Morality is the happy medium between the extremes of fighting and acquiescing. This is the view of contractarianism. The most common objection to contractarianism is that it fails to accommodate standard moral phenomenology. Our standard moral

4

Theoretical Background

phenomenology says that morality has intrinsic worth; it is not merely a tool to serve self-interest. Contractarians, however, begin by rejecting a metaphysical conception of morality. They argue that the standard moral phenomenology is epistemically unsustainable. We do not find morality as an objective fact in the world, we do not logically derive it nor do the gods implant it in us. We need to see what semblance to moral constraint we can get from purely natural means. That is why contractarians conceive of morality as a tool to serve our interests. It offers us guidelines that, if followed, will allow people with varying interests to live in as much peace as possible, assuming others reciprocate. I differ from the standard contractarians in that I do not think of morality as a rational invention. I prefer to conceive of morality as an evolved trait that benefits the ones who hold the trait. While subtle, this difference has two advantages. For one, I need not pretend being immoral is irrational for everyone in every situation. For two, I can better explain how our sentiments sometimes exceed the benefit for which the traits originated. Despite this difference, both rational and evolutionary contractarians call the “moral” trait the one that has the propensity to reciprocally cooperate. Reciprocal cooperators tend to take over the population when pitted against other sorts of trait holders. Reciprocal cooperation is the happy medium between fighting (noncooperation) and acquiescing (nonreciprocation). Reciprocal cooperators live long and prosper.

1 . 2 . T h e C o n s e n t Pri n ci ple To understand contractarianism as a normative theory, it must tell us what we morally ought to do in any particular situation. A normative principle should distinguish between actions that we must do, actions that we must not do, actions that we may do, and actions that would be nice to do. We have to understand what content results from conceiving of morality as a propensity to reciprocally cooperate. As primarily a metaethical theory, contractarianism is not concerned so much with the content of actual consent, but with what agents in an ex ante bargaining position would consent to were they rational. Deciding what the content of agreement would be for such alien creatures seems far too counterfactual to be of practical interest. I think this is shortsighted.2 Contractarianism provides a default structure from which normative advice is easy. What rational agents would



The Consent Principle 5

agree to in an ex ante bargaining position, I claim, is the following normative principle of consent: Do not do unto others without their consent. After all, doing to others without their consent would be to unilaterally defect, a trait reciprocal cooperation is supposed to thwart. An implication of the consent principle is to leave well enough alone, unless we have good justification to intercede. What we most want is to be left to do our own bidding. We see morality as a ­justifiable constraint on that freedom. Moral restrictions are justified to the extent that, without those restrictions, we see ourselves as worse off than with the restrictions. Absent sound justification for those restrictions, the default is to deem the particular activity morally permissible. The consent principle, do not do unto others without their consent, is an abridgement. A complete version of the principle requires a few riders. For example, for those unable to provide consent (the very young or the incapacitated, for example) or for those situations where eliciting consent is not possible (surprise parties and falling piano cases, for example) we can add, … or their reasonably presumed consent. When we speak of “consent,” we mean more than that agents agree. Their agreement must not be coerced, deceived, or manipulated. To avoid improper agreements, we demand that agents are competent and suitably informed, and have voluntarily consented. Adding these riders to the core principle of consent, we get the following full principle: Any act is morally permissible if and only if all concerned parties (or their proxies) are competent and suitably informed, and ­voluntarily, or would voluntarily, consent. The merit of the consent principle rests on how we define the concepts of “voluntary,” “competency,” “proxies,” “informed,” “concerned party,” and “consent.” While each allows some room for discrepancy, they are not hard to fathom under most circumstances in which moral matters apply. We will take them in turn.

6

Theoretical Background

1.2.1. Voluntary If I hold a gun to your head and say, “Do you want to give me your wallet?” and you agree, your “consent” is not genuine. Voluntary actions are neither coerced nor unduly influenced. To violate someone’s voluntary choice is to remove that person’s status quo as a viable option. The status quo is the state of affairs one was in prior to the interaction. A mugger does not increase voluntary choice by increasing the numbers of ways the victim can die if she does not hand over her purse. Only when the mugger allows the victim to keep her purse and her life does her voluntary choice remain. When we do not jump into the water to save someone from drowning, we do not interfere with the drowning person’s voluntary actions. Her status quo – the state of affairs she was in before the arrival of the passerby – remains the same: drowning. We might complain that the passerby is doing something wrong by not saving her but it is not due to a violation of her voluntary action. When we speak of voluntary consent, we mean actual consent. When we speak of someone who “would voluntarily consent,” we speak of hypothetical consent – consent a person would provide if knowing what we know. I see a piano is about to fall on a passerby and so tackle the passerby onto the asphalt. While the passerby did not provide actual consent, I can assume the passerby would have consented had she known what I knew about the piano. Since hypothetical consent is attributed to the other party by us, we may sometimes get that wrong. This allows a conflict between actual and hypothetical consent and, if left unresolved, creates an ambiguity concerning which takes precedence. We resolve the ambiguity, however, by distinguishing ex ante and ex post consent along with actual and hypothetical consent. Ex ante consent concerns one’s commitment to do something, and ex post consent concerns being bound by one’s ex ante commitment. These types can intersect, giving us the following four categories of consent: (i) ex ante hypothetical; (ii) ex post hypothetical; (iii) ex ante actual; and (iv) ex post actual. (i) Ex ante hypothetical consent relates to prudential considerations in a premoral context. I claim the consent principle captures the reciprocal cooperative move that would most benefit premoral agents. Ex ante hypothetical consent is purely theoretical and discussion of it resides at the metaethical level. (ii) Ex post hypothetical consent, on the other hand, resides at the normative and applied



The Consent Principle 7

level. When we throw a surprise party for people, we do so under the expectation that they would consent to our doing such a thing to them. Such consent is ex post hypothetical. At the ex ante level, then, hypothetical consent trumps actual consent. That an amoral being fails to actually consent to the consent principle does not kill the merit of the consent principle. At the ex post level, however, actual consent always trumps hypothetical consent. If I think Jones would consent to my throwing a surprise party for Jones despite Jones telling me she would not, my throwing the surprise party for Jones would be a violation of the consent principle. (iii) Ex ante actual consent occurs when we commit ourselves to future actions. My agreeing to meet you at 3:00 is an ex ante actual consent. In such cases, ex ante actual consent constitutes a promise and breaking it would be prima facie bad. (iv) Ex post actual consent relates to what current action I agree or disagree to do now. You ask me to lend you my shovel. My saying “yes” or “no” constitutes my ex post actual consent. When ex post actual conflicts with ex ante actual, ex ante actual will generally trump ex post actual. Imagine that at t1, C ex ante actually agrees to do acts x at t2, y at t3, and z at t4, on the condition that A and B similarly commit themselves. Assume A, B, and C have performed acts x and y (respective to each), but come t4, C balks and no longer agrees to do act z. In such a case, C is ex post actually reneging on doing z. Assume also that A and B would be negatively affected from C’s no longer “consenting” to do z but that they would not have been negatively affected had C simply declined the offer at t1. In this case, contractarians do not wish to say C’s “actual” consent trumps C’s earlier “hypothetical” consent. Instead, we say C has actually ex ante consented to do act z, and thus her actual ex post nonconsent is deemed a reneging (barring countervailing circumstances, detailed in my discussions on euthanasia (chapter 4) and date rape (chapter 8), for example). 1.2.2. Competency Competency is a range. One person may be low on the competency scale, another quite high on the competency scale, and, presumably, the norm will be somewhere in the middle. Moreover, competency will vary within a person from situation to situation. A generally competent person may not be competent in a particular situation. Perhaps shock unravels her mental processing capacities. Age also

8

Theoretical Background

determines competency. Whatever age we set, however, there will be some above the age who are incompetent and some below the age who are competent enough for the particular decision. Currently in Canada, we do not deem a fifteen-year-old to be competent enough to agree to have sex with anyone, but we do deem her competent enough to agree to medical surgery. Are we just being prudent, or is the risk of sex worse than the risk of surgery? I will not attempt to answer this question. For now, it suffices to recognize the importance of allowing competent individuals to consent to actions that concern themselves alone, while recognizing that incompetent persons’ consent cannot quite count as proper consent, even if we admit a grey area where we may improperly classify someone’s competency. On that note, competency cannot be set at too high a mark, lest we rule as inadmissible too many people’s otherwise free actions. Contractarians would like the competency mark to be as low as possible. They want competency to be the default position, to assume cooperators are competent unless something in their behaviour or age arouses suspicion. Then we check more closely. The danger, of  course, is letting nonstandard behaviours count as evidence of incompetence. Someone’s deciding against a lifesaving blood transfusion based on what we take to be a peculiar reading of an archaic and poorly translated book might arouse our suspicion of incompetence. Lottery playing might also signal some sense of incompetence. When we assess competency, we ought to focus only on the particular action not search one’s life history or belief system. Does one understand the consequences of not having a blood transfusion now? If yes, we call her competent. We let people live their own lives as much as possible. 1.2.3. Proxies Occasionally the concerned party is not competent. The individual is too young or too incapacitated. Our doing things to such individuals will be permissible if their proxies voluntarily consent. A proxy is a guardian who has the legal authority to speak for those incapacitated. Typically, proxies will be the parents, spouses, siblings, or children of the incapacitated. We want the designated proxy to be the best one to speak for the incompetent. For example, I cannot come unbidden into your home and tell you what time your children should go to bed, but you can tell your children when to go to bed. Difficulties



The Consent Principle 9

with proxies exist. How can we be sure that proxies speak for their ward’s interests rather than their own interests? With euthanasia, for example, is pulling the plug something the incapacitated would really have wanted, or is it just convenient for the beleaguered proxy? Perhaps the patient really is in favour of pulling the plug, but doing so conflicts with the proxy’s values. Imagine a parent (the child’s proxy) permitting an adult to have sex with her daughter for money. Must contractarians go along with the transaction?3 If we allow proxies to decide such matters, are we allowed to intervene when we think their decisions are not in the interests of their ward? We want proxies to be able to speak for their incompetent wards, but for us to charge parents with abuse and neglect, for example, we need to hold them to higher standards than we would if the proxy were deciding solely for herself. 1.2.4. Information To be informed is another relative concept that will vary across ­different situations. How informed am I when I buy toothpaste? Probably not very much, since I have decided not to waste my time seeking information on everything. Does this undermine my consent? One hopes not. To allow one not to consent to seek further information, we shift the burden from the buyer to the seller. The seller has to provide sufficient and relevant information to the buyer and deliver the information in terms the particular buyer can understand. Putting the product information in Chinese may be fine in China, but not in Canada. Even still, it cannot be a requirement to provide every detail. When I try to sell my car, the fact that my aunt once sat in the passenger’s seat is irrelevant. That the engine block is cracked is relevant. To distinguish relevant from irrelevant information, we ask, “Would the reasonable buyer likely change her mind if she had this information?” If yes, the seller should impart the information. If no, the seller need not worry about it. As with the competency criteria, we may make mistakes. I might think that my aunt’s presence in the car is irrelevant to you even when, unbeknownst to me, it matters to you. Perhaps you have deep psychological associations with your aunt that taints any object associated with aunts. Of course, when the buyer’s preferences are nonstandard, it is worth it to the buyer to seek the relevant information. (“Has any aunt ever sat in this car?”) What counts as standard will, of course, vary. The important thing to note,

10

Theoretical Background

however, is that it can never be an excuse to fail to confide information for the reason that the buyer would never have agreed to it had she known. 1.2.5. Concerned Party Moral agents are a subgroup of those entities or objects with moral standing.4 Those with moral standing are those objects or entities toward which moral agents owe moral consideration. Moral agents are those entities who have the wherewithal to provide moral consideration. As far as we know, humans are the only ones who satisfy that criteria. This does not mean that only humans have moral standing. Rather, only humans can be said to have moral duties. When a boa constrictor strangles a child, we do not say that was an immoral act. When a competent human does, we call it immoral. When an infant scribbles over a Vermeer, we do not call the infant immoral. When a competent human scribbles over a Vermeer, we may call the culprit immoral. Who or what has moral standing is an important question. A common complaint is that contractarians’ inclusion criterion for moral standing is not wide enough. I will address that worry in section 1.4.4. Here, I wish to clarify why not everyone’s nonconsent necessarily matters. Not all moral agents are a concerned party to all transactions of all moral agents. What we want to know is whose complaint about our action counts, and whose does not count. If we define a concerned party too narrowly, we may be morally unable to prevent others from doing things that adversely affect us. If we define a concerned party too broadly, others will have veto rights on actions that concern us alone. Minimally, a concerned party is one who stands to be adversely affected by the transaction. A woman’s random shooting of her gun may or may not cause harm to her neighbour, but, since the chances are high that the neighbour will suffer, the neighbour should count as a concerned party to the woman’s action. If the neighbour does not consent to the practice, the woman is immoral for shooting her gun. Two thugs agree to rob a passerby. That we have agreement here does not make the transaction moral, since the passerby is a concerned party who was not part of the agreement. Normally this distinction should suffice, but we can imagine cases where A and B agree to do something that C does not agree to because of adverse effects on C, yet where we feel C is not a concerned party. Perhaps A and B agree



The Consent Principle 11

to engage in gay sex, and C, a homophobe, claims that A and B’s homosexuality adversely affects C.5 My feeling is that C is no more a concerned party here than a white racist bothered by a black man’s presence in the local grocery store is a concerned party to the shopping habits of the black man. But how do I maintain that? We may suffer adverse affects in two ways: physical and psychological. Physical harms include any harm to the body and one’s property including financial harms. Psychological adverse affects include any other felt harm, which may include social harm, such as harm to reputation.6 Each type of harm requires a different criterion concerning whether the agent suffering the harm constitutes a concerned party. Anyone suffering or expected to suffer physical adverse affects is a concerned party and her consent is required. A neighbour of someone randomly shooting her gun is clearly a concerned party in this sense, as well as someone downwind of secondhand smoke. My use of your lawnmower entails that you are a concerned party by this definition, since what I am using is your property. If the adverse affect is psychological, however, we need an added criterion. When I repeatedly phone you in the night in order to cause you distress, I am not blameless merely because we can cite no physical damage or the use of your property. When I publish lies about you, this harms your reputation, and I am culpable. In both cases, I have inflicted psychological harm on you, and you would definitely be a concerned party to my actions. That is, your consent to my actions would be required, and your nonconsent makes my actions immoral. On the other hand, the homophobe also suffers psychological harm knowing that her neighbours are gay. To deny that the homophobe counts as a concerned party here is to recognize that psychological harm alone is not a sufficient criterion for being a  concerned party. We do not want to allow any psychologically affected objector to any transaction to count as a justifiable reason to intervene in that transaction. Someone’s being psychologically bothered by your style of clothing or the way you walk cannot normally count as reason to prevent you from walking and dressing. We need to distinguish when A and B’s activities cause C psychological distress from activities of A and B that somehow require C. A phone prankster requires the pranked to make his prank. A libeller requires the libelled. Thus the pranked and the libelled count as concerned parties. The gay couple, however, require neither the neighbour nor her property to pursue their ends. Therefore, despite the homophobe’s

12

Theoretical Background

psychological distress, she does not count as a concerned party to her neighbour’s sexual relations; her lack of consent is irrelevant. Combining the physical and psychological conditions, we may define a concerned party in the following manner: If B suffers or is expected to suffer physical adverse effects because of A’s action, or A requires B’s property, B is a concerned party to A’s act. If the adverse affect is psychological or social, B is a concerned party only if A cannot fulfil her desires without use of B’s person or property.7 Notice that we can use people without causing them adverse effects, and occasionally, our using people may benefit them despite their nonconsent. An example of the first case occurs when A borrows B’s lawnmower without B knowing but refills the gas and sharpens the blades before returning it. An example of the second case occurs when A’s mugging B causes B to miss her flight that subsequently crashes. Despite A’s intent, A makes B better off than B would have been absent A’s intervention. If we focused merely on whether someone was made worse off, we could not complain about A’s action in either case. Under the use criterion, however, if A acts without B’s consent, A’s act is immoral. Meanwhile, so long as secondhand smoke causes physical damage, nonsmokers are concerned parties to nearby smokers’ actions. Moreover, the homophobe busybody is not a concerned party, but the victim of the random shooting is. Lastly, victims of all the standard immoral acts such as murder, theft, arson, rape, and assault count as concerned parties by this definition. 1.2.6. Consent Consent should be understood more as a process than an act. Of course, it is an act to the extent that before the act of consent, one has not consented. Prior to consenting to buy a snowblower, you have not bought the snowblower. My emphasizing process is to recognize the point at which we can reasonably retract our consent. My consent in the living room does not mean I cannot decline in the bedroom. One is not committed merely by saying “yes” once. We want to make sure the other’s consent is genuine. Genuine consent is more likely the longer the person has to reflect on the matter. Sometimes



The Consent Principle 13

time is not a luxury we have. If a piano is falling onto you and I have enough time to push you aside, I am justified in doing so even though I did not ask your consent nor give you a day or two to think about it. Also, if the implications of the consent are minor, a simple “yes” suffices. When a server asks you if you want some pie and you say “yes,” she is not at fault for simply handing you the pie as opposed to asking if you wish to reflect upon it longer. With active euthanasia, however, your saying “yes” now cannot commit you to receiving a lethal injection despite change of mind later. Nor can your reciprocating a kiss in the living room commit you to having sex in the bedroom. We need another clarification about “consent.” When I lose a bet and have to hand over my money, or when the state punishes me for my transgression, I may not agree to those actions that use me and adversely affect me. Since I am a concerned party and yet do not consent, should I no longer have to pay my debts or take responsibility for my crimes? When we speak of consent, therefore, we have to distinguish between ex post and ex ante consent.8 When I make the bet, I agree ex ante to pay up if I lose despite my likely ex post disinclination to do so at the time. Without that ex ante consent, no one would negotiate with me. Similarly, those who enter clubs, churches, and associations take on ex ante agreements to abide by house rules and to accept the consequences for violating them. That they do not agree with the consequences ex post is irrelevant, even though they are concerned parties. If they do not agree with them ex ante, they will not be motivated to join in the first place.

1 . 3 . P ru dence To be prudent is to endorse only those actions that tend to do one well, all things considered, given one’s preferences. Prudence can vary in degree, not only between people but within the same person, even over the span of one day. Some people are imprudent. Some people are so overly cautious they fail to satisfy any of their considered preferences, and when this happens they are as imprudent as someone who is overly rash. As with other virtues, prudence is a happy mean. As with other virtues, people have to learn how to become prudent. And, as with other virtues, knowing that prudence is useful is different from knowing how to be prudent under life’s

14

Theoretical Background

varying conditions. One cannot simply copy another’s prudent actions, since prudence varies according to different subjective desires and preferences. Still, we can understand prudence as recommending modes of behaviour that will tend toward the satisfaction of one’s own considered preferences. Contractarianism is a prudence-based moral theory. It explains why some socially sanctioned moral conduct is worth it to a wide range of individuals compared with no moral system at all. Since the comparison is to no morals, we must appeal to amoral motivations. In brief, you do better at whatever you want without a knife in your back.9 To get to such a state, you have to agree not to put a knife in others’ backs. That is, you would have to agree to a system that would punish you if you put knives in others’ backs. Once the enforcement system is in place, you have a prudential reason not to put knives in people’s backs, but you also have a prudential reason to agree to such an enforcement policy. Such reciprocal agreement based on self-interest is the origin of morality. Any moral claim entails a restriction on agents’ freedoms. Since few like their freedoms restricted, we need to justify those restrictions. The only restrictions self-interested agents would be willing to endorse are those in which general adherence to such restrictions have net benefits to the individuals themselves. Otherwise, the deal is off. The applied contractarian principle passes this basic test. By all adhering to the consent principle, no one will be forced to do with their bodies what they do not want. The cost to A is that A can no longer do to others without their consent. A will deem the price worth paying if others reciprocate by not doing to A without A’s consent. That is, assuming general reciprocity, morality is worth A’s adherence, if more harm can come to A from others doing ill to her than the benefits she may derive from doing ill to others. In practice, the basic moral restrictions against murder, assault, theft, rape, torture, and the like are all cases where the perpetrator has violated the consent principle. If we discover that no one has violated the consent principle, then we change the moral descriptor of the act. As table 1.1 shows, when proper consent among all concerned parties is in place, it is not assault but a boxing match; it is not theft but the receipt of a gift; it is not rape but sex; it is not torture by tooth extraction but a visit to the dentist. In all cases of moral wrongdoing, someone did something to someone else without the latter’s consent.



The Consent Principle 15 Table 1.1  The role of consent With consent

Without consent

boxing gift sex dentist

assault theft rape torture

In particular cases, we may legitimately wonder whether someone’s action was properly voluntary or whether a proposer provided sufficient information or whether an agent was properly competent or whether a naysayer was a concerned party. Nevertheless, meaningful discussion at that level presupposes the moral permissibility of voluntary actions among all competent, informed, concerned parties.

1 . 4 . O b j e c t io n s and R epli es Applied contractarianism is not without its critics. 1. The Ring of Gyges problem highlights why self-interest is an inadequate basis of morality. We can always imagine cases where self-interest and morality go separate ways. 2. Problems may exist when we can point out cases where common folk say “immoral” but applied contractarians say “moral” or the reverse. 3. Problems may concern the paucity of the theory to account for imperfect duties such as charity and welfare. No narrow concern for self-interest can seem to generate duties of beneficence. 4. Problems may concern the scope of who or what has moral standing. Certain groups seem to be excluded from moral protection if morality is predicated on those able to offer reciprocal cooperation. 5. Problems may concern an entrenched conservatism. People reach agreements based on their relative bargaining power, but they do not come to the bargaining table with equal power. Nothing in the consent principle seems to allow complaints about initial unfairness. 6. Problems may exist concerning a reverse order. Is x moral because we agree to it, or do we agree to x only on the condition we take x to be moral? If the latter, then the consent principle does not explain morality but presupposes it. 7. Problems may exist concerning the metaphysical conception of individual self-­ interest that contractarians unabashedly employ. It presumes, so the complaint goes, a complete detachment from one’s social milieu and as a result, is predicated on a falsehood.

16

Theoretical Background

1.4.1. Ring of Gyges Glaucon and Adeimantus introduced the Ring of Gyges problem in Plato’s Republic. If you have a ring that can make you invisible, you can get away with murder and theft, for no one could ever know that you were the culprit. A morality based in prudence cannot explain why you ought not to steal even when you can get away with it. Normally it is not prudent to interfere with others, since they will retaliate. But who can retaliate against you when no one can possibly know it was you who did the deed? Meanwhile, while you are not invisible, you can enjoy a fine reputation and social life. You have the best of both worlds. In such a case, it would not be prudent to give up your duplicitous ways. A theory that tells you morality is merely a subset of prudence cannot call your thieving and murdering immoral. Since any moral theory ought to call murder and thieving immoral, morality cannot be a subset of mere prudence. If morality is strictly instrumentally self-interested, one would have no reason to be moral should one find oneself in a situation where one can get away with immorality and avoid all the usual costs of immorality. Hobbes and Hume teach us that any moral strategy is a conditional strategy. If situations were different, behaving in ways we call moral today would be folly. Given the conditionality of morality, conditions based on circumstances in which one finds oneself, we can always come up with scenarios where you would be rational to deviate from the moral code. That these circumstances might not apply in a specific case, or might never apply in your world, is irrelevant to what rationality recommends under such circumstances. Noncontractarians make the mistake of assuming that, therefore, morality must be something outside the set of prudence. They look for a reason to be moral that would apply in any circumstance. No one who conceives of morality as an evolutionary trait can fathom such a request. Circumstances always matter for trait selection. To search for a nonconditional essence of morality reveals a flawed conception of nature. Ever since Glaucon and Adeimantus, however, Hobbesian contractarians have seemed reluctant to admit this.10 Let us distinguish Fooles from fools. A Foole is one who correctly believes he is in a situation where defection pays more than cooperation, such as having an invisible ring.11 By contrast, a fool is one who incorrectly thinks she is in a situation where defection pays more than cooperation. To say that morality generally pays is



The Consent Principle 17

relevant to fools, but it is irrelevant to the Foole, since the Foole is not in the circumstance in which morality pays. Similarly, Hume’s knave admits that morality is a good rule but “liable to many exceptions” and the wise man avails himself of such exceptions.12 Of course, whether you are a Foole or a fool may be hard to tell. Being invisible and thinking yourself invisible are different things. Prisons are full of fools who thought themselves Fooles. However sobering this lesson is for the most of us, the Ring of Gyges problem presupposes the Foole is really a Foole and not a fool. The Foole’s strategy is to cooperate with other cooperators when defection will cost in the long run but not otherwise. To say, “Ah, but you’ll likely make mistakes that will cost you more than the benefits,” is a fine reply to us normal fools prone to make mistakes but not for those special agents who really do have the capacity to get away with murder and thievery, at least when they have the Ring of Gyges. Contractarians ought to embrace this implication; it follows, after all, once we admit that morality is conditional. So, I have conceded that contractarianism cannot speak to the Lydian Shepherd. Have I thereby conceded that contractarianism is wrong? Absolutely not. My response is not a reply to the Lydian Shepherd or the Foole. It is a reply to those who think Fooles and Lydian Shepherds need a reply. The Foole points out that basing morality on individual prudence is not going to sway those persons who can do better, prudentially speaking, by being immoral than by being moral. Many moral philosophers have thought that if the Foole is right about that, there goes the hope of basing morality on prudence. I think the Foole is right (assuming the Foole is an individual who really can reap an overall net gain by immoral behaviour in this particular situation, as opposed to those fools who wrongly think they can so gain), but this hardly unravels the prudential basis of morality. What would unravel the prudential basis of morality is if the odds favoured the Foole. They do not, at least presently. The prudential basis of morality would also unravel if morality was supposed to be rational for all agents, no matter their situation. Glaucon and Adeimantus wanted Socrates to show them that the Lydian Shepherd, armed with the Ring of Gyges, should still be moral. That is like demanding medical practice must always work for all ailments. The evolutionary depiction of morality’s genealogy makes no such grand claims. Those grand, metaphysical claims about what morality really is require epistemic backing (see chapter 2).

18

Theoretical Background

When contractarians claim that reciprocal cooperation (aka “being moral”) benefits us, they mean (or ought to mean) it as a statistical claim. It speaks to most agents under most circumstances. That we can find a particular agent outside those circumstances is not a refutation of the statistical claim. A noncancerous smoker does not refute the claim that smoking (generally) causes lung cancer. Similarly, although some people may be in a circumstance where immorality is better than morality, the odds are against you being one of those people. Moreover, when we say being moral benefits the moral agent, we mean in the long run, not necessarily in the short run. A moral agent will not necessarily benefit from any particular moral act. Thus, finding that being moral does not pay in one case (being invisible, say) does not show that being moral does not generally pay even for that individual. Are contractarians no longer talking about morality proper? It depends on what you mean by “proper.” Consider the following analogy. Magic is real if we understand magic as misdirection and not as magic, which is unreal. After our explaining the trick, only a child would say, “But that isn’t magic!” To such children, we might say, “Well, it’s not magic in your sense. In your sense no magic exists. In our sense, we have perfectly explained the reality of magic.” To think Ring of Gyges problems counter contractarianism suffers the same confusion. Invisibility would be a problem for a conditional morality if morality is properly unconditional. The Ring of Gyges problem doesn’t establish the unconditionality of morality; it merely presumes it. 1.4.2 Willing Cannibal Meat If we find a case where applied contractarians say “moral,” while our intuitions say “immoral,” we have a prima facie reason to doubt the application of contractarianism. William Gass offers such a case.13 What would we say if Mr Gourmand approaches a stranger and asks permission to chop her up, roast her, and eat her? She, knowing the implication of the request, obliges. According to consent theory, we should allow the transaction. To normal people, however, such an act  is morally atrocious, whether Mr Gourmand and the obliging stranger agreed to it or not.14 If normal people have the right picture of morality, then consent theory is wrong. We need not resort to hypothetical scenarios. A real case exists. In December 2002, in



The Consent Principle 19

Germany, Armin Meiwes advertised for “a young, well-built man who wants to be eaten.” Remarkably, several people responded, but after finding out that Meiwes was serious, they opted out. Importantly, Meiwes allowed that. He only wanted to eat someone who fully understood the plan and autonomously consented. One such person was found. After he was informed of, and had accepted, the terms, Meiwes killed and ate Bernd Brandes.15 However gruesome the tale, the applied contractarian principle tells us that we have no moral right to intervene. Eating the obliging stranger is a morally permissible event. What it is not, however, is an instance that can properly capture our moral intuitions.16 The moral outrage we feel is based on our inability to believe that all features of the consent principle were satisfied in such a case. Our intuitions dictate that the stranger, if competent, would not acquiesce to the horrible request. Being unable to dismiss this normal intuition, we feel moral outrage in the continuance of the act. Yet if the stranger does not oblige, or is not competent or properly informed, our moral outrage is justified under contractarianism. Normally we understand competency as the default. Reasons for removing our ascription of competency to someone involves that person’s inability to comprehend the logical consequences of the agreement. If a stranger’s consent to be stabbed repeatedly in the neck and then eaten counts as such a case, then our moral outrage against this “contract” is perfectly consistent with contractarianism. Of course, we do not want to fall into the trap of assuming A is incompetent merely because A does not share our preferences. Morality does not advise us about what negotiations we must enter, only what to do once we enter strategic negotiations. This is why we cannot fault an agent who properly consents to be eaten, although we would have difficulty believing it. At any rate, we can complain about eating someone who does not so agree. 1.4.3. Imperfect Duties, or the Problem of Altruism Moral philosophers like to distinguish between perfect and imperfect duties.17 A perfect duty is one where it makes sense to punish renegers. Our duties not to murder, steal, and assault are perfect. We expect and demand punishment for violators. Other kinds of “duties” are things we might actively encourage in others but not go as far as to punish failure to do. Being charitable is a good example of an

20

Theoretical Background

imperfect duty. We do frown upon the chronically uncharitable, but we do not go around punishing those who were not charitable today. A common objection against the consent principle is that it may happily derive perfect duties, but it can have nothing to say about imperfect duties. Perhaps I am drowning. Many feel that you would have a moral obligation to save me, if suitably placed and able. The applied contractarian principle does not seem to speak to that. It says only that if you agree, go ahead. It does not tell you that you ought to agree. It does not mandate any specific content of your agreements. Internalizing our moral disposition to comply with agreements does not in any way commit us to make certain agreements. It says only that, if you agree, you are bound to follow through – assuming the other does so as well. Compare: I ask for your jacket. You might agree and give it to me, but you are not at fault for disagreeing with my suggested arrangement. You can walk away and feel morally innocent. Why, then, can you not do the same given my request for you to help save me from drowning? To say here is an agreement you ought to make seems unavailable to contractarians. We may call this worry the problem of beneficence, and I will address it more fully in chapter 10. For now, I offer a few preliminary replies: (i) the protection argument, (ii) the insurance argument, (iii) the assurance argument, and (iv) the heuristics argument. (i) The Protection Argument. Throwing a few crumbs to the destitute will decrease the chances that the have-nots will attack the haves, and it is a less costly than erecting electric fences, hiring guards, and installing video surveillance. However strategically sound such a move is, its moral outcome is hardly morally motivated. Naysayers complain about its nonmoral motivation, whereas that is precisely what contractarians want. Contractarians are interested in explaining our moral sentiments by appeal to nonmoral premises. That a particular derivation has no moral premises is a sign of success not failure. So the complaint is misguided. Still, the protection argument would not quite work for explaining why we feel a duty to save someone from drowning. After all, he will be less likely to attack us if he is dead. (ii) The Insurance Argument. Having a safety net is prudent lest we ever be in trouble ourselves. I will accept the cost of paying into a welfare program at the risk of my never needing welfare because if ever I do need it I will be glad it is there. Similarly, I will be willing to save strangers from drowning on the expectation that someone will



The Consent Principle 21

save me should I ever be in a state of drowning. Such an argument is less Scrooge-like than the protection argument but, consistent with the contractarian picture, relies solely on self-interested reasons to buy into a welfare scheme. While such thinking may convince many self-interested agents to buy into a welfare program, others might think expected utility counts against it. After all, an argument for buying a lottery ticket has the same logic: Accept the repeated cost for the tickets on the off chance that you will win, compared with Accept the continuous cost of a welfare program on the off chance that you will need welfare. Since buying a lottery ticket is imprudent, buying insurance to protect against unlikely events may also be imprudent. (iii) The Assurance Argument. The assurance argument allows that we have natural sentiments to help people. Grounding a duty to help on natural affections seems, at first glance, to be superfluous. After all, our natural desire for sex does not mean we think society ought to force us to have sex. Similarly, admitting a natural desire to contribute to welfare should not entail our agreeing to be forced to contribute. Force only makes sense when we lack natural inclinations. Still, despite our sharing a preference for something, we may require an extra motivation to act on it. Often enough, despite our wanting to do x, we know that we will probably not do x. Wanting to exercise is not a sufficient condition for exercising, for example. A couple’s wanting to go on a date with each other does not by itself tell them where they should go on that date. Individual preferences alone are insufficient to solve coordination problems. This is one kind of problem that an ex ante agreement can solve. Despite our desire to make agreements, we also know that the lure of profit or sloth will tempt us to renege. Likewise, despite our natural inclinations to help, we may require assurance that our help will (a) not be wasted and (b) not disadvantage us relative to nonhelpers. Both assurances may be satisfied if we ex ante enter a pact with other like-minded individuals similarly thwarted from helping when they desire. If we internally hard-wire ourselves to help, this will increase the odds of successful helping without disadvantaging us, since we are all (or most of us) equally disadvantaged by our generosity.18 The assurance argument does the following things: 1. It admits that we have natural sentiments to help. 2. It shows how we may nevertheless require an ex ante agreement to commit ourselves to help despite our natural sentiments. 3. The duty comes from being

22

Theoretical Background

bound to an agreement, and so we have no cause to worry about question-begging or is–ought fallacies. 4. The agreement is rationally motivated for all persons who satisfy the two conditions of (a) having natural sympathies to help and (b) being thwarted from helping voluntarily due to lack of assurance.19 One difficulty is knowing whether we all do have a natural desire to help others. Social-psychological research on bystander intervention indicates that our folklore intuitions about this are faulty. Those who believe that the world is a just place to live believe that good things happen to good people and bad things happen to bad people. Such individuals will be less likely to help others in need.20 After all, those in need must deserve their fate. Otherwise, contrary to the belief in a just world, bad things can happen to good people. This may explain the various attribution errors nonhelpers employ. Rather than assuming a poor woman collapsed on the sidewalk is a victim of misfortune, thinking of her as the victim of drink is more convenient. Conversely, those less inclined to think the world is naturally just are more inclined to help others. If we can generalize from this, and if we wish to increase helping behaviour in the world, we should become less religious, not more. Apart from one’s belief about the structure of the cosmos, a variety of situational factors can impede helping. For example, the more potential helpers there are lessens the chance of someone’s helping.21 “If no one else is helping, I would be a fool to help,” captures the thought process. Alternatively, we may find ourselves preoccupied. J.M. Darley and C.D. Batson devised a study where they sent seminary students across campus to give a lecture on the Good Samaritan, their path invariably crossing a man crying out for help. Alas, the seminary students were already late for their lectures, and were, after all, preoccupied with fine-tuning their inspiring speeches. Few of them stopped.22 The social-psychological research noted above does not show that we have no natural sympathies to help; it shows merely that we have further obstacles to acting on these sympathies (if we have them) than just the assurance problem. Nevertheless, it is within the consent theorist’s purview to ex ante agree on rules that would force us to comply with these rules ex post even when, at the time of being forced to comply, we would rather not. Such reasoning, however, does not extend to forcing people to abide by these rules who would not voluntarily agree to them in the ex ante position.23



The Consent Principle 23

(iv) The Heuristics Argument. Following on the assurance argument, we can take for granted that people tend to have natural sentiments of beneficence. From an evolutionary perspective, we must explain that human trait in terms of fitness. Minimally, if helping others were maladaptive to us, we would imagine that trait to have been wiped out. Explaining why a gene would help other genes survive at its own expense (one definition of altruism), however, seems a hopeless task. We would have to explain the beneficence trait, if it exists at all, in terms of the trait holder’s own genes. One plausible account is by noting the success of reciprocal cooperators across games. A reciprocal cooperator, admittedly, is not an altruist. She cooperates for a net gain, never for a net loss. Still, to reap that net gain, she must preserve her reputation for being a reciprocal cooperator. The drive to preserve her reputation for cooperation may carry over into other areas where she does not need to cooperate. In particular, A’s failing to be altruistic may signal to another reciprocal cooperator, B, that A may not be a reciprocal cooperator, after all. This may be false, since no reciprocal cooperator need commit to every proposal that comes her way. The failure of a reciprocal cooperator being altruistic, however, can be enough of a signal to potential cooperators to read the nonaltruist as a noncooperator. If this norm were itself fostered through imitation and social censure, two very strong influences in cultural evolution, then any reciprocal cooperator would be motivated to be altruistic, if the cost for helping was not excessive. That is, agents willing to bind themselves to obey perfect duties will be moved to be charitable for the purposes of maintaining one’s reputation for being a cooperator. This is the picture of altruism from the vantage of an evolutionbacked consent theory and the one I employ in chapter 10. 1.4.4. Moral Standing The worry in section 1.4.3 concerned an inability to account for a duty to help others. The worry about moral standing focuses on whether or not we have any reason to forbid harming certain others, namely those excluded from the contractarian sphere. In my abbreviated consent principle, I say “do not do unto others without their consent.” In the fuller version, I change “others” to “concerned parties.” Such a narrowing follows contractarian theorizing but tends to  arouse suspicion. It follows contractarian theorizing because

24

Theoretical Background

contractarians conceive morality to be a natural trait that satisfies the trait holders. They do not see morality as a free-standing fact in the world. The contractarian origin of rights resides in our recognizing the benefit of reciprocal cooperation. That is, if we each agree to cooperate with other cooperators, we can do better for ourselves compared to no such agreement. From such an origin, accepting a duty towards other reciprocal cooperators does not imply a similar duty towards any entity that cannot reciprocate comparable duties. That excluded group includes all nonhumans (we assume). If that is not bad enough, it also excludes many humans. Accepting a duty to certain humans does not itself entail a similar duty to other humans. Two types of omitted humans exist for contractarians: those who decline to seek peace and those weak and disenfranchised persons with whom our cooperation offers us no advantage. We can exploit such persons without personal cost. That the first group is excluded is not typically a concern, although issues about what rights they may retain while we punish them will be discussed in chapters 6 and 14. My concern here is with the latter group. If contractarians cannot ascribe rights to the disenfranchised, is our coercion and abuse of them permissible? As David Gauthier admits, “[a]mong unequals, one party may benefit most by coercing the other, and [contractarians] would have no reason to refrain.”24 People often view that kind of admission as a reason to reject contractarianism. We tend to believe that we owe everyone – even those who offer us no bargaining incentive – a duty of protection or at the very least respect. That is, we tend to believe things other than our bargaining partners have moral standing.25 If we believe Hobbes’s line about how humans, at least, tend to be equal enough,26 Gauthier’s antecedent is rendered false. Those that fall far below the line of being able to offer anyone anything tend not to pass on their genes. So, over time, we would expect a rough homogeneity in an ability to offer others something. Even ignoring that, contractarians can still offer protection to those with whom we have no reason to bargain. They bring nonmoral agents under moral protection when moral agents may be unwilling to cooperate with others who do not accord protection rights to their children, pets, livestock, and nonreciprocal relations.27 That you stand to gain by bargaining with me means you may have a reason to refrain from coercing or harming objects of my interest. Objects of my interest will include my pet, my farm animal, my child, my mentally challenged uncle, and my



The Consent Principle 25

snowblower. Since I value these things, given that I have them, when you negotiate with me, you will now have to take them into account. Perhaps we cannot say you have a duty to my hamster or child, but you have a duty toward my hamster or child, given your incentive for my reciprocal cooperation.28 Granting protection rights to children in the same indirect way as we may protect hamsters, or granting protection rights to hamsters in the same indirect way we grant protection to snowblowers, causes unease in many. People tend to believe that children, especially, and nonhuman animals, owned or not, have intrinsic value; snowblowers do not. This objection misses the metaethical component of the contractarian argument I raised in section 1.1. Contractarians demand a naturalistic epistemology. As a result, they are loath to admit anything can have intrinsic value in the way the above objection presumes. When I say anything, I mean not only children and hamsters, but paradigmatic moral agents as well. This is not to say that contractarians reject the distinction between intrinsic and instrumental value. Only that such value resides solely in us, the evaluators, and not in the object being valued. Value does not exist, say the moral naturalists, outside of an appraiser. The concept of a thing being valuable in itself is a metaphysical absurdity. To complain, therefore, that contractarians fail to find in children and hamsters the crucial moral ingredient we grant to ourselves is false. We do not ascribe it to ourselves, either. Denying that children have intrinsic value is not to deny that we value children. Even if we do not ascribe intrinsic value to our children, let alone to ourselves, we do not like to think of our children in the same way we think of our snowblower.29 In this sense the value we place on children is still greater than the value we place on snowblowers or rats. Fair enough, but this is easily accounted for by admitting a difference in degree of valuing, as opposed to a difference in type of value. We may value our children to such a degree we may be ready to die to protect them. We will not likely go that far to protect our snowblower. The message is not that value is fake. Rather, our valuing comes first in us. And what we attach our value to and the degree to which we do attach value will depend on our own subjective interests. In our negotiations with others, our values will need to be taken into account; otherwise we fail the condition of mutual advantage. Apart from living things, we also happen to think it wrong to wilfully damage works of art, heritage sights, landscape configurations,

26

Theoretical Background

and temples deemed sacred. None of these things can be said to have moral standing. Our moral obligation not to damage these things will, again, rest with other moral agents with whom we do negotiate. We have no duty toward the artwork itself, but we do have a duty to the owner of the artwork, if not the appreciators of the artwork, who do have moral standing. But then the duty I have toward a Vermeer is the same as I have toward my neighbour’s lawnmower. Again, for many, this seems wrong. Surely we would think that my destroying a Vermeer is a far greater crime than my destroying my neighbour’s lawnmower. True, but that difference could be explained by the difference in degree of value we place on the two objects. One object is irreplaceable; the other is replaceable. Our valuing one more than the other makes sense. The degree to which we value different things differs, and those things we value more will more likely take part in our agreed upon duties. Even if we are satisfied by the concept of indirect moral standing, many things – wild animals and infirm persons with no relation to care for them, for example – would still be excluded. Many of us certainly behave as if we have moral obligations concerning this group, despite such obligations being clearly noncontractual. While we can agree that people behave as if moral standing is noncontractual, that admission would not rule out an error theory account of how we could develop such a sympathetic heuristic. In chapter 2, I explain why the contractarian approach is the most viable option when considering the origins of morality from a purely naturalistic epistemology. As well, I argue that we ought to view morality in purely naturalistic terms. 1.4.5. Unfairness Problems may concern an entrenched conservatism. People make agreements based on their relative bargaining power, but they do not come to the bargaining table with equal power. Nothing in the consent principle seems to allow complaints about initial unfairness. The problem of entrenchment is a version of the beneficence problem above. Sometimes we want to help people whose reciprocity cannot benefit us. Contractarians will never say you cannot improve the baseline of someone at cost to yourself. You are free to do so, assuming you get consent – or reasonably expect consent from the other. This rider may seem idle, but too often one person’s notion of helping



The Consent Principle 27

is another’s notion of meddling. If we think it inadequate to rely on mere voluntariness to help raise the status quo of persons, we will require coercion. To demand that all negotiations must be among equally powerful negotiators would be to allow very few negotiations, assuming only a paltry few are equally powerful. The benefit of cooperation, however, is that disparate peoples can mutually benefit. All that we require is that cooperation be voluntary and the cooperators competent and sufficiently informed. When cooperators meet such conditions, they can each expect to benefit from the transaction, even if the benefits are unequal. A cooperator should deem unequal benefits to be less relevant to her decision to cooperate than that she benefits given her status quo. That should be enough for society to let it happen. Sometimes, admittedly, people think the other’s benefit is too great compared with their own benefit. If this is the case, one has the freedom to veto the transaction. Given that veto threat, it may be worth the other’s interest to sweeten the pot a little. Such dynamics are found in the ultimatum game. In this game, one player offers another player a share of ten dollars. The other player can accept the proffered share or decline. If the other player accepts, both get the proffered amounts. If the other declines, neither gets any of the money. In countless experiments across the world, people reject unfair divisions and accept fair divisions. Since rejecting an unfair division costs the rejecter (getting nothing instead of something), we see that mere status quo advancement may not move people: they may need something else, something like a fairness filter. Precisely because we are willing to absorb the cost to punish those who take advantage of their position, those in a more powerful position (the offerers in the ultimatum game) have a natural desire to offer divisions the others are more likely to take. Ultimatum game results do not defeat the contractarian picture, however. They support it. When we speak of satisfaction of interests, we do not mean that more money is necessarily better. Money does not necessarily coincide with interests. Interests may also include some prior conception of dignity, say, a notion that may be at risk when someone tries to take advantage of you. Ultimatum game results also support the idea that external enforcement is not necessary for most transactions. In a society that reacts to unfair bargains, prospective bargainers naturally move toward more fair divisions. This fits the contractarian picture nicely. The only caveat

28

Theoretical Background

contractarians wish to add is that the notion of fairness is not external to bargainers. This is explained in the next objection. 1.4.6. The Reverse-Order Problem Problems may also exist concerning a reverse order. Is x moral because we agree to it, or do we agree to x only on the condition we take x to be moral? If the latter, then the consent principle does not explain morality; it presupposes it. Some may even cite the answer to the last problem as evidence of a reverse order – an illegitimate appeal to what is “fair” when determining the range of permissible agreements.30 Reverse order does not occur for consent theory because of the strategic interplay inherent in negotiation. If I wish to elicit your cooperation for my benefit, I will need to make the proposed interaction satisfy your interests. In the state of nature, this is not a moral requirement. It is simply an empirical fact, given our penchant to avoid things that do not satisfy our interests. If I do not make it worth your while, you will opt out. If you opt out, I remain at my status quo. Since the point of negotiating with you in the first place was to raise my status quo, my remaining at my status quo is a disincentive to me. Therefore, I do not want you to opt out of the deal. Meanwhile, since you know that your opting out of the deal is a disincentive to me, you can use that as leverage. What we get is a compromising negotiation where some acceptable range is found between my offering you the minimum to make it worth your while to commit to the deal and my offering you the maximum where it still makes it worth my while to continue with the deal. We make the deal. We both benefit, and given our success, we stand to benefit even further from future negotiations. After the fact, if one feels that the transaction was not worth her while, future transactions between the two become less likely. That too is a cost to avoid, thus adding pressure to ensure “fair” transactions in the first place. I put fair in quotation marks to clarify that we do not discover morality, nor even invent morality, but coin it. It is not that one morally ought to offer fair transactions. Rather, we define morality as the subset of prudential advice governing strategic interaction. We explain the benefit to you in your offering as much as possible, while still making it worth your while, to ensure another’s cooperation. For convenience, we call such kinds of prudential advice “moral.” No



The Consent Principle 29

reverse-order problem occurs once we jettison the antiquated notion that morality is an objective fact out in the world that humans must discover. Morality is simply a mental concept we employ to help us navigate risky social interactions. 1.4.7. Communitarian Complaints Another kind of complaint aims at the metaphysical conception of individual self-interest that contractarians unabashedly employ. It presumes, so the complaint goes, a complete detachment from one’s social milieu.31 My identity is integrally tied to the community in which I live. If a community is largely Muslim, it is no surprise that children growing up in that community tend to be Muslim. If one’s community forms one’s self-interest, and morality serves self-interest, as contractarians profess, then morality ultimately serves the community. Importantly, where self-interest diverges from the community interest, we should think the community should trump the individual. After all, that individual must be a renegade to have interests different from the community interests. The complaint need not bother contractarians. Of course one’s environment greatly influences individual identity and self-interest. We are not isolated atoms born whole and complete in our own impermeable bubbles. It is also true, however, that people differ in their interests within a community. Contractarians make no presumptions about how one has derived one’s particular interests. Imagine if I grew up in a community where beating up women is permissible. My upbringing might explain why I think it permissible to beat up women, but we would never say my upbringing justifies my beating up women. To say that the beaten woman’s individual interests do not count because she is part of the community that forms the identities and interests of people is precisely the sort of rights violation that contractarians intend to quash.

1 . 5 . C o n c l usi on Contractarianism is not currently a popular theory. Complaints against it will continue. My brief responses here cannot exhaust the discussion. My intent, mainly, is to point out that contractarians are neither ignorant about nor silent on the standard complaints. Since most complaints are rooted in metaethical presuppositions,

30

Theoretical Background

particularly pretheoretical conceptions of what morality should look like, I try to debunk such views in chapter 2. In chapter 3, I defend my derivation of the consent principle from Hobbesian contractarian moral theory, a chapter aimed more at staunch contractarians. In the remainder of the book, I apply the consent principle to contemporary moral issues.

2 Game Theory, Evolution, and Metaethics

Morality tells us to restrict certain of our behaviours. We must not do  x. We must do y. People do not like to have their behaviours restricted without good reason. Saying “You ought not to do x because x is immoral” is not a good reason because, presumably, the “ought” is a moral ought. It simply amounts to saying “You ought not to do x because you ought not to do x” or “Doing x is immoral because doing x is immoral.” What we want out of a moral theory is something that does not beg the question. Contractarians claim you should restrict certain of your behaviours for reasons that are individually prudent yet involve others. Others must reciprocate the restrictions with you. While your motive to be moral is your own net gain, such gain must be mutual among others similarly constrained. In other words, we need an agreement. In terms of a Venn diagram, morality resides in the intersection between individual prudence and interpersonal interaction. Any ought claim outside that overlapping set is not moral. If a putative moral action is not likely prudent in the long term to the agent who is accepting the restriction, contractarians will deny that it is a moral claim. If the putative claim does not involve anyone other than the agent herself, then contractarians will deny that it is a moral claim. An example of the first is the claim that homosexuality is immoral. Curtailing one’s homosexuality is not prudent to the homosexual, even if heterosexuals are willing not to engage in homosexuality. An example of the second would be putative moral claims about selfimprovement. That I eat better and exercise more, for example, may be prudent actions for me but are not moral requirements for contractarians. They concern myself alone. True, whatever we do affects

32

Theoretical Background

someone in some sense, but there is a difference between the effect a rapist has on another and my doing sit-ups in the privacy of my home. Contractarians distinguish morality from theories of wellbeing. Morality concerns actions that directly, or could directly, affect others. Theories of well-being concern what to do with your life, what kind of person you want to be. Of course, the two often overlap. If not, so much the worse for morality. The point here, however, is that morality and well-being are conceptually different and we should not conflate them. For example, I could agree not to murder solely because all I want to do is count grass blades.1 I will follow moral rules, yet live by a dubious conception of well-being. In terms of a moral claim that is both prudent and involves others, the restriction against murder passes the test. If we each agree to restrict our murderous actions, we are each better off, no matter what our life goals are. Stipulating is easy. Demonstrating the merits of contractarianism is also easy using game theory and metaethical analysis.

2 . 1 . G a m e Theory 2.1.1. Hobbes’s Sovereign Contractarianism is a metaethical theory. It explains why some kinds of socially sanctioned moral conduct are worth it to a wide range of individuals rather than no moral system at all. In brief, you do better at whatever you want without a knife in your back. To get to such a state, you have to agree not to put a knife in others’ backs. Or, minimally, you ought to agree to a system that would punish you if you put knives in others’ backs. Once the enforcement system is in place, you have a prudential reason not to put knives in people’s backs, but you also have a prudential reason to agree to such an enforcement policy. Such reciprocal agreement is the origin of morality. The modern idea of contractarianism dates back to Thomas Hobbes, although it can be found in the pre-Socratics, and even Epicurus espoused it.2 Contrary to Kantian and utilitarian views, the central contractarian idea is that morality serves our self-interest. If it failed to do that, it would fail to motivate us. An obvious problem lurks. Usually morality tells us not to serve our interest for the sake of morality. We need to resolve this paradox. The answer is that our self-interest comes in two varieties: uninformed and informed. Some



Game Theory, Evolution, and Metaethics 33

of our interests are either unable to be satisfied or their satisfaction is damaging to us. Morality places limits on the sorts of self-interest we can satisfy. Primarily it will disallow those interests the satisfaction of which requires the prevention of others’ interests. Morality serves those interests of yours that can be satisfied without encroaching on others’ interests. If those nonencroaching interests are worth more to you than the interests you have that require encroachment, then morality will serve your overall net interests. When the outcome of interaction with others is what you desire – as is often the case, given our social nature – then you have to accommodate the interests of those others. Otherwise, they would not be interested in cooperating with you. If it is in your interest to elicit that cooperation, then you will have an interest in curtailing some of your interests. Saying you will do x, however, is different from doing x. What you have to do is to convince the other person that you will not renege on the promises you have made. We call this “the compliance problem.” Hobbes believed he had a solution. To explicate it, he started with a “state of nature” thought experiment. If morality is an invention, then amoral beings must have a reason to invent it. We want to see what reason amoral beings have to be moral. If morality is an invention, the inventors cannot be moral agents before the invention. That would contaminate the experiment (or beg the question). Amoral beings will be people who are egoists – looking out for themselves solely and doing whatever reason dictates to get the job done. This may be to kill someone merely to avoid her killing you. It equals a war of each against all – what Hobbes calls the state of nature.3 Amoral beings need not be so vicious, by the way. A butterfly is amoral. Saying that we are not so vicious, even if true, does not refute Hobbes’s argument, though. If we can explain how even vicious amoral agents have a reason to become moral, that would be a stronger argument than explaining how agents already similar to moral agents would become moral. Hobbes’s argument is appealing precisely because his state-of-nature agents are so alien to us. A common misreading of Hobbes is to say he thinks we are those alien creatures. Rather, he argues that such alien creatures would naturally develop into moral agents like us. In Hobbes’s depiction of the state of nature, resources are scarce and agents are rational, amoral, self-interested, and roughly equal in intelligence and strength. Hobbes defended the last condition by claiming we each have strength enough to kill another, a clause I will

34

Theoretical Background

return to later. In the state of nature, life is “solitary, poor, nasty, brutish, and short.”4 We would each do better in a moral state than in the state of nature. Morality serves a purpose and that is to enable individuals with disparate aspirations to cohabit peacefully. Since individuals prosper within a moral realm, as compared with an amoral realm, it is in each individual’s self-interest to live in a moral domain. As the moral domain cannot flourish without general obedience to the moral dictates that system advocates, it is, indirectly, in each individual’s self-interest to oblige the moral dictums. Morality is founded on self-interest. But wait. Morality is set up precisely to combat the effects of individualistic self-interest. How can morality be in our self-interest? In game theoretic terms, the rational self-interested move is always to defect from any bargain. Consider a buyer walking into a store to buy a pair of $75 boots. Given his preference set, handing over the money and receiving the boots is better for him. Given the preference set of the store owner, handing over the boots and receiving the money is better for her. Given their compatible preference sets, they can arrange a deal so that each benefits. The problem is, while the buyer would prefer to hand over the money for the boots, he would prefer even more if he got the boots free. Likewise, while the seller would prefer to hand over the boots for the money, she would prefer even more to get the money without handing over the boots. If we rank their preferences toward the logically possible outcomes of the exchange, we get the following: Table 2.1  Ordinal ranking Buyer’s ranking

Seller’s ranking

1st: boots, money 2nd: boots, no money 3rd: no boots, money 4th: no boots, no money

1st: money, boots 2nd: money, no boots 3rd: no money, boots 4th: no money, no boots

Notice that only in the second and third choices do we see a match. To satisfy the buyer’s first choice will entail the seller getting her worst choice and vice versa. Let us reverse the ordinal ranking so that the first choice gets the most points, and the fourth choice gets the least points. Then let us calibrate the scale to zero so that we give the status quo option zero points. The status quo is the state of affairs they are in if no transaction takes place at all. Here, that is the third



Game Theory, Evolution, and Metaethics 35

choice for both parties. Mutual reneging means no transaction takes place. Given our reverse ordinal ranking calibrated to zero, we get the following payoff matrix, called a prisoner’s dilemma (P D ). (We call it a prisoner’s dilemma because the original description of this payoff structure used a story about prisoners.) Table 2.2  Prisoner’s dilemma Seller

Buyer

coop defect

coop 1, 1 2, -1

defect -1, 2 0, 0

In table 2.2, the numbers on the left of the comma represent the buyer’s preference utilities; the number on the right of the comma represents the seller’s utilities. Given the reverse ordinal ranking, a higher number is deemed more preferable than a lower number. It is tempting to conflate utility with economic benefit, but one should never do so.5 Utilities match ordinal preference ranking, and preferences can range over anything you want – including the well-being of another. You should notice two things about this prisoner’s dilemma (PD ). First, we can see that the status quo is worse for both parties than the state of mutual cooperation (0,0 instead of 1,1). The second thing to note is that, despite the first observation, no rational individual will cooperate. This is easy to see. Consider the buyer’s stance: he will say to himself, “If the seller cooperates, I would do better defecting (2 instead of 1), and if the seller defects, I would do better defecting (0 instead of -1). Thus, no matter what the seller does, I should defect.” The seller, meanwhile, will come up with the same reasoning, and so she will defect. Thus, despite recognition of mutual benefit from cooperation, rationality dictates defection. We call the state of affairs where no one can do any better by unilateral movement the Nash equilibrium (N E ), after John Nash, the subject of the movie A Beautiful Mind. If an outcome is an N E , no agent has an incentive to change his or her act or strategy. Any non-N E will be unstable, since at least one player can do better by shifting moves. In the single-shot P D , defect,defect is the Nash equilibrium, since only in the defect,defect cell is it the case that no unilateral movement can pay the unilateral mover. If Buyer shifts from defect while Seller defects, Buyer will get -1 rather than the 0 he would have got had he stuck in the N E . So, he is not tempted to

36

Theoretical Background

move. Ditto with Seller. To say they would do better in coop,coop fails to appreciate John Nash’s insight. In a P D , coop,coop is an unsustainable utopia. To put the P D in Hobbes’s terms, despite our seeing the benefits of moving from the state of nature (defect,defect) to the state of morality (coop,coop), rationality will get in the way. It does no good, by the way, to say, “But we do cooperate in such situations!” Of course we do, and a good thing. The question is why? Hobbes thought the only way we could cooperate is if we were under the vengeful eye of a sovereign who is ready to punish defectors. (Another version of this is to swap the sovereign for God. If we get people to believe that an omniscient God will dole out severe punishment for defectors, such gullibles will be prone to cooperate. Since that is a good thing, we might predict a societal push to believe in the fiction.) Let us imagine that the punishment the sovereign will inflict on defectors is such that any defector loses 1.5 points from her utility score. Thus, we would get the payoff matrix displayed in table 2.3. Table 2.3  Sovereign solution to the P D Seller

Buyer

coop defect

coop 1, 1 0.5, -1

defect -1, 0.5 0, 0

A sovereign solution of imposing a 1.5 cost for defection does not mean that defect,defect is not an NE . It still is. Unilateral movement from defect,defect will still be worse (-1 instead of 0). So even with the sovereign solution, a convention of “always defect” might still prevail. At least now we see that coop,coop is also an N E . No unilateral movement from coop,coop will pay the unilateral mover. If Buyer defects while Seller cooperates, Buyer moves from 1 to 0.5. Since that is a net loss, Buyer has no motivation to defect. Ditto for Seller. Since coop,coop has a higher utility payoff than defect,defect, we might say that it is NE superior. With the sovereign’s sword at our backs, it now pays to be moral. Hobbes’s solution is both impractical and incoherent, however. Concerning the impracticality, sovereigns cost. We would have to pay some fee to be able to support the sovereign’s punishment plan. Adding in the cost to cooperators may undermine the N E of coop,coop. We can also wonder who guards the guards. If people



Game Theory, Evolution, and Metaethics 37

are as bad and ill tempered as Hobbes claims, why would the sovereign be any different? In fact she should be worse. If we cede all of our weapons to her, she would clearly have the power to do anything she wants with us. How could this state of affairs really be better than an amoral state where at least we have not abandoned our weapons? (Hobbes’s answer to this last worry is that the sovereign will fear God. If such a reply works for the sovereign, why would not it work for those in the state of nature? If the fear of God would make them able to be good, they would not need the sovereign in the first place.) Hobbes’s solution is incoherent because our agreement to elect a particular sovereign is itself a P D. Do you cooperate on your pick of a sovereign, or do you defect? If you can cooperate on that presovereign agreement, then you can cooperate without need of a sovereign. If you cannot cooperate on any presovereign agreement, then you can never agree on a sovereign. Hume, an inveterate critic of Hobbes, offered a solution. In the real world, he tells us, we never agree on a sovereign. Sovereigns simply conquer and usurp. A conquering sovereign violates Hobbes’s equality of strength condition in the state of nature, however. Conquering and usurpation can only come about in a post state-of-nature. So, even the conquering-sovereign explanation cannot solve the basic incoherence of Hobbes’s account of the rise of morality. Since we can never solve P D s without the sovereign (accordingly), we could not elect the sovereign in the first place. 2.1.2. The Modern Contractarian Solution In Hobbes’s depiction of the state of nature, recall, resources were scarce and agents were rational, amoral, self-interested, and roughly equal in intelligence and strength. Hobbes defended the last condition by an appeal to everyone’s having the strength enough to kill another. Since such a claim seems patently false, Hobbes clarified, “either through secret machinations or confederacy.”6 The telling thing about such a remark is the admission that confederacies (let alone an industry for machinations) are possible in the presovereign state of nature. To confederate is to cooperate. Thus, Hobbes himself is committed to the possibility of cooperation without a sovereign. If we can cooperate without a sovereign, the argument that we need a sovereign to cooperate is dead. Modern contractarians take seriously the idea that we can cooperate in P D s in the state of nature and can

38

Theoretical Background

do so without any external deus ex machina. In game theoretic terms, the argument is simple. In a world with pure strategies of Always Cooperate (AC) and Always Defect (A D ), the A D s will annihilate the ACs. Given the payoffs depicted in the P D game (table 2.2), we get the following results (see table 2.4). Table 2.4  Pure strategy payoffs

AC AD

AC

AD

total

1 2

-1 0

0 2

In table 2.4, the utilities shown in the boxes represent Row’s score when played against Column. Since AD is the clear winner here, no A D will be motivated to shift strategies to AC . So Hobbes thought we had to force them. Instead, all we have to do is to recognize that a third strategy is available, one that is conditional, not pure. Specifically, if we can cooperate when the other cooperates but defect when the other defects, we have a new mixed strategy. We will call the strategy reciprocal cooperation (R C ).7 Any player using the RC strategy will do at least as well as any A D , and better if more RCs join the party. Table 2.5 depicts the tournament scoring of an RC against an AD . Table 2.5  Birth of R C

AD RC

AD

RC

0,0 0,0

0,0 1,1

Table 2.5 shows that R C ,R C is a NE . No unilateral movement from the lower right box will pay the unilateral mover.8 By shifting our focus from what to do in any given situation to what strategy to adopt, we can solve the P D without recourse to an external sovereign. We do better, self-interestedly understood, being moral. Problems exist with the above demonstration. First, reciprocal cooperation needs to count as an operational definition of being moral. Second, R C s, as put, need to identify other agents correctly before they act. This may be asking too much. Admittedly this worry is idle if our reciprocal cooperator is a tit-for-tatter (T F T ).9 T F T s begin with cooperation and then simply reciprocate the move the



Game Theory, Evolution, and Metaethics 39

other player played against T F T in the last interaction. They require only memory, not telepathy. A third worry, however, is that once we admit mixed strategies, other kinds of mixed strategies are possible, not all of them so neatly “moral.” R C, for example, will cooperate with A C , but a new strategy may have more guile, recognizing that one can exploit those who cooperate unreciprocally.10 Such worries do not diminish the important point that we can cooperate without recourse to some overarching sovereign. The fact that we do so in real life is now explained.

2 . 2 . E vo l uti on 2.2.1. Moral Architecture Evolutionary processes churn out a moral architecture. As detailed in 2.1, agents who have traits that make them prone to reciprocal cooperation do better than agents without those traits. We call such agents reciprocal cooperators (R C ), but many kinds of normative claims fit the reciprocal cooperation structure, not all of them compatible. For example, “Drive on the left side of the road!” fits as well as “Drive on the right side of the road!” This leaves open the possibility for convention to select which particular reciprocal cooperative norms get traction. Other norms that fit the evolutionary story may nevertheless fall out of favour. As put, the evolutionary story – while essential – is not sufficient. While I agree with this, I emphatically deny that the conventional norms get to trump the evolutionary architecture. When a society develops and lives by a norm that spills outside the evolutionary architecture of reciprocal cooperation, I want to say that reciprocal cooperation trumps that spillage. Saying this will create semantic difficulty, since the society will think its norms are moral. What I am saying is that they may be mistaken about that. The evolutionary story can do much work in helping us distinguish moral claims from claims that merely pretend to be moral. Of the claims given to us, we can say only those that can fit the basic pattern of reciprocal cooperation count as moral. If someone says, “Homosexuality is wrong!” we can now point out why the speaker’s wishes do not accord with the evolutionary architecture of reciprocal cooperation. While we might conceive of an individual agreeing to give up his or her homosexuality, we are not sure what equal

40

Theoretical Background

constraint is placed on the homophobe. In fact, we see quite clearly that there is no constraint the homophobe is willing to take on, and this reveals to us why the homophobe’s demand does not fit the reciprocal cooperative architecture. Notice that this does not mean that no society will think homosexuality is wrong nor that, while so doing, they will think they are in fact imposing a moral constraint. Of course, conventionality plays a role in moral norms, but the conventional flexibility within the evolutionary architecture cannot trump the moral architecture itself. Similarly, we may say biological trait selection varies by environmental factors but not the process of natural selection itself. Contractarian moral thought may veer from the conventional norm on occasion, but that will be when the norm itself has abandoned the evolutionary platform and veered into the domain of metaethical myth, something I explore in 2.3. 2.2.2. Heuristics Evolutionary biologists can easily accept the fact that traits that were adaptive to one environment have not survived in current environments and traits currently existing need not be adaptations. A panda has an opposable thumb on its forelimbs, and this is an adaptative trait since it confers advantage for mobility and foraging. Along with its hand thumbs, however, it also has foot thumbs that are not used in any (supposedly) advantageous way. Presumably the same genetic trait that produces variation in the wrist (to produce a thumb) also produced the variation in the ankle (to produce the foot thumb).11 In such a case we do not say the foot thumb confers advantage. Rather, it structurally piggybacks on the thumb that does confer advantage. We explain the trait’s continued presence by a biological constraint rather than adaptation. If a trait is successful in one environment and can be reproduced in future generations, and the environment is relatively stable across these future generations (which includes resource availability and current predator–prey relations, etc.), then we can predict that trait remaining fairly stable. On the other hand, precisely because environments are not stable, variability is essential to biological species, and a variation on a past successful trait may confer fitness in a new and ever-changing environment. Moreover, traits that are adaptive in very narrow conditions are not likely to confer fitness when the odds



Game Theory, Evolution, and Metaethics 41

of those narrow conditions remaining stable are low. Traits that can confer some advantage (even if less than ideal advantage) in a wider range of environmental conditions are more likely to be adaptive. In any event, since the only traits that can evolve are predicated on existing traits, this means nature works with what it has rather than what would be ideal for the circumstances. Evolution works on small changes to existing traits. The chance that an existing trait has been selected entails that changes to that trait will more likely make it maladaptive. Tinkering with something that works is more likely to make it not work, as opposed making it work better.12 A single strategy that produces wildly divergent behavioural patterns is not odd in biology.13 Despite the vast array of diversity found in nature, nature abhors complexity in its basic building blocks, as the anatomical similarities across species illustrate. We have no reason to believe strategies concerning social interaction are different in this respect. Evidence for heuristics abounds in nature.14 If certain heuristics can develop that work in normally occurring situations, the speed and convenience of these cheap heuristics may benefit agents who have developed them more than agents who have not. The cost of finely tuned algorithms may not be sufficiently compensatory, given the environments they generally inhabit. The program in a greylag goose to retrieve stray eggs to her nest can get fooled by footballs, skulls, and lightbulbs.15 The drive for male red-winged blackbirds to defend their territory is triggered not merely by the red wings of invading male red-winged blackbirds but also by red balls, red shirts, and red balloons. This is (or may be) the same with morality. Given the success of RC, we define the moral strategy as the propensity to cooperate with cooperators and defect against defectors. Variation can exist concerning what clues we use to interpret the presence of a defector. The more lax we are, the more exploitable we are. The more stringent we are, the less chance we will reap mutual benefit. Ignoring psychological and sociological explanations, we can account for the variability concerning moral traits in purely probabilistic terms. 2.2.3. Normativity? At least three worries face those who use evolution to explain morality: (i) the unit of selection problem; (ii) the naturalistic fallacy; and (iii) the hardwired problem.

42

Theoretical Background

(i) Unit of Selection Problem. While some claim the unit of selection in evolutionary morality is the group and not the gene,16 the main worry for contractarians comes from pointing out that the unit of selection is the gene and not the individual. If we say a strategy is evolutionary successful, we mean that your offspring will tend to benefit if you use that strategy. We do not mean that you necessarily will. Even if we allow cultural transmission of particular moral traits, evolutionists focus on population patterns, where “individual action is dissolved into the larger regularities governing the collective.”17 Compare the evolutionary success of the male praying mantis, who gives his head to the female to provide more protein for the gestation of offspring. This is a good system for the genes but not so good for the individual male praying mantis. Contractarians, however, want moral strategies to provide net benefit to the moral agent herself. Evolutionary models, therefore, cannot support contractarianism. In fact, evolution supports a non-self-interest based moral theory. Reply. While the unit of selection in evolution is the gene and not the individual, and that this is made clear in cases where the two come apart, such as the praying mantis example, it is more common that the benefits to the gene and the individual overlap. For example the speed of an individual gazelle will benefit the gazelle’s offspring but so too the individual gazelle. Moral strategy is more like the gazelle case than the praying mantis case. That is, a trait that confers advantage to progeny is due to the generalized advantage to the individual. The passing on of that gene through subsequent generations shows this. In evolutionary accounts, we do not say the benefit of a strategy is for the offspring. We say the benefit of a strategy is revealed by increased offspring. (ii) The Naturalistic Fallacy. People commonly interpret evolutionary accounts of morality as claiming that whatever happens in nature is moral and that we therefore ought to mimic what happens in nature. Since the weak and infirm get eaten by wolves, our eating weak and infirm humans is moral. The (so-called) naturalistic fallacy is an egregious case of jumping to normative imperatives from mere description. Similar logic led Herbert Spencer and the Social Darwinists to conclude that the moral act is to let the sickly die and the impoverished perish. It gives evolutionary ethics a bad name. Reply. Not much better is the complete separation of evolution and morality. As John Maynard Smith, a pioneer of evolutionary game theory, observes, “A scientific theory – Darwinism or any other – has



Game Theory, Evolution, and Metaethics 43

nothing to say about the value of a human being.”18 Assuming Smith is not doubting that humans have value, I believe that he is wrong here. The value of human beings is not something that we discover. Instead, we find that ascribing value to human beings confers advantage to the ascribers, not merely the ascribed. We can track that advantage through evolutionary models. If morality is an evolved trait, then morality (like any adaptation) has advantage only instrumentally, only given certain environmental conditions, none of which apply necessarily. Some people take this to be the very problem with evolutionary models since they cannot show why morality is good in itself. Presumably Maynard Smith clung to this view, whereas, for me, the rejection of the antiquated notion that morality is good in itself is precisely what gives evolutionary ethics the edge. Even excluding that the normativity problem is not G.E. Moore’s meaning of the naturalistic fallacy,19 problems with this common objection exist.20 First off, why not assume the lesson to learn from the wolves involves the need for cooperation to achieve mutually beneficial goals (to the cooperators). Secondly, interspecies predation does not support intraspecies predation. The wolves did not attack weak and infirm members of their own species, so why assume the lesson is we should attack weak and infirm members of our species? Thirdly, species evolve different ways of coping with their environment. What works for one species does not necessarily work for another. Even strategies that work for one species in one time slice in one specific ecological niche will not necessarily work for the same species in a different ecological niche and time slice. Fourth, our moral attitudes – including a distaste of exploiting, let alone exterminating, the weak and infirm – is itself a trait most of us find ourselves having. So, an evolutionary account should explain its presence, not pretend it advocates its eradication. After all, if the moral values we routinely ascribe to homo sapiens have no connection to the evolutionary stability of homo sapiens, this would need explanation.21 Lastly, we are talking about successful strategies, not content. We assess the content according to how well or poorly it coheres with evolutionary architecture. In sum, this common dismissal of evolutionary accounts of morality has no more going for it than that it is common. (iii) The Hardwired Problem. Biological examples of evolutionary success typically are of genetic traits. Individuals with hardwired trait A happen to do better than individuals with hardwired trait B,

44

Theoretical Background

and so, over time, hardwired trait A grows in the population compared with hardwired trait B. Melanin-rich (i.e., black) peppered moths blend into a polluted environment better than melanin-poor (white) peppered moths and, as a result, do better in terms of natural fit than their white brethren. The situation reverses in times of clean air. Nothing in this textbook picture of evolution can claim that a given peppered moth should turn black in times of pollution and white in times of nonpollution, since choice has nothing to do with it.22 Without choice, normativity is not possible. Relying on evolutionary dynamics, then, cannot possibly account for morality, since morality is paradigmatically normative; it involves choice. Reply. The beauty of the evolutionary account is that it takes away intentionality as a necessary explanation. It does not rule out intentionality as a sufficient explanation, however. Let us distinguish genotypes from phenotypes. A genotype concerns the D N A coding, whereas a phenotype concerns the behavioural manifestation of that genotype. The same genotype may have different phenotypic outcomes depending on environmental conditions. Identical twins, for example, need not look or behave alike. Conversely, different genotypes may have the same phenotypic trait. The wings of a bird and the wings of a bat perform the same, though we do not find close ancestry. Teasing apart the link between genotype and phenotype already challenges the “hardwired” interpretation of natural selection. When we deal with higher brain functioning animals, the notion of hardwired traits becomes even less apparent. Tool use in an isolated group of orangutans, for example, is a cultural phenomenon that is itself subject to the laws of natural selection.23 Successful cultural norms are passed on to future generations. Those that are not, fade.24 The genetic features at root of the orangutan genes have to be such that they allow for learning. Genes that can be expressed in a wider, more elastic, range will tend to do better than more rigidly expressed genes.25 Human intelligence is one spectrum of such elasticity. Morality is a cultural trait that we can learn (or more often simply absorb). We will more likely pass on this trait only if it (i) bequeaths some advantage to the trait holders (and not merely to the recipients of moral action) and (ii) is easy to absorb. Concerning this second point, cultural transference requires simplistic, easily learned, and repeatable messages. This demand for simplicity partly explains why very clever rational exploiters fail to get much traction.



Game Theory, Evolution, and Metaethics 45

To be clear, evolutionary accounts treat moral dispositions as flexible phenotypic traits that bequeath their users with evolutionary advantage. In the same way, we can track the benefits of language use and tool use. At root will be some genetic, hardwired trait. If we recognize that phenotypic behaviours may still be flexible, however, our fear that evolutionary ethics rules out choice and normative advice dissolves.

2 . 3 . M e ta e thi cs 2.3.1. Moral Myths “You ought not to torture children for fun.” Most people are willing to say such kinds of moral claims are true and that they are true to the extent that they reliably capture certain facts about the world. I say otherwise. For me, moral claims are neither true nor false. When I say that morality is not real, however, I am not saying that torturing children for fun is okay. I am simply challenging the ontological status of our folk conception of morality. Worrying about whether moral claims can be true concerns metaethics not normative ethics. The problem concerns the word “ought.” Typically, those who deny that moral claims may be true or false are deemed noncognitivists.26 Noncognitivism tends to be the view that our emotions alone are what drive moral appraisal. Such a view falls outside the contractarian picture, which is where I firmly place consent theory. In place of saying that moral claims are true or false, we want to say they are right or wrong or more likely right or wrong. When we make such judgments, we need to appeal to something other than the speaker’s emotive state. Apart from asserting that (i) moral claims can be neither true nor false, noncognitivism also asserts that (ii) moral appraisal is strictly an emotive event. While I accept (i), I reject (ii). As a result, one might call my metaethics a quasi-­cognitivist account. In any event, contractarians see morality as a useful tool that helps us live in relative peace. In game theoretic terms, entities adopting reciprocally cooperative strategies do better in terms of population proportions compared with other kinds of strategies. This is partly because noncooperators will fail to reap the benefits cooperators can garner. Take, for example, the moral rule: “Don’t put knives in

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Theoretical Background

people’s backs!” You derive no advantage by following that rule if no one else does. We see, therefore, the rule is conditional upon others likewise adhering to it. Nevertheless, each person can work out the mathematics of the situation for herself. Take the gain from having no one put a knife in your back and subtract the cost of failing to put your knife in someone else’s back. The latter cost may be in terms of foregone pleasure, foregone security, and/or foregone impediment removal. If the sum is a positive number, you have a reason to accept this social rule. We might add a punitive system in place to help us avoid temptation. Since our taxes subsidize that penal system, we have to add that cost into the mix – including the risk of being punished ourselves should we succumb to temptation. If the benefits outweigh the total costs, we have reason to endorse and comply with this moral system.27 A variety of social rules beset us, of course, not all of them moral. “Use a Phillips head screwdriver,” for example, may be a social rule but not a moral rule. We can distinguish moral rules from nonmoral conventional rules in the following way: Moral rules are a subset of prudential advice concerning social interaction with others.28 In other words, we admit that morality is wholly contained within the set of prudence while recognizing that prudence is a larger set than morality.29 Moral rules concern advice restricting your behaviour conditional on others likewise restricting their similar behaviours for a mutual net gain. When putative moral claims are too taxing on us – like turn the other cheek – or fail to offer reciprocal benefits – like sanctions against homosexuality – they fail to count as moral claims. Results from game theory give us a description of morality as a conventional rule self-interested individuals have prudential reasons to instantiate when certain conditions are in place. As put, morality is relative, instrumental, prudential, and conventional. Many people feel such an account misses the mark on each point. For them, morality is supposed to be absolute, intrinsic, categorical, and objective. Let us briefly consider them in turn. Relativism. Moral relativism is the kind of view first-year undergraduates presume when they discover different cultures have different norms. To them, relativism advocates a kind of enlightened tolerance. While toleration is a good thing, pure toleration – absolute relativism – is the absence of morality. Morality concerns behaviour restriction. When we say, “That’s immoral,” we mean, “You can’t do that.” Those who believe morality is purely relative can only say to



Game Theory, Evolution, and Metaethics 47

child torturers, “Well, we don’t tend to do that around here, but since you seem to like it so much, go ahead.” To think contractarianism collapses to such relativism is to confuse levels of discourse. At the normative level, concerning content of moral claims, moral rules are nonrelative. They are to apply to all equally, and if any dictum fails to do that, it fails at being properly moral. At the metaethical level, however, we admit that whatever social rules make sense for most people to follow, make sense due to contingent facts about the psychology of the people to whom the moral rules apply and the given social and environmental factors in which they live. Alter those conditions; we alter the merit of abiding by our so-called moral rules.30 The same level of discourse does not trip us up when talking about other rules. Consider the rule of golf not to ground your club in a hazard (USGA Rule 13-4). At the normative level, it is an absolute rule that applies to everyone all the time. Any golfer who says, “It doesn’t apply to me,” is wrong. Even if no one cares about the rule, the rule still applies. While we accept the absolute nature of the rule of golf at the normative level, few believe the rule is absolute at the meta level. We would not even know what that would mean: some kind of universal rules of golf that would exist independently of anyone’s playing golf. Rather, we admit the rule is an arbitrary invention deemed to serve some instrumental end. So here is a case where our thinking of a rule being both absolute (at the normative level) and relative (at the meta level) is easy. The same goes for moral rules. The objective application of moral rules does not support the objectification of moral values.31 Intrinsicality. People commonly view morality as having intrinsic worth, not mere instrumental worth. We may think of intrinsicality as a subjective phenomenon, the feeling one gets when behaving morally, or as an objective fact no matter our inner states. In the first case, we may feel guilty for doing a bad act, and we may feel good for doing a good act. In that sense, we derive intrinsic benefit, a kind of well-being. In the second sense, we may think of an act’s being good or bad in itself, no matter what benefits we may derive from the act. The intrinsic value of morality in the first sense fits a kind of Aristotelean virtue theory. The intrinsic value of morality in the second sense fits a kind of Kantianism. Neither view is tenable at the metaethical level. Consider the first sense: I doubt anyone feels any intrinsic benefit from not murdering anyone today. Nevertheless, not murdering is a distinctly moral act. Morality demands it. Even if

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Theoretical Background

some of us might feel a subjective intrinsic goodness for being charitable, say, it cannot be that we think charity is good because we feel good when being charitable. How good we feel doing an act cannot determine its morality. After all, many people feel good for doing horrendous acts. Rather, we are supposed to feel good for doing the right thing, not call “right” whatever makes us feel good. Whatever internal intrinsic benefit we accrue from being moral, therefore, comes after we determine what morality requires. That means the determination of morality must be independent of, and prior to, any supposed intrinsic benefit. The second sense of intrinsicality, the objective sense, the sense that morality is simply good in itself, succumbs to J.L. Mackie’s queerness objection, something I take up in the following sections. Categoricity. Immanuel Kant is famous for rejecting the view that we made morality to serve prudential self-interest. Instead, he thinks morality must be categorical. The notion that individual self-interest is irrelevant to the value of morality suffers, however, once we believe Darwin. Morality is a trait. How could this trait have survived over generations if it routinely failed to satisfy individual self-interest? What Kant was trying to get at is not hard to understand. When we say you ought not to ground your club in a hazard, the ought does not carry much weight. Whether you ground your club does not matter to me. Such an indifferent attitude is not proper for moral oughts, however. When we say, “You ought not to torture children,” the ought is supposed to matter to all of us. We tolerate noncompliance in mere prudential rules, not in moral rules. That moral rules matter more than nonmoral rules, however, does not make them categorical. In fact, that they matter so much to us is precisely what undermines their categoricity. For Kant, categoricity means that the normative force remains without agents’ desires, and this is weird.32 The reason we will not tolerate your torturing children has everything to do with our desires concerning children. To remove your strong desire about x, will make you more tolerant about noncompliance, not less so. If Kant merely wanted to distinguish nonmoral prudent claims from moral claims, a less metaphysically suspect distinction is available. Namely, the subset of prudence we call moral involves advice concerning your actions that can adversely affect others. Advice concerning actions that affect yourself only, we call nonmoral prudence. Noncompliance of golf rules in tournament play affects others: hence we will not tolerate noncompliance. Noncompliance of golf rules when golfing for



Game Theory, Evolution, and Metaethics 49

fun does not affect others, and that is why we tolerate noncompliance. As put, we can distinguish between moral and nonmoral advice without severing individual desire, despite Kant’s rhetoric. Objectivity. Moral realists come in two varieties: natural and nonnatural,33 but both conceive of morality as being independent of the contingencies of human life. They see morality as a set of rules that would apply whether we existed or not. For realists, humans do not invent morality, but discover morality in the fabric of the world, much like we discover fossils. Nonnatural moral realists are weirder. They, too, conceive of morality as discovered, but it is a discovery of a nonnatural entity that inhabits certain events of the world, like a ghost in the machine. Both suffer from being a bit too queer.34 The queerness objection has three distinct, yet converging, arguments: metaphysical, epistemological, and motivational. The metaphysical objection highlights how ontologically weird a moral judgment must be if it is not connected in any way with either our mental states or physical matter, yet, somehow, always, properly connects to actions we call moral and immoral. Imagine coming across someone burning a cat.35 We would all say such torture is immoral, but how do we know? The realist is committed to seeing two things: the physical facts related to the cat burning and the moral facts that supervene on that action. When she says “Immoral!” she is not relating her value judgment, she is reporting a fact in the world. For contractarians, however, the immorality of burning a cat is not a thing observed when we observe someone burning a cat. The facts are not themselves values. Instead, we see facts and we ascribe a moral value to those facts. If moral value is something we ascribe to facts, we cannot think of it as itself a fact. When I watch a car speed past, I might say, “That’s fast,” or I might say, “She’s crazy to drive that fast,” or I might say “She is immoral to drive that fast.” While interpretation more obviously seeps into the latter two claims, even the first claim is not a thing I have witnessed. It is a judgment I make based on what I have witnessed. The term “fast” is relative, after all. It is not an absolute fact found in the world. “Fast” is a term that only makes sense when used in relation to something else. If we are appealing to any natural facts, it is not fastness but rate of motion over distance. That is the natural fact; the judgment “fast” is not. If we cannot maintain that “fast” is a natural fact, think of how much more difficult it would be to maintain that morality is a natural fact.

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Theoretical Background

If the immorality of burning a cat is a natural fact like the cat’s being on fire is a natural fact, by what epistemic channel would we come to experience that? This question raises the epistemological component of the queerness argument. One answer, perhaps the only answer, is intuitionism. Under intuitionism, value ascription is an internal filter imbued in us, as Joseph Butler and Thomas Aquinas say?36 We cannot empirically support such an image. Besides rods and cones, we do not have moral receptors in our eyes. Beyond the necessary mechanics of intuitionism, other problems exist. For example, we could solve disagreements about the moral status of an event, like abortion or euthanasia, by pointing out that one of us has the right intuition and one the wrong intuition. If we both maintain that our views are based on our intuitions, deciding who has the right intuition becomes a problem. We cannot hope to resolve the collision of intuitions, since intuitionism can only appeal to an internal feeling. When all our theory allows us to do is to report our inner voice, we have no recourse but to shout louder and thump our chests as gorillas do, as if a decibel gauge is all we need to decide moral matters. We might suggest that self-interest has corroded our opponent’s intuitions, though how they would have let self-interest override their moral intuition before their intuition became corroded is left unexplained. Conversely, some of us just happen to have better intuitions, lucky us. Such imperialism is indistinguishable from racist and sexist attitudes. A voice in one’s head or a feeling in one’s gut more likely has its origins in socialization than any moral objectivity. If so, intuition would have no more moral authority than we cede to cultural heritage. While our intuitions may sometimes latch on to true propositions, we never deem the proposition true because of the intuition. We must test the intuition out somehow. That is to say, we need not disparage intuitions if we understand them as hunches as opposed to confirmation. Even pretending we have solved the metaphysical and epistemological problems, the motivational problem remains. We are to conceive morality as an objective signpost, like product information labels that somehow manage to supervene on our every action. Even assuming this is true and we see what the label tells us, why should we be motivated to abide by what it says? When I see a sign telling me how to act, say, “Buy Mr Christie’s Cookies,” I need not doubt that is what the sign tells me to do to doubt whether I ought to obey the directive. Merely having a sense in my gut that homosexuality is wrong, for example, does not tell me that I have to listen to that gut.



Game Theory, Evolution, and Metaethics 51

I can think beyond my gut, surely, and decide that whatever my gut says, homosexuality is a morally permissible act. In other words, even if we grant moral values some kind of objective life that resides in the world out there, independent of humans, we still require a motivating reason to follow those normative directives. The motivation must come from within and must connect to one’s interests. Let us say you find a stone on a beach with a label attached to it that says, “This stone is pretty.” You read the label. You look at the stone. Now what? Are you not entitled to say, “Hmm, not to me,” or “I’ve seen prettier”? Even if you do say, “Yeah, I believe you,” are you required to do anything about it? Pick it up, for example? Can you not just walk by? When we see commercials, can we not tune them out? Can we not say, “Despite your telling me I need to use your product, I don’t feel like it”? My point is, moral realists – even of the natural kind – can only point to the facts of morality, but pointing to facts is not typically enough to motivate us to do anything about those facts. By placing morality out there, in the objective world, we lose the internal motivation to abide by it. I am not denying that morality, properly conceived, motivates us. I am denying that the usual responses are available to moral realists. Moral motivation concerns our desires and values, and desires and values reside within us, not out there. We do not see morality, we ascribe our moral values to the things we see. Realism? So far, I have raised problems for thinking morality is objective or has intrinsic value or is categorical. I have also clarified that my relativism is at the metaethical level, not the normative level. A moral realist may still claim that even a relativist, instrumental, prudential, and conventional morality is real. For an analogy, consider the following nonmoral normative claim: “You ought to use Phillips head screwdrivers for Phillips head screws.” Here is some good advice, and the advice is good is because it connects to something real in the world. Phillips head screwdrivers really fit the Phillips head screws in ways that no other screwdrivers can. That is, our evaluation is based on facts of the world, coupled with one’s desire to screw this screw. It is that description of the world coupled with a descriptive account of our desires that causally connects the normative evaluation. If prudential claims can be real, and morality is merely a subset of prudence, then morality, too, must be real. At least it is plausible one might so think. The plausibility, however, is due to misdirection. The facts alone do not render the advice objectively real, for the facts are only a part of the utterance. Accompanying the

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Theoretical Background

facts is the peculiar word “ought.” Applying truth values to ought utterances is where the problem lies. That the driver fits the screw is a descriptive fact; that you ought to use it is normative advice. While we want to go from one to the other, we cannot equate the two. Besides, we do not normally feel obliged to say that the screwdriver advice is “real.” Instead, we say it is apt or useful or prudent. Demonstration can back these claims. In fact, that demonstration can back such claims so well renders ought demands about screw use overkill. Similarly, we should say of moral claims that they are apt or useful or prudent, and such claims may be true or false. That is, we should be able to back up our moral claims by demonstration. If we cannot, then, rather than resort to categorical demands, we should stop calling those bits of advice “moral.” We should stop forcing people to obey rules that we cannot back by appeals to social prudence. After all, moral dogmatism is the cause of much immorality. Consider the following analogies. A sunset is real, although the sun does not set. Déjà vu is real if we do not mean that we have really experienced a time loop. These examples illustrate that one can speak of the reality of an unreal event. Normally such feats of discourse do not trip us up. Similarly, we may say something about morality is real – namely that the adoption of reciprocal cooperation tends to satisfy more of your preferences than adopting any other dispositional trait, assuming several conditions remain in place. Such an admission is nowhere near what moral realists require, however. They need to tie the realism to an intrinsic, categorical, objective ought and not merely to instrumental, hypothetical prudence. They want something really real. They want something magical beyond the mere conventional prudence. There are no such things, however. 2.3.2. Objections and Replies Gilbert Harman and J.L. Mackie do not persuade everyone. Nicholas Sturgeon, for example, takes umbrage with nonrealists.37 Harman’s cat burning example is to highlight how moral facts play no role in our observations. According to Sturgeon, however, the children’s badness, or depravity – a moral ascription – does form part of the explanation of their burning the poor cat.38 They would not have burned the cat if they were not depraved. This means, contra Harman, moral facts do fit into our explanatory view of the world. Two worries with Sturgeon’s assessment confront us. The first is a straightforward case of begging the question. One must first assume



Game Theory, Evolution, and Metaethics 53

that moral character counts as a moral fact. This is something Harman would deny. Sturgeon escapes this charge but only by forming a dubious interpretation of Harman. For Sturgeon, it is the wrongness of what the children are doing that makes us think they are doing something wrong.39 Sturgeon evades the charge that this simply begs the question because he interprets Harman as saying the following: Even if we accept the existence of moral facts, “these assumed facts still seem to play no explanatory role.”40 Thus, Sturgeon feels free to test Harman’s theory by assuming moral facts and seeing if they play a role in observation. Sturgeon justifies his interpretation of Harman since Harman would not be saying anything original, otherwise.41 Leaving aside whether Harman has offered us an original argument against moral objectivity, he obviously cannot be saying what Sturgeon attributes to him. Harman is explicit. “In the moral case, your making the observation [of kids burning a cat] does not seem to be evidence for the relevant moral principle [that burning cats is wrong] because that principle does not seem to help explain your observation [of kids burning a cat.].”42 From this, we should not interpret him as saying, (A) “Even if moral properties exist, they would have no effect.” Rather, he is noting the fact–value problem. In effect, he is saying, (B) “Even if moral properties do not exist, our moral experience would be the same.” Similarly, an atheist is not saying, (A) “Even if God existed, He would not affect our experience of the world.” Rather, the atheist is saying, (B) “Even if God does not exist, our experience of the world would be the same.” In both cases, (A) seems to be patently false. If we antecedently accept moral facts, then of course those would be the things we would credit for our observing the immorality of the kids burning the cat. Likewise, if we antecedently believe God exists, then we would surely credit that entity for the creation of the universe. Meanwhile, (B) is the claim that, from our observations alone, we cannot get to God or objective moral facts. Sturgeon may technically avoid the question-begging charge only by a peculiar reading of Harman’s claim. The second problem relates to the ascription of moral character. Harman claims only that we need no moral facts to explain any nonmoral facts. He allows that people’s beliefs in moral facts explain events in the world,43 which is different from allowing that moral facts explain anything. Similarly, we do not need the existence of a god to explain any physical event in the world, although belief in God will explain many events in the world – Jihad, the crusades,

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Theoretical Background

antihomosexuality tirades, etc. Similarly, we can admit that the kids burning the cat have a character trait and that we will call the particular character trait that moves them to burn the cat a bad character trait and that, given that bad character trait, we can predict more bad stuff done by those kids without intervention. None of this shows that the stuff we call bad is really objectively bad rather than a conventional ascription consistently applied. The same holds if everyone in our community believed that the kids are possessed by the devil. That, too, would explain their burning a cat. A better argument against Harman’s dismissal of moral facts occurs when Sturgeon invokes the problem of knowledge. As W.V.O. Quine observed, scientific support often comes about indirectly.44 We can only approximate the truth of what may be the best overall theory given what we already assume the world is like. We are trapped into assuming truths by unassailable background assumptions. It is possible that our observations are all inaccurate, that everything we perceive – whether scientifically or naturally – is all mistaken. No one can do anything with such wide scale scepticism, however. We only have our observations and background beliefs. As David Hume says, even the sceptic leaves by the door rather than the window. To link this to moral realism, Sturgeon remarks that if we so hopelessly mistook our moral theory, then it is of course possible that our moral appraisal would be irrelevant to what is really moral or not. Granting this is idle, however. It could do nothing to undermine our moral belief, any more than telling us that our perceptions may all be illusory.45 Relying on background assumptions does not necessarily bring moral realism back into the picture, however. The debate is not about whether x is true or not given moral realism. The debate concerns moral realism itself, and Harman’s point is that no background assumptions we have entail moral realism. To the extent that moral realism counts as a real phenomenon on the basis that people tend to believe it, then moral realism is on as good grounding as belief in witches and phlogiston. What made us switch from those beliefs was by looking at the nature of those beliefs themselves against accepted background beliefs, not simply assuming them true because we tend to believe them. That is not Quine’s message. In fact, Quine was explicit in claiming that scientific belief is not simply a matter of coherence. When we rely on a particular background assumption, we must need that assumption to explain the phenomena.46 And that is precisely what Harman is denying.

3 Contractarian Lineage

In this chapter, I defend my derivation of the applied contractarian principle from contractarian moral theory. For those outside the contractarian network, this may seem an unambitious project. The two are not obvious bedfellows, however. Contractarian moral theory tends to eschew the role of consent. Applied contractarianism, however, treats consent as vital.

3 . 1 . T h e D isa p p e a r ance o f Consent Contractarianism has not concerned itself so much with the content of actual consent but with what agents in an ex ante bargaining position would consent to were they rational. Ex ante agreements are hypothetical constructs designed to tell us what moral rules and practices premoral agents should adopt. In such hypothetical negotiations, we are dealing with amoral, rational, self-interested agents in a world of competition and limited resources choosing moral principles to bind them in future. By amoral, contractarians do not mean immoral. Nothing precludes amoral agents from behaving in ways similar to moral agents in specific cases. Likewise, by self-interested, contractarians do not mean narrowly egoistical. Self-interested agents may take care of others. Simply, nothing dictates (nor can we predict) that such caring extends to more remote relations. By selfinterest, then, contractarians mean interests or preferences or ends the agent endorses or would presently endorse, whether or not she “ought” to endorse them by some objective standard. By rational, the contractarian means that agents are motivated to pursue the course of action that has the highest net expected utility (taking into account

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Theoretical Background

approximate costs and probabilities). Utility is determined according to subjective self-interest. Ex post agreements are agreements made after the premoral hypothetical bargain. Ex post decisions concern compliance with ex ante agreements amid all the vagaries of reality: unequal bargaining powers, and insufficient and uncertain information. From this depiction, contractarian theorists commonly note two things: 1. Consent plays no role in such a hypothetical construct; 2. The content of such “agreement” is far too counterfactual to have any normative interest. Contractarianism has a long and bumpy lineage. We attribute the modern idea of contractarianism to Hobbes, although it can be found in the pre-Socratics and Epicurus and is well-represented by David Gauthier.1 A variant of contractarianism, now called contractualism,2 abandons Hobbes in favour of Rousseau and Kant and can be found in John Rawls and Thomas Scanlon.3 Neither contractualist nor contractarian analyses rely on consent at all. Contractualists emphasize that the outcome of a fair procedure will necessarily be just, and anything that derives from that procedure is justified. Any outcome that is inconsistent with what would result from the fair procedure is evidence of an unjust distribution. For Scanlon, the moral choice is what one would make if one had an interest in securing reasonable agreement with like-minded others.4 That means any act is moral if reasonable agents – motivated by a desire to follow rules that no reasonable person could reject – would permit it.5 For Rawls, any act or distribution of goods is just if rational agents – within appropriate hypothetical contexts – would agree to it.6 The emphasis on what reasonable persons would consent to clouds the subsidiary role consent plays. In Rawls’s case, the suitable constraints of the hypothetical bargaining position rely on a pretheoretical understanding of fair distributions. From this, the task is simply to erect a mechanism that best yields this preconceived notion of a fair distribution.7 The mechanism for Rawls is the veil of ignorance. From the vantage of ignorance concerning one’s role in society, persons agree on just distributions. The term “agree” is misleading, however.8 It is not a group who goes behind the veil of ignorance. One person alone suffices. Her decision will (supposedly) cohere with anyone else’s decision from the same position.9 One decides for all, and anyone will do. Therefore Rawls’s model yields outcomes that



Contractarian Lineage 57

are neither strategically negotiated nor naturally implicit. The contractualist “consent” is imposed. Any heterogeneity has been, ex hypothesi, wiped bare. The consensus is predicated on the pretheoretical notion of fairness Rawls designed the veil of ignorance to foster. Consent, as strategic negotiation among parties with competing interests, has nothing to do with it. Rather than demanding a condition of ignorance, Scanlon imputes a shared motivation to reach reasonable agreement. Like Rawls, though, the resulting “agreement” is not the result of a strategic bargain but imposed by the motivation condition. Also like Rawls, Scanlon appeals to a hypothetical construct in which we test outcomes. In Scanlon’s terms, any act is moral if reasonable agents would permit it, assuming such agents are motivated by a desire to follow rules that no reasonable person could reject.10 The motivation to seek consent predates the consent in this picture. As put, consent is not what determines morality. Morality determines the motive to seek agreement; consent does no justificatory work. Admittedly, consensus is a possible outcome of these imputed motives. Beginning with shared motives to agree does not mean strategic negotiation need not take place. Our agreement to drive on the same side of the road, for example, does not tell us which side of the road we should pick. Concerning negotiations to have these original motives, however, Scanlon is not dealing with consent. Contractarians also eschew the role of consent.11 Gauthier ties morality to self-interest.12 In response to the worry that morality is supposed to offset self-interest, Gauthier distinguishes self-interest that prudence endorses from self-interest that prudence does not endorse. If the pursuit of some of my self-interested desires and preferences will impede or prevent some of my prudentially approved interests, I may be motivated to accept constraints on pursuing the former.13 We are to adopt plans that afford us the most favourable opportunities though this may require us to act in nonmaximizing ways concerning our occurrent aims. This leaves open the possibility that individual choice may veer from that which would be rationally endorsed. That is why Gauthier appeals to what rational agents ­suitably situated would agree to in a premoral bargain. As such, the justificatory schema is reason, not agreement. What people agree to  in fact, therefore, is not necessarily what contractarians would sanction. If x is the reasonable choice, then whether people agree to y is irrelevant. People are, after all, dim-witted. “Indeed,” Gauthier

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Theoretical Background

admits, “I do not even suppose that the practices with which we ought willingly to comply need be those that would secure our present agreement.”14 Gauthier’s worry is that “agreement” can come about in a whole range of inappropriate ways. People may manipulate, coerce, brainwash, or deceive us. Alternatively, we may be incompetent. In none of these cases can we properly speak of consent or agreement. Gauthier shares Rawls’s concern: to ask whether all parties agreed to a current arrangement is insufficient, since their status quo influences their agreement, but their status quo may be unfair.15 As with contractualists, consent has nothing to do with it. The applied contractarian principle, however, suggests that consent derives morality, not the reverse.

3 . 2 . T h e R e t u r n of Co nsent Contract theory advocates that morality serves a purpose and that is to enable individuals with disparate aspirations to cohabit peacefully. As individuals prosper within a moral realm, as compared with an amoral realm, evolutionary forces push individuals into developing moral dispositions and to support the development of moral norms to enlist more reciprocal cooperation. In this sense, morality is an instrumental norm that is naturally selected to resolve interpersonal conflict. As put, morality is a subset of prudent strategic choice. Strategic choice occurs when the interdependence of each agent’s strategy is integral, that is, when the outcome of one’s choice depends on others’ choices. In contrast, parametric choice entails decisions made where outcomes are not dependent on the choices of others.16 A game of chess is strategic; deciding whether to take one’s umbrella is parametric. Consent is not relevant in parametric choice, only in strategic choice.17 To maximize my self-interest in social contexts, I must convince you that I will not defect against you in any cooperative venture we have reason to engage in together. To do this, I need to abandon a simple maximization mode of behaviour. I am willing to abandon a simple maximizing mode only if the net utility of such a change is better for me than forgoing such change. Otherwise use all the “helps, and advantages of Warre.”18 The disposition I adopt must be sufficiently sensitive to prevent my being exploited. To achieve this is to recognize that the choice between unilateral cooperation and unilateral defection is a false dichotomy. I can adopt a more sensitive



Contractarian Lineage 59

disposition, one that directly depends on the disposition of the others with whom I engage. Given the social constraints in which I operate, the best way to maximize my self-interest is to adopt a disposition prone to reciprocate cooperation with cooperation and defection with defection.19 To reap the benefit of this advantage, I must accept constraints on my temptation to resort back to unconditional defection. That is, I must internalize the reciprocal cooperator strategy. Internalizing constraints is the contractarian link to morality.20 Internalizing constraints is risky, however. It makes me more prone to acquiescence. Morality is supposed to be the happy medium between fighting and acquiescence. I will lose the benefit from cooperating if the other unilaterally defects, leaving me in a worse spot than had I not agreed. Alongside of my internalizing the reciprocal cooperative strategy, therefore, I will be motivated to pay the costs to reduce unilateral defection in others. That is, I will be motivated to erect external, punitive rules to better ensure mutual cooperation. Such rules cost me, not merely in their erection, but also if – or when – my own temptation takes over. The advantage, however, is to give you added assurance of my not reneging, thus increasing the prospect for mutual gain. Assuming the same reasoning applies to you, we have established a safe zone for cooperative ventures. The dynamics of reciprocal consent is what carves out our moral arena. In the ex ante position, hypothesized agents make some sort of strategic move to further their long-term net interests. We call that move reciprocal cooperation. As easily, we could claim that move is akin to Hobbes’s first three laws of nature: seek peace, lay down one’s “liberty,”21 and keep one’s agreements, all conditional on others doing so, too. This conditionality rider is what allows me to speak of their consenting. It is an agreement made between bargainers, not a parametric choice of individual agents. Thus to say, as Gauthier does, that actual agreement is irrelevant cannot, of course, refer to ex ante bargainers. It makes sense only so far as we can think of ex post agreements that violate the principles laid down in the ex ante agreement. For example, I agree on Monday to pay you back on Tuesday, but come Tuesday I don’t agree to that anymore. This does not show that consent is morally irrelevant, however. It shows the opposite. The immorality arises due to the violation of consent. But what were we agreeing to in the original ex ante bargain – ­particularly when it is a mere hypothetical fabrication? In game

60

Theoretical Background

theoretic terms, we were agreeing to be reciprocal cooperators in the ex post world. Our transparently accepting a reciprocal cooperative strategy is precisely to promise not to do unto others without their consent, assuming such others follow suit. In other words, the content of reciprocal cooperation is the consent principle itself. The ex ante agreement therefore has content: keep the peace, conditional on others doing so as well. An implication of reciprocal peacekeeping is to leave well enough alone, unless we have good justification to intercede. What self-interested agents most want is to do their own bidding without interference. Given competing interests, such a free-for-all leads to a failure of pursuing one’s interests. Such agents, thereby, see morality – reciprocal cooperation – as a justifiable constraint on their freedom. Moral restrictions are justified to the extent that, without those restrictions, we see ourselves as worse off than with the restrictions. Absent such justification, the default is to deem the particular activity morally permissible. This recognition provides normative content. Apart from ex post violations of ex ante agreements, consent is never morally irrelevant. Consider, for example, two robbers agreeing to rob a bank, and a coerced victim agreeing to give money to a  mugger. Neither case shows that consent is morally irrelevant. Rather, we see that not all of the conditions inherent in the ex ante agreement have been satisfied. The robbers fail to take into account other relevant parties, and hence the concept of reciprocal cooperation is not met. The mugger ignores the voluntariness condition inherent in the concept of reciprocal cooperation. Whereas, so long as ex post agreements satisfy the ex ante concept of reciprocal cooperation, they will necessarily satisfy the consent principle. That is why it is inconceivable for a contractarian to say consent is morally irrelevant in application. From examining successful strategies in a variety of conditions across disparate games, game theory tells us that reciprocal cooperators are the overwhelming winners. From this, we can extrapolate the following normative advice: be a reciprocal cooperator. Being a reciprocal cooperator means not doing unto others without their consent. If anyone ever does to another without her consent – or presumed consent – that would be a failure of reciprocating consent with consent and defection with defection. Becoming a reciprocal cooperator, therefore, is to endorse the applied contractarian principle: Don’t do unto others without their consent. The role of consent



Contractarian Lineage 61

remains crucial at the metaethical, the normative, and the applied levels. Despite what contractarians have claimed, the consent principle is grounded in contractarianism.

3 . 3 . T h e N o r m at iv i ty P roblem I have shown why contractualist and contractarian moral theories marginalise the notion of consent, and I have explained why I believe this is a mistake. I suspect their motive for de-emphasizing consent was to avoid a problem Hume raised: namely, how does mere consenting create an obligation? Asking this question is supposed to get us to recognize that the obligation to x predates our consenting to x. If so, morals cannot arise from consent. If anything, the reverse. Hume’s worry is shortsighted, though. From the ex ante position, we see that binding ourselves in the ex post scenario pays in the end. Hume asks, “Why am I bound merely because I have offered my word?” The contractarian answer is because we each have an interest in punishing the other should the other break her word, and that interest is such that we are willing to pay for a penal system to enforce our words. It is not moral because of our being forced to comply; we force ourselves to comply in order to reap the net benefit of cooperation. We call the enabling rules “morality.” Strategic consent does all the work we need. Hume raised a greater worry for attempts to ground morality in amoral nature: the is–ought problem. If we start from a completely amoral initial position, we will forever be unable to get to a morality without committing the is–ought gaffe. To avoid the is–ought worry, contractualists allow moral considerations of fairness and respect to help formulate their ideal situations. Their moving from moral premises to moral conclusions begs the question, but they seem content with this. Contractarians, on the other hand, wish to avoid both question-begging and is–ought problems.22 They do so by claiming that moral action is also rational, or prudent, action. While prudential oughts reside in the premises, no moral oughts do. As put, the moral is merely a subset of the rational or the prudent. Since prudent statements are normative ought statements, our moving from prudent oughts to moral oughts neither begs the question nor moves from ises to oughts. This claim works if we believe the prudent ought fully captures the moral ought, and about that claim many are dubious.

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Theoretical Background

A large part of that doubt stems from clutching onto an epistemologically suspect notion of morality: the mythic kind I tried to dismiss in chapter 2. Another part of that doubt, however, comes from how contractarians tend to speak. They tend to speak as if they have derived morality from prudence. I believe it would be clearer if we say the thing we dub as moral is a subset of prudence. Consider the following proposition: “X is prudent: therefore you ought to do x.” Is the ought injunction something added to the description of what is prudent, or is prudence itself normative? Either way, nonreductionists will not be satisfied. If the first, an account of what is prudential leaves out normativity. Removing normative content from the description of a prudential premise will make it difficult to insert normativity back into the moral conclusion. It would appear the is–ought fallacy reappears. I am not raising the nonreductionist’s complaint that we cannot get moral normativity from rational normativity. I mean that normativity is itself not found in the mere description of the rational. The prudent action is one thing; what you ought to do is another kind of thing. From where does this added ought derive? The above complaint follows from assuming that normativity is not internal to prudence. Let us, then, say that the prudent carries its own normativity. By that, we mean you deviate from the rational choice at your expense. This gives it its normative flavour. But if prudence contains its own normativity, then the injunction about what you ought to do is redundant. All we need is “X is prudent.” Since “X is prudent,” seems to be a different kind of thing from “X is moral,” something else is required. Let us refer to internally normative prudence as “oughtP.” Let us refer to moral advice as “oughtM.” Gauthier avoids the is–ought problem by deriving oughtM from oughtP. That is, he derives an ought from an ought. The question, however, is whether oughtM is significantly different from oughtP. If yes, then Gauthier’s reduction is flawed, for it would leave out the explanation for the shift in normativities. If no – that is, Gauthier believes normativity is normativity whether oughtP or oughtM – then his derivation of morality appears to be a case of equivocation. This is certainly the nonreductionists’ charge. They conceive oughtM to be significantly different from oughtP, and so pointing out a reductionist derivation from oughtP to oughtP is hardly satisfactory to them. Even if morality is a subset of prudence, we still need something that distinguishes that subset. In



Contractarian Lineage 63

other words, saying “X is prudent” does not equal “X is moral.” Using a dictionary may be prudent but not a moral imperative. If we are to successfully reduce moral oughts, we mean that moral oughts fully belong to a subset of prudential oughts – the subset we dub “moral.” Contractarian reductionism identifies the subset of morality in terms of prudence concerning strategic interaction.23 ­ Nonmoral prudence concerns parametric choice. (Actually, morality will be a subset of prudence concerning strategic interaction. Chess advice may be strategically prudent, yet not moral.) This means that, before the dubbing, the two normativities, oughtP and oughtM, should be indistinguishable in kind. The difference between the two sets is purely contextual. If so, we do not actually have a distinction between prudent oughts (oughtP) and moral oughts (oughtM), other than nominally or contextually. We dub as “moral” that subset of prudential advice concerning long-term strategic interpersonal interaction. If “morality” is a mere dubbing of a subset of prudential advice, then moral advice is not anything above prudential advice. No extra categorical bite will be found. By this, I mean Kant’s distinction between morality and prudence in terms of categorical and hypothetical imperatives is flawed. Since all prudential imperatives are hypothetical, all moral ones will be as well. If moral advice is merely a subset of prudential advice, then saying we have moved from one kind of ought to another kind of ought is not accurate. If morality is a subset of rational prudence, then what is true of rational prudence must also be true of morality. Nonreductionists will disagree. They assume a different picture. They assume that the prudential will, at best, overlap with the moral (as in diagram 3.1), as opposed to fully encompass the moral (as in diagram 3.2). In diagram 3.1, where we assume that nonrational morality is not an empty set, we could deny that what is true of B must be true of A. For example, nonreductionists can agree that parts of morality overlap with rational prudence, but not all. They think something of morality exists independently of rationality. That is, for them, some parts of morality lie outside the set of rational prudence. Contractarians must think diagram 3.2 better represents their reduction of morality. (Or almost. We need another circle surrounding the moral yet inside the prudent, and this would represent the set of strategic prudence that is not moral.) Here, anything that is true in subset B must also be true of set A. If A has no special normative force, B cannot either. Conversely, whatever normative force is operating in B

64

Theoretical Background

must be found in A. To speak carefully, then, rational reductionists can only say that the prudent normative force of B is identical to whatever prudent normative force goes on in A. This (seemingly) allows nonreductionists to complain that whatever derivation has occurred, it is not a derivation of moral normativity. Their complaint is based on their belief that morality “properly speaking” is some categorical property that cannot be reduced to mere rational prudence.24 While we can dismiss such talk, as we dismiss talk of deities, their complaint should force us to speak more clearly. When we say that we have moved from oughtP to oughtM, we mean it only nominally.

A Prudent

B Moral

Diagram 3.1  Overlapping sets

A Prudent

B Moral

Diagram 3.2  Encompassing sets

My point is not to take the nonreductionists’ side. I hope that is clear. I am saying that moral normativity is simply a kind of prudential normativity (within strategic interactions) and that prudential normativity means no more than the tautology that one ought to endorse those actions that tend to do one well in the end given one’s considered preferences. “Morality” concerns the sphere of constraining one’s interactions with others (in order to reciprocate others’ cooperation). In evolutionary terms, the ability to constrain such interactions is a phenotypic trait that confers advantage on its hosts compared with those who fail to have this trait. Given that, we can predict more agents having this trait over time, which further adds to the merit of any newcomer also having this trait. The only normativity missing would be the nonreductionists’ kind, the kind we dismissed as myth in the previous chapter.

P art t wo Death

4 Euthanasia: End-of-Life Choices

4 . 1 . P r e l im i nari es Euthanasia occurs when a medical team intentionally initiates a procedure that has the expected outcome of the death of a medically dependent patient for that patient’s alleged benefit. If death is not an expected outcome, it is not an act of euthanasia. A medically dependent being is one who requires continued treatment to live. Typically we are dealing with persons suffering terminal diseases or injuries and who are often in severe pain as a result, such that the amount of painkiller needed to combat the suffering erodes the person’s identity. Moreover, no medical personnel expects such suffering to end, and the terminal nature of the disease or injury and/or the degree of pain are medically confirmed. If death is caused outside of a medical establishment, however consistent with the intentions of euthanasia, it would not count as euthanasia. Euthanasia may be enacted in two ways, by omission or by commission. Euthanasia by omission, often referred to as passive euthanasia, refers to those cases where the medical team stops treatment and lets the disease or injury take its course. Euthanasia by commission, or active euthanasia, is when the medical team intentionally causes immediate death, typically by injection. Some thinkers believe only active euthanasia merits the term euthanasia, since passive euthanasia is simply recognizing that the disease or injury has won. I would not be opposed to such a narrowing of the term, but it strikes me that it is motivated by those who think passive euthanasia is morally fine without deeming active euthanasia to be also fine.

68 Death

A common distinction found in the literature separates euthanasia from assisted suicide. Assisted suicide refers to when someone – a physician or otherwise – provides an individual with the information, guidance, and means to take his or her own life outside of a hospital setting. When it is a doctor who helps someone kill herself, it is called physician-assisted suicide. Above, I defined euthanasia as occurring within a hospital setting. Assuming physician-assisted ­suicide counts as an extension of a hospital setting, that would count as a case of euthanasia; non-physician-assisted suicide would not. Perhaps this restriction is too dependent on the current medical establishment. So far, however, we are not engaged in moral judgment. If we deem euthanasia to be morally fine, it does not follow that something not defined as euthanasia is not morally fine. Conversely, if we deem euthanasia morally problematic, it does not f­ ollow that something not deemed euthanasia is also not morally problematic. The justification for restricting the concept of euthanasia to medical settings, or extended medical settings, however, is to ensure due process. We wish to ward off vigilante-like abuse. Also common in the literature is the notion that euthanasia does not occur unless the death is intentional. That we are concerned about intentionality when addressing culpability makes this requirement sound reasonable. It is not straightforwardly applicable, however. We know that a treatment intending to save a life that ends up killing the life is not euthanasia. But is the refraining from performing a treatment that would provide no benefit to the patient when the expected outcome is death a case of intending death or not? Some argue that it is not. They say the physician’s intention is to honour the right of the patient to refuse treatment – assuming the patient is competent and informed. If such a case fails the intentionality condition, then what I referred to above as passive euthanasia would not count as euthanasia. On the other hand, surely we are dealing with cases where the physician can well expect death by her action (or nonaction). When a man pushes a rock down a hill, he might say he did not intend anyone’s death, but so long as we can safely assume he could reasonably expect someone’s death by his action, his defence of nonintent seems idle. Besides, what was the intent of the patient? Perhaps the patient’s reason to refuse the treatment – say blood transfusion – is religious, as in the case of a Jehovah’s Witness. Then we could say that her intention is not death, though death is certainly forecast. Not all patients refusing treatment fit the Jehovah’s Witness



Euthanasia: End-of-Life Choices 69

case, however. Here we would have a patient clearly intending her own death, while the physician merely intends to honour the patient’s right to refuse treatment, though well expecting death as an outcome. Would that be a case of euthanasia or not? It would seem insincere to say no. Or consider cases where the medical team keeps increasing the dosage of painkillers to combat the increasing levels of pain, knowing that the effects of the increased drug will shut down the life function of the patient’s organs? Can we say that the intention was not death, but alleviation of pain, even when the medical practitioners knew that the effect of the drug would result in death? To avoid the worries about determining what is intended and what is not, we might do better to focus on whether death is an expected outcome or not. If death is not the expected outcome, we can say the death was not intended. If death is the expected outcome, we will leave it to metaphysicians to worry about whether death was intended or not. What is missing in the definition of euthanasia, so far, is consent. Discourse on euthanasia tends to differentiate voluntary, nonvoluntary, and involuntary euthanasia. Voluntary euthanasia occurs when the person who is killed has requested to be killed. Nonvoluntary euthanasia occurs when the person who is killed made no request and gave no consent. Involuntary euthanasia occurs when the person who is killed expressed a wish to the contrary. The distinction between involuntary and nonvoluntary is problematic. The actions are very different depending on two further overlapping distinctions: one concerning competency and one concerning proxy consent. A patient may be competent to give consent or not and if not, a patient may have a proxy or not. If the patient has a proxy, that proxy may give consent or not. Each scenario is very different from the others, yet we could not distinguish them under the simple voluntary versus nonvoluntary categories. If the patient is not competent enough to give consent, we may turn to a legal proxy – a parent, child, or spouse of the patient, for example. If the proxy consents to euthanasia, then we may wish to call this Proxy Voluntary Euthanasia. If the proxy expressly denies consent and euthanasia is performed anyway, then we would have Proxy Involuntary Euthanasia. If we have a proxy to an incompetent patient but no one bothers to ask the proxy and the patient is euthanized, then we may call this Nonproxy Nonvoluntary Euthanasia. Whereas if the patient is competent enough to give consent but no one bothers to ask and euthanasia is performed, then this is what we should refer to as Involuntary Euthanasia.

70 Death

The category of Involuntary Euthanasia itself needs refinement. Involuntary active euthanasia is simply murder in a hospital setting by medical personnel, but that is not necessarily the case with involuntary passive euthanasia. I might expressly refuse the cessation of treatment, but the medical team may be unable to satisfy my desire, finding the treatment useless and expensive. They may have no choice but to let me die. On the other hand, the medical team may turn off useful machines that would keep me alive despite my objections to the contrary. This would again seem more like murder. I do not advocate distinguishing types of euthanasia under the voluntary, involuntary, nonvoluntary headings. If we insert a need for consent (including proxy consent) into the definition of euthanasia, the matter becomes clearer. Absent consent, we are not talking euthanasia. We are talking doctor-knows-best, or we are talking outright murder. Euthanasia, then, occurs when a medical team intentionally initiates a procedure that has the expected outcome of the death of a medically dependent patient for that patient’s alleged benefit, and the patient, or her legal proxy, is competent and informed and consents. When any condition is not met, we ought not to call the action “euthanasia.”

4 . 2 . T h e C o n t r ac tari an Defence Consent theory claims that any action consented to by all autonomous concerned parties is morally permissible. Even if we do not include consent in our definition of euthanasia, so long as we have proper consent among all concerned parties, all euthanasia, whether active or passive, will be morally permissible. Typically, the moral justification for passive euthanasia is not problematic. Certain religious groups think even passive euthanasia is wrong since all life is sacred and should thereby be maintained as long as possible. Others deem passive euthanasia permissible because it is the disease, and not a person, who kills. Contractarians are not moved by either justification. For them passive euthanasia is justified by the general right to refuse treatment. We think the patient has a right to say, “No more treatment.” The right to refuse treatment is what we honour in passive euthanasia, not any supposed right to die. With active euthanasia, on the other hand, a physician administers a lethal injection. As put, the justification for passive euthanasia does



Euthanasia: End-of-Life Choices 71

not extend to active euthanasia. The right to refuse treatment is not a right to demand treatment.1 From the consent theorist’s perspective, however, the right to refuse treatment itself follows from the more general principle of not doing to others without their consent. Contrapositionally, my consent can justify your doing unto me. Hence, while all properly concerned parties are mentally competent, well informed, and offer unwavering consent, active euthanasia ought to be permissible. Practical matters might prevent us from fully knowing whether the patient is mentally competent, well informed, or offers unwavering consent. We may also wonder to what degree the person was really suffering or how terminal was her disease. Noncompetent patients, moreover, will require proxies to consent, and we may wonder to what extent proxies speak for their ward. Such practical constraints, however, do not undermine the basic principle: we ought to let people do what they voluntarily consent to do, assuming such actions do not adversely affect relevant others who are not part of the agreement. We can easily imagine that someone’s choosing active euthanasia can adversely affect loved ones. We can also imagine such family members not consenting to active euthanasia. Contractarians advise us not to do unto others without all concerned parties’ consent. Are the nonconsenting bereaved family members of euthanized patients concerned parties? We can imagine a whole litany of actions one can morally do that may not meet the consent of one’s family, including being gay, marrying someone from another faith, enrolling in arts rather than sciences, not becoming a farmer, etc. That people – even loved ones – may not consent to what you do does not mean they count as concerned parties in the morally relevant sense. In chapter 1, I defined a concerned party in the following way: If B suffers or is expected to suffer physical adverse effects because of A’s action, or A requires B’s property, B is a concerned party to A’s act. If the adverse affect is psychological or social, B is a concerned party only if A cannot fulfil her desires without use of B’s person or property. Assuming my family members do not wholly depend on me for their subsistence, my eliciting the help of a doctor to kill myself does not cause physical harm to my family, and nor does my action require their presence in any way. In that sense, although they may be psychologically affected, they would not count as concerned parties to my action.

72 Death

Before addressing the standard objections to thinking active euthanasia is morally permissible, it may be useful to return to the limitation that euthanasia must occur within – or be an extension of  – a medical establishment. Consider the Latimer case. Robert Latimer asphyxiated his twelve-year-old daughter, Tracy.2 Tracy was a quadriplegic who had the mental capacity of a three-month-old. She lived with cerebral palsy, weighed only forty pounds, and had had extensive surgeries. While Latimer claimed, and let us assume sincerely, that Tracy was in too much pain to go on living, the medical establishment did not deem her pain to be unbearable. Nor was her death immanent. Without the backing of proper medical support, many think the father’s action constituted murder. We do not want to sanction murder by calling it euthanasia. We cannot have individuals be the sole judge of whether euthanasia is justified any more than we can permit vigilantism – even in cases where the vigilante’s action would duplicate the result of a fair trial. It would appear, however, that the contractarian analysis allows that slippage. Assuming Robert Latimer’s appraisal of his daughter’s situation was accurate (that she suffered irremediable pain), one would think contractarians should endorse Latimer’s action. When we disallow home-style euthanasia, we are not (necessarily) abandoning contractarian justifications, however. The worry concerns due process. Analogously, it is not a contradiction for contractarians to endorse punishment for wrongdoing, but resist vigilantism. We accept an ex ante justification for a justice scheme. Similarly, from the initial bargaining position, we can imagine that forethinking, selfinterested agents, while consenting to the use of active euthanasia, would nevertheless prevent home-style euthanasia to ward off abuse. When one’s fate rests with someone else, we want that person to be as trustworthy and knowledgeable as possible. While we might expect our parents or loved ones to be trustworthy, we cannot expect them to be knowledgeable about medical disease and injury. To ensure that my suffering will not abate, that I will not get better, that no other treatment is possible, that I am going to die anyway, I would agree to restrict such matters to properly trained medical staff. In other words, I want to ensure that I am properly informed about my condition before I consent to being euthanized. For that reason, contractarians can endorse euthanasia under the restriction of medical confirmation, thus ruling out vigilante euthanasia. While consent is what matters to contractarians, the emphasis here is on informed consent. For that, we need due process.



Euthanasia: End-of-Life Choices 73

4 . 3 . O b j e c t io n s and R epli es Objections to the contractarian defence of active euthanasia tend to concern, 1. suicide, 2. an alternative account of the active/passive distinction, 3. bad practical consequences, and 4. limitations to consent. 4.3.1. Suicide The difference between euthanasia and suicide is that the former has an assistant who does or enables the killing. Our society tends to deem suicide wrong. Assisting a wrong act does not normally make it a right act. Typically we call the assistant wrong as well. Thus, it looks like if suicide is wrong, euthanasia is wrong. We can reverse the argument so: if euthanasia is morally fine, so too should suicide be morally fine. One kind of argument against suicide is the fear that a social permission of suicide will increase the number of suicides. This strikes me as a reason to permit the thing, of course. Apply the argument to philosophy. Socially allowing people to engage in philosophy may make more people do so. That people choose to do a thing means that they view the doing of that thing in their interest. While doing what is in our interests can harm us, to imagine that our interests will be subverted merely because a desired action is legal seems to stem from a very low view of personal autonomy. Permitting breast enlargements does not make me want to have the operation, for example, even if I can do so legally. For that matter, if suicide is wrong, passive euthanasia would be wrong as well. Preventing any more treatment that might save you is like staying in the middle of the train track and waiting for the train to come. While some do argue that passive euthanasia is immoral, the implication is that martyrdom would also be wrong. Martyrs die when they could have simply abandoned a mental belief. What simpler way to avoid death? Those who say passive euthanasia is wrong will not likely say martyrdom is wrong – condemning the very persons they probably praise the most. That our society calls suicide a moral wrong does not mean suicide is a moral wrong, of course. I intend this book as a challenge to our entrenched views on moral matters. While contractarianism will permit suicide in theory, contractarians can oppose particular suicide attempts if we believe the agent is, at least temporarily, incompetent. Typically, persons think of killing themselves only when they are depressed, and depression negatively affects clear thinking. Nothing

74 Death

prevents us from interfering with suicide attempts to check how competent the agent is. Similarly, contractarians can interfere with someone stepping onto a collapsing bridge.3 In both cases, we suspect either mental aberration or lack of information. Of course, it is possible that the agent is fully competent and fully informed of her actions. In such a case, contractarians cannot morally oppose suicide, however sad it may be for us, the surviving relations or friends.4 With euthanasia, the assistant – a medical doctor – adds more clout to the diagnosis that the agent is competent. Does my argument backfire? Might we not think people prone to choose active euthanasia show signs of incompetence? In which case, may we prevent euthanasia? While we can speak of ideal ­levels of autonomy and competence when speaking of theories of well-being, we cannot use too high a criterion when speaking of morally justifiable intervention into people’s actions. Specifically, we cannot determine competency according to what healthy people do under normal circumstances. Healthy people in normal circumstances do not kill themselves nor ask to be killed nor stand by passively to die. Euthanasia occurs in nonnormal circumstances for unhealthy people, however. Merely being unhealthy does not mean one cannot competently decide important matters. We do not normally ignore other requests from the unhealthy. What counts as competent decisions under such dire situations may be active euthanasia, just as we deem martyrs competent when they decide that being burned at the stake is better than renouncing their faith. 4.3.2. Active/Passive In section 4.2, I claimed that the justification for passive euthanasia was the right to refuse treatment, that the right to refuse treatment is underwritten by consent, and that consent can also justify active euthanasia. The usual account of the distinction between active and passive euthanasia, however, is not that. Rather, passive euthanasia occurs when the medical team stops lifesaving treatment, and they let the disease or injury cause death. They deem it justifiable because the disease, not a person, kills. Active euthanasia, however, occurs when the medical team gives a lethal injection. It is that injection that kills the patient, not the disease itself. In active euthanasia, a person kills,



Euthanasia: End-of-Life Choices 75

whereas in passive euthanasia, the disease kills.5 Table 4.1 illustrates the relevant difference. Table 4.1  Active / passive distinction Act

Health

Status

Judgment

unplug inject

diseased die die

healthy live die

moral immoral

What I intend table 4.1 to show is that if you connect a healthy person and a diseased person to life support and then disconnect the life support, the diseased person would die but not the healthy person. For example, think of a patient who cannot breathe without an artificial lung and a healthy person testing out an artificial lung. Turning off their lung machines will result in the death of the first person but not death of the second person. This shows that turning off the machine is not the thing that does the killing. If you inject a diseased person and a healthy person, both will die. This shows that it is the injection, not the disease, that kills. The doctrine of double effect is sometimes used to explain why active euthanasia is wrong while passive euthanasia is fine. The doctrine of double effect claims that an action that causes harm as a side effect of promoting a greater good is justifiable. A “side effect” means that we did not intend the harm. No one intends the doctrine of double effect to justify harms done in order to promote a good. Consider two cases of a runaway trolley. In case 1, the trolley is heading toward five persons stuck on the track. If it reaches them, they will all be killed. You can pull a lever to switch the tracks so that the trolley avoids the five people. Unfortunately, one man is stuck on the other track. Under such a situation, would you pull the lever? In case 2, the trolley is running toward five people on the track. You happen to be standing on a bridge over the track. With you is a fat man leaning over the railing. With a slight push, you can nudge the fat man so that he will fall onto the track in front of the trolley. You have correctly inferred that he is fat enough to stop the trolley before it reaches the five people stuck on the track. The fat man would die, of course, but your action would save the five others. Would you push the fat man over the bridge?6

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Perhaps not everyone would pull the lever in case 1, but even those people would understand the lure of pulling the lever. The lure is that, all things equal, we should probably opt for the choice that involves less dying than more. To the extent that someone pulls the lever for that reason is the extent to which we might deem her action not morally blameworthy.7 In case 2, our intuitions shift. While utilitarians might feel bound to push the fat man, most would think the action is morally atrocious. No difference exists in outcomes, of course. If the only principle was “less death is better than more,” we should find little difference between our moral judgments in the two cases. Most of us do see a moral difference, however. The trolley problem forces us to examine that difference, and what we find has something to do with our causing the death of a man in the second case and our merely allowing the death of a man in the first. We can see this more clearly if we ask the following subsidiary question. In case 1, would you pull the lever even if no one was stuck on the other track? The answer should be “Of course!” This shows that you do not require the death of the man in case 1 to save the five people. His death is an unfortunate side effect, a case of collateral damage. We cannot say the same in case 2. The death of the fat man is exactly what you need to save the five people. For example, if a thin man was leaning over the railing and you knew he was too thin to stop the trolley from killing the five on the track, you would agree it would be immoral to push the thin man onto the track. This highlights why killing the fat man is needed to save the five. You could not save the five without killing the fat man. His death is necessary for your goal, but we typically think the use of people for our own (or others’) ends is the epitome of immorality. That is why, in case 2, the doctrine of double effect would not allow you to push someone into the path of a runaway trolley to prevent it from hitting five people on the track ahead. Doing so would intend harm to the one to save the five. In case 1, on the other hand, the doctrine of double effect would permit you to pull a lever to divert a runaway trolley from killing five while foreseeing that your action will result in the death of a person. While the death of the one was a foreseen side effect of saving the five, you did not intend it. To save the five, you do not need to kill the one; his death is a side effect, given the circumstances. The doctrine of double effect is commonly applied to show that active euthanasia is immoral, while passive euthanasia is moral. Killing someone (active euthanasia) is seen to be morally reprehensible,



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whereas allowing someone to die (passive euthanasia) is morally permissible under tragic circumstances. In passive euthanasia, the disease kills, not a moral agent, and in that sense is akin to collateral damage. In active euthanasia, a moral agent kills, not the disease, and in that sense is akin to murder.8 In double effect language, death in passive euthanasia is not the intention, whereas in active euthanasia, the death of the person is the means to ease the pain. As with the trolley problem, then, we ought to disallow active but allow passive. The doctrine of double effect is not without its critics.9 Consider two main worries. First, the distinction between intended and nonintended bad acts depends too much on one’s perception. For example, did America intend the deaths of Hiroshima noncombatants to end WWII, or was the intended message merely the power of the A-bomb that ended the war and the noncombatant deaths that occurred merely foreseen but unintended? To say the action would be fine in the one case but not the other is to appeal to what some might think of as a “Cambridge change.”10 When you pass me by, our spatial relation changes, and, as a result, we may say that a change is true of me concerning my spatial relation with you. Such a Cambridge change does not mean that I have undergone any nonrelative change. The doctrine of double effect seems to invoke only such kind of perspective change in moral appraisal and not any substantive change. Secondly, the doctrine of double effect is not a separate moral principle that any moral theorist can invoke. It is a restriction on decidedly utilitarian principles. Imagine case 3: a runaway trolley is heading down a track where it will eventually stop and not kill anyone. If you pull the lever, the trolley will switch tracks. Unfortunately, a man is stuck on this other track, and the trolley will kill him. Knowing this, would you pull the lever? Presumably, we should answer “No,” but this complicates matters. According to case 1, your killing the man on the second track is permissible not because less death is preferable to more but because it is a mere case of letting die, not killing. It is collateral damage, not intended damage. It is a nonintended action for your goals, merely a side effect. In case 3, we cannot make such a claim. At least, no one would think such a defence would absolve you of guilt. We cannot get away with saying, “But I didn’t kill him, the trolley did!” Or, “I didn’t require his death in order to switch tracks – it’s a mere side effect.” At this point, defenders of the doctrine of double effect will, of course, invoke the utilitarian assumption embedded in the doctrine. That is, the value of

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promoting the good end must outweigh the disvalue of the harmful side effect. That assumption is not met in case 3. What this move does, however, is lay bare the fact that the utilitarian assumption is what is doing all of the explanatory work. It is because we judge the end to be worthy that the harmful means is considered. For similar worries that case 3 raises against the doctrine of double effect, James Rachels rejected the moral distinction between letting die and killing.11 With that rejection, we also reject the moral distinction between passive and active euthanasia. Rachels gives two basic arguments. (i) When we decide in favour of passive euthanasia because of being unable to help the patient, passive euthanasia will merely prolong the suffering and agony, and on the mere basis of compassion, active euthanasia in such circumstances would be more humane. (ii) If I purposely drown a child in a bathtub, that would be bad, but if I simply stand by and watch the child drown in a bathtub when I could easily save the child, that would be bad too. Since both are bad, we cannot say letting die is not morally bad. We cannot defend ourselves by saying, “But I didn’t do anything; it was the water that killed the kid.” The active/passive distinction, therefore, is morally irrelevant, concludes Rachels. If passive euthanasia is fine, so too is active euthanasia. Both of Rachels’s arguments fail, however. (i) The reason to choose passive euthanasia may not be to relieve suffering. As mentioned, it may simply be based on the right to refuse treatment, not the right to have one’s suffering relieved. (ii) The bathtub drowning incident is not analogous to the conditions of euthanasia with which we are working. We would call doing nothing to prevent the drowning morally bad, because we assume something can be done to prevent the drowning. In the euthanasia case, this condition is not met.12 When there is nothing to be done to save a person, doing nothing cannot be deemed immoral.13 As put, then, Rachels’s famous objection to the active–passive ­distinction is not convincing. A contractarian answer, on the other hand, is. I cannot sneak around hospital wards willy-nilly unplugging people on life support. I cannot hope to defend myself by saying, “It wasn’t me, but the disease, that killed them.” This should mean we  cannot use that defence in passive euthanasia, either. Instead, we should see that consent is the issue. Just as the moral difference between sex and rape concerns the presence or absence of consent, we can say unplugging someone from life support is fine if we have her consent, and not otherwise. Once we recognize that consent is the



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key moral ingredient, we have no reason to withhold it from active euthanasia as well. I intend table 4.2 to show the distinction. Table 4.2  Consent / nonconsent distinction Consent Status Act Judgment

unplug inject

With consent healthy diseased live die die die moral moral

Without consent healthy diseased live die die die immoral immoral

While it is true that unplugging a healthy person is not going to kill her, we can still call the action immoral if we unplug her without her consent. So what if I needlessly hook myself up to an artificial lung? You cannot disconnect me without my consent, any more than you can knock a cigarette from my mouth without my consent (all things being equal14). So it is not the case that unplugging is fine and injection is bad. What matters is whether the actions have garnered proper consent. If so, both are fine. If not, both are bad. Moreover, while we can agree that the right to refuse treatment (passive) does not equal a right to demand treatment (active), nothing in this determines that we cannot ask for treatment. My right to refuse a sex change does not mean I cannot ask for a sex change. My being unable to demand Gogol give me his overcoat does not mean I cannot ask Gogol for his overcoat. A contractarian analysis of the trolley problem also does away with the doctrine of double effect. Pulling the lever in case 1 is as bad as pulling the lever in case 3 and pushing the fat man in case 2. If you do pull the lever in case 1, however, mitigating circumstances might make us treat you more leniently than we would treat the person who pushed the fat man in case 2 or pulled the lever in case 3. The reason for this involves assessing situations from the status quo. When we say, “Don’t do unto others without their consent,” we mean “Don’t do anything to others that robs them of their status quo without their consent.” For example, if I pass a beggar without dropping some money into his hat, this may not meet the beggar’s consent. To say, therefore, I must put money in the beggar’s hat, however, would not meet my consent. A moral theory based on consent simpliciter would be stuck. Allowing the status quo to be the permissible default solves the problem. The state of affairs the beggar was in before my arrival is having his hat empty of my money. If I leave that a live option, which I do by passing by, I am not violating the contractarian principle.

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To apply the status quo distinction to the trolley problem, we see the dilemma in case 1 but no dilemma in cases 2 or 3. In case 2, the fat man’s status quo is being on the bridge. If I push him off without his consent, I have violated the contractarian principle. Hence I cannot morally do so. The death of the five people is a tragedy but not a moral infraction. In case 3, the stuck man’s status quo is being stuck on a track without (currently) a trolley coming. My pulling the lever, while knowing the implication, robs him of that status quo and makes me morally culpable. In case 1, the status quo of the five people is that they are about to be killed. For that reason, they would, presumably, consent to have me alter their status quo. The status quo of the man on the other track, however, is being stuck on a track with no trolley about to kill him. For me to save the five would be a violation of this other man’s status quo. Hence it is a morally wrong action. Not doing anything and letting the five die is not a violation of their status quo, however, and is therefore morally permissible. Unlike the doctrine of double effect, utilitarian counting is not part of the moral calculation at all. Yes, we may decide to exonerate someone who pulled the lever in case 1 but that would be at the level of just punishment, not the level of moral responsibility. Rational selfinterested agents at an ex ante level might permit some flexibility for benevolence in justice. Exoneration of a case 1 track-switcher would not mean that switching the track is right in case 1. We can see this by recognizing that we would not morally blame the person who did not switch the track. The onus of appeal would be on the person who switched the track, and she must face her moral responsibility for doing so. Unlike either the utilitarian counting solution or the killing versus letting die solution, the contractarian solution to the trolley problem remains consistent through the three cases, clearly explains why we think pulling the lever in case 3 is wrong and pushing the fat man in case 2 is wrong, and explains the intuitive difficulty we would face in case 1. The summary of section 4.3.2 is this: Rachels is right that the activepassive euthanasia distinction is morally irrelevant, but he gave the wrong reasons. Rather, once we see that consent is the main moral ingredient, we see that active euthanasia is as permissible as passive. 4.3.3. Unwanted Social Implications Common objections against permitting active euthanasia concern bad social implications. Such objections fall under four headings:



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Slippery slope, undue pressure, undermining trust, and proxy problems. Slippery slope arguments are notoriously weak. The idea is that once we permit killing of “unwanted” or “undervalued” members of society via euthanasia, we will move onto solving all of our social ills by extermination.15 Is poverty a problem? Let us euthanize the poor. Is homelessness a problem? Let us euthanize the homeless. Is immigration a problem? Let us euthanize immigrants. Slippery slopes fail when we can point to relevant disanalogies between the primary subject (euthanasia) and the analogues (the bad acts). By emphasizing consent, the relevant disanalogy is clear. Actions with consent are fine. Actions without are not. This means that, while the poor, the homeless, and immigrants do not consent to be “euthanized,” killing them is immoral. Telling us that nonconsensual practices are bad does not tell us that we should therefore think consensual practices are bad. If anyone “euthanizes” without proper consent, contractarians can complain. (I put “euthanize” in scare quotes for those who follow me in sticking consent into the definition of euthanasia. For if there is no consent, there is no euthanasia.) Moreover, the emotive description of euthanized people as “unwanted” or “valueless” is groundless rhetoric. What is unwanted are the conditions in which such people find themselves. What they deem not to have value is a continued life of pain and suffering. We do not say the people are unwanted or valueless. When people are under such extreme discomfort and genuinely request euthanasia, to forbid them their chosen solutions is to treat them without value. A second implication worry is the fear that if we allow euthanasia, people may feel undue pressure to volunteer for it.16 John Hardwig does not help placate this fear: he claims people have a duty to be euthanized.17 This is not a contractarian implication, however. Having a right to do something is different from having a duty to do that thing. For Hardwig, social utility trumps individual liberty; not so for  contractarians. That people may nonautonomously choose active euthanasia is, of course, a concern. At the outset, I emphasized the notion that consent should be “unwavering.” By this I mean to emphasize that consent is a process, not just an act. Just as although people may feel “obliged” to have sex after a date and so say “yes” in the living room, does not mean they cannot say “no” in the bedroom.18 Despite precautions, of course, some people may nonautonomously engage in certain actions. The prospect of nonautonomous engagement in an action can hardly make that action wrong. Some people may feel pressure to get a tattoo or go to university. To

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intercede on the grounds of noncompetence is fine. To ban the act that some choose nonautonomously is not. To ban actions is justified only when we have another ground for thinking the particular action is wrong other than the social pressure to do it. We feel social pressure to be charitable, for example. David Velleman makes a more subtle appeal.19 He thinks we are justified to ban active euthanasia on the same grounds that we banned the practice of duelling. Velleman claims that within the context of a community that praises honour and condemns cowardice, one does not have any free choice in entering a duel. If we ban the whole practice, everyone will be better off, including those who would have consented to a duel if pressed. The due pressure argument concerning euthanasia is the same. We live in a society that urges we each do our part for others. If that includes killing oneself to let others have access to limited hospital beds, or to end the costs and disruption in the lives of family members, then so be it. Velleman believes we would be better off not having the choice at all, than have anyone feel pressured to take it. While we may sympathize with worries about social pressure, such an argument is far too extreme. For one, it seems strange to rule out an action on the grounds that agents benefit from it. Secondly, countless self-sacrificing actions are done on the behalf of others, like charity or bystander intervention or parenting. To rule such actions out because social pressure to be “nice” undermines voluntariness would be antithetical to most people’s understanding of morality. To say, “Yes, but let’s not allow social pressure to push people to do acts that harm themselves, like duelling,” is to presuppose that euthanasia is a harm; it does not show it to be a harm. A third type of bad consequence that supposedly would come from allowing euthanasia is that we will no longer trust the medical establishment. If Smith went to the hospital and was euthanized, might fewer people go to the hospital due to the fear of being euthanized?20 Such a worry seems less relevant if we, again, emphasize that the crucial ingredient in euthanasia – or any medical procedure – involves competent, informed, unwavering, voluntary consent. We should trust the medical establishment even more, I would think, if medical practitioners respect patients as autonomous persons. They show that respect by heeding the interests of their patients. If hospitals “euthanize” people without their (or their proxy’s) consent, that would undermine my confidence in the medical establishment. Nonconsensual actions are not what contractarians endorse.



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The problem with proxies is the fourth worry about bad consequences. When people are not competent – children, dementia patients, or those in comas for example – getting their consent is not possible. To rely on a close relative’s decision will leave open the question of whether that relative is speaking for the patient or herself. My being in favour of euthanasia for myself does not make it the case that my ward would be in favour of euthanasia for herself. My being against euthanasia for myself does not mean my ward would be against euthanasia for herself. How can we tell if a proxy is speaking for the patient or herself? The proxy, meanwhile, will typically have vested interests in killing off her ward – in time savings, in cost savings, in reduction of stress and anxiety. When proxies are entitled to inherit part or all of the ward’s estate, an even greater conflict of interest lurks. So, even when proxies have good intentions, their own biases may unwittingly override the real interests of their wards. When they have bad intentions, they may wish to kill their wards. We do not wish to make that easy for them. To allow proxy-consented euthanasia opens a loophole for murder.21 In response, I think it important to first note that the difficulty of proxies does not undermine the contractarian argument for the moral permissibility of active euthanasia in nonproxy cases. This does not tell us what to do in the proxy case, admittedly, but separating the two issues is important. For example, a state can approve active euthanasia for those competent to consent and deny active euthanasia for those incompetent to consent, at least until we find a reliable way of distinguishing when proxies speak for their wards. To allow living wills would help. A living will is made when a person of sound mind legally details the conditions in which she would opt for active euthanasia. The problem with living wills is that people may specify conditions in which they do not find themselves. For example, having witnessed her mother and sister suffer agonizing deaths from arthritis, my mother often spoke to me of wanting active euthanasia if she were ever crippled with arthritis. Had she suffered another disease, can I say she would have wanted active euthanasia then? Knowing her unwavering repulsion of a slow, agonizing death, my answer is yes, but if her living will mentioned only arthritis, we can understand a medical team’s reluctance to opt for active euthanasia under alternative conditions. To make the living will a general permissibility for active euthanasia under any condition is too lenient. Would that include conditions from which she may recover or

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conditions under which she could manage? Finding the right balance of specificity and generality will impede the successful implementation of living wills.22 Despite the problems with living wills, we could, of course, imagine clear cases. People do generally know the kinds of disease they are susceptible to, based on family history, environmental statistics, or even current diagnoses. Some may suffer the early stages of the disease and know the outcome. In such cases, to deny living wills – properly attested – seems, if not cruel, overly cautious. Living wills can cover some people who competently made the choice before becoming incompetent. Such a safeguard is not available for those we have never deemed competent. In such cases, parents or guardians, have been making decisions for them all along. While euthanasia is obviously a final decision, we believe they have the right to decide for their ward if we do not deem their decisions abusive or neglectful. To call active euthanasia abusive or neglectful clashes with the fact that many people of sound mind voluntarily choose it for themselves, whereas few people of sound mind, if any, choose abuse and neglect. My response, then, to the problem introduced by proxy consent is, first, to recognize that the worry is practical, not theoretical. Secondly, we could solve the practical worry by putting strict limitations on proxy decisions for those who were once competent. A complete ban on once competent individuals without a witnessed and clear living will would be as stringent a limitation as I would tolerate. For those proxies who have decided all major issues for their noncompetent wards, we have to assume they are speaking in the best interests of their wards, if no prior incidence of abuse or neglect is found. Euthanasia cannot count as abuse or neglect when the patient’s death is imminent and/or the degree of suffering is extreme and unassailable. 4.3.4. Restrictions on Consent Mill argued that the right to do what you choose with your body does not include the right to sell yourself into slavery.23 This is because slavery is inconsistent with protecting liberty. One may offer a similar argument concerning euthanasia. Having the right to kill yourself is inconsistent with the general protection of liberty that contractarians intend to preserve.24 Selling oneself into slavery is different from



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killing oneself, however. In slavery, it is someone else using your living body for their gain. In death, no one gets to use it, except for parts. Besides, the argument should mean we would not have a right to elect passive euthanasia either. Martyrdom, too, should be forbidden, since adhering to mental constructs that will lead to one’s death is inconsistent with the preservation of one’s liberty. In summary, contractarianism provides a clear guide to euthanasia. When we are considering medically confirmed cases of persons suffering terminal illness or injury and/or being in severe and endless pain, such that the amount of drugs needed to combat the suffering erodes the person’s identity, both passive and active euthanasia are morally permissible while the patient is competent and informed and consistently consents.

5 Abortion: Fetuses and Rights

I will argue for the moral permissibility of abortion, at least within the first half of pregnancy. A contractarian argument always concerns itself with demonstrating that a duty is worth accepting. Accepting duties costs the duty acceptors. We are generally loath to accept costs, unless we see a net gain. Duties against murder cost – the cost of not being able to murder someone, plus the cost of your being punished should you murder someone – but it has an overall gain of increasing the odds of your not being murdered. Is there a net gain for anyone’s accepting the duty not to have an abortion? Not obviously. Whether you accept or reject the duty will not affect your desire to have children. A society tolerating abortion does not forbid you to have children. Should you be in the position to want to have an abortion, however, your accepting a nonabortion duty means you will end up with an unwanted child and a disrupted life. The payoff to you is negative. Should you be in the position to want to have an abortion, your rejecting a nonabortion duty means you will end up with an uninterrupted life, your desired state. Since no other logical outcome exists for any ex ante bargainer to consider, it seems that the  cost of accepting a nonabortion duty has no offsetting gain. Contractarians would reject it. Contractarianism is predicated on the hopelessness of pretending that moral duties simply exist in the world externally and independently of human interests (see chapter 2). Complaining that contractarianism misses such things will not count as an objection without digging deep into metaethical epistemology. A better objection to the contractarian argument above, however, will mention the contractarian stricture about concerned parties. Is a fetus a concerned party



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in the debate about abortion? Any individual might not want to accept a duty of nonabortion should they be in a place where abortion seems to serve their interest better than nonabortion, but how many of us would think your mother’s aborting you would serve your interests better than her not aborting you? A contractarian argument against abortion, therefore, needs to explain why a fetus ought not to count as a concerned party. In section 5.1, I provide preliminary considerations to the abortion debate. In section 5.2, I argue that sentience is a minimal requirement for being a rightsholder – itself a minimal requirement for being a concerned party – and that early fetuses do not have sentience. In section 5.3, I examine why granting rights to fetuses would not entail a composite duty to the woman interested in aborting. In section 5.4, I offer an indirect proof against assigning a fetus any rights at all. Lastly, in section 5.5, I raise two tangential concerns: abortions for bad reasons and access to abortion.

5 . 1 . P r e l im in a ry Cons i d erati ons A simple argument against abortion may be presented in the following syllogism: 1. Killing things with rights is wrong. 2. Abortion kills things with rights. 3. Abortion is wrong. The first premise is too strong. Not all cases of killing things with rights are wrong. On an episode of The Simpsons, Sideshow Bob hypnotized Bart to kill Krusty the Clown. If the only way to save himself was to kill Bart, Krusty would be justified in doing so even if he knew Bart himself was innocent.1 Since most antiabortionists recognize that abortion is permissible when an innocent fetus risks the physical life of the mother, this small amendment is idle. What we want to know is whether abortion is permissible when the mother’s physical life is not at risk. The second premise is where the worry lies. It assumes the fetus counts as a thing with rights.2 Antiabortionists typically defend this assumption by noting that the fetus is human, and humans have rights. After all, we are talking about fetuses that humans beget, not fetuses that possums beget. A possum is not human, of course, but

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many ascribe rights to it, a right not to be burned alive, for example. Therefore, making the case that a fetus is human cannot be the justification for its having rights.3 Our noting that the fetus has the biological markings of homo sapiens is not entirely idle if we believe that anything with the biological markings of homo sapiens has rights. To ascribe rights based on biological markings, however, commits the fact–value problem. To avoid that, we want to know what it is about the biological markings that make us confer rights. Since we generally confer a right-notto-be-burned to a possum, and we admit a possum does not have the biological markings of homo sapiens, we now know that whatever the ingredient is that elicits our desire to ascribe rights has nothing to do with the brute fact of being homo sapiens. Instead, our ascription of rights has something to do with what homo sapiens and possums share. It is possible that whatever that is – the ability to feel pain, for example – fetuses do not have it, whether or not we call fetuses human persons. Being human, then, would not be sufficient to having a right. If we discover that fetuses are not the kinds of things that attract rights ascriptions, that would be decisive to the abortion debate. Abortion would be morally fine. What many fail to appreciate, however, is that attributing rights to fetuses is not similarly decisive. Rights come in a variety of types and degree. A right may be positive or negative. A right may be perfect or imperfect. A right may be prima facie or all things considered. Concerning the degree of rights, we prefer to save a person rather than a possum from a fire, not because we think the possum has no rights, necessarily, but whatever right it has, it is not of sufficient degree to trump the right of the person. And moral issues never concern a single rights-holder but always entail a conflict between rights-holders. When we say Jones, but not Smith, has the right to x, we are not denying that Smith has rights. Simply, Smith’s rights are insufficient to trump Jones’s right vis-à-vis x. In the abortion debate, our granting a fetus some sort of right would not mean that no other rights-holder, i.e. the mother, is to be considered. Since we may be speaking of different types of rights, and different degrees of rights across different rights-holders, granting rights to fetuses may not be sufficient to show that abortion is wrong. People in favour of abortion will think the second premise is false. My point so far is to say the first premise may be false as well and false not merely for cases of self-defence. Saying this does not show



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that the fetus has no rights or that, even if it did have rights, abortion is still morally permissible. That, however, is what I will now try to show.

5 . 2 . A D e v e l o p m e ntal Model 5.2.1. Sentience When we ascribe rights to something, it is because the thing in question has some sort of feature in common with all right-holders. If we grant possums rights, the right not to be burned, for example, then the ability to reciprocate duties is not a common feature of rightsholders (contra Mary Ann Warren and Michael Tooley).4 Rights do entail duties but not necessarily in the same creature. When we say rights entail duties, we mean for anything, A, to have a right means some conscious entity, B, must endorse the duty to uphold A’s right. When we are looking for a shared feature of all the entities toward which conscious beings agree to take on duties, a likely candidate is the ability to feel pain. We can morally squish an earwig but not a possum. The difference between earwigs and possums is the higher brain function involved in pain sensation. To feel pain, we need pain sensors in the body where the pain is “felt,” pain transmitters to send those signals to the brain, and a pain recorder, which lies in the higher brain. While pain sensors appear in human fetuses around fifty-two days (half way into the first trimester), the other components necessary for pain do not develop until midway into the second trimester. So first off, we could agree that abortion after a fetus can feel pain is bad but before the second trimester is fine.5 Two counter examples are commonly given against sentience being the hallmark of rights-holders. (i) Coma patients are rights-holders, yet not sentient.6 (ii) If you kill someone painlessly, we think it still wrong.7 To the first objection, we are speaking about normal conditions not abnormal conditions. Human adults and children are normally sentient. First trimester fetuses are never sentient. If some entity is always comatose, such that being in a coma is its nature, then we would not ascribe it any more rights than we do a plant. The likely reason we grant coma patients rights is that such persons were sentient. A history of our granting them rights and responsibilities exists, and that precedent persists as a matter of momentum.8 No such history exists for fetuses.

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In any event, the question about continuing to uphold a coma patient’s rights is a different kind of question than wondering about rights ascription in general. Ascribing rights to sentient beings makes sense because we are interested in upholding duties based on avoiding pains to us, and so we can agree not to cause pains to nonconsenting others. We expect a reciprocal bargain on that score. When our duties are to things that cannot presently feel pain, however, we need another argument. That coma patients were sentient or may become again sentient or are cared for by concerned parties who are sentient, all makes sense. Except for the possibility of a fetus becoming sentient, and the remote possibility that anyone other than the pregnant woman counts as a concerned party, fetuses do not fit any of these criteria. Moreover, while no conflict exists between sentient beings and coma patients, the cost of upholding a negative duty to coma patients is nil. You can satisfy all your desires without having to interfere in a coma patient’s life. This is not the case with abortion. A conflict exists between a woman wanting an abortion and society’s telling her not to have an abortion. The second objection points out how murder is still bad, even though it is done painlessly. We thereby recognize that pain is not the issue. Contractarians agree. I may voluntarily undergo pain when I go to the dentist or enter a boxing match. In this sense, consent can override pain. Typically, we do not consent to be killed, even if painlessly. To suggest that only those who can consent can count as a rights-holder, however, would not help fetuses. While consent does underwrite morality for contractarians, it does not follow that only those who can consent have rights. Only those who can consent can have duties. We may grant rights to those unable to consent if someone consents to uphold the corresponding duty. We do not typically pay such a cost when the supposed rights-holder can feel neither pain nor anguish. For contractarians, one has to be able to consent to the duties one undertakes. Reasonable consent to duties will occur only when the benefit of enough others reciprocating that duty outweighs the cost of the duty. Accepting a duty to something that cannot even feel pain is normally too high a cost to pay without any obvious benefit in return. It is one thing to avoid stepping on ants when you can; it is another thing when you cannot play in your yard without stepping on ants. When liberty conflicts exist between sentient and nonsentient beings, we typically waive any putative duty to nonsentient beings.



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Typically, but not always. Recall from chapter 1 (1.4.4), that along with our duties to reciprocating agents, we may have duties toward other entities or things. These later duties come from our interest in cooperating with those with whom we have a duty to. Those reciprocators may have interests in these other things or entities. Many of those entities will be sentient – dogs and infants, for example – but not all – paintings and interesting geological formations, for example. Can we not, thereby, assume fetuses can be things – sentient or not – in which our coreciprocators have interests strong enough to be willing to forgo cooperation with us if we do not credit fetuses with rights? The answer is no. It is one thing for you to forgo cooperation with me if I fail to appreciate your roses, say. My accepting a duty not to stomp on your roses is fairly costless to me. I believe I have satisfied that duty to you my entire life without even trying. It is another thing for you to forgo my cooperation if I fail to have a child. Such a demand is not costless to me. The cost to me will likely outweigh the benefit to me from whatever cooperative dividends I expect to get from you. It is one thing for you to demand I not abort your fetus as a condition on our cooperation. It is another thing entirely for you to demand I not abort my own fetus.9 Even if I ought not to abort my own fetus for some moral reason, the conclusion cannot follow from pointing out the distinction between duties to and duties toward. 5.2.2. Potentiality Above, I mentioned the possibility of a fetus becoming sentient. If left unmolested, of course, a nonsentient human fetus will develop into a sentient fetus. Some think that rights ascription, therefore, ought to be retroactive. If, for example, we protect the rights of a currently nonsentient coma patient because the coma patient will – under normal circumstances – feel pain again, the same sort of thinking should apply to a fetus. Under normal circumstances, the early term fetus will be able to feel pain. Thus, if we allow the coma patient some sort of right, we should also allow the fetus the same sort of right. Don Marquis makes this point explicit when he claims that murder is wrong precisely for the prevention of future potential.10 If the murder of a person is wrong for robbing that person of his future life, then murdering a fetus is similarly wrong for robbing it of its future life. Let us call this the potentiality argument. At least four problems confront the potentiality argument. (i) Few believe murder is wrong

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for robbing potential. (ii) Morning-after pills, contraception, and even abstinence would also be wrong for robbing the future existence of potential persons. (iii) Fetuses have not the requisite features to count as having an identifiable future. And (iv), whatever right a potential rights-holder has, we cannot think it sufficient to trump the rights of an actual rights-holder, i.e. the mother.11 Point (iv) is decisive. Even if we grant fetuses rights, it does not follow that such rights are sufficient to trump the rights of the woman wanting the abortion. A possum has rights, we imagine, but should you save a possum from a house fire instead of a child whom you also could have saved, few would think you behaved properly. We think a child’s rights trump a possum’s rights, and we say this without thinking that therefore a possum has no rights. If a judge determines that I own a coffee cup and not you, the judge is saying that you have no right to my coffee cup. She is not saying that you have no rights at all. Since abortion concerns the conflict between the rights of the carrier and the supposed rights of the fetus, granting the fetus rights is not sufficient to show that abortion is immoral. When the rights we grant to the fetus are only potential rights, moreover, their trumping the actual rights of the pregnant woman is monstrously implausible. Here, I stress that the rights we grant to a potential sentient creature are only potential rights, not actual rights. To suggest, instead, that the rights of a potential sentient creature are the same rights as a sentient creature would entail circularity. It would mean we would define a rights-holder as anything that has the potential of being a rights-holder. However suitable that might be to antiabortionists, it is not much of a definition of a rights-holder. To suggest that a rightsholder be one who has the potential of being sentient would merely show that sentience is not the issue, since rights can be held without sentience. If so, the potentiality argument that we should grant rights to creatures who will become sentient is amiss. One would need another account of a plausible rights-ascription that would include fetuses, yet rule out earwigs, not beg the question, not jump from facts to values, nor rely on shaky metaphysics.12 Point (iii) borrows from philosophy lessons learned when trying to understand personal identity. In brief, the worry is that normally we take our future potential to be relevantly connected to our present selves. Who I was when I was five years old is considerably different from who I am now or who I will be at eighty. Nevertheless, apart from my biological makeup, my different selves presumably share



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something of what I take to be my personal identity: my conscious states, tastes, preferences, goals, aspirations, fears, memories, perceptions, habits, activities, and plans. Because I can identify with my past and future selves, your preventing some of these goals of mine would count as a loss to me. If my future self contains nothing of which I am presently aware – neither tastes, preferences, goals, memories, fears, aspirations, perceptions, etc. – then whatever that future self is, it is no different to me now than my being dead. That we can trace some D NA in the two selves is not interesting, since you can get my D N A from my corpse as well. To apply the lesson of personal identity to the potential of a fetus is straightforward. Whatever state the fetus is in, it is totally divorced from its future conscious self. To speak of the fetus having a future, then, is phenomenologically inaccurate. Normally, for something to have a potential is for it to have some kind of current identity – something an early stage fetus lacks. A fetus needs to first reach the point at which we can start to speak of its potential.13 Point (ii) seems to have received the most attention in the literature.14 Marquis denies that the potentiality argument would rule out contraception and abstinence. His reasoning concerns the probability of a particular fetus going full term compared with the probability of a particular sperm uniting with an egg. For him, the odds of a particular sperm uniting with an egg are too low to make the claim that contraception or abstinence robs any potential person, whereas the odds of a zygote reaching personhood is much greater. The great difference in probabilities is true, but whether that is relevant is questionable. The idea is that potential personhood counts for being a rights-holder only while the probability of getting to personhood is high enough. We can imagine cases where this maxim seems false.15 A huge accident occurs on an island with one million inhabitants. We hear that either no one survived or that, perhaps, only one islander survived the accident. Let us imagine the odds of it being one rather than zero are 20 per cent. If we now bomb the whole island, we are either killing that one survivor or killing no one. The odds that our bombing the island would kill a particular living person (one we identify in a phone book, say) are one in twenty million (1/1,000,000 x 0.2). Pointing out the low odds would not absolve us of guilt in bombing the island. Though the probability is extremely low, the risk of cutting short the potential future of someone – whom we cannot currently identify – is still a bad thing to do. The odds in the island

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bombing case are about the same odds occurring in contraception. If, in the island case, we have done a wrong by potentially robbing someone’s potential future – whoever that someone is and however low the odds of that wrong – then we have done a wrong when using contraception or abstinence, contra Marquis’s remarks. Calling contraception wrong may not bother some religious sorts, but they could not call abstinence wrong, unless they are willing to condemn priests. Concerning point (i), no moral theorist, other than an abortion advocate, has ever suggested that murder is wrong for robbing someone’s potential. We normally think it equally wrong to murder a Beethoven and a schizophrenic homeless addict, though the first has far greater potential than the second. As Gerald Paske notes, murdering a person on her deathbed is still a harm to that person, though we are not robbing her of any potential.16 5.2.3. Summary When thinking why we ascribe rights (as opposed to the metaphysically suspect view of discovering rights (see chapter 2)), it seems that something like sentience is a crucially relevant ingredient. Fetuses do not have the neural structure for sentience until about half way through gestation. This gives us good grounds for thinking early abortions are morally fine and later abortions require some justification. The common complaint that such a division is arbitrary is false. It is based on the development of the brain. It also avoids the rejoinder that any argument allowing abortion would equally allow infanticide. Infants can feel pain. Early fetuses cannot. What follows is a two-part argument for why we can think abortion is morally permissible even if we gratuitously grant fetuses rights.

5. 3. P o s it iv e o r N e g ati ve Ri ght to Li fe? In recognition of the clashing rights between the abortion seeker and the fetus (assuming we grant the fetus rights), antiabortionists often point out that the right to life of the fetus surely trumps the trivial right of the woman to do with her body as she deems fit.17 First off, and importantly, liberty rights are not trivial, even if people often do  with their liberty trivial things. The right not to be murdered, assaulted, and raped, are all liberty rights – hardly a trivial matter. Realizing that liberty is the thing being protected, not



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necessarily what people do with their liberty, undermines such antiabortionist rhetoric. Secondly, and more important, the claim that the fetus has a right to life is ambiguous. On the one hand, we could mean a positive right, and on the other hand, we could mean a negative right. To have a positive right to something means someone ought to give you that something if you do not have it. To have a negative right to something means no one can take that something from you, if you have it. The abortion debate typically conflates these two senses of right. By keeping them distinct, we will see that the force of the antiabortionists’ argument falters. This is because the tendency is to rescue problems with antiabortion arguments connected with positive rights by an appeal to negative rights yet rescue problems with antiabortion arguments connected with negative rights by an appeal to positive rights. 5.3.1. Positive Obligations Let us look at what happens if we mean right to life of the fetus in the positive sense. Since liberty is a negative right, to emphasize the contrast between the mother’s “trivial” liberty right and the fetus’s right to life, speakers must mean that the right to life of the fetus is positive. After all, it cannot live on its own without the mother’s support, so the mother must support its life. A parallel case concerns our duty to help someone who is drowning. Your liberty right does not trump the person’s positive right to life in this case. You should jump in the water and pull the drowning person to safety, assuming you can. We would call immoral anyone who declined because of her “mere” liberty to polish her nails instead. Before we can apply the drowning analogy to abortion, however, we have to recognize at least two limiting cases. (i) We are supposed to share positive duties equally. They are not doled out to only one subgroup of society. Imagine if we say blacks alone have the positive duty of helping whites, but no whites share that duty toward blacks. We call that slavery. (ii) We always waive positive duties when the cost to the helper is too large. In the obvious case, if I fear I will drown myself in my attempt to save you from drowning, I am off the hook. This satisfies everyone’s contention that abortion in selfdefence is permissible.18 Furthermore, if I save you, I have fulfilled my duty, and I am free to move on with my life. No one demands that

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I keep saving you from the water for the next nine months. No one demands that I take you in and feed you for the next nine months – even if, or possibly especially if, I will come to like you and would willingly keep you. Such a duty would be too onerous. When we apply these two limiting cases to abortion, we see that both conditions apply. (i) Antiabortion laws give only women, not men, the burden to have unwanted births. That no one else can feasibly take on the duty of pregnancy ought not exempt condition (i) Instead, the conclusion should be that pregnancy cannot be anyone’s duty. Moreover, it is not altogether irrelevant to point out that the poorest members of society tend to be single mothers. If we really believed in the positive rights of children, we would all take on the duty of helping this disenfranchised group. I am not saying that we should not. I am saying granting positive rights to fetuses but not to children of unwed mothers is hypocritical.19 (ii) The saving act of nonabortion occurs for nine months, if not one’s whole life, given one’s penchant to become attached to one’s kids. That you would become inured to a hardship would not normally make it justifiable for you to have to accept that hardship. Never would we impose such an obligation on anyone else. When morality asks us to rescue the drowning person, morality does not ask us to follow the drowning person for the rest of his life to ensure his safety. It is a one-shot deal, and morality allows us to be on our way without any further obligation owing.20 Thus, our accepting the normal positive obligation of beneficence is insufficient to show that a pregnant woman has an obligation to keep the fetus. Granting a positive right to a fetus, therefore, does not trump the negative right of the mother. True, the relation between the mother and fetus is not that between a passerby and a hapless stranger. Baruch Brody, for example, claims that the negative-trumps-positive-rights argument works only for cases where one conceives a fetus in a test tube and now looks to implant it in someone’s womb. Under such a condition, we can understand any particular woman’s right to decline.21 A pregnant woman’s status is not like this, however. She is already pregnant, and with that pregnancy comes the responsibility of not intentionally aborting. As Daniel Callahan says, we do not decide morality by agreeing to responsibilities. Natural obligations exist to which we are morally bound, specifically the responsibility the parent has toward her child.22 A parent has an obligation to take care of her child in a way that a passing stranger does not.



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True, the argument we are addressing is supposed to have gratuitously assigned a positive right to a fetus, but it does not follow that we therefore assign a positive duty to the mother not to abort. While still admitting parental duties to children, we have to distinguish between a child and a fetus, as Paul Gomberg makes explicit.23 In fact, we may deem our parental obligations to be so important that abortion may be the right decision.24 Since we want to be responsible parents, we also recognize certain resources need to be in place to accommodate children properly. Refraining from aborting, for example, does not guarantee good parenting. What helps good parenting is ensuring that parents can adequately meet the responsibility of bringing a child into their life. If it cannot be, abortion seems consistent with parental responsibility. While parents have a responsibility toward their child, this is so only once they accept the role of being parents, not before. Similarly, a married spouse accepts responsibilities to her marriage, but not before she utters “I do,” even if the couple had been cohabiting beforehand. Whether abortion counts as a good parenting technique or not, Brody’s counterexample does not show that the pregnant woman has a positive duty to care for the child. It shows only society’s penchant to blame the woman for being pregnant in the first place. This explains people’s desire to permit abortion in the case of rape – the case where we just implanted the fetus in her womb without her ­consent. Earlier, I said the onus of continually saving a person from drowning is too much. An objector might concede that is so, if we assume the would-be saviour is not the same one responsible for the man drowning in the first place. If she is the one who threw the man into the water, we would say something different. We would say she has the responsibility to pull him out. This may be Brody’s point. The objection stems from viewing abortion as a case of throwing an innocent fetus into the water and then declining to save it. Being pregnant, the mother has, supposedly, already undertaken the responsibility for the fetus. As put, it is the mother’s voluntary action to have had sex that makes abortion immoral.25 While such an argument is common, it is incoherent. The analogy makes sense only if we conceive of pregnancy as a harm to the fetus. The fault occurred at the moment of throwing the fetus into the lake, and that harm can be rectified only by dragging it back out. Since failing to rescue the child once it is thrown into the lake counts as the abortion, the act of throwing the fetus into the lake is the act of

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having sex. This is what makes the analogy inapt. It highlights how the problem is having sex, as if any fallout from having sex requires continuous penance. If I get herpes from having sex, however, society does not prevent me from treating my herpes. Society does not say that since I voluntarily had sex, I am forced to keep my herpes. True, we do not grant herpes a positive right, but the point here is that we would not grant my herpes a positive right on such a basis. That much of the wrong of abortion is pinned on sex is seen more clearly in our attitudes toward abortion in the case of rape. Many antiabortionists permit abortion in the case of rape because they recognize that being pregnant was not the woman’s fault. As such, they accept that the mother’s negative right not to be pregnant trumps the fetus’s positive right. As Janet Radcliffe Richards points out, however, a rape fetus is no different from a nonrape fetus.26 So if abortion is fine in the one case and not the other, the difference has nothing to do with the brute fact that the fetus exists or with any supposed natural obligation the mother has toward a fetus merely because it is in her womb. Her supposed obligation can have nothing to do with what rights we gratuitously give to the fetus. Admitting abortion in the case of rape recognizes that the mother’s psychological health is as important as her physical health. Yet any woman wanting an abortion for nonrape reasons is telling us that going full term will impede her psychological health.27 The only difference between rape abortion and nonrape abortion is the mother’s choice. Why anyone deems this relevant to the abortion debate is perplexing, unless one holds a patriarchal view of women. If women are supposed to be baby producers and placaters of men, then opting out of pregnancy – particularly for selfish reasons like education and career – is a violation of that function, a violation of their so-called “natural” obligation.28 If we reject patriarchy, as we should, then we reject any putative moral difference between a fetus being implanted in a woman’s womb against her will or the woman’s freely participating in sexual activity with the unwanted result of a fetus ending up in her womb. Concerning the fetus and its carrier, the difference between the two cases is morally irrelevant. A related objection to my claim that the negative right of the mother trumps any positive right a fetus may have concerns how much of a burden pregnancy is. An antiabortionist can agree to the principle that we cannot impose a duty on someone if the onus of that duty is too great yet deny that being pregnant counts as such an



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unbearable burden.29 Pregnancy is not a sickness. For many, it is a joy. If so, however, Brody’s counter example fails, since we would say that no woman could reasonably reject the offer to have a test tube fetus implanted in her womb, given that it is not a burden to her. Pregnancy is more likely to be a joy, however, when one is happy with the prospect of having a child, than not being so happy about that. The conclusion so far is that we should probably not ascribe any rights to fetuses within the first trimester, and in any event, we cannot pretend that fetuses can have positive rights sufficient to trump the “mere” liberty rights of the fetus carrier. Even if fetuses have positive rights to life, that is not sufficient to make abortion immoral. What happens if the right we assign the fetus is negative rather than positive, however? To that, I now turn. 5.3.2. Negative Obligations If A has a negative right to life, that means B cannot kill A. If a fetus has a negative right to life, then it appears that the mother would be morally unable to kill it. Focusing on a negative, rather than a positive, right may be the best approach for antiabortionists. After all, the negative (or liberty) right of the fetus entails that no one can kill it, no matter if killing the fetus would be convenient to the mother. This highlights, by the way, why a liberty right is hardly trivial. We do not think it much of a defence to say, “but preventing me from killing you is a violation of my liberty!” To return to contractarian accounts, my liberty extends as far as your liberty, and no further. My being free to do with my knife as I deem fit does not include putting it in your back because such an action would prevent you from doing with your liberty as you deem fit. No reasonable person would accept such uneven transactions. For contractarians, we grant rights only when relevant others are willing to undertake the duty of upholding those rights. We are not too keen on doing so unless some reciprocal benefit can be found. As discussed earlier, the one who benefits from our duty need not be the one who reciprocates – like when we grant rights to possums. The benefit to us, though, should be in terms of others accepting the similar duty to us vis-à-vis our pets or our children or our fetuses or what not. A separate question, of course, returns us to wondering whether ex ante contractors would accord a fetus a negative right not to be killed. What is the payoff to the duty upholder? We cannot say that

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her fetus has a right not to be killed by others, since, given the intricate living arrangements of fetuses, she already has that general right. She has the liberty right to do with her body as she deems fit. To claim that a fetus has a separate negative right not to be aborted by her would mean the woman would have to give up that already accepted and reasonable negative right to do with her body as she deems fit in cases of pregnancy. What would she get out of it? Only an unwanted child, even if, unbeknownst to her, she comes to like it. If she wanted a child, her having the right to have an abortion would not interfere with having an unwanted child that she might later come to like. The trade off is not reciprocal. Of course, under the present argument, we  are to imagine that we have passed this stumbling block and have granted the fetus a negative right to life. Does this preclude abortions? The answer, surprisingly, is no. A negative right is left unharmed if the status quo is a live option. This is the crucial point. One’s status quo is the state of affairs the parties were in before their interaction. To return to the drowning case, if I do not save you, I am not interfering with your negative right, since your status quo, the state of drowning, remains unchanged. If failing to save someone from drowning is wrong, it would be so under the pretext of a positive right, not a negative right. With murder, the status quo – being alive – was not an option the murderer granted the victim, and that is why we deem murder a negative rights violation. Those who think abortion is closer to murder than failing to save someone from drowning will think abortion is a negative rights violation, not (necessarily) a positive rights violation. After all, doing nothing in the drowning case means the person drowns, but doing nothing in the murder case means not murdering, and doing nothing in the abortion case means not aborting. “Doing nothing,” however, is not the same as the status quo, although the two often overlap. A pregnant woman’s “doing nothing” includes nurturing the fetus. If she really wants to remain at her status quo, however, she has to disengage from nurturing the fetus. The only way to do so (currently) is by getting an abortion. Compare, if someone is currently punching you in the nose, your “doing nothing” is being punched in the nose. To remove yourself from the assault, you return yourself to the state of affairs you were in before the punching interaction. Your status quo, thereby, is not necessarily the state of “doing nothing” but the state you were in before the ­particular interaction. Negative rights are violated when one’s status



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quo is not a choice. One’s negative rights allow one to do what it takes to return oneself to one’s status quo. The main goal of the woman wanting an abortion is to remove herself from the attachment to the fetus. Since doing so returns her to her status quo, the fact that the fetus dies as a result is not a case of a negative rights violation. As Judith Jarvis Thomson argues, if you find yourself hooked up to a violinist, you have the right to remove the tube even if that has the effect of killing the violinist.30 You might decide to stay attached, but your negative right allows you to detach. Importantly, the harm done to the violinist would not count as a violation of his negative right. Whatever negative right we assign the violinist, this would not include a negative right to be dependent on Thompson’s body. The same with a fetus. To be clear, the status quo of the woman seeking an abortion is the state of her not being pregnant; it is not the state of her being pregnant. This will be a sticking point for many. If, after you host a party, some houseguest stays in your home against your will, we do not say your status quo is having a squatter in your house. If it were, you would have no right to kick him out, for that would violate the squatter’s negative right. We say, instead, your status quo, the state of affairs before the interaction, is determined before the squatter’s arrival, not after. Ditto with a pregnant woman: her status quo, the state of affairs she was in before the arrival of a fetus, is being not pregnant. For her to return to that state, therefore, is a right she has. So we cannot deem that her doing so is a violation of anyone’s negative right. Negative rights are conditional on leaving others’ status quo options unscathed. When people find the negative right branch of the argument unconvincing, the appeal is usually to a positive right. Consider the following type of complaint. We can kick the squatter out of our house without killing him. To make the analogy fit abortion cases, we have to think of a stowaway on a houseboat. Only after she shipped off to sea does the host discover the stowaway. To kick the stowaway off the boat would kill him. Better, we think, is for her to wait the nine months it takes to return to land and then give the stowaway up for adoption. The complaint here, however, is about heartlessness, not a negative rights violation. Keeping the two separate is important. Returning the stowaway to land rather than have him walk the plank may be better, but it would be better only on the presumed positive right the stowaway has. We cannot count it as better in terms

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of the stowaway’s negative right. The stowaway has no negative right to be sustained by the host. The violinist has no negative right to be sustained by Thomson. Whatever negative rights we assign to the fetus, this would not include a negative right to be sustained by its carrier. The conflation between the negative and positive strands of the proabortion argument is widespread. Robert George and Patrick Lee, for example, think the following case acts as a counterexample to Thomson’s claims of “unintentional killing.” A daughter has severe lung problems and must avoid cigarette smoke. Her father, however, continues to smoke in her presence. As a result, the daughter dies. We would all complain about the father’s selfishness. We would not allow him the excuse, “but I didn’t intentionally kill her, I simply satisfied my negative right to smoke!”31 Perhaps so, but the moral accusation here is not that the father intentionally killed his daughter; it was that he did not support her. The charge is that he failed his positive duty. It has nothing to do with his violating the daughter’s negative duty. As a result, such replies miss the crucial distinction between whether we are talking about the fetus’s negative or positive rights. It is no solution to save the positive rights argument for abortion by appeal to negative rights, nor save the negative rights argument for abortion by appeal to positive rights, when both, independently, suffer. 5.3.3. Summary Even if we grant the fetus rights, either positive or negative, that would still not be sufficient to undermine the mother’s right to have an abortion. Besides all that, before midway of the second semester, ascribing any rights to a fetus seems wildly question-begging since we typically accord rights to sentient creatures. For these reasons, prosecuting any woman who has, or wants to have, an abortion is absurd and unjust.

5 . 4 . A n In d ir e c t P roof agai ns t a F e t u s H av ing Ri ghts When using indirect proof in logic, you assume the negation of your hypothesized conclusion. From that assumption, you derive a selfcontradictory proposition. Since self-contradictory statements cannot be true, the gratuitous assumption with which we began must be false. Hence our hypothesized conclusion must be true, since it is the



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negation of the refuted assumption. We can read the argument in section 5.3 as an indirect proof against ascribing rights to fetuses. This follows because we started with the assumption that a fetus has a right, and we have shown that – even so – we need not infer any duty of the mother to uphold that right, whether we deem the right positive or negative. Meanwhile, rights entail duties, such that if one entity has a right, another entity must have a duty to uphold that right. Since no other individual than the mother can uphold the supposed rights of fetuses, and no mother can be said to have a duty to uphold any ascribed right of the fetus, it follows that we cannot properly ascribe rights to fetuses at all, even gratuitously.

5 . 5 . F in a l C o n s i derati ons Two further matters require discussion: bad reasons for abortion and access issues to abortion. Neither is germane to the moral argument for abortion. 5.5.1. Bad Reasons My argument above should mean that one can have an abortion for any reason – at least within the first trimester. Even people in favour of abortion might object to this degree of permissiveness.32 If I have an abortion because of extreme economic hardship, people may deem my reason noble enough. If I have an abortion because I am planning a vacation and have already bought my bikini, people may deem my reason too petty. Conversely, perhaps I have an abortion because my fetus is female and I, being sexist, prefer male babies. Can contractarians condemn abortion for bad reasons? First off, concerns about bad reasons for abortion ascribe no rights to fetuses. Since the mother’s motives determine the morality of the act, our moral appraisal has nothing to do with any characteristic of a fetus. Secondly, concerns about bad reasons for abortion are not really concerns about abortion at all. They are more about getting one’s priorities straight. It is a view about well-being, not morality. On such a view, having an abortion for a trivial reason is as bad as doing anything for a trivial reason, say buying chocolate. We assign the value “bad” to the trivial motive, not the action. The sexist sex-selection abortion should pain the contractarian more than petty reasons. After all, contractarians are committed to

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the view that the protection of liberty is not petty – even if people sometimes, or often, use their liberty for petty reasons. Contractarians keep form and content separate. Nevertheless, sexism is not something that contractarians endorse, for no reasonable bargainer would accept such an uneven distribution of goods and duties.33 Can contractarians say, therefore, abortion for sexist reasons is wrong? Not quite. What they should say is that sexism is wrong, though not all actions of sexists are wrong. Similarly, racism is wrong, though not all actions of racists are wrong. A white supremacist has the right never to invite a black person into his private house. While we might complain about his racism, we cannot interfere with his liberty to invite whom he wants into his home. We do not say he no longer has liberty concerning whom he invites into his private home because he is racist. The same goes for sex-selection abortion. Sex-selection abortions may be wrong but ought not to get mixed up with talk of abortion. Playing a tuba is morally permissible, although exceptions exist. Playing the tuba to annoy your neighbour, for example, is not nice. Pointing this out ought not to cast aspersions on tuba playing, however. Similarly, complaining about aborting female fetuses rather than male fetuses ought not to cast aspersions on abortion. 5.5.2. Access Issues Even if abortion is morally permissible and legal, that would not mean taxpayers should pay for abortion services. Golf is also legal and moral, though we are not going to pay taxes so that golfers can golf for free. This does not preclude our funding abortions. Simply, free access to abortions does not follow from recognizing the right to have abortions.34 On the other hand, governments should not only allow but also protect any abortion clinic, just as they would protect any business establishment from onslaughts. Governments cannot fall prey to banning business on the grounds of religious beliefs or on the grounds of notions of the good. Such paternalism has no place in a contractarian world.

6 The Death Penalty: Killing Killers

6 . 1 . P u n is h ment Capital punishment offers death as the punishment for particular kinds of crime. Such a severe penalty is more likely justifiable when the particular kinds of crimes are severe. So let us imagine the following case: An otherwise sane person deliberately seeks out children to torture and kill and has done so several times and would continue to have done so, except he is finally caught. Let us also imagine that the evidence of his guilt is overwhelming, including D N A, fingerprints, uncorrupted video display, independently corroborated witnesses, nonpressured confession, etc. I am not supposing the death penalty cannot be justified for less serious crimes. If we decide that the death penalty is not justified even in this extreme case, however, we should deem the matter resolved. This is the position I believe contractarians should take. To justify a kind of punishment is to appeal to the justifications for punishment in general. Three standard justifications exist: retribution, deterrence, and protection of society. 6.1.1. Retribution Retribution is the notion that one ought to get what one deserves. This may be a good thing, like a raise, or a bad thing, like being punished for breaking a law. The law of proportionality restricts such punishment. We are not to cause greater harm to a wrongdoer than the harm that wrongdoer caused. We refer to the proportionality component of the retribution model as lex talionis – the principle

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that the punishment inflicted should correspond in degree and kind to the offence of the wrongdoer. People often interpret lex talionis as “an eye for an eye.” This phrase makes the concept gory, and many think such retaliation is motivated merely by vengeance, not justice. They also think that where an eye for an eye is law, soon everyone will be blind. They urge for more humanitarian principles of punishment.1 Such thinking is misguided, however. We need not reject the retribution model. All we need to say is that capital punishment is not necessarily the best way to satisfy retribution. All punishment is retributive to the extent that we think it just that criminals pay a price for the crimes they have committed. 6.1.2. Deterrence If our goal is to deter people from committing crimes, then acting after the fact, as the retribution model does, may not be sufficient. Perhaps we want the punishment to be so severe for a particular crime that anyone in her right mind would not want to risk doing that crime. In this sense, we gear the punishment, not merely for the perpetrator, but as a warning to all members of society, especially wanna be crooks. For deterrence to work, the punishment for the crime must be severe enough, the risk of being punished for the crime high enough, and the punishment must be public enough. The latter requirement was missing in the cold war satire Dr Strangelove, with disastrous results. 6.1.3. Protection Morality, say contractarians, is a tool we use to protect ourselves from each other. The tool involves an agreement to be a reciprocal cooperator. If, and only to the extent that, you agree to cooperate with me, I will cooperate with you. Our cooperation may involve productive work and altruism (assuming an expected favour when needed),2 but it must involve our agreeing to and abiding by a rule to refrain from interfering in each other’s pursuits. When someone violates the agreement to refrain from violence, the rest of us are in danger. So we also create a justice system to police and prosecute such violators. In this sense, punishment is not so much aimed at the perpetrator of crimes but at the rest of us, those who take the effort to uphold our agreements. Punishing violators protects us from



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harm. That is why we agree to the expensive justice system. We think it a net benefit to our peace. If it did not satisfy us, we would not pay the cost. I should clarify something. When I speak of protection, we may think of society itself as the thing being protected or we may think of  the individuals who comprise society that are being protected. Utilitarians seem to mean the first; contractarians mean the second. For contractarians, society is not something beyond the individuals who comprise the group. By “society,” I specifically mean that group of individuals who mutually agree to refrain from violence. Normally these three purposes of justice perfectly align. When we punish a murderer, we do so as retribution for the murder, to forewarn other would-be murderers, and to protect others from that murderer. We can imagine cases where the three come apart, however. When a murderer is clinically insane, we cannot hold such a person responsible, and therefore punishing her seems unjust on the retribution model. If this person is a danger to society, however, we feel justified in segregating her. If a murderer turns the gun on himself after his crime, and, instead of dying, suffers brain damage so that he reverts to having the mentality of a six-year-old, punishing this individual may be a good deterrent but not much use to the protection of society. If we think of the culprit and the brain damaged man as the same, then the retribution model would demand punishment. If we think the two are separate individuals, retribution would be unjust. When we pick an innocent person from a mob riot and punish her, it may be a good deterrent but would fail the retribution model. Vigilantism can satisfy retribution and deterrence but not clearly the protection of society, since it notoriously abrogates procedural justice, thus increasing the chances of innocent members of society being in the wrong place at the wrong time. 6.1.4. Rehabilitation, Compensation, Closure Retribution, deterrence, and protection are the primary justifications for punishment. Trends in penal reform have also introduced three other ends: (i) rehabilitation, (ii) victim compensation, and (iii) closure. (i) Rehabilitation. Sometimes we think certain kinds of punitive treatment can correct the criminal behaviour. This is the hope behind parental discipline. Whether it ought to be the main point in criminal discipline, is debatable. In Canada, the politically correct term for

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prisons is “correctional institutions” to give the allure of humanitarian efforts. The greatest indicator of lowered recidivism – a measurement of how many crimes released convicts commit –is age.3 That is, once people reach a certain age, they tire of the criminal scene. I mention this to dissuade you from thinking rehabilitation programs (currently) offer much hope.4 If rehabilitation works, that should satisfy those whose main interest is in the protection of society, but it may not satisfy those whose main interest in punishment is retribution or deterrence. (ii) Victim Compensation. A more recent reform movement than rehabilitation focuses on trying to compensate the victims of crimes. Relying on the convicted felons to pay does not get too far, since crime and poverty are positively correlated. We may offer some psychological compensation, however, through face-to-face meetings and apologies. Some claim this helps both felons and victims. For murder, however, the compensation has to go to the victim’s family, and few can imagine how we could ever meet the necessary degree of compensation. (iii) Closure. This purpose of punishment helps victims and families and society put an end to the crime, much like a funeral service helps people move on with their lives. Some people believe that capital punishment better satisfies closure for people than life imprisonment. I imagine this is more likely for those who already endorse capital punishment, but even some death-penalty supporters feel executions to be too peaceful to offer much solace.5 6.1.5. Conclusion Capital punishment satisfies the retribution model, the deterrence model, the protection model, and the closure model. That it does not satisfy rehabilitation and victim compensation may be answered by claiming that few (current) programs do, and such purposes are less crucial than the first three, anyway. Why this argument does not work in favour of capital punishment, however, is that it is not sufficient. Life imprisonment also satisfies all the same purposes of punishment. So death penalty proponents need to say not only that capital punishment serves the purposes of retribution, deterrence, and protection but that it serves those ends better than life imprisonment. Can it do so? Below I examine the usual arguments for and against capital punishment related to each of the main justifications



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for punishment. I conclude that capital punishment cannot get the support it requires.

6 . 2 . T h e S ta n da r d Arg uments 6.2.1. Retribution The standard argument for capital punishment, when appealing to retribution, is to invoke the proportionality clause. Namely, the punishment should fit the crime. Capital punishment fits the crime of murder best. Ergo, capital punishment is better than life imprisonment.6 The reply to this is also common. We do not rape rapists, eat cannibals, and kidnap the children of kidnappers.7 Even if we adopted capital punishment, we still would not stab stabbers, strangle stranglers, torture torturers, etc. This shows that even capital punishment proponents do not take the eye-for-an-eye description of the retribution model literally.8 We agree that the punishment should fit the crime, but we mean this in degrees of seriousness, not literal replication. As a result, this argument for capital punishment fails. An argument against capital punishment is often used that appeals to a problem of the retribution model. Killing killers to show that killing is wrong is incoherent, they say.9 We know children learn by what we do and not what we say. What message does retribution provide? Not that killing is wrong but that killing is right.10 This argument, however, has the unfortunate implication of claiming that all punishment is wrong, not just capital punishment. After all, if we lock up a kidnapper, we are taking away his freedom. Removing freedoms from people who remove freedoms is incoherent. Let us face it, punishment is a harm we inflict on people who harm. The supposed incoherence is inescapable. So we either accept that all punishment is incoherent or we abandon the incoherence objection to capital punishment. We can support the latter choice by pointing out where the incoherence argument goes astray. We may morally forgive killing or not. When we do not forgive the killing, we call it murder. Intentionally killing an innocent person, for example, typically counts as murder.11 Whether capital punishment may be justified or not, it is not a case of killing innocent people – at least not in its ideal form. Therefore it is false to say it counts as murder. Thus, saying capital punishment is the killing of killers is not accurate. It is the killing of murderers. What murderers do is kill innocent people. The two cases of killing

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are not the same. As a result, capital punishment is not incoherent. The same goes for all (proper) punishment.12 Finding capital punishment to be coherent does not by itself justify capital punishment, of course, since life imprisonment is also coherent. The point, so far, is that capital punishment has no better claim to retribution than life imprisonment. 6.2.2. Deterrence A common argument for capital punishment is that it is a better deterrent than life imprisonment.13 The reasoning is that death is a more serious threat than time in jail and deterrence works on heightened threat. Some, however, suggest that death is preferable to life imprisonment. The number of murder-suicides and hopeless shootouts against police might attest to that preference ranking. If so, life imprisonment is the greater deterrent. I will not weigh in on whether execution is more desirable for murderers than life imprisonment because, even assuming that murderers deem death worse than prison, the deterrence argument fails. The deterrence argument fails because the empirical data does not support the greater deterrence effect of the death penalty over life imprisonment. Period. If capital punishment is a greater deterrent, we would expect lower murder rates in states that have capital punishment compared with states that do not, states that had capital punishment compared with the same states that no longer do, states that have capital punishment compared with those same states when they did not have capital ­punishment, countries that have capital punishment compared with countries that do not, and countries at a time when they had capital punishment compared with those same countries when they no longer do. Such data shows no significant differences.14 Any difference in murder rates is due to variables other than the presence or absence of the death penalty.15 One plausible explanation for the lack of difference may be due to our inability to compute probability and risk. Instead, we can only cope with three categories of risk: low risk, moderate risk, and high risk.16 Under such a demarcation, we would not put life imprisonment under moderate risk and the death penalty under high risk. We would group both under high risk. Thus, one is as good a deterrent as the other.



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The statistical phrase, “no significant difference,” seems to fool people. Louis Pojman and Ernest van den Haag, for example, read the statistical conclusion as a standoff, as if it is a 50 per cent chance that capital punishment in fact deters better than life imprisonment. If so, we have a choice: either have capital punishment and risk killing murderers needlessly or do not have capital punishment and risk having more innocent people being killed by nondeterred murderers. Both mistakes cost lives, but using life imprisonment when capital punishment is a better deterrent will have innocent people die, whereas using capital punishment when life imprisonment is a better deterrent, will have only guilty people die. The choice is obvious. As put, the choice may be obvious, but the comprehension of statistics is abysmal. When we say no evidence for capital punishment being a better deterrent than life imprisonment is found, we do not mean the evidence is inconclusive or that bungled experimental conditions have masked the real effect or that the odds of capital punishment being a better deterrent than life imprisonment is 50 per cent. It means we must drop the argument for capital punishment based on deterrence. If you use the same reasoning as Pojman and van den Haag, then you ought to buy a lottery ticket. Either do not buy and risk missing the winning ticket, or buy and possibly gain everything. Assuming the odds between the two choices are the same, you might as well buy the ticket. Obviously something’s gone astray. Rather than thinking there is a 50 per cent probability of capital punishment being a better deterrent than life imprisonment, we should read the social science statistics for what they say: the probability of capital punishment being a better deterrent than life imprisonment is next to nil. 6.2.3. Protection Some have argued that capital punishment protects society better than life imprisonment.17 This is purportedly so for two reasons. First, one cannot harm members of society when one is dead whereas being imprisoned entails the risk of botched paroles, escapes, and the harming of guards and other inmates. Secondly, the cost of keeping such persons in prison must be astronomically high. Taxpayers fund the costs of building the prisons, heating the prisons, maintaining the prisons, paying wages to the guards, feeding and clothing the inmates, and providing other amenities. If we killed murderers, savings would ensue.

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In reply to the first argument, pointing out anecdotal evidence of escapes and premature paroles is unhelpful. For that matter, Ted Bundy, a convicted serial killer, escaped from custody and killed two more sorority women. He escaped on his way to death row, however, so even capital punishment does not preclude escapes. The main worry, however, concerns an improper comparison. Let us return to the criteria of capital punishment with which we started. We want to justify killing the worst kinds of people. If capital punishment is off the table, we would not put such people in with the rest of the inmates. Not only are they incarcerated in maximum security prisons, they are housed in even more secure special handling units, and while parole hearings are permitted, the possibility for receiving parole is extremely unlikely. For example, in 1981, Clifford Olsen was arrested for sexually molesting and then killing eight girls and three boys in ages ranging from nine to eighteen. He was placed in a special handling unit in a maximum security prison, and his appeals for parole were routinely denied. He died in prison in 2011 at age seventy-one. Such handling of dangerous lifers is the norm, not the exception. When we hear of stories of botched paroles and escapes, not only do we assume they happen more frequently than they do (since we do not tend to hear stories of nonbotched paroles and nonescapes), we also assume that any type of inmate in any type of prison has an equal chance of escape. Prisons are diverse, ranging from minimum to maximum security, and even the maxim security prisons differ in the degrees of freedom inmates have. As mentioned, within institutions, people who would qualify for capital punishment are kept in even more secure units. These are not the luxury suites minimum security inmates enjoy. Special handling cells are as wide as the span of one’s arms. “Out” time is limited and severely guarded.18 The odds of medium and minimum security risk convicts escaping do not affect the odds of convicted serial and mass killers escaping. Nor can we use the number of parolee recidivism rates against imprisoning serial killers when we will never parole serial killers. We may parole some murderers, but they are not the ones who would qualify for capital punishment. In reply to the second point, it turns out that death row inmates end up costing taxpayers far more than do inmates imprisoned for life.19 This, evidently, relates to the appeal system that is in place for death row inmates. With regular inmates, the appeal process is far less costly. As almost everyone knows, once you bring lawyers into



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the picture, costs rise dramatically. One could cut such costs by abandoning procedural justice, of course. At least four arguments against capital punishment relate to protection. (i) First off, we cannot ignore the potential of wrongful convictions.20 When someone is wrongly put in prison, a chance exists for the wrong to be discovered and the person released and compensated. Execution leaves no such chance for rectification. (ii) Secondly, racism influences death row selection. More blacks sit on death row for killing whites, than whites for killing blacks, whites for killing whites, or blacks for killing blacks.21 Until we cleanse the system of obvious racism, the death penalty is doubly unjust. (iii) We all know the sociological factors that impact crime rates. Those on death row come from families that are predominantly poor and uneducated. Imposing death on them adds insult to injury. Rather than working toward alleviating the roots of poverty, we simply kill them off. (iv) Juries tend to be less prone to convict persons charged of first degree murder when capital punishment is in place,22 thereby allowing murderers to get back into society that much faster than without capital punishment. To summarize the overall worry, because the death penalty is arbitrarily administered,23 capital punishment protects members of society less than does life imprisonment. Each of these concerns is more practical than theoretical. If we fix them, opponents are not likely to consent to capital punishment, which means their main objection is probably irrelevant to these worries. (i) Concerning wrongful convictions, the task is to ensure a high quality of evidence, as indicated in our criteria for candidacy for capital punishment. Saying we do not want to convict an innocent person does not tell us that capital punishment is wrong. We could simply stipulate that eligibility for capital punishment includes incontrovertible evidence of guilt along with the type of crime, the extent of the crime, the kind of victim, and the felon’s mental capacity. (ii) Racism is rampant in life imprisonment, too. Racism is rampant in the justice system. Racism is rampant in society, so of course it will appear wherever you look for it. This does not mean we should not care about racism. It means that racism is a conceptually separate issue from whether capital punishment is right or wrong. (iii) The same goes with sociological factors. We cannot say that because the probability of Jones turning to crime is higher than for Smith, Jones does not deserve punishment for the crimes Jones commits. By the same argument, life imprisonment would be unjust. Again, this is not

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to say that we should not worry about sociological factors related to crime, but that it has no bearing on the justification or nonjustification of capital punishment. (iv) That juries are less prone to convict someone when the death penalty is a live option is inconsistent with the claim that capital punishment is bad due to the chances of wrongful convictions. Ignoring that, the worry about death-penalty-averse jurors has led to jury selection from “death qualified” jurors. A deathqualified juror does not categorically oppose capital punishment. Unfortunately, death-penalty-averse individuals tend more often to be women and minorities. Our excluding these groups commits other biases. In fact, death-qualified juries are more likely than other jurors to convict a defendant,24 returning us to worry number (i). In each case above, the social protection problem cited for capital punishment exists for life imprisonment as well. Moreover, the worries do not concern the extreme case I set out at the beginning of this chapter. They play on cases that would not, or at least need not, even qualify for capital punishment. That is, they, too, make wrong comparisons. 6.2.4. Summary The points made in section 6.2 are as follows: No appeal to protection counts in favour of capital punishment over life imprisonment, no appeal to deterrence counts in favour of capital punishment over life imprisonment, and no appeal to retribution counts in favour of capital punishment over life imprisonment. Of course, we have also shown that arguments in favour of life imprisonment over capital punishment are faulty as well. We can now speak of a standoff. When faced with such a standoff, the burden of proof, one would think, would have to be on those who want to kill versus those who do not. In that sense, failing to support capital punishment should mean life imprisonment is supported.

6 . 3 . T h e C o n t r ac tari an S tand? 6.3.1. Forfeiting of Rights My conclusion above may seem odd to those more familiar with contractarian analyses. Contractarians tend to favour capital punishment over life imprisonment.25 Christopher Morris, for example,



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makes the case that murderers forfeit their rights when they murder, so anything goes with them (including torture as he uncomfortably admits).26 His argument is decidedly, refreshingly I might say, contractarian. If we invoke Hobbes, we see that we each do better cooperating with one another, and cooperating entails, at the very least, an agreement to refrain from killing each other. If someone does not agree to that, or breaks that agreement, all bets are off with him. By forfeiting their rights, murderers release us from our duties toward them. One of our duties was to refrain from killing them. That duty is now lifted. Thus no contractarian can complain about capital punishment, or so Morris wants us to believe. His reasoning concerning the forfeiting of rights is impeccable. For an analogy, imagine if Tom invites Jane on a date to the opera, an event Tom has no interest in but knows Jane does, and Tom would prefer to be with Jane than not. At the last minute, Jane texts Tom and cancels the date. In such a circumstance, we would not think Tom should still go to the opera. (Assume he had not bought the tickets yet.) While Tom had a duty based on his promise to go to the opera, that duty is absolved once Jane reneged. Similarly, while we had a duty not to kill Pete, that duty was absolved once Pete became a serial killer. Morris emphasizes the role of retribution in his defence. It is a titfor-tat strategy. A kills B, so C can kill A. We should note, however, that when A kills B, not any C can kill A. That would permit vigilantism, something Morris explicitly wants to avoid.27 We need to follow due process. I have already hinted at the notion that Hobbes’s account is more concerned with protection than retribution. That is not to say we should not be concerned with retribution but that retribution is useful because it serves the protection of reciprocally cooperating members of society. Hobbes argues that a moral society will preserve peace and enhance mutual gain through productivity and arts, etc. The worry about peace is about self-protection. We must seek peace only while the other is willing to do likewise. Murderers are not so willing, so we need not seek peace with them. Due to the worry about due process, however, what we do with them is not open. Let us agree with Morris that they have forfeited their right not to be killed, but they have also forfeited their right not to be locked up for life. What we agree to when we seek peace is not just our refraining from interfering on others’ liberties; we also agree to a punishment

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schema for the various infractions.28 That is why we can say someone being punished has no right to complain, because she ex ante agreed to the procedures that we are enforcing.29 Now we might agree to capital punishment for murderers at this ex ante stage, but nothing dictates that. We could, instead, agree to alternative measures that would ensure that murderers can no longer murder members of the society who adhere to their agreements, i.e., life imprisonment. Because an ex ante agreement to forbid capital punishment is not logically excluded, Morris cannot claim that capital punishment is necessitated. 6.3.2. Rationality and Risk Claire Finkelstein is a contractarian who rejects the death penalty, and to that extent we agree. In true contractarian fashion, she emphasizes that nothing can meet moral approval unless all parties consent and that we do not consent to something unless we reasonably stand to gain from it. So far, all contractarians agree. For Finkelstein, a properly rational agent “will choose to guard against the possibility that he would be executed.”30 Taken by itself, that seems to be a plausible claim, but her idea is that it would mean no rational agent would ex ante agree to a punishment schema that would include capital punishment. To paraphrase, her argument is this: We would not consent to capital punishment over life imprisonment if either institution were sufficient to reduce others murdering us, and the risk of ourselves being punished for murder remains constant, but that the utility is lower for us being executed than being put in life imprisonment. As Hobbes says, we always retain our right for self-preservation,31 which should mean we would prefer imprisonment to death. To accept her argument, we need to first accept the following three propositions: (i) When reflecting on whether you might face the death penalty, imagine that you are twenty years old, not eighty.32 (ii) Accepting risks is never rational.33 (iii) Reasonable people can distinguish the degree of severity between life imprisonment and capital punishment, and would always prefer imprisonment to death (even if only twenty years old.).34 None of these assumptions are particularly obvious. Statistically, people facing execution tend to be younger than older, so the odds of your facing execution at a young age compared with an old age seems to be a fair assumption. Presumably we would fear execution more at twenty than we would at eighty, so all things



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equal, her first assumption – if a bit arbitrary – is innocuous enough. The second assumption is false or misstated. We accept risks all the time. We accept the risk of being in a car accident when we decide to drive. If we avoid risk always, we would not drive.35 So the fact that I might accept capital punishment for murder to lessen the chances that someone will murder me may be reasonable even given the risk that I might find myself having murdered someone and being caught, as long as this risk is low enough. Surely it is for most of us. So even if I would prefer life imprisonment to capital punishment if faced with a murder charge, if I deem the probability of being faced with a murder charge to be low enough, that difference will not be sufficient to move me. If we modify Finkelstein’s assumption to “No properly rational person would accept a bad risk,” we could accept it, but it would not be sufficient to show that agreeing to capital punishment is a bad risk to most of us.36 The last assumption, meanwhile, involves an ability to calculate very small gradations of severity that Jeffrey Reiman denies humans are capable of doing.37 Both capital punishment and life imprisonment are bad outcomes.38 Either we abolish life imprisonment for heinous murders along with capital punishment or we have insufficient grounds to rule out capital punishment. This is the upshot: Finkelstein’s argument is that rational contractors would choose life imprisonment over capital punishment. Her notion of what counts as rational and what counts as a risk are problematic, however. As long as rational individuals can accept certain severe outcomes if the probability of those outcomes is low enough, we c­ annot say that rational contractors would not choose capital punishment. 6.3.3. The Self-Defence Analogy So far, I endorse neither the contractarian argument in favour of capital punishment nor the contractarian argument against capital punishment. Between the two, however, I side with Finkelstein, except that I wish to do so without resorting to the suspect claim about what reasonable people would endorse. To all but excessive pacifists, killing in self-defence is acceptable if no alternative means are available. If nonmortally wounding the would-be killer succeeds in protecting you from harm, however, we would deem that preferable to killing the attacker. If it is obvious to others that you did not need to kill the attacker to protect yourself,

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we would not deem your killing to be morally acceptable. We would reject your appeal to self-defence. With capital punishment, the analogy is clear: since alternative methods exist to protect society form this culprit (assuming he is now in custody), killing him would be unjustified. Jan Narveson, a contractarian-libertarian, considers this argument but rejects it.39 His reason, however, appears to focus only on the situation where the least necessary force still requires killing the assailant. When someone is intent on killing you, killing him may well be morally legitimate. Since we are dealing with people already in custody, however, such cases are not germane. One might wonder whether Morris, or some contractarian, would reject the premise about using only necessary force. After all, if Jones is attacking Smith with the intent to kill Smith, Jones has already forfeited his right not to be killed. If Jones has no rights, Smith has no duty toward Jones and that seems to include the qualifying rider about using only necessary force to protect yourself. While this would defeat my self-defence analogy against capital punishment, the implication would bring back vigilantism. Morris, at least (and rightly so), wants to avoid vigilantism by an appeal to due process. Similarly, then, when Jones attacks Smith, Smith has a right to do what he can to stop Jones but whether that morally includes killing Jones will depend on some kind of due process. The concern for due process is captured by the rule, “only necessary force.” As far as punishment of Jones goes, it is not up to Smith. It is up to the justice institution to which we imagine Smith’s ex ante consent. My overall point is that contractarians can back life imprisonment at least as much as they can back capital punishment. When we try to see which method of punishment is better on other sorts of empirical grounds, we come to a standstill (as section 6.2 of this chapter illustrated). Arguments in favour of capital punishment are not convincing. Arguments against capital punishment are not convincing. When all else is equal, one would think the default is not to kill.40

P art t hre e Sex

7 Sex Trades

In this chapter I examine whether pornography and prostitution are morally permissible practices. The short answer from a contractarian perspective is yes, so long as all concerned parties are rationally competent and informed and voluntarily consent. The long answer entails examining the many objections.

7 . 1 . P o r n o graph y 7.1.1. How to Define Pornography A common conception is that erotica is the portrayal of sexually explicit material, whereas pornography is the degrading portrayal of sexually explicit material1 or, worse, the endorsement of the sexual degradation of women.2 With such a demarcation, we may call erotica fine and pornography not fine, leaving the only discussion to focus on whether or not interfering in others’ pleasures is worse than the degradation we find in those pleasures.3 The distinction between erotica and pornography is useful to the extent that we can dismiss the charge that opponents to pornography are simply puritanical.4 Apart from that benefit, however, the distinction is problematic. Ignoring the worry about stipulating that pornography depicts only women, it incorporates a value ascription into the definition. Even accepting the definition and believing all pornography is wrong, it would not commit us to make any social change regarding sexually explicit material, since we may still ask whether a particular instance of sexually explicit material degrades women. For example, Catharine MacKinnon and Andrea Dworkin stress that pornography sexualizes

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rape.5 Less than 10 per cent of pornography includes rape portrayals, however,6 which undermines the claim that pornography sexualizes rape. If the target of pornography opponents is the bulk of what we call pornography, then criticizing it for its glorifying of rape will not do. The complaint has to focus on something about pornography even when it is not depicting rape scenes. Susan Brownmiller, for example, likens pornography to rape in that both dehumanize women.7 The fact that 90 per cent of pornography has nothing to do with rape does not spoil the objection. It is the dehumanization of women that occurs in both rape and pornography. Nevertheless, pornography’s denigration of women should occur in the conclusion, not the definition. What we need, then, is a neutral definition of pornography and from there examine what our value ascription ought to be. Neutral definitions are to lack morally loaded terms like “exploitive,” “degrading,” or “sexist,” let alone include a motive of endorsement of sexism. Also, a definition of a set should not be about only a subset. Since we can speak about child pornography or violent pornography or gay pornography as subsets, we cannot define pornography as involving children or violence to women, or gays. A neutral definition allows the possibility that pornography is fine, while subsets of pornography may not be fine, such as child pornography and violent pornography.8 A neutral definition of pornography will be something like: an intentional depiction of sexually arousing images.9 This allows there to be gay and lesbian pornography and pornography aimed at a heterosexual female audience. Keeping the notion of intention is to preclude imagery that may sexually arouse some viewers when sexual arousal is not the main intention. Underwear catalogues, beer ads, or certain literary works may sexually arouse, but have a nonpornographic intent. Pornographic intent is masturbatory. A neutral definition of something intended to incite masturbation will not divulge any normative judgment for or against prurience. After all, we need not find some socially redeeming value in a product before we deem it morally innocuous.10 Likewise, the question of whether any intentional depiction of sexually arousing material is degrading is a different question from what counts as pornography. With a neutral definition, we can more straightforwardly ask the following questions: What counts as degrading sexual imagery? Are all sexually arousing images degrading? Are any sexually arousing images degrading? If degrading pornography exists, should we forbid those depictions?



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In what follows, I examine two typical arguments opposed to pornography. The first concerns nonconsenting persons whom pornography use adversely affects. I examine five separate subgroups. The second argument examines pornography from within a patriarchy. Pornography within a patriarchy has a much more sinister appearance. My conclusion is that in each case, the arguments fail to show the immorality of pornography. For ease of discussion, I refer solely to pornography aimed at a heterosexual male audience. Those who complain about pornography tend to aim at this subset. 7.1.2. Adverse Effects Contractarians will not permit actions that harm nonconsenting individuals. By harm, we mean adversely affect without consent. Potential harms from pornography involve five different groups: (i) The actors or models, (ii) Nonconsenting viewers, (iii) Consenting viewers, (iv) Nonconsenting persons in exclusive sexual relations with the pornography viewers, and (v) Women in general. (i) Concerning the first group, the actors or models may be coerced, perhaps by threat of violence to themselves or their children, or through – perhaps by first creating – drug dependency.11 The use of children in pornography is also a violation of the consent principle because we do not deem children to be competent enough to give such consent.12 Another type of nonconsenting harm to the actors/ models may be in failing to provide adequate information concerning the risk of ST I s or the risk of perineal tears from lack of lubrication: lubrication that would naturally occur when aroused but not when acting aroused. Functioning worker safety laws should prevent such nonconsenting harms. Another nonconsenting harm to the people pictured in pornography is whether they knew that someone was filming them. When sex-tapes or nude photos appear on the web without the consent of the people pictured, for example, we have a clear violation of contractarian ethics. While we can admit that all such harms to actors or models of pornography is wrong, it would not show that pornography with the actors’ and models’ full, informed, and competent consent is wrong. (ii) The worry about nonconsenting viewers concerns how easily we can access pornography even when we do not want it. My being offended by pornography is one thing. I have the choice of not buying it. Since it is for sale, though, mongers need to advertise it. When displayed for sale, people may feel they have no choice but to see it.

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Mongers thrust nude or scantily clad women in one’s face when all one wanted was a pack of gum. Parents trying to keep their children away from chocolate face similar difficulty when passing through grocery checkout lines. Chocolate bars are intentionally placed at the eye level of children, and such manipulation may seem underhanded. I may be offended, not so much at chocolate but at the manipulative chocolate sales practice. While some people’s being offended at x does not mean we should ban x, it does mean we should – within reason – be sensitive to these offences and try to reduce them. Some argue that the problem with being offended by pornography is a problem with the person, not pornography. If mixed-race marriages offend someone, we do not say mixed-race married people should hide from the public; we say those offended should do the hiding. On the other hand, imagine if hearing the word “mushroom” offends me. This is clearly my own problem, and should you utter the word in my hearing, you are not to blame. I have the problem and should seek professional help. If you knew about my penchant for taking offense at hearing the word “mushroom,” however, and you deliberately utter the word in my presence, we would deem you morally at fault, a bully – even when we all admit the problem is in me. Similarly, even if we cannot ban pornography, we could constrain how we advertise it to reduce the prospect of nonconsenting viewers. Similarly, while we cannot legitimately ban chocolate, we could complain about where the chocolate is placed in stores. A parental control menu for web searches captures the same idea. While we do want to minimize nonconsenting viewing of offensive material, saying this says nothing about whether pornography is morally permissible for consenting viewers. Similarly, we may feel justified in restricting pornography sales, strip clubs, and prostitution in areas close to schools. The “not near schools” objection is a form of the “not in my backyard” (N I M BY) objection that impedes public goods. N I MBY ers may have a variety of reasons for opposing something, including a simple resistance to change. A good justification for NI MBYing, however, is based on local autonomy. Any project adversely affecting the local people should have clear offsetting benefits to those local people. Sex sales near schools benefit those local sex businesses, along with some economic trickle-down effects, but mainly the benefits go to nonlocal pornographers. The (feared) effect on local children, meanwhile, is not obviously offset. The NI MB Y objection based on local autonomy



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typically concerns government projects, however, like prisons or recycling plants. It can also be applied to private enterprise requiring zoning changes. To open a business in a residential zone, for example, may require consultation with the residents. When a zone already allows businesses, however, to complain about the type of business carries a dangerous precedent. While some classification between types of business makes sense, like between retail and industry or nightclubs and coffee shops, the worry about stores selling pornography or sex merchandise in a zone already permitting retail is more a concern about merchandise content. This complaint exceeds the autonomy argument of NI MB Y ers. Ought we to allow residents to forbid stores that sell prayer mats and the Koran or that sell foods that will attract certain ethnic groups? Catholicism may be viewed as a purveyor of “offensive” ideology. Can we demand schools and churches not reside together? Or schools and mosques? That a group does not like something a business does is not, by itself, sufficient to mean that group is a concerned party to the business’s transactions. (For who can count as a concerned party, see chapter 1, section 2.5.) (iii) One can consent to x and yet later discover a residual harm from x that one would not have consented to had one known about it. For such reasons, we mandate cigarette companies to inform smokers of the long-term health risks. Some have argued that pornography, too, has long-term adverse effects about which consenting viewers are unaware. Repercussions include the viewer adopting unrealistic expectations about sex relations, which will negatively affect his real relations with women.13 Of course, we are allowed to consent to things without sufficient information. What contractarianism does not allow us to do is purposely withhold information or purposely mislead a potential customer with false or spurious information. So, for contractarians to ban pornography on the grounds of harm to users, we would have to establish two things: the harm to users is empirically supported and the pornographers have that information yet fail to impart it to the users. At least with the smoking example empirical studies support the claim about harm, which, by the way, the tobacco companies knew about before the rest of us. With affected relations due to viewing pornography, imagining what would count as empirical support for the claim is difficult. While viewing pornography and not being in a long-term relation may be correlated, it may not be because pornography causes nonrelations but the reverse: that not being in a long-term relation

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causes one to turn to pornography. To rule this supposition out, we would need to show that pornography viewing more often precipitates breakups of long-term relations than any other explanation – and even then that the pornography viewing did not come about after the emotional demise of the relationship, albeit before the official breakup. Such a scenario strikes me as unlikely. An alternative explanation for any correlation between pornography and poor intimate relations may be the rampant sexism in society. Such a third variable strikes me as more plausible than the claim that pornography causes poor sexual relations. Besides, some proclaim certain educational benefits from pornography – the demonstration of how sex can last long and vary in position. In any event, we can claim similar kinds of bad effects for mainstream movies. Romantic comedies, horror movies, science fiction, hero movies, let alone the Bible, all provide misrepresentations of the world that may negatively influence a naive audience. If something is wrong with pornography, we have to find it elsewhere. (iv) Some may conceive pornography viewing as a kind of adultery, a kind of relational reneging.14 As put, the use of pornography by couples and by single people would not be wrong. Saying pornography viewing is fine for certain people – or in certain contexts – tells us that pornography itself is not the problem, any more than sex is a problem. Of course, so many pornography users are in sexually exclusive relations, at least at some point in their lives. If people tend to give up pornography when they are in monogamous relations, that could support the view that pornography use is a kind of infidelity. I am dubious, however. Imagine a husband uses pornography to get in the mood to have sex with his wife. In this sense, pornography is a sex aid. I am not certain whether all partners would approve of it, but I suspect many might tolerate it if they see evidence of its good effect.15 Compare that case with a husband saying, “Actually, Dear, the best sex aid for me is to sleep with other women.” Even if this improves his sexual performance with her, I suspect she would not approve. The comparison, I think, shows that the adultery sex aid is a contractual violation in a way that the pornography sex aid is not. At best, pornography use may be a precursor to actual infidelity. It may be a sign to the partner that the relation needs work or abandonment. Pornography use may show something is wrong in the relation, but we need not confuse that sense of signalling a wrong with the type of moral wrong that justifies societal interference. It would be



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no more the type of wrong that a husband displays when he suddenly buys a brightly coloured convertible sports car and a toupee. We do not ban such things, though we can look upon it as a disappointing signal. Same with pornography. Even if we deem that men in committed sexually exclusive relations who view pornography are bad for reasons connected to infidelity, this would not show that pornography is morally bad, any more than infidelity shows that sex is bad. (v) Most of the standard objections to pornography fit in this last category: harms to women in general. Harms to women in general come in three nonexclusive types: (a) increased violence to women from pornography viewers, (b) libel, and (c) the general degradation of women. Concerning (a), some worry about harms to women from viewers of mainstream pornography, and others worry about harms to women from viewers of violent pornography, in particular. As for violence against women from pornography use in general, the worry is that if pornography displays women as always wanting sex, no matter when or with whom, then this will undermine the viewer’s belief – not so much that rape is impermissible – but that rape is possible. If she wanted it, as pornography depicts, coitus cannot count as rape. That this is a real worry depends on our assumption about the mental abilities of pornography viewers. Should we really presume they are unable to distinguish the body language that goes on in pornography from the body language of a rape victim? Are they really unable to recognize that a woman’s being in favour of sex is different from being in favour of sex with them? Objectors would need such gaps in pornography patrons’ mental acuity to make the causal connection stick. Not surprisingly, the evidence does not support the view that pornography has any role in increasing violence to women.16 While it is true that a greater percentage of rapists view pornography compared with rapists who do not view pornography, the percentage is no higher than the percentage of nonrapists who view pornography. For example, we can imagine more neo-Nazis drink beer than the neoNazis who do not drink beer, but since the percentage of neo-Nazi beer drinkers is as high as the percentage of non-neo-Nazi beer drinkers, we are not motivated to think beer drinking causes neo-Nazism. It is also true that both pornography sales and violence to women have increased in tandem. Before one concludes anything from that, it is worth reflecting on how many other things have increased in use during the same time. Nonpornographic movie sales, denim sales,

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and automotive sales, for example, have also increased during the same time as the increase in pornography sales. The increase in both pornography sales and violence to women, then, is more likely due to simple population increases. We can make no pornography-­ condemning inference from that any more than noting that the rise in coffee chops corresponds to a rise in crime. We do not conclude coffee shops cause crime. Lastly, examining statistics on violence to women in states and countries that have high pornography use compared with those with low pornography use, a better case can be made for pornography lowering the incidence of violence to women. For example, Saudi Arabia, Iran, China, and Utah have low pornography use but high incidences of rape. Denmark, Sweden, West Germany, and New Hampshire have high pornography use but low incidences of rape.17 Some pornography, however, displays violent behaviours to women. Some of this violent pornography portrays the women as willing participants, and some do not. Willingly participating in one’s rape seems to send the signal that women want to be raped and is problematic. Since rape defence typically claims that the rapist thought she would enjoy the sex act, we should see that willing violent pornography is worse than unwilling violent pornography concerning societal harm. A contractarian view looks at things differently. Contractarians define morality by informed, competent, voluntary consent. They do not claim that one is wrong for consenting to something one should not have consented to – like being a willing victim for male gratification. Contractarians define rape as sex without consent. Willing to participate counts as consenting. Therefore, consenting to rape is inconceivable. Similarly, one cannot consent to be robbed, though one can consent to be charitable. Worse for contractarians, then, is violent pornography that does not reveal willing participation of the characters. As fiction, one cannot complain, but the point of pornography is sexual arousal. When certain male viewers find sexual release from depictions of torture and rape of women, we naturally suspect that they would be inclined to torture and rape women. Sexual release is a powerful motivator, and if this is the only way they get that full satisfaction, we should be worried. Moreover, since violence against women is so common, imagining that violent pornography does not condone what it depicts is difficult. Violent pornography with nonconsenting women would count, if anything could, as inciting sexual violence against women.



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(If no acting is involved, we revert to type (i) harms.) We may decide not to ban even nonconsenting violent pornography, if it acts as a catharsis, for example, especially where the causal relation is not that pornography causes violence but that those with a penchant to be sexually attracted to harming women will gravitate toward violent pornography rather than act out their fantasies. Still, even if we agree to ban nonconsenting violent pornography, the ban would not include the wholesale pornography that objectors desire. (b) If pornography falsely represents women, then this would count as a harm even absent harmful consequences. Consider a typical plot line in a pornographic tale: a woman is working in some high-esteem job, she is a business executive, say, and she is busy doing her paper work, when suddenly she starts removing her clothing and masturbating. You would not take such a masturbation-prone person seriously at her work. You would not likely hire her. Some professions require oaths to maintain client, patient, or ingredient secrets. To have indiscriminate sex puts such confidentiality in jeopardy. We would lose trust in such people and fire them. If all women portrayed in pornography are good only for sex and nothing else, the worry is that this will cloud viewers’ attitudes toward women in general. As MacKinnon states, “pornography strips women of their credibility.”18 Incidences of rape or abuse do not by themselves reveal sexism in society. General disrespect also reveals sexism, a penchant not to take women seriously. We agree that sexism is wrong, that we ought to respect women as autonomous persons, and that we ought not to think women are mere instruments for male pleasure. One would think, then, that we ought also to deem wrong anything, x, that condones sexism, even if we cannot find any causal connection between x and sexist attitudes. In this way, we need not wait until we find a causal connection between pornography and sexist discrimination in society to be able to say that pornography is itself sexist.19 For Judith Hill, pornography is an act of libel for portraying women in a false light. Pornography presents women as if they like to be “bound, beaten, and raped,” and yet “will beg for more.”20 In saying this, Hill is not making the case that pornography users are thereby more inclined to rape. She is not saying they would mistake rape for offering women “what they want.”21 She accepts that the empirical studies do not support the causal claim.22 Even if pornography does not fool anyone into thinking women want to be raped, it still lies about women. That a lie does not fool one does not mean

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it is not a lie. Since we do not generally tolerate the publication of lies about groups, we ought not tolerate lies about women. The mere fact that we make an exception for pornography shows how much our patriarchal society condones the lie. Heterosexual males like to be aroused by women. Men look upon women as an instrument for their pleasure. Not doing so would be inconvenient to men. Hill does not help her case, mind you, by insinuating that the depiction of rape and beatings of women is typical of pornography. As mentioned earlier, the depiction of aggression occurs in less than 10 per cent of pornography.23 Moreover, about 80 per cent of pornography viewers choose pornography without aggression.24 Even aggressive and violent pornography portrays women, or those featured, as being sexually aroused.25 To portray women as “enjoying” rape is a dangerous lie for Hill. For pornography to work, however, the male viewer has to see the women as lustily wanting sex.26 One might agree that we should ban violence portrayed in pornography, but that would leave 90 to 95 per cent of pornography untouched. Hill’s argument, however, seems to commit her to believe that all pornography has this libellous effect. Yes, Hill does distinguish “victim pornography” from other kinds of pornography, and she explicitly claims to be talking only about victim pornography,27 but her libel argument implicates all pornography. While it is false that women want to be raped, it is also false that women want to have sex at every waking moment of their lives or that they are utterly indiscriminate as to sex partners. These are as much of a lie as claiming women enjoy being raped. What is wrong with pornography for Hill is it propagates the idea that women enjoy being treated as less than a person, that women are seen as worthless for any other purpose than sexual intercourse.28 These are lies because most women do not want to be treated as less than persons by their sexual partners. Since even nonviolent pornography’s view of women is false, even nonviolent pornography is a form of libel. Highlighting that pornography is a form of libel is an important move to counteract the typical line that free expression protects pornography.29 Free expression does not protect libel, so if pornography is libel, an appeal to free expression will not protect pornography.30 If pornography is a kind of libel, the right of free expression cannot defend it, but is it best viewed as a case of libel? If pornographers made it seem that a public figure was having sex, the charge of libel



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might better apply but only when the pornographers intended to fool the audience. When comics portray public figures, we cannot sue the comics for libel, since the primary intent of the show is to amuse, not to convey information intended as true. Applying the same test to pornography will not count in Hill’s favour, even when applied to the group of women as opposed to a specific person. The main intent is masturbatory. If the imagery does not induce masturbation, it will not sell. A woman’s background life, however interesting, is not masturbatory material. As a result, characters will be flat and story lines sparse. If Hill aims the libel complaint at the flat portrayal of women in pornography, many other genres have similarly flat characters.31 Aerobic workout videos portray women instructors as people who do nothing but exercise and have limited counting ability. We would not think of libel in such a case because the purpose of the video is not to tell the world about the moral value of women. Nor is that the purpose of pornography. If pornography started with the message, “Here is all that women are good for,” Hill’s point may resonate better. That misogynists view women negatively does not mean that pornography is misogynistic. (c) A third way to demonstrate harm to women from pornography is by showing how it violates Kantian principles of respect and by so doing, degrades women as a class. In Kantian terms, it treats women as mere objects for male use. Pornographers do not portray women as autonomous ends in themselves.32 In Helen Longino’s terms, pornography portrays women as slavish, passive, and dependent on men to satisfy their needs.33 It is true that men use the images in pornography instrumentally. They buy it, look at the pictures of women, masturbate, and then toss the porn aside. Such use of pornography does not easily translate to use of women in general, however. For in that sense, any audience watching any nonpornographic movie is using the actresses merely for their entertainment. In such cases, we do not use the real actress; we use only the effigy of the actress. The Kantian line that pornography is wrong for condoning the use of women would work better if we see in pornography women being used as means only or when someone publishes naked images of a  woman without her consent. These are not the scenarios under discussion, however. The women in most pornographic depictions freely consent and are portrayed as desiring sex. If not initiating sex, pornography tends to portray women as welcoming to any sexual advance. This is not because pornographers have a conscience,

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necessarily; it is because men find women wanting sex to be more erotically stimulating than women not wanting sex.34 In fact, one would think the extreme and indiscriminate lustiness of women is exactly the misrepresentation about which Hill speaks. Naive viewers supposedly go about the world expecting women to hoist their skirts at the mere entrance of a man. Whether we think permanently aroused women is an accurate picture of women, we cannot say these characters are not willing agents. If they are willing participants in the activity, no one treats them as a means only. Nor is there anything in the portrayals of nonviolent pornography to suggest that the men fail to respect their sex partner’s autonomy. The depiction is mutual exchange. We do not decide lack of autonomy merely by someone’s doing something we would not do. The Kantian line does not show that pornography is bad, though it does a fine job in showing that rape is bad. No defender of the moral permissibility of pornography is advocating rape. Being a large category, pornography may sometimes depict women as not wanting sexual attention, sometimes as passively accepting it for his pleasure and not her own, and sometimes as lasciviously initiating sex. Pornography opponents should clearly demarcate such cases when criticizing. As if to catch herself from an apparent contradiction when she admits that sometimes the women are lusty despite their being merely slavish, Longino claims that the portrayal of women enjoying being used for male pleasure – as opposed to violent pornography where they are not so portrayed – makes matters worse. As she says, “consent[ing] to be harmed, abused, or subjected to coercion does not alter the degrading character of such behavior.”35 Contractarians are not going to sanction abuse and degradation, true, but if proper consent is really present, as in the mainstream pornography that portrays the women as desirous of sex, then we can no longer call the portrayed sex as abusive or degrading. Compare a rectal exam without consent and a rectal exam with consent. The first may be abusive and degrading, but not the second. Although pornography often portrays women as desiring sex for their own pleasure, Hill notes how the “[s]tereotypes that titillate are derogatory ones.”36 We need not doubt the reliance on stereotypes in pornography, but the inherent derogatoriness is not clear. If Hill means that only derogatory things can be titillating to men,37 then all heterosexual sex is derogatory, not just pornography. This would be overkill. Does she mean that all of pornography’s titillation



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comes in derogatory form? This, too, seems false, unless we define pornography as necessarily being derogatory or that certain poses or activities are necessarily derogatory or that sex is derogatory when it lacks a loving, caring, intimate relation or that anything is derogatory when it seems so to the appraiser.38 Hill tries to avoid the issue by emphasizing a macroeconomic picture. “The porn industry treats the class of women as nothing more than a means for its own financial ends.”39 Given the economic boon of pornography, it is not that women are portrayed as means only but that the porn industry uses women as means only, and this is derogatory. However pornography shows women, its media denigrates women as a class. In that sense of use, however, one can benefit from the erotica industry, too. Likewise, the harlequin romance industry. Pet food companies financially benefit from the class of pet owners. Unless the worry is against capitalism and not pornography specifically, we cannot complain about Kantian violations whenever someone gains financially. 7.1.3. Patriarchy An important critique of pornography links it to patriarchy itself. Looking at how pornography portrays women is not to the point. The problems with pornography that focus exclusively on harms it causes women is also not to the point. Instead, the problem lies in the mere fact that pornographic media, or the industry as a whole, uses women purely for male gratification. After all, whether or not the characters initiate sex, and whether or not the actresses autonomously play such roles, males design those characters for a male audience.40 One might think that any degrading or inaccurate representation of women applies equally to men. In the real world, just as with women, men are not ready to drop whatever they are doing to engage in sex with strangers. While no one needs to deny that men are as poorly represented in pornography as women, no one deems such representations as morally offensive. This is not because women are more sensitive to these things than men are nor that women are “supposed” to be chaste. The feminist objection to pornography is not merely puritanical. We live in a decidedly patriarchal world. Within patriarchy, pornography looks sinister. In our world, where we treat blacks unfairly compared with whites, a joke about blacks would be offensive while the same joke about whites would not be. Whites are the dominant group. Blacks are the victimized group.

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Similarly, in our patriarchal world, men are the dominant group, and women are the victimized group. So, sexist jokes harm women more than they harm men. Pornography harms women more than it harms men mainly because, in a patriarchy, losing respect for men as a class is less conceivable than it is to lose respect for women as a class.41 Placing pornography within the context of patriarchy makes the charge of libel more telling. Earlier, I dismissed the libel charge because the lie is supposed to be intentionally misleading, whereas the intention of pornography is not that. The intention is simply masturbatory, much as the intention of alcohol is drunkenness and not to give wife-beaters courage. Within patriarchy, such a simple intention is muddier. Patriarchy condones the subjection of women, and within that framework, pornography takes on the role of abettor. Earlier, I noted that the claim that pornography is libellous was offered to evade the free expression defence. Another way to evade the free expression defence is to use Austin’s theory of speech acts.42 We can understand speech as locutionary, as perlocutionary, or as illocutionary. We use locutionary speech when we utter words to convey information. “That is a moth,” for example, is (normally) locutionary. We use perlocutionary speech when the intention behind our utterance is to produce a specific effect. “Shut the window,” for example, is (normally) perlocutionary. We use illocutionary speech when our utterance is itself the act we communicate. Saying, “I promise,” for example, is not merely to convey information nor to produce an effect in others but is itself part of the rite to establish one’s promising. The illocutionary is a case where speech is itself the act, but so too can we conceive of the perlocutionary as an act. When I yell “Fire!” for fun in a crowded theatre, I cannot defend my utterance by appeal to free expression. We treat it as an act of incitement (hence perlocutionary), not an expression. Similarly, I cannot defend my inciting a crowd to lynch a black man by my right to express myself. We count hate speech as perlocutionary, not locutionary. When people champion pornography as free expression, they understand pornography as simply locutionary, the conveying of a particular content. Instead, the speech–act argument depicts pornography as having perlocutionary, if not also illocutionary, components, and thereby sees pornography as an act, not merely as speech. Rights of free expression do not protect acts, nor should pornography.43 A similar argument is to liken pornography to hate speech.44



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That the production of pornography counts as perlocutionary rests on the charge that its very nature condones the debasement of women, that it can count as hate speech, that it counts as harm in itself. This argument requires seeing pornography in the context of patriarchy. We can agree that patriarchy exists in our society and that it is bad and that we ought to eradicate it. Our question, now, is whether or not pornography is bad under the context of patriarchy. Since Hill admits that pornography would be fine in a nonpatriarchal society,45 it looks like whatever is going on in pornography is not the problem; patriarchy is the problem. That means that her concern is to avoid society’s treating women as lesser moral agents than men, as opposed to her concern being specifically against pornography. That patriarchy seeps into all elements of society should not be surprising. That it seeps into x, then, should not be surprising, whether x is pornography or golf. What makes a racist joke bad, however, is not that it takes place within a racist context but that it is itself racist. To say that racist jokes would be fine in a civilization without racism would not make sense. In fact, everyone would more clearly see the offense in a racist joke if everyone were truly nonracist. That is because what makes a joke racist is that it denigrates a particular race. To denigrate a race would not suddenly be fine if we were not racists, since one would need to be racist to think of denigrating a race in the first place. To make the racist-pornography analogy work, then, we would have to conceive of pornography as necessarily entailing the intentional denigration of women. In other words, the analogy works only if we beg the question against pornography. Situating pornography in a patriarchy would not bring out the denigration any more than situating a racist joke in a racist community brings out the racism. So what Hill says cannot be right. To claim that pornography is bad only in patriarchy is to assume that the intention of pornography is not sexual titillation but a subversive ideological propaganda for patriarchy. Such an assumption seems a bit of a stretch, when the simpler goal of sexual release seems far more obvious.46 Without the intention, the mens rea, the charge of libel, the analogy to racist jokes, and the link to the perlocutionary force of pornography fails. It is not that pornography is misogynistic but rather it looks misogynistic in a misogynistic culture – as does everything else.47

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7 . 2 . P ro s t i tuti o n Apart from the merely puritanical complaints predicated on the notion that recreational sex is bad or paternalistic complaints suggesting that being a prostitute has occupational hazards of both physical and social dimensions, the standard objections against prostitution concern (i) Kantian notions of the intrinsic value of the human body, and (ii) the patriarchal entrenchment of sexism. Neither objection can reach the conclusion they demand. Before my examining those two arguments, I give the contractarian defence of prostitution. 7.2.1. The Prostitution Contract Prostitution occurs where someone exchanges sex for something nonsexual, typically money. When someone wants sex in exchange for promotions or grades, for example, we call that a quid pro quo sexual offer rather than prostitution. I examine such exchanges in chapter 8. Once we broaden the meaning of prostitution to include barters of all sorts, it is not surprising that marriages or dinner dates start looking like prostitution.48 For what follows, however, I focus on the narrow meaning: sex for money. I call the money giver the patron and the sex giver the prostitute. Contrary to fact, I will treat all patrons as male and all prostitutes as female.49 The main difficulty with prostitution concerns this composite. When speaking about prostitution, people may focus either on the prostitutes, as if they are sirens luring innocent men,50 or on the lubricious men who lure impoverished women into the dirty sex trade for male gratification.51 My intent is not to scapegoat either patron or prostitute. Contractarians will say that prostitution is morally permissible if  all concerned parties are rationally competent, are adequately informed, and voluntarily agree.52 It is conceivable that some sexfor-money exchanges do not meet those criteria, but that is true for any transaction we normally call moral. Sometimes giving money to people is not done voluntarily but by coercion. This does not mean giving money to people is immoral; it means that robbery is immoral. More specifically, it means that coercion is immoral. When coercion occurs in sex trades, contractarians can complain. When no one employs coercion, prostitution is fine.



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One kind of complaint against the contractarian defence of prostitution is that coercion does occur. Morally permissible contractual exchanges require equal starting positions, but, within patriarchy, men and women are not starting on equal footing.53 Women are economically disadvantaged compared with men and thus will face the prospect of becoming a prostitute far more than will men. When offering career choices to our children, few would include prostitution. As Cecilie Hoigard and Liv Finstad observe, “No one ‘wants’ to rent out her vagina as a garbage can for hordes of anonymous men’s ejaculations.”54 The yuck factor we experience when thinking about being a prostitute highlights that prostitutes often come from backgrounds that limit their employability. Moreover, pimps (typically male) control the market. Pimps often succeed by making prostitutes dependent on them for drugs. The addiction ensures women’s continued “consent” to prostitute themselves for a man’s financial gain.55 For Alison Jaggar, given the economic coercion, prostitution is not different from rape.56 Carole Pateman claims that prostitution is not consensual but involves “domination, subjection, and enforced submission.”57 We can accept that women would be less likely to enter prostitution if other livelihoods were available, but this casts the blame on the inequalities embedded in society, not at prostitution itself. After all, one might say the same about being a nurse. She might have preferred to be a surgeon if patriarchy did not convince everyone that surgeons are men and nurses women. Saying this would show a problem but not a problem about nursing. Similarly, saying prostitution is more likely to come about in nonegalitarian states does not tell us that prostitution is itself bad. That few would choose prostitution if other options were open cannot count as an argument against voluntariness. Few would choose to clean public toilets, either. A voluntary action is any action where the status quo was a live option. The status quo is the situation you were in prior to the negotiation for consent. When a pimp approaches you and offers you a job as a prostitute and you accept, your choice is voluntary assuming your status quo option remains. That one’s status quo was being homeless and hungry is irrelevant, if your declining to be a prostitute will leave you homeless and hungry. When a mugger offers you the choice of giving him your money or being shot, however, and you decide to give him your money, we can say this is not a voluntary choice. The difference is that in the mugger case, your status quo – having your money and

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not being shot – was not a live option. For the woman choosing to be a prostitute, her status quo was still a live option. Again, this is assuming the pimp is not himself removing her status quo option. If he is, we call his action wrong, but we do not confuse his action with the concept of prostitution itself. Notice, by the way, that complaining about underlying or invisible coercion in becoming a prostitute is not a rejection of contractarian principles. As mentioned at the outset, if anyone circumvents proper consent, contractarians can complain. Pateman, however, believes the problem lies with contractarianism itself. For her, contract language is rooted in inequality. Getting rid of inequality would therefore get rid of contract language. Contracting out of the state of nature, for example, is a bargain that men make, not women. Women’s roles are subordinated from the beginning.58 That is why use of contract language for the interaction between men seeking sex in a market and women having to sell themselves in a market can never be appropriate. It will always be exploitation. “Prostitution is the use of a woman’s body by a man for his own satisfaction. There is no desire or satisfaction on the part of the prostitute. Prostitution is not the mutual, pleasurable exchange of the use of bodies but the unilateral use of a woman’s body by a man in exchange for money.”59 Pateman is right that, for Hobbes, women do not belong to the set of rational bargainers. They lurk about on the sidelines. Hobbes’s original contract is by men and for men, and women get involved only to the extent that it would benefit men. Modern contractarians hardly concur with Hobbes on that point, however. First off, contractarians recognize that the state of nature is a metaphor, not a historical contract that perpetually binds us. As a metaphor, contract talk is appropriate among all voluntary, rational, informed, competent agents, and this includes women. What contract talk does not include is equality of resources. All that we require is that each bargainer believes the suggested transaction will raise her status quo. If not, she has – or is supposed to have if everyone is following contractarian ethics – the ability to decline the proposal and remain at her status quo, whatever that is. As Gauthier remarks, “the contractarian insists that a society could not command the willing allegiance of a rational person if … it afforded her no expectation of net benefit.”60 As put, then, it is patently false for Pateman to claim that a contractarian “proclaims that a contract of subordination is (sexual) freedom.”61



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Pateman is also correct that we expect no sexual gratification to the prostitute in any sex act between prostitute and patron. Thinking nonsexual gratification renders the expectation of mutual benefit void hardly follows, though. Legitimate contracts need not demand an equality of pleasures, either in degree or in kind. For mutual benefit, all that we require is that each bargainer feels the exchange will be a benefit to her, and we define benefit relative to the subject so deeming it a benefit. When contractarians emphasize reciprocity, they do not mean to imply that any benefit to one bargainer must be identical to the other. If so, all monetary transactions would fail. When I buy a glass of freshly squeezed orange juice from a vender, the taste sensation I derive is totally different from the benefit the vender gets by pocketing my money, but no one would think the transaction is not by mutual consent. When for a fee Smith agrees to help Jones move house, Jones and Smith both lift and carry things. They do the same work but derive different kinds of benefit. We do not call their partnership immoral. For reciprocity, all that matters is that each person subjectively deems herself to benefit from the exchange. That a man may benefit from the pleasure of sex and the prostitute from the remuneration is all that we need to satisfy the reciprocity principle. If she thinks the money was not enough compensation for her efforts, she can raise the price or find other employment. If she is not free to find other employment due to an abusive pimp, by contrast, contractarians can complain about the pimp’s enslavement. The moral complaint, however, would not be with prostitution but with enslaving people. If she cannot find other work due to limited employment opportunities, this, too, would not show that the prostitution trade is wrong. In fact, if the worry is for the welfare of disenfranchised women who find that prostitution is the only way to support themselves, cutting out prostitution will hardly benefit them. 7.2.2. Kantianism Kantians employ the principle that we should never only use people but always treat them as ends in themselves.62 The word “only” might sound out of place. It is not. Omitting it causes a problem that I make use of below. The argument proceeds in the following way: A prostitute is used for sexual gratification. The patron never views the prostitute as a person with intrinsic value. Her value is instrumental only. For Kantians, this is what makes prostitution wrong. While

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many link prostitution to slavery,63 Lars Ericsson objects to the rhetoric.64 Slaves sell their bodies; prostitutes sell only their services, like carpenters or plumbers. At best, prostitutes rent their bodies, unlike slaves. While the Kantian analogy to slavery might be overstated, the objection still holds in the following sense. The purchaser of the prostitute’s services is using her body.65 When we hire a carpenter, we do not use the carpenter’s body, the carpenter does. She hammers the nail: we do not wield her arm to hammer the nail. We only use her services. Moreover, it is not merely that a particular patron uses a prostitute, as if the moral lapse is just with him. The problem is with our society’s values to let this sort of use persist. To allow a sex market treats the body as any other commodity, an object, a thing to be used, a thing without dignity and respect, a thing lacking in intrinsic value. We may reply to the Kantian argument in two ways. On the one hand, we can argue that selling sex does not undermine the intrinsic value of being a person. It is not a case of using someone merely as a means. If all parties consent, they are not being used only as a means to their end. When we purchase a toothbrush, we use the cashier as a means to our ends. That is fine if we do not only use her but also treat the cashier with some dignity, some respect. At the minimum, we should not be rude to her. After all, if being a person has intrinsic value that must be because we take people to be autonomous entities with the right to choose for themselves what to do with their bodies. To paraphrase Mill, to respect people in themselves is to allow them to make their own mistakes, not make the mistakes for them.66 The Kantian line needs to make the case that someone’s use of a prostitute inevitably lacks respect for the prostitute. Some patrons are boors, no doubt. The toothpaste cashier can attest to that, as well, but to think one’s use of a prostitute necessarily degrades her as a person veers from anything Kant can say. Just as with the toothpaste cashier, a simple “thanks” at the end is enough to satisfy the Kantian principle of treating people as ends in themselves. Are Kantian objectors to prostitution claiming that no patron ever thanks the prostitute on the way out the door? Besides, if something is intrinsically valuable about me as a person, it is because I have the autonomy to decide what I do with my body, not you, not people who have competing notions of the good life. If an intrinsic goodness is found in each person, it should remain whether one is a prostitute or a nun. An appeal to the Kantian dignity of being a person sounds more like a retreat to puritanical views, the view that sex is a misuse of what it means to be



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properly human.67 For example, to the objection that we use athletes’ bodies and deem it morally fine, Pateman complains that we are not using athletes for sex.68 This reveals that she sees something wrong with sex, not with the use of someone. The other approach to complain about the Kantian line is to deny that we should look on persons as valuable in themselves, anyway. The notion of persons having special values independent of what values people invent is a metaphysically weird notion. It is not empirically demonstrable. Those against the commodification of bodies and sex situate moral values external to the uses people derive from morality. In that sense, prostitution opponents are moral objectivists. They think we discover morals in the world, as opposed to inventing them, and as such, face J.L. Mackie’s objection from queerness.69 In brief, when we look at an action that we think immoral, we can extricate all the facts we want, but we will not find alongside those facts a moral fact. Moral values are things we ascribe to the facts.70 They come from us. The contractarian account of how they come from us is clear. We see the value of reciprocally agreeing to certain behavioural constraints. By so doing, we reap the benefits of others not doing to us things we do not want done to us, and we get that benefit by paying the costs of not doing to others what they do not like us doing to them. If the benefit did not accrue to the agent who adopts the constraints, agents would have no incentive to constrain themselves.71 Morality has to pay the moral agent, and for the standard moral restrictions, it generally does. Our abiding by a rule not to murder, for example, benefits us because others will not murder us, although we pay the costs of constraining ourselves from murdering others. Nowhere in such an ontology of morals does it permit any metaphysically suspect notion of things having intrinsic values independent of people’s instrumental long-term interests. This is so even for the moral agents themselves. However nice it sounds to speak of the intrinsic value of persons, such thinking is a myth. 7.2.3. Prostitution and Patriarchy The other main argument used against prostitution focuses on how prostitution entrenches patriarchal ideologies.72 As Kari Kesler claims, prostitution is “the absolute embodiment of patriarchal male privilege.”73 For this objection, the focus is on the predominant form of prostitution – women renting their bodies for the pleasure of men.

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Notice that we cannot deem male prostitution wrong on this basis. As with the discussion on pornography, no inconsistency lurks. It is not prostitution itself that matters but prostitution within patriarchy. Nothing so exemplifies our sexist attitudes than permitting the renting of women’s bodies for sex. In this sense, prostitution is one of the most graphic examples of men’s domination over women.74 I am not one of those who deny that we still live in a patriarchy, let alone deny that it is a bad thing that we live in a patriarchy. Within patriarchy, prostitution looks bad. Men buy women in a market the way whites used to buy black slaves. The same problem for the patriarchy complaint I raised with pornography applies to prostitution, however. To think of prostitution being bad because it is part of a patriarchy, we would have to imagine either that a patriarchyless society would not have prostitution or that prostitution within a patriarchyless society is not a moral problem.75 The second option would reveal that it is not prostitution that is the culprit. The first option seems farfetched. That participants have equal standing does not mean they would not find it in their interests to cooperate for mutual benefit, whether it be money to one in exchange for an object, a service, or sexual gratification to the other. Reciprocal consent is not to be confused with substantive equality, such that whatever A desires from B, B must desire the same thing from A.76 Prostitution unmotivated by economic need might be difficult to imagine without imputing psychological explanations,77 but patriarchy is different from economic egalitarianism. Thinking of patriarchy reveals another way of denying that proper consent occurs within prostitution. Earlier I raised the notion of the status quo to defend the usual understanding of voluntary consent. If you perceive your situation as improving, you will be motivated to consent to the action. Without that perceived benefit, one can always decline the offer and remain at one’s status quo – the state you were in before the offer. The smog of patriarchy, however, paints a grimier picture. As Pateman remarks, there is no better way to display men’s mastery over women than by publicly buying their bodies for sex in a market.78 When we ask the prostitutes whether they consented to their careers, they invariably answer yes.79 This satisfies contractarians who leave such matters to individual subjects. If patriarchy is so pervasive, however, it does not just incite the men to reap its benefits, it also undermines women’s autonomy as well. Being told you are worth nothing but what your sexual prowess can achieve corrodes your



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autonomy. Your consenting to be sexy to men is simply part of the patriarchal machine doing its job – putting down women to the point where they start putting themselves down for you.80 Pointing out that women profit from being prostitutes then, that they raise their status quo, is irrelevant. Patriarchy destroyed their status quo, and, because of that, women think it a step up to become a prostitute. The problem with this argument, however, is that it is both nonfalsifiable and too broad. A falsifiable claim is one we can test in some capacity. A nonfalsifiable claim is one we cannot show to be false – even in principle. We do not want to accept claims that we cannot ever tell are false, since it does not make sense to call them true either. It is just one of those claims – like any unsupported opinion cloaked in rhetoric – that we do better ignoring. Freud gave us nonfalsifiable claims. That you have a behavioural flaw because you have a sexual attraction to your parent is confirmed when one adamantly denies the conjecture. Similarly, when prostitutes avow that their choice to become a prostitute was voluntary and autonomous, we cannot use that as a proof of the opposite of what they are saying. Such manoeuvring is nonfalsifiable. Besides, since patriarchy is so pervasive, it would be amazing that any woman ever breaks out of her loss of autonomy. If so, whether women choose a career in the sex industry or the textile industry or nursing, would be irrelevant. It is the choice itself. If patriarchy has eroded all women’s autonomy, we ought not to trust any woman’s choice. So not only is the patriarchy argument against prostitution nonfalsifiable, its implications are far too broad. The patriarchy argument suggests that women are unable to reflect on, or chose, their desires and interests. The “nonfalsifiable problem” wonders what sort of test would show the erosion of their ability to reflect. The “too broad problem” highlights that we cannot use as a test their choosing something that we would not for ourselves.

8 Unwanted Sexual Offers

The contractarian principle forbids doing anything without all competent concerned parties’ informed and voluntary consent. This means any kind of sex is permitted if all concerned parties are competent, informed, and voluntarily consent. When any of these conditions are not met, contractarians say the activity is wrong. Such a principle would tolerate homosexuality and polyamory, for example, but rule out rape – including date rape, of course – quid pro quo cases of sexual threats, and sex with children. The main trouble with date rape is not that it is bad but whether it occurred. Cases that are less clear and require more careful manoeuvring involve sexual offers and lewd propositions.

8 . 1 . C o e rc ive Se x A can coerce B to have sex by direct means or by indirect means. By direct means, I mean some undesired state will come about presently if sex is declined. Brandishing a knife or claiming that a knife can be procured, will count as direct coercion. By indirect means, some future action is promised. This may be a future threat in case of ­nonsex or possibly a future ill-gotten benefit in case of sex, or both. Obviously coercive sex can happen between males, between females, and from female to male. In what follows, however, A will be referred to as the male and B, the female. 8.1.1. Rape Direct coercion is called rape. Rape is different from sex precisely because consent is absent in the female. Rape is philosophically



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uninteresting, since it is too paradigmatically a violation of any ethical principle let alone contractarianism. Whether the act is motivated by sexual desire or desire for power or desire for power over women is irrelevant as far as its wrongness. 8.1.2. Date Rape Date rape is often thought to be a muddier phenomenon, however, because we are not as clear, supposedly, about whether the woman had consented. Let us imagine that consent was never in the picture with rape, whereas consent might have been in the picture at an earlier juncture of the events leading up to date rape. Perhaps after a dinner, the man has taken the woman back to his apartment, and while they are in the living room, she consented to have sex with the male, but by the time they got into the bedroom, she changed her mind. I prefer to explore this sort of case as opposed to the case where the woman never intended to have sex with her date and so never gave her consent to sex, but since she accompanied the man back to his apartment, say, the man simply misread her intentions as offering full consent. Both are cases of date rape. In neither case is the woman at fault for leading the man astray. The man’s social ineptness at being unable to properly read his date’s body language is not an excuse. As Lois Pineau says, pushing sex on someone who is totally unresponsive is not reading the consent cues properly, is a form of bullying, and when sex is involved, it is rape.1 In the case at hand, however, let us assume the woman in fact consented. Her body ­language indicated that she was in favour, as sometimes happens, and she may have even said “Yes, let’s do this” or some such thing. Nevertheless, her attitude changed before his ejaculation, if not coitus. Her sober self, or her frightened self, intervened. We do not have to imagine that she was right not to have sex in this instance. We do not have to imagine that anything is wrong with sex in this particular case. Nor do we have to imagine that the man was unduly coercive in getting her this far. All we have to imagine is that she changed her mind prior to his ejaculation. His persisting to have sex even at this point is a case of rape. That we may call it “date rape” rather than rape may mitigate the severity of punishment but not the fact that it is wrong, that it violates the contractarian principle of informed, voluntary, competent consent. Pineau notes, and I agree, that pulling out during coitus but prior to ejaculation is not impossible.2 Disagreement focuses not on its

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impossibility but its difficulty, the difficulty to disengage from the animal brain at this point in the proceedings.3 Perhaps variation exists within men such that with some coitus interruptus is less likely than with others. In this sense, those unable to stop coitus are like alcoholics who, once they start drinking, seem to have to keep going. The possibility for nonalcoholics to stop drinking at any point would not show that alcoholics have no difficulty stopping. Accepting variation within men on the possibility of coitus interruptus would not absolve date rapists. It would show that nonstoppers have the moral obligation to impart that key bit of information to their dates prior to the onset of sexual interaction, much like we think it morally obligatory to let potential partners know about any sexually transmittable diseases we have. So even if it is too late for some to pull out, they have already failed their moral obligation to let their partners know about their impairment. Being relevantly informed is a necessary ingredient to proper consent. Besides, to suggest that her nonconsent happened too late in the process cannot be maintained in any other interaction. You are morally allowed to back out of a wedding despite your having said yes to the kneeling supplicant. You are morally allowed to back out of participating in an experiment at any time during the experiment. The experimenter cannot say, “Sorry, it’s too late!” Similarly, one can back out of an agreement to have sex at any point up to the act of having sex itself. That the man may feel upset about that is not morally relevant. Viewing sex as a contract might make it seem that “backing out” of the sex deal is a kind of reneging. The woman teases the man and then departs, and he is stuck with false promises.4 Eva Feder Kittay and Pineau use such an implication to show why contractarianism is the wrong theory to apply to sexual morality.5 On the contrary, we remind ourselves that contractarianism rests on conditionality. The conditions for agreement include expectation of mutual gain. In sex, the mutuality condition typically involves desire. If not desire, some other compensatory benefit. When or while that condition is absent, the reasonable expectation of consent is nil. After the point of having sex, on the other hand, backing out is too late. Just as once the data has been collected and tabulated, it may be too late to have your data pulled from the experiment. Once you have said “I do” in the wedding ceremony, backing out of a wedding is called divorce and requires formalized procedures. Recognizing a



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timeline for backing out protects the man from a woman’s morningafter regrets. Regretting the action is not the same as not freely consenting to the action. The ability to back out of a contract without reneging on one’s agreement is due to the notion that we understand consent as a process, not simply an act.6 Consent once uttered is not binding. It is binding only when the consent is continuous (up to the expiration date) and consistent. Someone in a hospital bed saying once, even seriously, “Ah, just kill me,” cannot be taken to have consented to  active euthanasia. A much longer consent process is required. Conversely, despite a long build up of agreeing to active euthanasia, at the last minute, a single refusal by the patient should be honoured. It is an affront for us to say, “Too bad, buddy!” Consent being a continuous process means that declining is always possible and must be honoured whenever it occurs. While consent is a process, nonconsent can be treated as a single act. When we emphasize consent as a process, we leave permanently open the avenue for refusal. It is your body; if you are sufficiently competent, you get to decline others’ requests to do things to it. We want the person to be informed when she consents, but she need not be informed when she declines. Informed, competent, voluntary consent is more readily apparent when we treat consent as a continuous process, not simply a single act of uttering something or signing something.7 Above, I favourably cited Pineau’s notion of communicative sex. This might surprise readers, since Pineau expressly rejects contractarian views on sex relations. For her, the contractarian model presumes consent is the default. Thus, when a woman is passed out, the man can assume her consent. While the presumption of men having free access to women may fit a patriarchal norm, it is not the contractarian picture. When we say you cannot do anything to others without their consent, we presume nonconsent is the default, not consent. This is always so. It is never reversed. When, with Catharine MacKinnon, Pineau calls for the reversal of the burden of proof from consent to nonconsent, most critics fear a rise in false positives. It would make sex illegal, they cry.8 My complaint is not this. My complaint is that Pineau and others misconstrue contractarianism. Pineau views contractarianism as being appropriate to business transactions, where zero-sum exploitation of others is the norm, but is never appropriate for personal relations.9 Contractarianism does not endorse a business model of unilateral exploitation, however.

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The market is not a zero-sum game; instead people can mutually benefit. Besides, that business models may capture the concept of fair dealing to which contractarians appeal does not mean contractarianism cannot be used in moral relations in general. That contractarians may speak of “sellers” and “buyers” or “bargainers” when describing relations is simply a metaphor, not a literal restriction of the model. Pineau’s claim is that for personal relations, we need a model that can emphasize free, equal, open communication, a model that can capture the requirement of mutuality. Contractarianism is such a model, however. By emphasizing proper consent, we ensure that no one enters any “bargain” without expecting subjectively conceived gain in her interests – whatever her interest are. Ignoring the problematic link to a problematic conception of the business metaphor, Pineau and others are absolutely mistaken when they claim that consent is the default in contractarianism when applied to sexual relations. Nonconsent is the default in every interaction including sexual relations. This does not reverse the burden of proof. It was always this way. What Pineau and others ought to complain about is what allows us to believe the burden of proof has been satisfied. Pineau claims that a contractarian analysis of date rape takes consent to be implied unless evidence of resistance is found, like bruising. Such a presumption ignores the fact that nonresistance may be due to fear. And even if there is a bit of bruising, sometimes consensual sex can be like that. Besides, token resistance tends to be culturally expected, lest the woman appear cheap.10 Moreover, we already know that the woman has consented to various activities with the man, since they went on a date. This is not to say that the courts believe she has consented to sex once she has consented to the date, but when there is doubt about consent for sex, the presumption will be in favour of assuming consent, since consent in other aspects has already been ascertained. Under such a view, the concept of date rape is not even possible. Since date rape is all too possible, the contractarian assumption of consent has to be jettisoned. So claims Pineau.11 To illustrate the difference, Pineau offers a case of date rape involving a woman “consenting” to sex only after the man’s relentless and constant badgering. Her acquiescence is due to a variety of factors, some of them cultural, some of them due to her own doubts and fears, but largely with the simple hope of ending the interaction with her date as fast as possible.12 Robin West similarly complains that



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contract language is inappropriate for sexual relations. For West, women tend to have sex for a variety of reasons other than passion, including financial dependence, a cultural heritage that teaches women to be caretakers of men (including assuaging the pains of having an erection), to put an end to the man’s constant nagging, and her – often legitimate – fear of violent reprisal for not putting out.13 I agree with Pineau and West that persistent, unrelenting pushiness for sex ought to count as assault. I disagree with them in thinking that contractarianism cannot accommodate this thinking. Psychological roots of actions are often myriad and sometimes counter to any expressed reason. Contractarianism is not rebutted by such observations, however. What is required of the man is to not mislead and to sincerely allow the woman the option of remaining at her status quo. What is not required is to be the woman’s psychotherapist. That a man buys a woman’s artwork out of pity rather than genuine love of her art is something contractarians allow. We do not care about the reason for consenting, so long as the expectation of the transaction is deemed a plus to the consenter. Mutuality need not be identical in kind or even in degree. All that is required is that each participant has the real option of remaining at her status quo, that declining the interaction without reprisal is a live option. Concerning this last point, date rape scenarios are precisely those situations where women believe their status quo is not a live option. Pineau’s sample case suggests exactly this. Relentless nagging for a besieged “yes” crosses the line. When we think it morally permissible, albeit annoying, for sales people not to take no for answer,14 we only mean “up to a certain point.” Defining that point may be difficult, but Pineau’s case of a man’s “relentlessly” pressing himself on the woman until she “consents” is not in the spirit of contractarian morality. He has moved from persuasion to assault. One need not abandon contractarianism to agree with Pineau here. Our disagreement lies with whether reasons other than passion invalidate her consent. Apart from choosing to have sex because one fears reprisal otherwise, the other psychological explanations for agreeing to have sex are morally fine for contractarians. And contractarians will certainly reject West’s complaint that the woman’s consent is evidence of her damaged autonomy.15 To reiterate, the crucial point is simply whether or not she had the option of remaining at her status quo. Pineau describes a case where, given the man’s relentless pushing himself upon her, it is reasonable to assume that she no

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longer believed her status quo was a live option. The fact that she, finally, “consented” ought not to fool contractarians into thinking no foul has occurred. When we “consent” to hand over our money to a mugger rather than fight and risk injury, contractarians do not say, “Well she consented.” We say her “consent” was not voluntary. We say she did not properly consent. We say the mugger has committed an immoral act, and we say this despite the mugger’s protest that all he did was ask her for her money while pressing himself against her. Similarly, one misconstrues contractarianism to suggest that refusal to accept a “no” in dating situations is morally fine. That date rape is wrong is one thing; showing that date rape occurred is, admittedly, another. People do tend to consent to sex, even with strangers, whereas people do not tend to consent to give their money away, especially to strangers. Thus the expectation of the mugger scenario is nonconsent, whereas the expectation of the sex scenario is consent. Before I highlight why the practical worry for contractarianism is not as bad as Pineau makes it out to be, I should note that the practical worry is not solved by Pineau’s communicative model. Even if we agree that “it is not reasonable for women to consent to aggressive noncommunicative sex,”16 this does not tell a court whether a particular sex act was uncommunicative. It may teach young women not to tolerate uncommunicative sex. It may teach young men to be more communicative. It cannot transcend the gulf between a past act and a courtroom’s reconstruction of that past act. As I have stressed, consent is never the default for contractarians, even in the context of sexual relations. If people assume the woman consented because she went on a date, this would stymie any attempt at prosecuting date rape. Contractarians need not be so obtuse, however. Rather, free association is only one of the criteria determining consent. Other criteria include how many times he asked for sex before she relented. Two times might be permissible, perhaps even three times under certain conditions but beyond that would count against her voluntariness. Things are trickier, of course, when the man never asked but merely assumed she consented. A man is more likely to believe the woman is interested in him than the woman professes.17 In such cases, we can try to ascertain how willing she actually was. Was she impaired? If so, how much? Was she passed out? Did he have a role in impairing her with the hope of having sex with her? Of course, it is possible that the two freely engaged in drugs or alcohol



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with the mutual belief that it enhances sexual pleasure, but that possibility, too, could be ascertained at the outset. If he alone believed the intoxicants would likely lead to sex, then he is at fault for failing to provide her with that relevant bit of information, and we could thereby charge him with date rape. If she also knew, the charge of date rape would less likely stick. I am not saying under such a situation date rape did not occur. It is still possible that she consumed drugs with the notion of having sex with him and nevertheless changed her mind. As put, his dauntlessly having sex with her would be date rape. When both are equally impaired, and he did not impair her with the express intent of having sex with her, their equal responsibility in their own muddle ought to cancel any unilateral blame on the man.18 In the case where he alone was grossly impaired, and we assume she did not take advantage of him, his inability to read the proper cues cannot exonerate him, any more than we exonerate drunk drivers. I am not speaking about moral principles here but about what the courts can ascertain. It is possible, of course, to give consent without speaking. When he asks whether he can kiss her and she kisses him, ought he to interrupt the kiss to ask her what her answer is? This is not to say that nonverbal nonconsent counts as consent. Pineau is correct to point out that we normally are very good at reading the body language of people. We can generally tell when someone is disinterested or fearful or angry or engaged. So, in court, we can ask the man questions about her bodily stance, her body language. Did she look scared? Did she look reticent? Was she reciprocating his moves or lying passively or pulling away or flinching? Asking people questions in court assumes people never lie. Even without worries about perjury, it is possible that date rapists sincerely read the woman’s passivity or fright as full permission. This may be due to inexperience on both parties. Sex for novices may be terrifying. We would not expect a first time bungee jumper to display the eagerness of an experienced bungee jumper. On the contrary, we would expect timidity, fear, reservation, stiffness, distraction. When we ask her, “Are you sure you want to jump?” her answer may still be yes. Perhaps she believes this is the way to step into adulthood, by pressing on with tasks that seem currently unpleasant. If sex for the woman (or the man) is like first time bungee jumping, her reluctance need not discount her consent. Still, Pineau is right, the man should

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check, as we did with the bungee jumper. When the man himself is as nervous, however, their mutual naivety should discount the accusation of date rape. Apart from naivety, date rape may be due to rank insensitivity. In this sense, date rapists are more like conversational boors, those socially inept individuals who keep talking when it is obvious no one is interested. With such people, one must be brutally blunt. The normal signals seem to fail. The mens rea would not likely hold with them, but that is not to say they ought not have done what they did. Instead, I suspect date rapists tend to know what they are doing in a way that the naive and the socially inept do not. Ones who intentionally exploit a woman’s lack of verbal refusal or resistance are the ones we want to catch. If the woman feels that her status quo was not a live option and we feel satisfied to think he should have foreseen that expectation in her (through her body language) it counts as rape. Whether we can always determine that in court is a different matter, but we cannot alter the moral principle merely because courts are sometimes inept. Rather, we ought to stress the importance of what we mean as proper consent. Assuming fear or extreme impairment were ruled out, her nondeclining sexual relations with a consensual date should count as informed, voluntary consent for contractarians. If Pineau and West and others want to say no even in these cases, due to the woman’s psychological pressures as opposed to her passion, then it is here where we disagree. Mutual consenters need not share exactly the same reasons for consenting; all that matters is that their status quo is a live option. In summary, we have no need to abandon contractarianism to prosecute date rape. Assuming that the contractarian model simply presumes consent in all sexual relations unless proven otherwise is false. We need only to distinguish whether it was reasonable for her to believe her status quo was not a live option. We determine that by examining whether he consulted her at all about having sex, and if he did, how many times did it take for him to ask before she relented, whether and to what extent each was impaired, and to what degree her behaviour (verbal and/or nonverbal) indicated nonwillingness or fear. Unfortunately, the gap between the moral principle and what we can prosecute will remain, since the kind of questioning courts can ask works best only when we assume all parties are sincere in their responses.



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8 . 2 . S e x w it h Chi ld ren Sex with children is immoral on the grounds that we do not believe children have the competency or information to make informed decisions about sex. Defining the age where one is no longer a child in this regard is obviously a bit arbitrary. A particular fifteen-year-old may have more autonomy than a particular twenty-year-old. For that matter, an individual may have more autonomy at fifteen than the same individual at twenty, given peer pressure, drug use, hormonal shifts, changes in family life, or whatever. Still, the odds that a fifteenyear-old has more autonomy than a twenty-year-old are low. When a child cannot be deemed to be competent enough to consent, we consult with the child’s proxy, typically the child’s parent or guardian. If that proxy deems it permissible for the child to have sex, either with the proxy himself or a third party for money, for example, one would hope contractarians can complain. It is not straightforward, however. After all, we allow parents to decide many things for their incompetent children, including letting them play sports or act in plays. Why not also let parents have sex with their children or rent their children for sex? To say, “But not sex!” is to assume something immoral about sex with children independently of consent. Ex ante bargainers would permit proxy consent only when we have reasonable assurance that the proxy speaks for the best interests of the ward, however. Child neglect and child abuse, for example, are forbidden on contractarian grounds. The proxy is not acting in the best interests of the ward. While individuals may consent to self-abuse, assuming competency, we have to hold the proxy to a higher standard. The proxy would have to make the case that having sex with his child, or renting her child for sex, benefits the child more than the proxy. Proxies would need to make their case without appealing to further kinds of abuse the child would undergo without such revenue or pleasure-return.

8 . 3 . S e x ua l Threats Indirect threats for sex are likewise forbidden on contractarian grounds. Typically we call such kinds of things quid pro quo. Quid pro quo cases come in two forms: sexual threats and sexual offers. I will examine sexual offers in section 8.4. An example of a sexual

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threat is when a teacher, for example, suggests to his student that she have sex with him or he will give her an F in his course. Similarly, a superior might suggest to his underling to have sex with him or else he will fire her. To avoid conflation of issues, we assume the women sexually threatened are of age to make autonomous decisions. We would still call the act sexually coercive. The teacher and the boss undermined the voluntary nature needed for moral permissibility. This is seen because the women’s status quos were no longer live options. They could not decline the threat and pass the course or get a promotion. Yes, rape in the sense of a direct threat did not occur, but that does not mean the moral status of the act is any less heinous. A worry: what if the student was going to get an F anyway? What if the underling was going to be fired anyway? If so, it is not really a true threat. If such cases were no longer true threats, would the sex proposal be morally permissible for contractarians? The answer is no. Contractarian moral permissibility includes being properly informed. What counts as being informed is relative to the particular situation. The requirement is that bargainer A tells cobargainer B relevant information that A has and which B would likely deem important in deciding to consent or not, and vice versa. The teacher’s telling the student about his mother’s shattered dream to be a ballerina is not required; his telling his student that she was getting an F no matter whether she has sex with him is required. If he tells her she is getting an F anyway and she sleeps with him, he has avoided the charge of sexual coercion. Another moral infraction has occurred, however, but I will take that up below.

8 . 4 . S e x ua l Offers So far, rape, date rape, sex with children, and sexual threats are unequivocal violations of contractarian ethics. It is common to deem quid pro quo sexual offers immoral, too. This claim is less easy to defend on contractarian grounds, however. A sexual offer is when a teacher offers the student an A if she has sex with him or when a boss tells an underling she will get a promotion, or a raise, if she sleeps with him. While most see that there is something wrong with such offers, on the face of them, the student and underling are still able to decline and remain at their status quo – not getting an A or not getting the promotion or raise. So long as one’s status quo is a live option, it is difficult to call the offer coercive.19 When a mugger says,



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“Your money or your life,” we think it an immoral offer precisely because the status quo option of having both your money and your life is ruled out. If the mugger also includes the option of remaining with one’s life and one’s money, then we say the status quo option is available, and as such, we are less inclined to call the “offer” a case of mugging. In the professor–student quid pro quo case, her status quo is simply whatever mark she was going to get prior to the sexual offer. So in that sense, she is not worse off by declining the offer even though she would rather not get that bad grade. One’s status quo is not determined by what state of affairs one would like. Rosemarie Tong disagrees.20 For her, the woman would be worse off whether she accepted or declined the offer. In a teacher–student relation, or a boss–employee relation, we can predict that the status quo relation is no longer available once the superior asks for sex. The offer itself alters the relation. The woman can no longer regard her teacher or boss in the same light. Her status quo is altered. If her status quo is no longer a live option, the offer itself is immoral, whether she declines the offer or not. David Velleman makes a similar argument against the morality of merely offering active euthanasia to people.21 But Tong and Velleman misspeak. While it is true one’s attitude toward a person can be altered when that person makes an unwanted sexual overture, the concept of status quo cannot seriously be taken to include psychological attitudes to people. I may have no psychological attitude to a passerby on a busy street, but things change when he interrupts my reverie to ask if I know where a particular bookstore is. I now know two things about this person that I did not know before: one, he is looking for a bookstore, and two, he is the kind of fellow to interrupt my reverie to ask for directions. This new knowledge helps me form an attitude about this interloper that I did not have before. My relation with this person has changed. My status quo – not having an attitude about this person – has changed. To return to my status quo is not an option he provided me. If his mere question robs me of my status quo, he has done me a moral wrong. If we think he has not done me a moral wrong, we have to keep attitudes out of our definition of the status quo. By Tong’s and Velleman’s accounts, the teacher asking the student if she would be his research assistant would likewise be as problematic as his asking her for sex, since both would alter her psychological relation with him. Similarly, if one student asks another student over for dinner, this too prevents the invited student from declining without the

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chance of wondering whether she should have accepted.22 If the second student’s status quo includes not being asked out for dinner, then the invitation is itself immoral for robbing her of her status quo. If we think the invitation is (normally) morally permissible, our meaning of status quo cannot include such kinds of psychological state changes. That she has more things to think about after a sexual offer has been made to her than before is merely a Cambridge change. As discussed in chapter 4, cutting my cheek while shaving makes a “Cambridge change” in Confucius. It is now true of Confucius that he lived on a planet on which later one more cheek was cut.23 Since any offer, however innocuous, will create such changes in people, they cannot be the kind of change that would undermine one’s status quo, unless we are willing to say no offer of any kind is ever morally permissible. Of course, it is possible that the woman may feel that there is a veiled threat in such an offer. If so, she may sincerely believe that her status quo of a B grade, say, is in jeopardy. In this case, she interprets the offer as a veiled threat, and it is the fault of the offerer not to anticipate such an interpretation.24 In this sense, all quid pro quo sexual offers collapse back into sexual threats. But what if there is really no veiled threat and the teacher or boss convinces the woman that there is, indeed, no veiled threat? Would we say that it is therefore morally permissible? If not, we need another explanation for why sexual offers are wrong when no threat – imagined or not – is involved. Thomas Mappes, who at times sounds like a contractarian, suggests that sexual offers with no veiled threats are wrong for exploiting the depressed position of the student or underling. If she needs an A to get into law school, or she needs the promotion or raise to feed her children, she will be susceptible to such kinds of bribery. Using one’s needs against one is a kind of exploitation.25 Saying it this way, however, would mean that if the woman does not really need an A or a raise, offering her those carrots for sex would be morally permissible in Mappes’s book. If we still think sexual offers are wrong even for people who do not need the incentive, we must search for another explanation. Besides, prostitutes ask for money as payment for sex. Let us assume a particular prostitute really needs the money. Under Mappes’s argument, we should prevent her from getting the money yet allow women the right to prostitute themselves only when they do not need the money. This sounds like further punishment on those who are in need. Instead of having anything to do with need, contractarians



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permit prostitution so long as the prostitutes are competent, voluntarily chose their current career within the available options (i.e., are not themselves coerced into prostitution via threats or addiction, etc.), and are fully informed and protected from whatever risks accompany prostitution (see chapter 7, section 2.) But if money for sex is fine for contractarians, why would sexual offers be not fine? After all, is it wrong for a teacher to offer an A for sex to a student but not wrong for that same teacher to offer money for sex to that same student? Clearly something has gone wrong. Offering incentives to get someone to do x is not normally wrong. I am morally allowed to offer you payment to clean my house, for example. Since money is simply an exchangeable token for objects or services, I am morally allowed to offer you some nonmonetary incentive to do anything, one would imagine. At least the structure of the exchange is not what is at fault. So, I can offer you flowers and a dinner in exchange for a date. Since my offering you an incentive for sex has the identical structure, one should deem the sexual offer morally permissible. We could, of course, complain about incentives to do criminal or immoral activities. Offering you money to kill my wife, for example, cannot be deemed moral even though it has the structure of any legitimate business transaction. But that is because the inserted content is already deemed immoral or criminal. It would beg the question to say sex offers are wrong because they are immoral or criminal, however. Sex has to be understood as a morally neutral action. If anything is found to be wrong with a particular sexual encounter, it has nothing to do with the sex part: only with the criteria that makes any immoral act immoral.26 We need to explain why such things are wrong, and pointing out the structure of the request is not going to do it. Is our worry about sexual offers merely a case of outdated puritanism? After all, so far as an offer is not a veiled threat, nor is the suggested activity itself immoral, we can always decline and remain at our status quo. Another common argument for why sexual offers are wrong concerns the power differential between the professor and student, and the boss and underling.27 This gets closer to where the problem lies but cannot be right as put. In a patriarchy, it is claimed that men have power over women. If sex offers are wrong when power inequalities exist between the parties, then every sex offer would be wrong. And if differences in wealth mean differences in power, then sexual relations must be relegated to only within one’s caste.

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It might appear that I am saying quid pro quo sexual offers are fine. I am not. I am saying that the reasons given for why they are wrong cannot be correct. Why contractarians (ought to) think it wrong for the teacher and the boss to offer incentives for sex is not that offers for sex are wrong, nor that one’s status quo is not a live option, and is only tangentially related to the power differential at play. The justification concerns prior, and trumping, obligations. The teacher has entered a contract with the school in which he teaches, and that contract involves, presumably, something like a promise to deliver marks according to scholarly merit, not sexual performance, not personal gain. A supervisor has the prior obligation to the owners, or the financial backers, to hire and promote people on the basis of what would be good for the company, not what would be good for him personally. Such prior obligations supersede any further contractual arrangements the professor makes with his students, or the supervisor his underlings.28 Not power differential but prior obligation overrules quid pro quo sexual offers. If one student offers another student some money for sex, it may be turned down but is not (necessarily) itself a violation of any prior obligations either have – unless we claim that the societal norms have so dictated such prior obligations to not treat women as prostitutes. To defeat this last supposition leads us into the next section.

8 . 5 . L e w d P ropos i t i ons We determined that contractarians can find sexual offers problematic when they violate certain prior obligations restricting the offerer’s station. Sexual offers outside of prior obligations that leave the status quo as a live option, however, ought to be deemed morally permissible. There are some types of sex offers, the lewd proposition, for example, that are not restricted by any prior obligation and yet may still cross the moral boundary. For contractarians, an immoral act would occur only by imposing ourselves on others without their proper consent, but nothing prevents us from eliciting their consent to the thing we want to impose on them. To elicit such consent, we are required to provide the potential cooperator with true, sufficient, and relevant information. We must also grant potential cooperators the right to refuse and to abide such refusal without repercussion. It appears that any lewd proposition fulfils these requirements. A man tells a woman what sexual act



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he would like to perform with her. In the telling, he is not doing the act to her; he is merely informing her of his desire and seeing whether she would consent. In such a case, there is not a dearth of information. If anything, there is too much information. Nor can we suppose the information falsely reports the man’s intent. Moreover, we imagine that there is no veiled threat, that he is willing to accept a no for a no. We will also imagine that the people involved are not in any professional relation, such that we can imagine one is abusing his power. Under such conditions, contractarians seem to have difficulty in calling the act immoral. We do not wish to presume that no woman would willingly engage in the particular acts requested. I assume the lewd proposition is not an impossible request, like the request to participate in snuff films or the request to be diced, cooked, and eaten in a stew.29 What makes it a lewd proposition is not that only unreasonable persons would consent to it. Someone with more finesse might conceivably have won her consent to the same act. The problem with a lewd proposition cannot be a mere lack of finesse on the part of the propositioner. Rather, I envision lewd offers as single-instance sexual requests that subvert the convention of getting to know one another first. It is a request a prostitute might expect to hear and not a party guest. Uttering something to someone in one class as if they belonged to another class, however, is not typically thought a moral violation, even if it counts as a social faux pas. Mistaking a physicist for a baker, for example, or a professor for a student, is not immoral, however much the professor or physicist may be upset. I shall consider three possible suggestions for how contractarians may complain about lewd propositions. The first denies that the woman propositioned has a voluntary choice. The second raises the possibility that the proposition is itself an act and not merely a request for an act. The third suggests that the real intent of lewd propositions is to be insulting. In the end, I reject each of these proposals and conclude that contractarians cannot morally complain about lewd propositions. 8.5.1. Involuntary A lewd proposition cannot be deemed a coercive offer so long as declining is a live option. To show that her decision is voluntary, the option of remaining at the state of affairs she was in prior to the lewd

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proposal must still be a viable option. That is, her status quo baseline must remain unaffected.30 This seems easily challenged, however. Lewd propositions seem wrong precisely because her status quo baseline is affected, and this is so for at least two reasons. (i) She legitimately interprets a coercive component, and this assumption is not unreasonable given women’s lowly status in a patriarchal society. To illustrate, imagine a large, tattooed, biker approaches you and says, “Can I have your wallet?” Strictly put, it is a simple request. Given the biker’s enormous size and strength and reek of incorrigibility, it would seem reasonable to interpret such an offer as a threat. Analogously, men tend to be physically stronger than women, often go around in packs, and have a history of sexually abusing women.31 Not all men abuse women, true enough, but neither is it the case that all bikers will steal your wallet. The mere historical context in which a woman finds herself confronted with a lewd proposition from a man may be sufficiently like being confronted by a biker asking for your wallet – at least in terms of taking the offer as a threat. (ii) The very offer itself adversely affects her status quo. By the very act of the offer, she is made angry and embarrassed if not also fearful. She is made aware of how she is viewed as a sexual object in a way that she was not aware of prior to the offer. The very act of the offer makes her aware that her moral value in a patriarchal society is no more than a sex toy for impudent men. She is flustered, perhaps humiliated, while he, undaunted, trots off to proposition someone else. A whole flood of emotions and historical scars come to the surface in ways that make it naive to suppose her status quo is a viable option. (i) If a lewd proposition is construed as a covert threat, and threats are wrong for contractarians, then lewd propositions are wrong for contractarians. As put then, lewd propositions are not wrong if the recipient recognizes that no threat is implied. If one wishes to think threatless lewd propositions are still wrong, some other explanation for their wrongness will have to be found, rather than supposing that some women will interpret lewd propositions as veiled threats of sexual assault. (ii) If lewd propositions convey insulting, degrading, or demeaning attitudes about women in general, we may complain about them as much as we complain about racist slurs. The very existence of lewd propositions, then, is predicated on man’s belief that he has the right of access to women’s bodies. The propositioner treats her as an object to be used, not as a person with autonomy, and that is wrong. Since



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lewd propositions seem more fitting to prostitutes, a lewd propositioner must conflate women in general with prostitutes. One need not deny that sexist attitudes, like racist attitudes, are morally suspect, even for contractarians, who demand that every concerned party to any interaction must be fairly respected by seeking her consent. Being an object of sexual desire does not equate to being treated as a mere object, however.32 Besides, our negative view of prostitutes is itself a social convention. More importantly, that lewdly propositioned women are treated as objects and not as ends is questionable since the propositioner is not raping her; he is asking her consent to a sexual act. That is what treating someone as an end entails: respecting her well enough to check with her before you do things that affect her. If the propositioner thought he had the right of access to her, then he would not proposition her; he would just take. As noted in the previous section, relying on a psychological criterion of a status quo baseline is problematic. Many otherwise morally permissible offers can affect one’s psychological baseline. If I offer you a million dollars for your coffee cup, your emotional state is not likely to be what it was before the offer, but we would hardly call my offer immoral, assuming it is my million to offer. Nor would a psychological criterion succeed if we restrict our emotional baseline adjustments to merely adverse emotional states. If I show you pictures of war or the effects of famine on small children, I can suppose an adverse shift in your emotional status, but it is nevertheless not immoral for me to show you a picture of starving children in Rwanda in hopes you will contribute money to a relief fund. The psychological criterion for a baseline is also too narrow. Abusing a woman who finds such abuse merely normal is still wrong, despite the possibility that her psychological baseline remains largely unaffected compared to a woman who would find such abuse startling. As far as respect goes, it is proper to ask whether the particular individual involved in our planned action would consent. That is what a lewd proposition is doing. Asking for her consent is itself a sign of moral respect. 8.5.2. Offer–Acts We can understand speech as locutionary, as perlocutionary, or as illocutionary.33 We use locutionary speech when we utter words for the purpose of information. “That is an easel,” for example, is (normally) locutionary. We use perlocutionary speech when the intention

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behind our utterance is to produce a specific effect. “Move the easel,” for example, is (normally) perlocutionary. We use illocutionary speech when our utterance is itself the act we communicate. When I say, “I promise to bring an easel,” the verbal utterance is itself an act, not a mere description of an act. I undertake the oath in the very act of saying so. We call it illocutionary. If performative language use can itself be an act, it is conceivable that some offers are themselves acts. If so, perhaps we ought to view lewd propositions as illocutionary – a kind of offer–act. It is not simply that I am asking you something; my mere proposition is itself an act. As all acts require voluntary consent by all rational, informed, concerned parties, so too would offer–acts require prior approval. An uninvited or nonconsensual lewd proposition would be deemed equivalent to an assault: the very definition of immorality for contractarians. If so, we could treat lewd propositions as a form of sexual imposition: a category including forceful touching, groping, and sexual assault. Moreover, if an offer to utter a lewd proposition is as bad as the lewd proposition itself, an infinite regress looms. We would need an offer to offer an offer about a lewd proposition, which itself would require a prior offer, etc., ad infinitum.34 The infinite regress highlights the impossibility of treating lewd propositions as contractarian-friendly. Contractarians can avoid the infinite regress problem by appealing to the concept of a hypothetical agreement. We can condone acts without explicit consent, so long as the acts can be conceived to be voluntarily accepted by reasonable people with sufficient information, and no relevantly concerned party has been ignored. Thus we can count as moral those acts done without explicit consultation so long as there is good reason to predict the act would meet full consent.35 Hosting a surprise party, for example, is morally permissible despite failing to get the person’s prior consent, so long as the host can legitimately predict after-the-fact consent.36 Rescuing someone from a bridge about to collapse would also appeal to hypothetical or postaction consent.37 That she did not consent at the time to being pulled off the bridge hardly matters, since she obviously would have consented had she possessed the relevant information about the bridge’s disrepair. Likewise, treating offers as themselves acts requiring consent need not mean we require explicit consent; hypothetical consent may do. While moving from reliance on explicit consent to hypothetical consent prevents infinite regresses from happening to



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offers, it does not save the lewd proposition. We assume reasonable women would not wish to be propositioned in this way. Thus doing so anyway may be like hosting a surprise party when we would bet that the party to be surprised hates surprise parties. That would seem to be a wrong. Conceiving the lewd offer as an act – an act that reasonable people in a hypothetical situation would not welcome – seems to give contractarians a way of calling lewd propositions immoral. Alas, not quite. Contractarians agree that doing things to others without at least their expected consent is immoral, but such a rule does not obviously apply to offers. We assume someone is allowed to offer you his Nazi memorabilia, for example, or his collection of slug slime, despite our predicting that few would take it and many would be offended. Treating the lewd offer as an act works to forbid lewd propositions only if we also stipulate that reasonable people would prefer not to be confronted with a lewd proposition. Contractarians, however, cannot simply call acts or offers immoral that differ from what the majority of people would deem proper. For contractarians, what counts as reasonable must at least be neutral to a regionalised conception of the good.38 It is not unimaginable for some reasonable individual to accept a lewd offer or to at least enter into further negotiations. That most would not accept my offer probably goes without saying, but surely there is nothing unreasonable in engaging in consensual sex. We cannot deem someone unreasonable who accepts the proposition or that a sign of involuntariness is accepting something you would not have freely accepted. That most people would not accept the offer is no guarantee that someone will not. An internal constraint on our actions derived in an ex ante position will not forbid making offers that some reasonable people might accept.39 So long as we are free to decline such proposals, we would hardly agree to constrain ourselves from making proposals that would be advantageous to us if accepted. At least, there would be no motive to restrict ourselves from making advantageous proposals merely to avoid certain proposals being made to us, since we are free to decline those.40 Paraphrasing Voltaire, despite my being offended by your proposal, I accept your right to offer any proposal you want, so long as my status quo baseline is a live option. The mere fact that most people would not accept a lewd offer cannot itself make the offer wrong. On the other hand, if we knew ahead of time that only a small percentage of people would not be offended by the offer, we might place the burden on the propositioner to make

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a prior assessment of his potential target. Typically, nonverbal cues are imprecise and open to misinterpretation but on the whole widely read. By prior behaviour, reputation, and body language, we can reasonably suppose who is more likely to be offended by such an offer and who might not be; who is more likely to accept the offer as an offer and who would not. It is not unreasonable, thereby, to suppose that we can see ahead of time whether someone would likely be offended by our offer. To dauntlessly impose an offer on someone we can reasonably predict would be offended by the offer would violate contractarian principles. The offer would itself be an act, an act without prior or expected consent. Unfortunately, people differ in their abilities to effectively read others’ dispositions. A mistake of this sort seems hardly a moral matter. After all, if I mistake you for someone religious and invite you to church, we would hardly think I have committed as heinous an offence as that attributed to lewd propositioners. It might be problematic if I mistake you for being an immoral character. Mistaking you for someone interested in a lewd proposition cannot be deemed one of those sorts of mistakes unless we beg the question. It is doubtful, then, that an offer to give a lewd proposition is the same as a lewd proposition. We know that seeing an advertisement to buy coffee is not the same as buying coffee. Perhaps it is possible that an advertisement for pornography is itself pornographic. Even if we hold that lewd propositions are offer–acts and not merely invitations to an act, however, we cannot claim they are the same thing as the proposed act. Talking about the proposed lewd act is not itself the act in the way that advertising pictures of nude bodies by showing a nude body is the same as the act itself. Surely it is the proposed action of a lewd proposition that is offensive and not merely the syntactical structure of the proposition. 8.5.3. Ludicrous Offers and Illicit Motives So far I have been assessing whether lewd propositions can be deemed a legitimate request for sexual activity. We might instead consider a lewd proposition not as a request for sex, but as an intent to satisfy another desire entirely.41 Imagine you put your beautiful heirloom piano on the market. Imagine further the disdain you feel when I offer you merely one dollar for it. It is such a ludicrous proposal that it is insulting. No reasonable individual would accept my offer. Since



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I cannot honestly believe you would accept my offer, my motive for giving such a ludicrous proposition must be different from an expectation of acceptance – even a low expectation. What might that motive be other than simply a sort of sneer, an insult, an offense? I am entertaining myself at your expense. I am ridiculing you. I am putting myself in a self-appointed position of power over you. The mere proposal presupposes that I have power over you and my intent is nothing more than to smear this power in your face. Is it not the same in the case of a lewd proposition? The intent ­cannot reasonably be acceptance. This is not because we have anything against consensual sex. Rather, under the circumstances, since we cannot reasonably expect acceptance, our motivation for doing so must be something else: namely to give offense, to make another uncomfortable for our own one-sided amusement. In Kantian terms, we might say the man is treating the woman as a means only.42 Indeed, his asking may be taken as treating her as a mere means to the perverse enjoyment of his seeing her negative reaction to the proposition itself. On such a reading, the proposition is disengaged from the act about which it speaks. It is not the content of the request that is problematic, as if the critique were merely puritanical; it is the motive of insult. Earlier, I complained that the proposition, if taken as an offer–act, is not significantly like the act about which it speaks. Here, the complaint is different. That the act of the proposition is disengaged from what it speaks is precisely what makes it so offensive. Similarly, ­catcalls to passing women from construction workers two stories up behind barriers cannot honestly be interpreted as an invitation to copulation. It is beyond reasonable prospect, even if the woman were so inclined, given both the inaccessibility of the worker and the inappropriate context for intimate sex in which the proposition takes place. It is ludicrous to suppose a woman, after being whistled and hooted at, would scale plywood walls, crawl under fences, cross muddy pits, evade large machinery, and climb up scaffolding to some unknown worker ill supported but by a beam. So, the intent of the catcall, just as the intent of an improbable lewd proposition, just as the intent of an impossible offer, must be something else: namely a straightforward act of oppression, an insult, an offense. Two questions confront us: (i) Are insults of this sort forbidden by contractarianism? and (ii) Can we legitimately infer lewd propositions are best interpreted as insults and not offers? (i) Concerning

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the first, it seems prima facie plausible to justify a restriction on insults much in the way we ground a restriction on murder. Since none of us wish to be murdered we would willingly give up the freedom to murder for that guarantee. Likewise, since none of us would want to be insulted, we should equally be motivated to give up the freedom to insult. The problem, however, is that giving up freedom is no small sacrifice, and we are unlikely to be motivated to make sacrifices that cost more than the worth of the protection. This is especially a concern when insults are defined subjectively and not objectively. It is easy for me to withhold doing something over which I have control, but I ­cannot guarantee success at something the success of which depends on the interpretation of another. What may be innocuous to me may be offensive to you. If my failing a moral dictum depends partly on luck, this may not be something I am willing to antecedently accept. I might prefer to run the risk of being offended than being taken to task for an offence I did not intend.43 To paraphrase Voltaire again, I would rather be offended than have my free speech thwarted. A further worry is the enforcement costs that ex ante contractors have to consider. The costs of policing murder and theft are costs people may be willing to bear. What added costs would be required to police personal insults? Is it a cost that ex ante contractors would obviously endorse? Or would they, again, prefer to put up with the occasional insult to avoid enforcement costs? The latter seems immanently the more plausible. Given the vagueness inherent in judging the criteria of offence, the disparity of harm between murder and insult, and the consideration of enforcement costs, it is not at all obvious that contractarians would ground the immorality of insult on an ex ante contract. (ii) Even if contractarians call insults immoral, there still remains the question of interpreting lewd propositions as being motivated by insult, rather than prurience. Surely it is not inconceivable to suppose an individual has a desire to be sexually intimate with another. If my desire is to realize my lewd fantasy with you, I am morally required to receive your full cooperation before acting on my fantasy. And that is what my lewd proposition is attempting to do. My lewd proposition, then, would count as satisfying contractarian imperatives by consulting with you about the act; I am seeking your consent. However perverse my desires may be, my consulting with you about



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it first is an instance of treating you with respect and not as an object of derision, not as an object of contempt worthy of insult. Even in the case where her consent is his idle dream, it does not follow that we ought to suppose he meant merely to insult. Evidently, construction workers tend to be genuinely surprised that women do not take catcalls as compliments. They are more likely to believe she enjoyed them, that women are offended if you do not whistle and hoot at them.44 This is not to say catcalls are not demeaning, but their intent to be demeaning is questionable. However suspect such generalizations are, it is enough to show that not expecting consent does not necessarily imply a motive of insult. Plainly, it does not seem plausible to suppose all autonomous women would decline all lewd sexual advances. To assume so is to impose an exorbitant and unwarranted puritanism on women. It would reduce the problem of lewd propositions to tempting otherwise chaste women into succumbing to unsanctified sex. Women need not be protected from such sins if we begin with the presupposition that consensual sex is not a sin.45 Nor need women be protected from lewd propositions so long as they can voluntarily decline.

9 Prejudice and Affirmative Action

9 . 1 . P r e j u d ic e a n d the E voluti on o f M o r ali ty Let us define prejudice as a propensity to treat members of a particular out-group as having less moral value than members of one’s own group. In contractarian lingo, members of an in-group deem irrelevant the consent of an out-group. Racism and sexism are kinds of prejudice, but so too is homophobia, as well as some fervent nationalisms.1 Evolutionary contractarians have a difficulty with prejudice, apparently, because we cannot explain why prejudice is wrong. Prejudice clearly exists in our world, yet we deem prejudice immoral.2 How can an evolutionary account explain the fit of a trait, x, while also explaining the fit of a trait, y, that tries to expunge x? If moral traits are those with fit (as evolutionary ethicists like to imagine), why would we not say prejudice is moral as opposed to immoral? If evolutionary models can explain both prejudice (x) and our moral indignation against prejudice (y), what use are evolutionary models?3 Noncognitivism, at least, explains our prejudice. We have, or we can imagine people having, negative emotive reactions to homosexuality, for example. If our notion of morality is emotive, this would explain the lingering of homophobia despite our cognitive gestures. We can also give an evolutionary story to our common adverse emotive reactions.4 The possibility of being repulsed by acts we deem morally right undermines relying too heavily on our emotive reactions, however. That is, even if I am personally queasy about homosexuality, I should be educated enough to recognize that my queasiness more likely comes from my prejudicial upbringing rather than from



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some real, true moral source living in my gut. That homosexuality repulsed certain societies probably does explain why those societies deemed homosexuality immoral, but explaining why someone thinks x is immoral is different from explaining why, or that, x is immoral. A general disgust of homosexuality may count as an error theory explanation, not a justification, for why society has deemed homosexuality to be wrong. My answer to the prejudice problem is this: prejudicial attitudes, although not adaptations in their own right, piggyback on an otherwise adaptative trait. Thus we can explain, on purely evolutionary grounds, why nonprejudice is moral yet why prejudice lingers. Much of this follows from our discussion on evolutionary ethics raised in chapter 2. 9.1.1. Success of Reciprocal Cooperation Strategies that reciprocally correlate with one another do better than strategies that do not. Correlation takes different forms in different games.5 In all such games, the ones prone to play well with other likeminded sorts are the ones we operationally define as moral strategies.6 Immoral agents are the ones who like to exploit others and who fail to play well with others, including their like-minded ilk. It is precisely this reluctance to play well with their own kind that makes immoral strategies evolutionarily unstable. The more immoral sorts there are, the worse those immoral sorts do. The more moral sorts there are, the better those moral sorts do. Despite immorality paying in the short term, morality pays over the long haul. A propensity to correlate with others by itself is not sufficient for success, however. The correlation has to be a subset of mixed strategies we can call reciprocal. Benefits to defectors accrue only in cases where defectors can unilaterally defect. Only through unilateral defection can one successfully exploit a cooperator. Thus, the success of moral strategies is contingent on their recognizing and defecting against other defectors. I call such agents reciprocal cooperators (RC). 9.1.2. Mixed Signals Evolutionary game theory shows that reciprocal cooperation is a wonderfully successful and simple moral strategy. Unfortunately, reciprocal cooperation has an ugly side effect. Markers of cooperative

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dispositions can be too easily associated with irrelevant features, like skin colour, sex, sexual orientation, cultural gestures, facial features, or social space. If such differences cloud our ability to detect a propensity to cooperate, the prudent resolve is to defect. Heuristic shortcuts can therefore develop in which irrelevant differences become markers for noncorrelation. In other words, prejudice may be the progeny of moral strategies, not immoral strategies. Game theory teaches us that one should cooperate with other cooperators and defect against other defectors. Such advice is not helpful if we cannot discern who is a cooperator and who a defector. Whenever you doubt whether a player will cooperate with you, a prudent resolve is to defect.7 Meanwhile, cultural norms may guide us in detecting cooperative propensities. Being unfamiliar with other cultures may preclude the ability to detect propensity for cooperation. In Canada, a sweeping motion of our fingers tells others to shoo. In Japan, they interpret the same sweeping motion as “Come hither.” Canadians see the fingers as sweeping away; Japanese see the  fingers as sweeping toward. Prejudice may be simply an overextension of invoking the default position given cross-cultural mixed signals. It may be mere opacity between races that explains our prejudicial tendencies.8 R C agents and tit-for-tat (T F T ) agents have different structures, but we can understand a similar default switch with T F T agents as well.9 A T FT strategy, A, will cooperate with an agent who cooperated with A on the previous round and will defect with an agent who defected against A on the previous round. T F T strategies, thus, have the propensity of collapsing into a perpetual feud, especially when affected by prejudice. If a white, say, is less able to distinguish one black from another as she can distinguish one white from another and a black has already defected against her, her propensity to treat any black as that defector increases. In James Baldwin’s “Sonny’s Blues,” some drunken white boys decide, for fun, to drive over a black boy. The boy dies. The white kids escape in their car and are never punished, let alone sought. Sonny’s father, the boy’s brother, witnessed the event and “till the day he died … weren’t sure but that every white man he saw was the man that killed his brother.” Adopting group-identity, rather than individual identity, in determining who has cooperated and who has defected in a previous round, will hamper the success of TFT strategies. If one is unable to decode the preplay cues, it is not an



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unwise strategy to defect merely to avoid the cost of being exploited. Such behavioural trends will be indistinguishable from prejudice. Explanations relying on misidentification also corroborate the “­contact thesis” for prejudice reduction. The contact hypothesis predicts that increased contact between members of the various groups will reduce prejudice.10 For example, whites who regularly watch basketball were more likely to detect individual differences in blacks than whites who do not regularly watch basketball (where basketball players are predominantly black).11 Patrick Grim et al. have claimed to corroborate the contact model using spatialized P D s with T F T agents.12 The mixed-signal hypothesis cannot capture the whole picture, however. Real persons playing prisoner dilemma games in experimental situations will vary their moves according to how they identify the other unseen player. They are more likely to offer initial cooperative moves if they identify the other player as an in-group (a teammate, for example), and more likely to offer initial defect moves if they identify the other player as a member of an out-group (someone from a rival university, for example).13 Similarly, randomly dividing people into arbitrary teams creates noncooperative behaviours between members of “opposing” teams. In other words, despite original contact, prejudice can gradually consume a population. This suggests that prejudicial attitudes are more hardwired and more visceral than credited by the mixed-signal hypothesis. Mere contact might not be enough. We need to feel we are also on the same team. (Admittedly one way to make one feel that we are on the same team is through increased contact.) 9.1.3. Piggybacking If prejudice confers advantage, as seems evident given the propensity of prejudice in human history, then prejudice seems to be an evolutionary successful trait. Meanwhile, morality – itself an evolutionary trait – deems prejudice to be immoral. A conflict exists. By understanding the role of heuristics in evolutionary theory, however, as detailed in chapter 2, we can account for the variability concerning prejudicial attitudes in purely probabilistic terms. Prejudice, then, may be a carry-over of an otherwise adaptative trait. Like the Panda’s foot-thumb, prejudice may persist, not because it confers fitness, but because it is correlated with moral behaviour that confers fitness.14

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9.1.4. Summary Reflecting on evolutionary games and heuristics, we can explain the prevalence of a trait we deem immoral while claiming that our very deeming it immoral is an evolutionary adaptation. By focusing purely on naturalistic dynamics, we can explain both the lure of  prejudice and the rise of our moral indignation to prejudice. Prejudice is not an adaptation. It piggybacks on reciprocal cooperation, which is an adaptative trait. Part of this piggybacking is due to fluctuations in heuristics, part of this is due to fluctuations in population make-up, and part of this is due to the mixed-signal hypothesis. In all cases, something like the contact thesis for reducing prejudice is corroborated.

9 . 2 . A f f ir m at ive Ac ti on The above argument shows how prejudice is a maladaptive trait that, nevertheless, integrally connects to an adaptative trait. Given its connection to the adaptative trait of reciprocal cooperation, rooting it out will not be as simple as noting its obvious inefficiencies. Its connection to moral traits explains its deep, tenacious, roots. The best method for eradicating it may be by increasing contact across prejudicial groups in communal tasks, to shift our impression of ­disparate groups from enemies or strangers into teammates. One method of doing this is to integrate the prejudiced groups into the workplace, into the educational institutions, into sports, into every facet of our lives. One method of achieving such integration is by implementing affirmative action programs. An affirmative action program will mandate companies, educational organizations, and governments to hire members of a disenfranchised group, assuming such members have met certain qualifications. The principle behind affirmative action fully accords with the picture of prejudice that an evolutionary analysis provides. That does not necessarily make it the right method to adopt, however. People divide affirmative action programs into two camps: equal qualifications and counterfactual qualifications. Under equal qualification affirmative action programs, a member of a disenfranchised group will need the same qualifications as the best applicants. If so, that disenfranchised member should get the job or seat. Under a counterfactual qualification affirmative action program, a member



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of a disenfranchised group will need fewer qualifications than the best applicants and will still get the job or seat. The justification for the counterfactual affirmative action program is that, had there not been discrimination in the past, the disenfranchised member would have higher qualifications than she does now.15 Satisfying an equal qualification affirmative program may not satisfy a counterfactual qualification affirmative action program. Beyond affirmative action programs, some institutions have implemented quota programs. With quotas, we reserve some positions or seats to members of a disenfranchised group.16 If the number of positions we set aside is high enough, and the pool of applicants low enough, satisfying the extra seats of a quota program may entail dipping further below even the qualifications permitted by counterfactual affirmative action programs, let alone the existing qualifications set by market standards. The worry about an unqualified work force accompanies quota programs, especially. Still, most people recognize that even quota programs are not sufficient to remedy the rampant prejudice we face in society.17 My focus will be on why even the least invasive program, equal qualification affirmative action, is unjustified. To do so, I will focus on affirmative action programs to hire females over males, but the arguments should apply in all cases of affirmative action programs that aim at combatting all cases of prejudice. I believe that procedural justice forbids affirmative action programs and quota hiring. However noble one’s intentions, contractarians forbid doing things to others without their consent. My claim will be that affirmative action programs violate that condition. Arguments in favour of affirmative action fall into three different (not necessarily conflicting) camps: those concerning future benefits (social utility), those concerned with rectifying past harms (compensatory justice), and those concerned with present inequalities (distributive justice). 9.2.1. Procedural Justice All defences of affirmative action are predicated on the fact that targeted groups have suffered systemic discrimination. That discrimination exists is not in doubt,18 and that it is unfair is not in doubt, and that something should be done about it is not in doubt. What is in doubt is whether, while lessening prejudice through affirmative action programs, we violate procedural justice. Contractarians answer yes.

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That contractarians believe procedural justice is involved in hiring practices might be surprising. Jan Narveson, for example, provides a contractarian argument for why we should let businesses hire whomever they want. After all, they are the ones who own their business.19 We cannot force them to do what concerns themselves alone without veering from contractarianism into paternalistic policies where individuals are at the whim of the reigning zeitgeist.20 Notice two things about such a libertarian argument. (i) It does not say that affirmative action is wrong. It says only that imposed affirmative action is wrong.21 If a company decides to implement affirmative action, go ahead. (ii) No business owes one a job. Their not hiring someone, then, cannot count as a wrong to that person. That a white male would have got the job had the company not imposed (voluntary) affirmative action is irrelevant to Narveson’s libertarianism. Enforced affirmative action harms the business only, in robbing it of its liberty.22 We cannot say that affirmative action harms the unselected white male. When I complain about affirmative action violating procedural justice, I mean that affirmative action does harm the unselected white male. Being a victim of procedural abuse harms him. How can nonlibertarian contractarians justify a procedural rule not to discriminate based on sex? The same way we justify any procedural rule: by an appeal to ex ante mutual interest. Imagine the following two rules: (a) Let your prejudices interfere with your business enterprises, and (b) Do not (or try hard not to) let your prejudices interfere with your business enterprises. Between the two, self-interested people would opt for (b). Why? Because prejudices have a way of being inefficient. If we are not hiring the best ­candidates for our business, our business will suffer. If our prejudice restricts our workforce, our associates, our suppliers, and our customers, we lose countless beneficial opportunities. As Tom Beauchamp noted, “No one would argue, for example, that baseball has poorer talent for dropping its color barrier.”23 Narveson admits that the problem with prejudice is its inefficiency.24 He disagrees that we need a rule to tell us to be efficient in our market transactions. Such a rule is mere prudence. As he says, why force people to do what they would be doing on their own, anyway?25 Contractarians have a ready answer, however: All morality is mere prudence. Morality is merely the subset of social prudence. Morality is not anything beyond prudence. We advocate moral rules that serve our interests, assuming general compliance. We abide by



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those rules because we know we can easily succumb to temptation. One temptation is to resist interaction with members of a different group for no other reason than we have a drive to defect when faced with mixed signals. An ex ante rule prohibiting (as far as is determinable) explicit racial and sexist hiring practices, for example, should be mutually beneficial to all, given prejudice’s inefficiency. Once we accept an ex ante rule not to discriminate by sex (etc.) for irrelevant reasons (while admitting relevant reasons may exist under certain contexts26), does this mean we should accept affirmative action programs? Are such programs not simply a means of ensuring nondiscrimination? The answer is no. The contractarian demand for nondiscrimination is explicit: Do not (or try not to) hire based on sex (etc.). Affirmative action programs violate this. They explicitly want us to hire based on sex (etc.). Affirmative action programs claim to supersede procedural justice, just as vigilantism tries to supersede due process. If equal opportunity for a position is a right that all have, affirmative action programs expressly deny that right to those members outside the targeted group, in our case males, or white males, particularly.27 Of course, white males have long benefited, and saying it is now their turn to take the burden seems fair. I will look more closely at this argument under the compensatory defence. For now, let us note that the procedural justice objection to affirmative action presumes that not letting the man get the position because he is a man violates due process. Most people admit that affirmative action violates the prima facie rights of excluded members, but they offer justifications for such violations. Others, however, argue that no rights violation occurs. If a woman, W, and a man, M, apply for the same job, and we give it to W, we have not infringed on M’s right unless we presuppose that M has a right to the job. No contractarian can say that. Hence, no rights infringement occurs.28 Such a reply, unfortunately, backfires. It shows that had we systematically given such jobs to Ms instead of Ws, no violation would have occurred either. If no wrongs were committed, we can have no wrongs to correct. If we think systemic prejudice is wrong, however, we think that Ws have been wronged for not being hired, not because they had a positive right to be hired but because we think their opportunity for being hired was not equal to the opportunity afforded Ms, and this is because we have fallen into a rut of prejudice against Ws (or whichever group). Our accepting that explanation, however, commits us to

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reject affirmative action, since affirmative action would systematically close such opportunities to Ms. If we cannot discriminate against W for being a woman, we cannot discriminate against M for being a man. 9.2.2. Social Utility Utilitarians can allow for individual rights violations if the end result entails an overall benefit to society. With affirmative action, the injustice caused to white males who lose positions is (supposedly) outweighed by the benefit to society by reduced prejudice.29 While white males unfortunately suffer unemployment due to affirmative action programs, we can at least say they suffer less than those who have historically felt the brunt of discrimination. Many critics accept the consequentialist argument, that doing what we can to promote a nonprejudiced society is a goal to pursue, yet deny that affirmative action in fact satisfies that promised goal.30 Bad consequences claimed to arise from affirmative action programs include (i) undermining social efficiency, (ii) not providing jobs to the targeted group, (iii) increasing rather than helping to abolish prejudicial tensions, and (iv) creating an unending need for continual interference. (i) The first highlights the worry about being forced to hire lesser qualified individuals. We would rather have top qualified surgeons, airplane pilots, accountants, teachers, nurses, etc., than lesser qualified ones. While the equal qualification affirmative program is supposed to remedy this fear, the legal ramifications for failing to hire an “equally qualified” member of a target group may cause us to hire less qualified sorts. As well, the idea of “equal qualifications” is muddy and may refer merely to minimal entry requirements,31 although vast relevant differences exist beyond such a meaning of equality. For example, two academic applicants can both have publications, but one may have far more and in better quality journals and publishers than the other. (ii) The second concern follows because – at least for equal qualification affirmative action programs – the program can benefit only members of the prejudiced group who have managed to earn top qualifications, whereas these are the individuals who do not need any bootstrapping program. By assuring us of their meeting the proper qualifications, affirmative action programs cannot possibly be helping those who have suffered discrimination. It can only help those who already have the qualifications that



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were denied other members of their group. (iii) Prejudicial attitudes do not in fact tend to dampen once more members of a discriminated group come into the work force through affirmative action, for the prevailing attitude is that such people are not really qualified. As such, we are inclined to see mistakes bootstrapped entrants make as evidence of their lack of qualifications, even when we tolerate such mistakes in others. As put, the actual benefits pale in comparison to the actual harms. (iv) And lastly, once we solve the inequality concerning women and blacks and indigenous people in the workforce, we will move on to homosexuals, Rastafarians, Inuit, Gypsies, flat-earthers, psychics, atheists, the Faroese, the Hadza, the Kuna, etc.32 One cannot complain that North American industries have never intentionally discriminated against such groups, not having ever heard of most of them, since the argument for affirmative action has never focused on intentions of those hiring – only the statistical outcome. That the Kuna are underrepresented in the workforce seems to imply a systemic discrimination of the Kuna. The point is, once we open the door to benefit one group, we have no end of groups to benefit. I do not subscribe to these worries. The worry about qualifications (i), for example, seems fuelled by the very prejudice we are trying to eradicate. It presupposes that women are less competent than men. Even if the differences are typically stark – more likely in smaller markets, given greater variances within smaller population sizes – the problem may be due to past discrimination.33 Everything else being equal, a pervasive shuffling of girls away from male-dominated careers or a lifetime of doors slamming in the face of indigenous populations would lower one’s chances of matching the qualifications of those who did not suffer discrimination. The slippery slope worry (iv) is also silly because the recognition of discrimination is not by noting that a particular group is underrepresented in an industry. No discrepancy occurs if the proportion of Kuna in the workforce is similar to the proportion of Kuna residents in the area or, better, the proportion of Kuna applying for the particular job. If the percentage of Kuna applicants roughly matches the percentage of Kuna employees, we have no discrimination to worry about. If the ratio of Kuna applicants to Kuna employees is lower than the ratio of white applicants to white employees, we may complain of discrimination. To that extent, the slippery slope argument would be akin to saying, “Well if it’s wrong to enslave blacks, next you’ll tell us it’s wrong to enslave Serbians!” The answer is “Yes, of course!”34

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Concerning (iii), finding grumblers against any new system is not hard to imagine. Nor can we imagine that affirmative action intends to right all wrongs, let alone to do so immediately. Such grumbling is shortsighted. Recall the uproar when we thought it a good idea to let women vote. (i) Allowing women to vote let different people get into power. Such people would not have been elected save for women voters. Suspicion, therefore, naturally arose concerning whether these newly elected leaders were qualified to handle the intricate pressures of proper political life. Meanwhile, perfectly qualified individuals sat on the sidelines. (ii) Letting women vote did not help the average woman who had neither the resources nor the education to vote. Husbands and angry mobs prevented most women from voting, whereas the remaining shared the societal norm that women were unfit to vote. (iii) Allowing women to vote increased the tension between men and women; it did not quell the tension. People yelled at, spat at, kicked, and ridiculed women, especially suffragists. (iv) Slippery slope reductios were the common satire of the day: “What next, let donkeys vote?” While such outcomes are factual, they were largely short lived. Social utility has steadily increased by women’s participation in the political process. It did not happen right away nor is the process finished. My point is simple. Short term effects of affirmative action programs may cause backlash where tensions rise, cause people to doubt others’ qualifications, and provide the very needy, the ones who have most suffered from past discrimination, no benefits at all. None of that rules out the possibility that benefits from the program can happen over time. Whether affirmative action succeeds at its noble goal or not, however, contractarians can only be concerned with procedures. Contractarians are against putting someone else’s notion of the good ahead of individual rights. Utilitarian calculations do not move contractarians. That others benefit from my sacrifice may not be in doubt, but that does not motivate me to sacrifice myself. In evolution, the unit of selection is never the group.35 If morality cannot motivate moral behaviour in persons for their own overall benefit, then so much the worse for morality. 9.2.3. Compensatory Justice A second defence of affirmative action concerns reparation of past wrongs. Those prejudiced against have wrongly suffered.36 To atone,



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society should try to do what it can to fix those wrongs. Hence, people sometimes defend affirmative action programs by invoking compensatory justice.37 We best see compensatory justice when A causes harm to B, and so society punishes A and benefits B. We normally think punishment for wrongdoing is morally justifiable. We cannot say that if causing harm is wrong, causing harm to the one who caused harm is wrong. To call punishment incoherent would mean we cannot say that anything is wrong at all, which would place us back in Hobbes’s state of nature where life is short, and brutish, and solitary.38 Contractarians justify punishment on the grounds of reciprocity. We agree not to harm each other while we both stick to our agreement. If that condition is not met, we are entitled to resort back to all the arts and skills of war.39 It is not the same pattern in affirmative action, however. With punishment, we punish A for A’s transgression against B. With affirmative action, we rob the equal opportunity of C to get a job, not due to some transgression that C has done but for some transgression A has done to B. While utilitarians might tolerate punishing C for A’s indiscretions, contractarians never can. Not only would we be punishing someone who did not do the crime by allowing affirmative action, we would not even be compensating the victims of the crime. Due to B’s suffering from A’s prejudice, we punish C to benefit D. It is as if all that matters is that punishment and reward are distributed to somebody.40 True, no one randomly doles out the punishments and rewards. It is not just any C and D. They are targeted according to being members of specific groups.41 We punish a member of a group that had benefited in the past from discrimination, and we reward a member of the group that had suffered in the past. Even if we think the unit of selection is the group and not the individual (or gene), something is still peculiar with targeting groups rather than culprits and victims. A member of a group who was discriminated against in the past for being a member of that group will share with her other group members certain properties that connect to the prejudicial treatment. For example, they are all women. Beneficiaries of affirmative action today, however, are not suffering in the way that the women of the past were. Yes, both groups (women who suffered in the past and women who are benefited today) are all women, but the fact that the women of the past were all women is less relevant than the fact that they suffered for being women. If anything, that is the group affirmative action should target, not just the group of women and

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especially not the group of women who are benefiting from being women, i.e., those being hired. As a result, D is not even properly part of the group to which B belonged, other than the morally irrelevant feature of being a woman – even if it were the case that being a woman was what constituted the past discrimination of B.42 Saying the above is not to pretend that patriarchy, racism, and homophobia, for example, are dead. Prejudice still exists, even if not as blatant or as publically accepted. Any beneficiaries of affirmative action programs, however, are not going to be the ones who have suffered from past discrimination, given that affirmative action presupposes equal qualifications.43 Proponents of the compensatory model of affirmative action programs point out that we would have more qualified woman today had not sexism been so rampant. Meanwhile, men would have been less well off, had they not benefited from rampant sexism.44 Even if we accept the universal modalities in such claims, it does not help the compensatory argument. If a man innocently benefits from a woman’s hard luck, we do not normally think it correct to take from the man and give to the woman. It is even less correct to take from him to give to another woman who may not have suffered as much as the original. Imagine a woman, Smith, loses a hundred dollar bill and a man, Jones, finds it. Yes, if possible, Jones should return the money to Smith. If Jones never learned that it belonged to Smith, what should Jones do? Even assuming Jones knew the bill belonged to a woman, compensatory justice does not mandate that Jones give one hundred dollars to any woman, or even the most destitute woman, as opposed to treating it as Jones’s.45 Even in cases where we know that A owes B, reparation still needs to follow due process to avoid violating other moral principles. Our knowing that A is the killer of B does not mean we can hang A in vigilante style, for that would violate principles of due process. To say, “But A has done a terrible wrong!” or “B is owed justice!” are irrelevant to the worry about due process. The objection to prejudicial treatment of men over women, or whites over blacks, or Scottish Diaspora over indigenous populations, is not sufficient to justify affirmative action. 9.2.4. Distributive Justice An alternative defence for affirmative action programs concerns present inequalities. Women make less than men, and are underrepresented



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in high paying jobs and overrepresented in low paying jobs. Assuming such inequalities are due to persisting prejudices, a corrective needs to be in place. We need to increase the presence of women in prestige jobs. Since relying on simple promises of nondiscrimination is not itself effective,46 we need mandatory affirmative action.47 Yes, it may be unfair to prevent a white male from getting a job he would have gotten without affirmative action, but it is also unfair that women suffer more than men, that nonwhites suffer more than whites. With or without affirmative action, unfairness results. While such an argument does not tell us which unfairness to correct, it defeats the procedural justice line that one cannot undertake a program if doing so causes unfairness, especially if we look upon the status quo (no affirmative action programs) as itself being a program.48 A Rawlsian conception of fairness mandates that we all start from roughly equal positions. If we are running a race, the runners should start at the same place. We should not tolerate some racers being way out ahead of others from the onset nor should we tolerate shackles on one group of runners while another group is free. People sometimes apply the race analogy to affirmative action.49 Since women and nonwhite individuals have been systemically discriminated against for centuries, they are at disadvantage when competing with white males. It is like a false start. We need to remedy the situation by bringing all runners back to fair positions before we let them race again. Robert Nozick deems the analogy inapt.50 Life is not a zero-sum game as is a foot race. A zero-sum game is where we have one winner and at least one loser. Someone gets the prize (the sum), and the others get nothing (the zero). In market transactions, however, the pot is divided between participants. This is because no participant will enter the negotiation unless she expects some benefit. The result is mutual advantage, not zero-sum games. Participants in the market are not out to win a race; they are out to earn themselves a living, and this is possible even if others earn a better living, even if others started ahead of them, even if they are shackled in some sense. Or think of a birthday party. When the host brings out cake, the attendees expect a roughly equal portion – no matter the quality of their gift or their performance in parlour games. If the host has not equally divided it, outbursts ensue. To expect such equality in real life, Nozick says, is where the problem lies. The fairness of the size of our portion of cake is predicated solely on our bargaining powers, assuming such powers were obtained by due process. The only relevant factor for my hiring B should be that I expect hiring B will pay me more dividends than hiring A.

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For Hardy Jones, Nozick’s argument shows why relying on individual liberty fails morality.51 Liberty merely preserves the prejudices we find intolerable. Besides, our concern is hiring persons equally qualified for the position. Most proponents of affirmative action are not demanding that we hire unqualified persons.52 So the worry about not meeting mutual advantage by affirmative action is a red herring. Moreover, competitors for limited jobs do see it as a zero-sum game. Someone wins, and the others lose. If the losers have been unfairly discriminated against because of something irrelevant to job performance, like one’s sex or one’s race, someone’s complaining of a false start is sensible. If we deem affirmative action wrong for violating equal opportunities, prejudice is wrong for violating equal opportunities. Nozick’s rejection of the race and cake metaphors cannot count as an argument against affirmative action. So argues Hardy Jones. Critiquing Nozick’s dismissal of the race analogy does not itself justify affirmative action, however. The Nozickean line argues that we cannot complain about unfairness due to prejudice. This is not the line I am taking. We can complain about prejudice, but we can also complain about affirmative action. Jones has correctly pointed out the incoherence of claiming that affirmative action violates the principle of equal opportunity without also admitting that prejudice is a violation of equal opportunity. The due process argument, however, is the reverse. If we see that prejudice is a violation of equal opportunity and that such violations are wrong, then we cannot employ affirmative action without violating the very same principle. Contractarianism is a moral principle focusing on proper procedures being in place – namely informed, voluntary consent of all competent concerned parties. Appeals to distributive justice focus, instead, on prior outcome patterns of resource distributions, no matter whether such distributions are the result of proper consent. 9.2.5. Summary I have rejected the three basic arguments in favour of affirmative action: those rectifying the past (compensatory justice), those preparing for the future (social utility), and those fixing the present (distributive justice). As well, I have given the basic argument against affirmative action, that from procedural justice, and I have backed that argument up from a contractarian stance. To implement affirmative action is to deny the rights of members of a particular group.



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That society might be better off if we do, is morally irrelevant to contractarians. The stand against affirmative action is not to be confused with supporting racism and sexism and homophobia, etc. It is a similar stand against censoring those who speak racist or sexist or homophobic utterances. Shoot their arguments down rather than restrict their liberty to voice their opinions. Instead of affirmative action, educate society of the insidiousness of prejudice. Admittedly, mere education will be slower than affirmative action programs, just as fair trials are slower than vigilantism.

P art fou r Beneficence

10 Duties of Beneficence?

People have a penchant to believe that morality demands we help others when they suffer. Can contractarians support the sentiment? My focus will be on whether we have a moral duty to help relieve someone’s suffering and, if we do, to what extent. I plan to do two things in this chapter: 1. explain why the notion that we have a general duty of beneficence is unsustainable; and 2. offer an error theory, an evolutionary account of why we might nevertheless adopt an attitude that we have a duty of beneficence. I should note first, however, that my concern has nothing to do with the empirical claim that the method of our help undermines the targeted goal. For example, if we are to convert our wealth into famine relief, we lose the incentive to produce our wealth, thus failing to provide the famine relief anyway. Hardin’s ratchet effect analogy shows how international aid artificially props up larger populations on the same limited resources that could not satisfy the smaller population, thus spelling a greater disaster down the road when the artificial support dries up.1 Such replies – even if true – presuppose that the goal of helping is an obligation. The focus is on how best to satisfy that obligation. Proponents of such empirical arguments tend to think Adam Smith’s invisible hand is the best way of doing so.2 My worry is whether or not we can ground an obligation at all.

10 .1 . C o n t r ac ta r ia n is m and Benefi cence 10.1.1. Duties to and Duties Toward Contractarianism grounds moral constraint on interpersonal prudence, which amounts to the expectation of mutual advantage.3

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Though each individual would do better by solitary defection, we recognize that – usually – the other’s cooperation is conditional upon our own. Thus, I agree not to put a knife in your back on the condition that you agree not to put a knife in my back. If we rely on direct prudential reciprocity, we will not be able to support a duty of beneficence.4 Internalizing our moral disposition to comply with agreements made does not in any way commit us to make certain agreements. All we have so far is a reason for you to internalize a disposition to abide by agreements you deem in your interest to make. Being indifferent to someone’s suffering (if you are not the cause of that suffering) satisfies the notion of direct reciprocity upon which contractarians build their moral theory. For Joseph to elicit an action by Mary, Mary needs to consent. If Mary does not consent, Joseph cannot force the desired action from Mary. For example, if Joseph wants Mary to hand him her wallet, and Mary does not consent, Joseph cannot morally force Mary to do so. If Joseph does coerce Mary in this way, we call that mugging. The form is immoral for contractarians wherever it occurs. Joseph’s demanding help from Mary (or society’s demanding Mary help Joseph) takes precisely the same form. Merely changing “hand over your wallet” to “rescue me from suffering” does not alter the pattern. A theory based on direct reciprocity only would require consent from Mary. The fact that most of us would consent is beside the point (and at any rate would not justify a moral duty to do so). All we require is one situation where Mary is utterly indifferent to the plight of Joseph and so declines the offer. To force the indifferent Mary to help Joseph despite Mary’s nonconsent could not be justified under a rule of direct reciprocity. Since contractarianism is based on reciprocity, contractarianism appears to permit indifference to suffering.5 Contractarianism is not limited to direct reciprocity, however. As noted in 1.4.4., we can speak about duties to and duties toward. Our duties will always be to others who can reciprocate like duties. That need not exhaust our duties, however. Our duties can also extend toward others who cannot reciprocate duties, assuming those others are appropriately related to those who can reciprocate duties. If A will cooperate with B only so long as B extends her duties toward C, B may well have the incentive to extend her duties toward C. This means people other than our bargaining partners can have moral standing.6 Something’s having moral standing and something’s being owed a duty of beneficence, however, are not the same. B’s extension



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of her duty toward C to placate A may only need to be negative, not positive. A negative duty is one of refraining. A positive duty is one of benefiting. B may agree not to harm or exploit C but not necessarily to benefit C. If A demands that B help C in order for B to elicit A’s cooperation, B may deem the potential cost outweighs the potential benefit, especially if D is also looking for a cooperative partner without the added stipulation. If A has many relations and all of them are needy, B’s reluctance makes sense. What if A’s relations are not currently needy; A simply wants insurance on their behalf. Moreover, since A is a reciprocal cooperator A is willing to offer the same positive obligation concerning B’s relations. Under such a scenario, the costs to B need not override the benefit to B. Of course, if none of A’s relations are needy, B’s satisfying her duty of beneficence is costless. She never has to act on her duty. This highlights the inadequacy of grounding a duty of beneficence based on the fact that contractarians can endorse duties toward as well as duties to. People who need assistance who are not appropriately related to reciprocal cooperators would miss out. When we think of a duty of beneficence, we think of it as being universal, not restricted to relations of our cobargainers – even if the overlapping web of multiple relations of multiple bargainers is vast. Can contractarianism do better? 10.1.2. Ex Ante Agreements If we had no prior agreement to relieve suffering, one will not abrogate contractarian moral principles by remaining completely indifferent to suffering. Perhaps, however, contractarians can say we have such prior agreements. After all, contractarians distinguish between ex ante and ex post agreements.7 An ex ante agreement is one where rational agents in some kind of amoral state commit themselves to constraints on future interactions and do so only if (i) the constraints are equitably mutual and (ii) the payoff to the constrained individual outweighs the constraint itself. For example, we agree to a rule to limit the speed of cars to one hundred kilometres an hour, and we accept the terms (per hypothesis) because the constraint on us is worth lowering the incidence of accidents due to higher speeds, where we assume we are as likely to be involved in those accidents as anyone else. An ex post agreement, on the other hand, will now concern my abiding by the rules implemented according to the terms

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of my ex ante agreement. We do not say speeding is wrong because police will ticket us (an ex post motive). We appeal to the argument used to justify our issuing tickets to speeders (the justification for the  ex ante agreement.) When Hume chastised contractarians for thinking we are bound to our agreement merely because we made an agreement,8 he failed to appreciate the difference between ex ante and ex post agreements. The question before us is whether self-interested agents in a state of nature would ex ante agree to universal duties of beneficence. Although liberty is worth preserving, one may argue it is not in any obvious sense a paramount value. Perhaps reasonable people in an ex ante position (intent on finding moral principles that garner mutual benefit) would place a value on assistance and frown upon indifference.9 That we can imagine such an ex ante agreement does not show that it is individually worthwhile to make. We might deem it in our self-interest to agree to a rule to relieve suffering when we are promised that the long-term rewards to the self outweigh the disadvantages to the self. Such a supposition is not obvious, however. The prospect that you will require assistance will surely be outweighed by the prospect of others requiring assistance by you, given that you are one in seven and a half billion. Even factoring in the benefit to you by your assistance will not obviously outweigh the accumulated costs of helping others.10 The point here is a contractarian refrain. Rights entail duties, and duties cost. It makes sense to impose duties on ourselves and others only when we expect a net gain from the rights. Otherwise, the claim to the right loses its necessary backing. To agree to a duty of universal beneficence, since it is clearly not in everyone’s prudential interests either ex ante or ex post, we would need an antecedent belief that our doing so is morally mandatory. While question-begging may be fine for those who assume what is moral is a given, contractarians are intent on explaining the value of morality and so cannot afford to beg the question in this way. Nothing in the appeal to ex ante agree to a rule to abide by one’s agreements implies a commitment to make certain agreements. Despite assurances that the other will comply with the agreement while we do, it does not follow that we stand to gain from such compliance.11 An agreement to buy heroin simply does not interest me, and I would not agree to it even with assurances from the dealer that he will not renege on the terms of our agreement. In fact, I would do



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better if the other party did renege when mutual compliance would lower my utility. Precisely to avoid such cases, we reserve the right to decline an offer of agreement. So it can hardly count that my having internalized a rule to abide by my agreement carries over to my also being bound to abide every agreement someone offers me. Once we understand this, we can interpret requests for aid as offers to enter agreements for which there is no necessary internal motivation to accept – even despite an internalized commitment to abide by one’s agreements. The problem of grounding a duty of beneficence – if it is a problem – remains. 10.1.3. Natural Affections The above considerations show that we cannot ground duties of beneficence in self-interested prudence alone. No one need be surprised, yet most of us feel the call of that putative duty nonetheless. Since so many of us agree that helping others is a moral duty, how ironic to discover that what we agree is moral is not justified by a theory that bases morality on agreement. Perhaps, then, the felt duty of beneficence is simply part of our natural sentiments. In that sense, following Hume, we may say that Hobbes’s state of nature is a ­misguided starting position. Our natural state must include strong passions that, among other things, demand a universal duty of beneficence. The fact that many of us do have a real preference to help – a preference that is not derivative on a mere preference to be helped – seems to bear this out. As mentioned in section 1.4.3 (iii), grounding a duty to help on natural affections is not as superfluous as it might seem. Despite our natural inclinations to help, we may require assurance that our help will (i) not be wasted and (ii) not disadvantage us. Our help might be wasted if not enough others pitch in. Our help may disadvantage us if, while we help, nonhelpers succeed in competitions for cherished resources. Both assurances may be satisfied if we ex ante enter a pact with other like-minded individuals similarly thwarted from helping when they desire. If most of us willingly internalize our duty to help, this will certainly increase the odds that my help is not wasted, and since others are also constrained in their competitive drive to satisfy the call to periodic beneficence, my natural generosity will not disadvantage me relative to others. The worry about whether or not we have a duty of beneficence, then, is merely an assurance problem.

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Claiming a duty to help arises from our penchant to help (i) permits the seeming truism that we have natural sentiments to help, (ii) shows how we may nevertheless require an ex ante agreement to commit ourselves to help despite our natural sentiments to do so, (iii) avoids question begging or naturalistic fallacies, since the duty comes from being bound to our ex ante agreement, and (iv) motivates acceptance of the duty for all persons who satisfy the two conditions of (a) having natural sympathies to help and (b) having an assurance problem that thwarts their helping voluntarily.12 It is within the contractarian purview to agree on rules hypothetically (ex ante) that would force us to comply with these rules even when, at the time of being forced to comply (ex post), we would rather not. Still, such reasoning does not extend to forcing people to abide by these rules who would not voluntarily agree to them in the ex ante position. Can we support the claim that such noncompliers are missing an intrinsic good?13 Not likely. Telling Mary she would find utility from helping should she have an intrinsic preference to help is comparable to telling someone who does not like mushrooms that she should like mushrooms because she would then derive satisfaction from those mushrooms. However true, such advice is uninteresting. It cannot bind the indifferent. Notice that we would have no obligation to help those who have not ex ante consented to a beneficence duty. The nonconsenters may be able to live with that. With negative duties, however, things are different. We would have no obligation not to kill those who do not ex ante consent to abide by a rule not to kill others. Nonconsenters cannot live with that. So, we can tolerate ex ante nonconsent for positive duties in a way that we cannot tolerate ex ante nonconsent for negative duties, assuming we can tell nonconsenters from consenters, something we probably cannot do. Let us call those who consent to a duty of beneficence at the ex ante stage “members” and those who do not “nonmembers.” A member may not know whether someone needing help is a nonmember, and so helps her out. Refraining from helping a member would be bad for the member-helper. This invites free-riding. Why pay the costs of helping others when I am likely to reap the benefit of being helped for free? The attractiveness of free-riding makes the ex ante agreement to accept a duty of beneficence all the less likely – even with a natural inclination to help.



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10.1.4. Adjusting the Baseline Another way contractarians can try to endorse duties of beneficence involves altering our conception of a baseline. One’s baseline is whatever position one happens to be in before the bargaining offer.14 This is the status quo conception of the baseline. To reduce an individual to a position lower than her status quo is inadmissible for contractarians. We have no obligation to elevate someone from her status quo, however. Mary’s being indifferent to Joseph’s suffering does not make Joseph’s situation worse than it was before Mary’s arrival. Joseph is suffering before Mary’s arrival and suffers the same after Mary’s departure. Since Mary does not lower Joseph’s baseline (defined as the status quo), her indifference is permissible.15 Since people come to the bargaining table in widely disproportionate positions, however, we may need to assess bargains, not from the initial status quo baseline but from another, a fairer, baseline. This is Rawls’s intention.16 We might demand Mary help Joseph only in case Joseph is below his subsistence level. In this sense, one can now say that Mary does harm Joseph by leaving him below his baseline, since any degree of suffering is necessarily below one’s baseline. One might say that reasonable people, properly informed, in an ex ante position, would agree on a nonsuffering rendition of a baseline. A moment’s reflection on the proposal, however, shows its implausibility. The term “lower” is not precise. Suffering from want of doing better is possible for everyone, so whatever new baseline one adopts, one is already lower than that. The goal of morality, from the contractarian’s perspective, is to preserve as much individual liberty as one can, within the conditions of social living. As a result, lowering the concept of a baseline from states of affairs people are in, to states of affairs some ideal would have them in, would be counterproductive. Conversely, we might use a bell curve model, such that people fall below their baseline when they reach the bottom 10 per cent, say, of wealth distribution. While it may be nice, or nice as insurance against uprisings, the odds would not be sufficient for rational bargainers to accept. After all, the chance that anyone would be in such need is only 10 per cent. One might reply that the burden of accepting an obligation to help a mere 10 per cent of the population is manageable. Not so. Helping the 10 per cent or 5 per cent or even 1 per cent of the neediest can never be attained. It is a relative number, not a real number.

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10.1.5. Welfare and Liberty The root of the problem concerning beneficence is the conflict between welfare and liberty. Which ought we to value more? Suffering is bad, but so too is a constraint on liberty. To impel A to help B may satisfy B’s welfare, but at the expense of A’s liberty. When examining the trade-offs, many note that relief of suffering, especially very bad kinds of suffering, is always preferable to the trivial loss of a little bit of liberty. My liberty to read poetry on the beach is ruined if I have to go save someone from drowning instead. Fair enough, but few would think my right to read poetry at a specific time trumps someone’s actual life. This is the wrong way of looking at liberty, however. While liberty allows us to do trivial things, like read poetry or paint our nails, liberty is also the thing that protects us from assault, murder, and rape. We deem assault wrong for interfering with your liberty to do with your body as you see fit. We do not forfeit such a right merely because the things you are doing with your body are things others do not see as fit. You may deem my reading poetry trivial, but that would not give you the right to assault me. The triviality of what I am doing with my liberty never affects my liberty rights. We have not invented the idea of liberty for the slothful and selfish. The protection of the slothful and selfish (along with everyone else) is an implication of liberty. While we may do trivial things with our liberty, no one can seriously say liberty itself is trivial. It is true that the cost to me – to give up reading poetry for a moment in my life – is trivial compared with the cost of the other not being rescued. Someone is now alive rather than dead and merely at the cost of only a tiny bit of my liberty. My overall liberty is not appreciably affected. In other words, is not some sort of compromise possible, despite the above worries? Many have tried to find this happy mean. In A Theory of Justice, John Rawls proposed a two-tiered policy: (i) Everyone has a moral duty not to do anything to others without their consent, and (ii) Everyone has a further moral duty to help relieve suffering when possible.17 To avoid rendering the cost to the duty-holder too great to bear, Rawls asserts that (i) always trumps (ii) when conflicts between (i) and (ii) arise.18 Unfortunately, any attempt at instantiating (ii) will necessarily conflict with (i). Rawls’s priority rule provides a loophole against any putative moral obligation to help.19 In Political Liberalism,



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Rawls fixes this by weakening the first principle. “Each person has an equal claim to a fully adequate scheme of equal basic rights and liberties, which scheme is compatible with the same scheme for all; and in this scheme the equal political liberties, and only those political liberties, are to be guaranteed their fair value.”20 In other words, he is now saying we have the liberty to do whatever we want only if we do what is adequate and fair. This does not tell us that morality demands beneficence, however, unless we have some antecedent rule telling us it is fair for nonsufferers to help relieve the suffering of others. We cannot generate such a rule from the theory itself. It parachutes in deus ex machina.21 Amartya Sen provides another kind of attempt to allow interference with liberty without violating basic liberty principles. He makes the case that we need to restrict liberty for some to preserve as much liberty as possible for all.22 The belief is that those who are not suffering have more liberty to do various things than those who are suffering. In brief, a rich woman can do far more things than a poor woman: her food choices, for example. So, if liberty is important, we should recognize a prior obligation toward an equality of liberty, which amounts, minimally, to an equality of nonsuffering. To achieve that, nonsufferers should help sufferers. After all, liberty matters only to those who have the basic requirements of living. The difficulty with this sort of move, however, is that Sen conflates liberty with freedom. We think of freedom as the number of choices available. The more choice, the more degrees of freedom. In this sense, since the rich have more choices than the poor, the rich are freer than the poor. Liberty is not this sort of freedom, however. One has liberty if one’s status quo option is a live choice, not otherwise. Consider the following scenes: 1. Mugger A stops Pedestrian X and provides the following choice: hand over X’s money, or A shoots to kill X. 2. Mugger B stops Pedestrian Y and provides the following choice: hand over Y’s money, or B shoots to kill Y, or B knifes Y in the heart, or B slits Y’s throat, or B pushes Y off a tall building. 3. Mugger C stops Pedestrian W and offers the following choice: hand over W’s money, or C shoots to kill W, or W walks away with W’s money and W’s life.

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Y has more choices than X or W and so, to that extent has more freedom than X or W. Only W has liberty, however. That is because, in Scene 3, W’s status quo is still a live option. Muggers A and B did not give X and Y their status quos as a live option. That means that no matter how many other degrees of freedom they have, neither are at liberty. This proves a rule in successful mugging: never give one’s victim her status quo as an option. To apply the mugging cases to Sen’s analysis, we cannot say that the rich have more liberty than the poor, if they are left at their respective status quos: whether that is being rich with plenty of freedom or being poor with little freedom. Thus, the call for more egalitarianism to reduce suffering cannot be predicated on the preservation of liberty.23 10.1.6. The Singer Argument Above, I mentioned how the cost of taking on a universal duty of beneficence exceeds the benefits to the duty-holders. Peter Singer uses this complaint to his advantage. Yes, he admits, the requisite duty to help relieve suffering exceeds our psychological interests. Moral duty ought not to be a slave to self-interest, however. Billions of unfortunate people are below their nonsuffering baseline right now. We cannot complain that we are unaware of such suffering given global media. Singer argues that the principle that justifies our intuition about our duty to help in a particular case (saving a child from drowning in a shallow pond, for example), commits us by law of consistency to help the entire world’s population. This task inevitably involves drastic upheaval in our normal lives. We would need to sell our possessions and turn the proceeds into food, medicine, clothing, educational resources, and conceivably a military force to rescue people from tyrannical regimes.24 By the simple recognition of a duty to help a child from drowning in a pond, we are committed to recognize that we must help everyone suffering; we must recognize how dreadfully immoral our lives are for our persistent indifference. Unlike my arguments above, Singer does not view the excessive cost to us as a “problem” – at least not a theoretical problem. He sees in his argument a necessary deduction: moral duty demands we help anyone (and animals) everywhere who are suffering. Consent theorists see it as a problem since we now have a choice between accepting



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the consequent (drastically to alter our way of life) or rejecting the antecedent (to deny we have a moral duty to help relieve suffering), and both options seem intolerable. If we deny any duty to help relieve suffering, although we escape having to change our comfortable, luxurious, idle, wasteful ways of living, we also cannot be morally bound to help the child from drowning. This is the two-pronged fork of the Singer problem: it rejects any middle ground solution. We are left with a choice between two intolerable positions: to recognize no duty to help or to recognize the duty to help exceeds our psychological capacities. Contractarians may object to Singer’s argument in at least four ways: concerns about (i) psychological realism; (ii) a false dichotomy; (iii) supererogation; and (iv) type–token distinctions. (i) Psychological Realism. That we would not want to alter our lives as much as Singer concludes we must is not the problem. Refraining from harming someone sometimes goes against our psychological makeup but is our duty all the same. The worry about human psychology, however, concerns reduced production. Those who are to help will no longer profit from increased production. This will lower their motivation to produce. Lowered production means a diminished amount of help we can provide. True, the complaint rests on our ­selfish psychology to do more only when we benefit. For Singer, psychology is plastic; morality is not. When our psychology is immoral, it is time to change it.25 I agree that psychology is plastic, but since our focus concerns what morality is, we cannot merely presume morality is an absolute thing to which our psychology must conform. Since contractarians picture morality as a tool to help serve our psychological interests better – to accept constraints on our behaviours only when we can reasonably foresee net gains to those constrained – it begs the question to say that morality must come first, psychology second. Singer presupposes the negation of the ­contractarian ontology: that morality is not a mere instrument for humans. While saying this does not say that therefore Singer is wrong, it does explain why Singer’s rebuttal about psychological realism is less an argument than a counter claim.26 As far as our psychology being plastic goes, that hardly means we never have a reason to complain about social dictums that would drastically alter our psychology. We are malleable enough to alter our psychology to undergo a variety of behavioural changes. Some good; some bad. In large part, that is what we mean by will power. Typically, however, we entertain the altered behavioural shift only when we see

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some long-range self-interested benefit. Though it is psychologically hard to quit smoking, for example, I do it because I believe in a longterm benefit that accrues to me despite my present cost. To undergo a difficult process to alter my psychology for a benefit that I do not receive is something else entirely. (ii) False Dichotomy. Ignoring the challenge to Singer from psychological realists, his dichotomy seems false. In order to hear the sirens, Ulysses agreed to be tied to the mast and have his orders refused, but it was not any order that he wanted refused, only the order to let him wallow with the Sirens. Ulysses would not agree to be whipped while tied and have his orders not to be whipped ignored. Nor would he wish his crew ignore his request for water. If another monster appeared from the clouds, Ulysses would not want his crew to disobey his order to slay it before it ripped out his eyes. Ulysses looked for a workable compromise. Should someone agree at the ex ante stage to help people from drowning, they are unlikely agreeing to spend their entire lives to help relieve every imaginable kind of suffering wherever it occurs in the world. If that were the bundle of duties they were asked to accept at the ex ante stage, they would have declined. Comparatively, Singer restricts Ulysses’s choices to two: not hear the Sirens at all or go wallow with them. Such a dichotomy misses Ulysses’s brilliant solution. Likewise, a happier middle ground may be found concerning beneficence. For example, when I feel bound to pull a drowning child from a shallow pool, I need not be acting on the principle help anyone suffering, limited only by my own costs relative to the degree of help I provide, as Singer assumes.27 I could just as easily be following the principle help others only when their suffering confronts me personally, and no one else can do the job, limited by my own safety. Such a rule might get bogged down with multiple witnesses, as in the Kitty Genovese case,28 but the point here is that it does not take much imagination to find a third alternative to Singer’s dichotomy. (iii) Supererogation. Another problem with Singer’s analysis ­concerns the category of supererogation. When thinking of moral injunctions, we can normally distinguish between what is negatively obligatory, what is positively obligatory, what is prerogatory (or permissible), and what is supererogatory. Table 10.1 highlights the ­differences. We look at actions that you cannot do, actions you must do, actions you may do, and actions that would be nice to do. Once we note the differences between these types of actions, we need only ask ourselves whether Singer is confusing the supererogatory for the



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positive obligatory.29 Another way of saying this is to wonder whether he is denying the existence of the supererogatory, altogether.30 No one will deny that devoting her life to help relieve suffering was a nice thing for Mother Theresa to do,31 assuming autonomy of will, but to call it her duty would be to rule out the prospect that she can do something nice for the sake of it being nice, or to fail to distinguish universal moral duties from subjectively self-imposed ones.32 Table 10.1  Moral categories Punishment (for failure)

Praise (for success) Example

Type

Action

Negative obligation

Must not do

X

murder

Positive obligation

Must do

X

Prerogatory (permissible) Supererogatory (beyond duty)

May do

X

debt paying (charity?33) flute playing

Nice to do

X

X

(extreme) charity

The supererogatory captures what Kant called “imperfect duties.”34 For Kant, these are actions for which praise for doing is appropriate but punishment for failing to do is not appropriate. To call the supererogatory a duty, however, even if only “imperfect,” is misleading. “Imperfect” cannot count as a qualification of a duty. The qualifier “imperfect” attached to “duty” operates in the same way that “cancelled” affects “performance” in “a cancelled performance.” A cancelled performance is not a lesser performance: it is no performance at all. A “duty” that permits no punishment for disobeying cannot count as a duty.35 Similarly, if we understand the supererogatory as going beyond duty, it can never be itself considered a duty. To maintain the useful distinction between duties and ideals, we need to understand charity, or extreme charity, as supererogatory.36 (iv) Type–Token Distinctions. Pointing out our normal distinction between the supererogatory and the positive obligatory does not refute Singer, since, as noted, he expressly rejects the distinction, at least, concerning relief of another(s)’s suffering. Another objection remains. According to Singer, once we accept the obligation of saving a person from drowning (assuming one can do so without one’s own drowning), we are thereby committed to saving anyone from any degree of suffering. In David Schmidtz’s vocabulary, Singer assumes

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our willingness to absorb a token cost commits us to absorbing a type cost, and this is precisely where Singer goes astray.37 For contractarians, recall, rights have costs. While we benefit, obviously, from others helping us, to make helping a duty for all, including me, entails that I must absorb the cost of such a duty alongside any benefit I accrue from it. To accept a lesser duty of helping – a “Local Help Only” rule, for example, would be far cheaper, and thus might be worth paying given the expected utility of being helped by locals. We would not ex ante agree to a rule that would put strangers ahead of our own family and friends and neighbours.38 The main point is this: to move from a token gesture of helping to a type of duty of helping is not a logical implication, despite what Singer tells us, since the cost of type-helping is exceedingly great, whereas the cost of token-help is manageable, and duties are accepted based on the costs we are willing to absorb. To think we are bound to move from the one to the other is as sensible as feeling committed to buy all the apples in the store since you could afford to buy one. 10.1.7. Summary Although expecting a moral principle to eradicate all causes of suffering is unrealistic, many suspect it is not beyond a proper moral principle to try to eradicate suffering when we find it. In other words, consent theory’s failure to ground a duty to relieve another’s suffering counts as a reductio ad absurdum against consent theory. The difficulty, however, is in justifying the belief that we do have an obligation of beneficence. It does not follow from the simple extension from duties to to duties toward. Although some of us might agree to a helping rule in an ex ante position, it is not rationally forced upon us. If we try to accommodate a nonuniversality, we allow loopholes for the indifferent. Altering the baseline opens us up to Singer problems. Relying on natural affections cannot get universality. Singerlike attempts to formulate universal principles from single acts of charity are invalid. And any attempt at finding a compromise between liberty and welfare is muddled.

1 0 . 2 . T h e S o luti o n: O v e r e x t e n d e d Heuri sti cs So far, whether they like it or not, consent theorists seem committed to the idea that agreeing to a duty to relieve the suffering of others is



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not supported. All we can say is that such generosity is supererogatory, at best. A difficulty with even this suggestion exists, however: namely how to explain why we think helping others is even in the category of the supererogatory rather than the merely prerogatory? How did our sentiments about helping others arise from the state of nature? Concerning charity, or even excessive charity, if all contractarians can say is, “Go ahead if you feel like it,” we have not distinguished relief of suffering from flute playing. Contractarians still need to explain why we praise those who relieve suffering at their expense, whereas we do not necessarily praise someone for the brute fact of playing the flute or reading the paper or any other morally permissible act. The answer, I believe, lies in the evolutionary ontology of morality. What I will argue is that altruism is an overextension of a useful heuristic, and this overextended heuristic has developed into a norm. As seen in chapter 2, support for contractarianism comes in part from evolutionary game theory, which spells out why strategies that can prosper among their own kind will tend to do better in terms of reproductive advantage than strategies that do not. A reciprocal cooperator (R C ) is a type of player who adopts a strategy that cooperates with others only if the others are prone to cooperate as well. RCs tend to win against noncooperative and unconditionally cooperative strategies in a variety of types of games.39 This is because the greater proportion of defectors in a population will reduce the fitness of defectors, since they will have to play with each other more often, and defectors are those who do not play well with others. Add in the fact that interactions in nature seem more correlated than random (that is, types tend to associate more with their own kind than with other types)40 and we can see why evolutionary models within a wide range of games favour reciprocally cooperative (what we call “moral”) strategies than any other type.41 Of course, genes do not pass on moral strategies. Moral strategies get copied through cultural selection, which has its own peculiarities. Cultural selection occurs through learning and assimilation or, more basically, mimicking and habit formation. Mimicking is a builtin strategy that tends to benefit mimickers over nonmimickers.42 Mimicry comes in three kinds: (i) proximity, (ii) bandwagon, and (iii) prestige. Proximity mimicking is to mimic whomever we come across first.43 To bandwagon is to mimic what the majority does.44 In prestige mimicking, we imitate only the prestigious members of an identified group.45

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For Aristotle, mimicking the wise was obviously superior to, and in conflict with, bandwagoning and proximity mimicry. Picking prestige mimicry as the superior form of mimicry, however, makes the mistake of assuming a competition among the mimicking strategies. That is the wrong way of looking at the mimicking process. The three forms are interrelated. Proximity determines the group with which we identify. Bandwagoning determines who counts as successful within that group. Others are ridiculed. Mimicking the prestigious is only the last phase of the mimicking strategy. Whom we deem prestigious, therefore, is already dependent on the group with which we identify. Meanwhile, we identify the prestigious with ingroup success.46 Individuals are driven to succeed in whatever aspirations they endorse, and so a good strategy is to mimic those who are successful within the chosen sphere. Imitation is a coarse-grained operative. When imitating the successful, we are not quite clear on what features we should imitate. It is unlikely that we will stumble upon exactly the right features at exactly the right degree. Therefore, we can expect to err. The question is, do we err by not copying enough or by copying too much? Richard Boyd and Peter Richerson pitted insufficient imitation strategies against overextended imitation strategies and found that the redundant imitators outdid the insufficient imitators in success.47 In fact, we may predict a tendency toward imitation in greater degrees. Individuals attempt to discover the best behaviour in varying environments. They may learn on their own or they may imitate those of previous generations. Given the vagaries of experimentation, fluid environments, and third variables, strategies that are effective in the short term are not necessarily strategies that succeed in the long haul. A risk of self-experimentation is latching onto behaviours that have no lasting effect. Imitating successful members of previous generations, therefore, has the benefit of avoiding costly errors. The risk of imitation is greater when environments have shifted. If environments change, a need for self-experimentation will always be useful. Cases where self-experimenters succeed, ­however, become a case for imitation of subsequent generations. Therefore, for each successive generation, we can make a stronger case for the imitation strategy. Assuming stable environments, the greater imitators will achieve a higher payoff than those who imitate less. As Boyd and Richerson observe, “when it is difficult for an individual to determine the best behavior and when environments change



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infrequently, more than 90% of a population at equilibrium simply copies the behavior of others.”48 Not only is the process of imitation a bit broad-grained, so too is the adoption of any heuristic. Heuristics are not perfectly sensitive to all environmental cues: thus we can expect some adaptive heuristics – particularly when imitated – may be overextended in certain cases. If such errors have no maladaptive effects, we can predict the norm to include the overextension across future generations. Let us call altruism “unreciprocated beneficence.” Altruism may have originated as a form of reciprocal cooperation among small groups, as Robert Trivers argues,49 but when examined in the light of current human conditions, we praise altruism in its unreciprocal form. Obviously we cannot grant unreciprocated beneficence the same evolutionary story as R C . R C cannot prosper without reciprocity. So if R C will also endorse altruism, we need a different story. Why would the norm of altruism have evolved in the first place? If the prestigious are altruistic in the first place, or behave in ways that may appear altruistic to potential imitators, we might expect altruism developing into a norm through imitation, but why would successful progenitors have altruistic tendencies? One’s dealing with others successfully relates to one’s reputation concerning how one has dealt with others in the past. If you are more likely successful adopting an R C strategy than other strategies, and this success depends on others correctly identifying you as an RC, then your reputation as an R C matters. What we should expect to find, then, is that the need for preserving one’s reputation will be positively correlated with moral behaviour. In Gauthier’s defence of translucency – the ability to detect others’ dispositions accurately a significant amount of time – he relied on precisely this rationale for making oneself transparent.50 Transparency, of course, is a fiction. To compensate, we can, at least, try to avoid sending the wrong signal. Evolutionary game theory shows us that (i) being an RC is important, and (ii) having others identify you as an RC is important. Altruistic acts may help ensure this second feature. A’s failing to be altruistic may signal to B that A may not be an RC, after all. This may be false, since an R C need not commit to every proposal that comes her way. It is complying with her agreements that matter, not accepting every agreement. The failure of an R C being altruistic, however, can be enough of a signal to potential cooperators to read the nonaltruist as a non-R C . That is, people may perceive nonhelping, not as an action

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outside the realm of reciprocal cooperation but as an act of unreciprocated defection. To avoid this mistake, RCs may prefer to err on the other side, by endorsing at least some degree of altruism. That is, RCs will be moved to beneficence for the purposes of maintaining their reputation for being an R C . Despite appearances, I am not according a psychological motive to R C here: I am merely describing the evolutionary processes underpinning our moral psychology. This line of argument carries more weight for those whose reputations are more prominent. Prestigious members will be more motivated than less prestigious members to guard their cooperative reputation, if merely to thwart misconstrual, and thus defection, by others.51 To preserve their reputation as an R C, therefore, they may behave in ways technically unnecessary for reciprocal cooperation. The fear of a marred reputation moves the prestigious toward overextending cooperative behaviours into fuzzy cases of altruism.52 Meanwhile, the broad-stroked mechanics of mimicry move the plebeians to imitate the overextended altruism of the prestigious, which in turn coagulates into a norm. Notice that this account of altruism in people is not saying that altruism is naturally selected. R C is naturally selected, not altruism. Not all social behaviours that evolve do so for those beneficial reasons.53 So the mere inference that altruism has evolutionary fit given its current norm is hardly convincing. Nevertheless, we can argue that altruism is associated with evolutionary benefits. Behaving in ways that signal to others you are a reliable cooperator has evolutionary fitness and that helping others when they are in need is a good way – not a necessary way – of signalling to others that you are a reliable cooperator. None of this need work on the level of rational motivation, of course. We do not consciously believe our proclamations of love are methods of gene propagation. The norm of unreciprocal altruism piggybacks on the successful R C strategy. In this sense, we can explain the prevailing norm of beneficence as an overextended heuristic. The upshot of an evolutionary account of consent theory is that it explains why we share an attitude favouring a supererogatory “duty” to help others. Couple this with the fact that an ex ante agreement to make “duties” of beneficence supererogatory is costless (precisely because it falls short of being a duty) and we will have a stable norm of encouraging beneficence, without assuming an actual duty.

11 Animals and Obligations

Consent theory is a decidedly human-centred theory. By human-­ centred, I mean humans create morality for humans. I do not mean the view that humans are superior to nonhumans and that they therefore deserve rights in ways that nonhumans do not.1 Instead, consent theory sees morality as a compromise among agents voluntarily willing to restrict their own behaviour concerning other persons – only if reciprocated – for the satisfaction of mutually beneficial interests of the bargaining parties. If humans have no similar interests in bargaining with nonhuman animals (herein simply “animals”), then the moral sphere that contractarians create does not extend to animals. In fact, as discussed in chapter 1, section 4.4, contractarians have difficulty offering moral protection, at least directly, to any being unable to cooperate with other agents, including children. People commonly condemn such person-centred approaches to ethics as “imperialistic.” A proper moral theory is supposed to avoid imitating the days when England galumphed about the globe and viewed as subhuman those who did not follow high-tea customs. Peter Singer accuses the human centred approach of being “speciesist.” He deems speciesism as bad as racism and sexism, since they each treat their own group as having more value than outsiders.2 In this chapter I defend a human centred approach that is neither imperialistic nor speciesist. I defend a human-centred approach to morality as an output of metaethical considerations. The main arguments in favour of ascribing rights to animals, on the other hand, presuppose metaethically problematic notions, particularly that of moral objectivity. A contractarian view will not offer us as robust a protection for animals as animal-rights advocates want, but it can, at least, protect against wanton cruelty.

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I organize this chapter into the following components. 1. A search for the element that rights-holders possess and non-rights-holders lack. 2. The metaethical difficulties with such pursuits. 3. How an evolutionary account of morality’s ontology satisfies the metaethical constraints and supports a human-centred contractarian normative theory. 4. An exploration to see what protection for animals a human centred contractarianism can offer.

11 . 1 . T h e S e a rc h f o r the Moral Li nk b e t w e e n   H u m a n s and A ni mals 11.1.1. Sentience When we look at uncontroversial rights-holding agents and compare them with uncontroversial non-rights-holding agents and ask what are the physical differences between the two, Singer offers an extremely plausible answer: sentience – or the ability to feel pain. An ant cannot feel pain – we believe because of its not having the sufficient brain components3 – whereas a four-year-old child can feel pain. To squish an ant is not immoral (for us), whereas to squish a fouryear-old child is immoral. Singer considers and rejects other candidates for that magic ingredient that would “prove” why humans have rights and animals do not – like intelligence or opposable thumbs or strength or language or the ability to write. For present purposes, let us grant that the only physical trait that all rights-­holders have that all non-rights-holders fail to have is sentience – the ability to feel and dislike pain. Singer then points out that many animals also have sentience.4 From these two premises, which I am willing to grant,5 Singer concludes that, if humans have rights because of their sentience, then animals should also have rights on the same basis.6 My problem with Singer’s argument will concern his logic, not his premises. Mary Ann Warren, on the other hand, believes the premises are faulty. For her, the key ingredient that all rights-holders have that all non-rights-holder fail to have is the requisite mental capacity to be a duty-holder.7 Animals cannot obey duties. Humans can. As we will see below, Warren is on to something but, as put, misses the mark. While rights entail duties, the entailment is not necessarily in the same entity. One cannot have a right without another having a duty to uphold that right, but it does not follow that the rights-holder is also a duty-holder. We think the one-year-old child has as much right



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as the adult not to be harmed, but we do not believe the child has moral duties. Similarly with coma patients, the senile, and certain mentally challenged persons. We accord them rights without their having antecedent duties attached. This shows that we do not ascribe rights to only those to whom we also ascribe duties.8 Therefore, to be a rights-holder is not necessarily to have the mental capacity to be a duty-holder. Warren is mistaken. In response to the objection that something can have a right without a duty, Warren allows the crediting of indirect rights. We ascribe indirect rights to persons unable to perform duties because such ­persons belong to rights-holders. They are someone’s child, parent, or  sibling, all of whom are duty-holders. Warren does not oppose extending indirect rights to pets and farm animals, though not to nonowned animals. This fits with my discussion about duties to and duties toward (chapter 2, section 4.4). We have duties to agents who have the ability to accept duties, but we may extend our duties toward non-duty-holders assuming duty-holders refuse to honour their duties with us without that extension. On the contractarian’s view, our extended duties toward these others entails that we are granting these others rights. Warren seems to resist this. Since our duties are not actually to a hamster, but rather the owner of the hamster, the hamster cannot be said to have a right. Similarly, we do not say that your lawnmower has a right, although I may have a duty not to damage or steal your lawnmower. Such an analysis limits indirect rights to things we deem property. It is true that my duty toward your lawnmower does not mean that your lawnmower has a right. Few people are bothered by that. Your right in your lawnmower entails that you can do anything you want with it, including abuse, neglect, or wilful destruction. It is yours, after all. We do not think you can abuse, neglect, or destroy your child, however. This shows that the rights we grant to children are different from the rights we grant to property. The same should go for my pets or my farm animals. If the chickens are Farmer Brown’s property, and any rights accorded to Farmer Brown’s chickens is only through Farmer Brown’s property rights, Farmer Brown can do anything he wants to those chickens. Stuffing them into in tiny wire cages with sloped floors, debeaking them without painkillers, and tossing male chicks into bags where they slowly suffocate or starve would all be permissible if Farmer Brown thinks it permissible.9 Warren may acquiesce to all that, but because she would not likely let us do the same to our children, her reply to the Singer-like objection is amiss.

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11.1.2. Consciousness For Tom Regan, the crucial ingredient found in animals granting them rights is that animals are conscious beings.10 That is, they can experience life. They can have a specific experience in virtue of being the kind of creature they are.11 Being an experiencer, of course, includes, importantly, the ability to feel pain and not to like the experience. So far, then, Singer and Regan concur. The issue for Regan, however, is that we grant rights to conscious creatures because consciousness has intrinsic value.12 Once we concede this intrinsic value that animals and humans share, animals should also enjoy the same moral rights that humans enjoy. For Regan, such moral talk takes on a Kantian flavour.13 In virtue of their being conscious beings, we should treat neither people nor animals as means only but always as ends in themselves. For Regan, then, the wrongness is not that the animals suffer pain from human exploitation – although that is part of the problem; what is wrong is viewing animals “as our resources.”14 For Regan, the upshot is that we must abandon treating animals as instruments for human ends. We should stop eating meat and stop experimenting on animals.15 While many of us may not want to stop such things given our own enjoyment of meat or wearing cosmetics that do not burn our skin or having cures found through initial lab tests on animals, neither eating meat nor wearing cosmetics, nor even all medical treatment, is necessary for living well.16 From the contractarian perspective, of course, we do not take on duties to forgo actions that no one needs. I do not need to golf, for example. It would be an odd morality that forbids golf, at least on the basis that no one needs it. Contractarians ground morality on our interests, not our needs. This does not defeat Regan – in fact he would think that a reason contractarianism is defeated. I mention it to note that discourse needs to go deeper, to the root of what we think morality is about. Despite their differences, both Regan and Singer presuppose that we discover moral values in nature; we do not have anything to do with their creation. The oddity of such a view is more apparent with Regan than with Singer, for Singer appeals to something with which we have experiential evidence: pain sensation. Regan, on the  other hand, appeals to the nonempirical notion of intrinsicality.17 On the one hand, we might think of something with intrinsic value as a thing we ought to protect. We protect something by granting it a right. As put, then, Regan’s argument would amount



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to saying animals have rights because they are the sort of thing that has rights, which is not an interesting argument. Moreover, Regan is committed to calling anything with intrinsic value a thing with rights, but this seems farfetched. The regarding of sunsets has intrinsic value, but few would think therefore the sunset has rights. What we would think, for sunsets, is that we have an interest in preserving the beauty of sunsets should something crop up to impede them. By such language, however, all we could say about (some) animals is that we find intrinsic value in them. If so, we have an interest in preserving them. If so, we might be willing to undertake certain kinds of duties concerning those particular animals – presumably the ones we find cute or useful.18 Regan’s emphasis on being conscious is to preclude the sunset objection above. He can agree that a sunset’s intrinsic value is in us, but the intrinsic value of an animal’s being conscious is in the animal, not in us. Unfortunately for him, however, this is a thing he cannot say. He can only say that the consciousness of the animal resides in the animal, not in us. He cannot say – without pure conjecture – that the intrinsic value we attach to such things is in the animal rather than in us. At best, we might agree that, given the animal’s consciousness, it would prefer we did not harm it. Regan cannot go from the animal’s conscious desire of how we treat it to the conclusion that therefore the animal has a right to be so treated, however. That you can admit I prefer that you treat me as your king would not make it your duty to treat me as your king. People have a wide range of desires, not all which of are protected by rights. We need something other than mere conscious desire. Besides, even if we grant animals rights, few will imagine those will carry the same weight as human rights do. We expect people to rescue humans over animals, even unworthy, ugly, old people over very cute, young, well-loved animals, or an unknown vagabond over the family dog. This is not a distinction that either Singer or Regan can make. They can only say our common practice is wrong. 11.1.3. Virtues Virtue theory abandons the pretension that rights talk is appropriate to moral discourse. Instead, they look on our practices as evidence of character traits, such as compassion and cruelty, temperance and callousness, greed and selflessness. If we focus on how we ought to live

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in order to live well, certain virtuous actions will recommend themselves. These virtuous actions will extend to creatures with or without so-called rights.19 For example, Rosalind Hursthouse claims that compassionate beings would not participate in eating meat when they know how much needless animal suffering occurs in the meat industry.20 Virtue ethics allows a variance in our appraisal of moral action. It is possible some actions are done for virtuous reasons, whereas the same action may be done for nonvirtuous reasons. As put, the action done in the first case is moral, the second immoral. The stories we hear about cruelty to animals typically concerns the nonvirtuous motives of expediency, greed, callousness, or outright cruelty. Being a kind individual means being kind to animals, whether or not we bestow animals with moral rights. We are being kind, not because we ought to in any Kantian sense of duty but just because kindness is constitutive of what it is to live well. Peter Carruthers also takes a virtue theory approach, although combined with contractualism (which is different from contractarianism).21 While Hursthouse remains mum about whether it makes sense to ascribe rights to animals, Carruthers argues that we cannot ascribe rights to animals.22 Nevertheless, we can call actions against animals wrong when the character traits of the actors display an antiflourishing trait.23 To use Gilbert Harman’s example, when we come across kids burning a cat for their amusement, Carruthers can say that the kids are wrong to burn the cat – not because the cat has any moral right (Carruthers) or whether or not we can say that the cat has a moral right (Hursthouse) – because the cat-burners are displaying bad character traits.24 Because our appraisal of their moral character is negative, we can say that what they are doing is wrong. The problem with an appeal to virtue ethics, however, is that if we think the kids’ moral characters are flawed, it must be because they are doing something to the cat that they should not be. If the cat has no moral right not to be burned, for example, it is not obvious that what the kids are doing to the cat is in any sense depraved. After all, the kids could burn cardboard for their own amusement (safely, etc.), and we would not think their moral characters were corrupt. At any rate, we do not say to the kids, “Don’t burn cats because things of actual importance might catch on fire,” as we might with cardboard burning. So if we think lighting cardboard and lighting cats is morally different, we probably think it has something to do with our belief that cats should have some protection against being burned,



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whereas no such right makes sense for cardboard. With Singer, the only plausible explanation of such a belief connects to the fact that the cat is sentient; the cardboard is not. In other words, we look outside the actors’ psychologies when judging rightness or wrongness. We would only think the kids are depraved if what they are doing to the cat is wrong – and they know it. Unless we credit the cat with rights against such treatment by the kids, we cannot deem such treatment wrong. Since virtue ethicists admit there is nothing inherent in catness on which any rights can supervene, their attempt to defend animal rights by human character traits bogs down.

1 1 . 2 . M e ta e t h ic a l Pres up posi ti ons This is the point so far: Discussion about our obligation toward animals hinges on whether we discover or invent rights. If we discover moral rights in the world, rather than invent them, then morality is probably human-independent. Something about the natural fabric of the universe contains moral rights. As put, we do not create morality; we find morality already in place. Under the natural objective picture of morality, it is more than plausible that animals have these natural features along with humans. It is not guaranteed, mind you. That only humans have these objective rights is a logical possibility, even if humans are merely discovering this fact in nature. We discover that only snakes have infrared vision, for example. The odds of only humans having natural rights are low, however, particularly when we share with many animals the relevant physical traits that make us rights-holders – for example, the ability to feel pain coupled with our finding pain to be undesirable. On the other hand, if rights are not found in the world, but ascribed to the world, as we ascribe an aesthetic value to a sunset, then the fact that animals share the ability to feel pain as we do would not be sufficient to guarantee our ascription of rights to them. While our ability to feel pain is obviously a relevant factor in our ascribing rights to each other, it is not a sufficient factor in the according of rights – at least not on the contractarian account of the origin of morality. We also need reciprocity. My ability to feel pain means I have an interest in you agreeing not to inflict pain on me without my consent. I cannot get you to satisfy my desire to have this right, however, without offering you something in return. Since I also know (or assume, at any rate, given the other-minds problem) that

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you too have a reluctance to feel pain without your consent, I can offer you the same right concerning my actions. That is, you and I can agree not to cause each other pain. We each have a self-interested reason for making – and abiding by – this agreement, since the benefit to us (being free of pain, at least regarding each other) outweighs the cost to us (having to refrain from causing the other pain). While sentience is a necessary condition for the ascription of rights, we also need reciprocity.25 We now see Singer’s logical gaff. Neither Singer’s appeal to sentience nor Regan’s appeal to consciousness, are sufficient to conclude that if humans have these features and have rights, and animals have these features, they too must have rights. For it turns out humans have another feature that animals lack – at least concerning their interaction with humans – the mutual interest in voluntarily accepting reciprocal duties. If Singer and Regan adopt the idea that humans invented morality for mutual advantage to those bound by the moral contract, they will be unable to make their analogies between humans and animals stick. That is why I accuse them of presuming some kind of natural moral objectivity. As put, then, the debate rests on whether anyone can sustain a ­natural moral objectivity. J.L. Mackie, among others, thinks not. He believes that natural moral objectivity succumbs to the Queerness Argument.26 As discussed in chapter 2, this argument comes in three parts: metaphysical, epistemological, and motivational. That morality can be an objective fact we discover in the world, as we might discover coal, is, first off, metaphysically weird. When we say, “You ought not to torture a child for fun,” however phenomenologically we think that is an objective truth, focusing on the word “ought” unravels its objectivity. When we see someone torturing a child for fun, we perceive many objects and facts that make up an activity. Its ought-not-to-be-doneness, however, is not one of those facts and objects. More plausibly, we ascribe to the activity a value – the value that we believe one ought not to do such stuff. We should understand the epistemological queerness when we wonder how we would see moral values that somehow reside in the things themselves. Since value-facts are obviously not found alongside objects we call facts, they must perfectly supervene on the object-facts without themselves being factual objects. Yet how would one come to know such things? What human organ can perceive such ghosts? Some sort of moral intuition is the only available answer, and it is a notoriously



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problematic answer. Apart from the metaphysical and epistemological components of the argument from queerness, we also face a motivational problem. That an objective, epistemologically accessible sign tells me to smoke Laramie cigarettes ought not, by itself, convince me to smoke Laramie cigarettes. The motivation to follow directives, moral or not, must connect to one’s interests. The three-pronged argument from queerness tells us that morality is not likely found out there in the world, despite our phenomenal experience of moral appraisal.27 The typical proponents of animal rights presuppose moral objectivity, however, and are therefore on shaky metaethical ground. Without assuming moral objectivity, the search for the common feature that rights-holders and animals have is idle. Humans impose values, and do so if and only if holding those values has a net benefit to the value holder compared with not holding such a value. Agents who reciprocally cooperate with others prone to cooperate tend to do better over time than agents with other types of strategies.

1 1 . 3 . M o r a l E vo l u ti on and Ants If morality is an evolutionary trait, as I claim, we would expect – and do find – moral-like behaviours in nonhuman animals, particularly our close ancestral relations. For example, Frans De Waal tells of the following experiment involving a group of capuchin monkeys who prefer grapes to cucumbers. When all capuchins get cucumbers, none complain. When all capuchins get grapes, none complain. The problem comes when only some capuchins get grapes while others get cucumbers. Uproar ensues from the cucumbered capuchins. They prefer to throw their cucumbers rather than eat them. De Waal ­supposes that the capuchins are displaying feelings of unfairness or injustice.28 Of course moral dealing in animals and in humans is vastly different, but the underpinning algorithm of moral dealing is – at root – the same. For social creatures who fear predation, and/or need help in securing diet (too rare in the environment or too lethal to lone hunters), some kind of reciprocal sharing will develop, and norms of punishment for norm violators result.29 A worry, of course, is that picturing the monkey behaviour as moral is simply anthropomorphizing what we witness in human moral terms. We could just as easily give a morally neutral, or deflationary, account of the activity. Jesse Prinz, for example, complains

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that the cucumber–grape scenario is just a case of displaying individual preferences. It does not show that the capuchins have any moral sense. Nor is altruism, rather than self-interest, necessarily revealed when one animal helps another.30 First off, De Waal, at least, is careful to insist that what he defines as “moral” in animals is obviously not the same robust sense of morality found in humans. To pretend that humans are uniquely moral is to pretend that humans are utterly divorced from their ape ancestry. Ignoring that, Prinz also fails to appreciate that we can give the same deflationary accounts to human behaviour. When a student complains that marks were unfairly distributed, we can say she is only self-interested and has no real sense of fairness or justice. In fact, if morality did not serve prudential selfinterest, we would not expect the trait to flourish. If the evolutionary roots of morality lie in reciprocal cooperation, we will begin to see that behaviour in a far wider range of animals than merely our closest ancestral lineage. Evolutionary game theory highlights that entities prone to reciprocally cooperate with other like-minded entities will do better than those who adopt other strategies.31 If so, the basic pattern of reciprocal cooperation among groups should be widespread in nature, from bats to ants. Even ants succeed by being reciprocal cooperators among themselves – not consciously so, but no one need consciously act morally, despite what Kant thinks.32 One might as well say moral behaviour needs to be performed while standing upright. All that matters is that the entities behaving in reciprocally cooperative patterns display the socially useful trait that we call moral behaviour. That humans happen to do that consciously, at least sometimes, is less relevant than that they display reciprocal cooperation. In fact, the more consciously humans perform such actions, the less we trust them. When we feel impelled to ask someone whether she really had to think about reciprocating our cooperation is when we make a mental note to find a better partner in future. My point for now is that many organisms besides humans reciprocally cooperate among themselves. That we may also get to internalize some rules such that we come to feel intrinsic benefit from performance of the act, rather than from the outcome of the act, does not undermine the evolutionary account we can give it. For Jack Sanders, any moral theory that calls ants “moral” reveals a problem with the theory.33 After all, neither Singer nor Regan think ants have moral rights. The sense of “morality” that we share with ants and capuchins, however, is purely structural. We are not



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speaking about content, by any means. Ants are hardwired. We are not. We can reason. Ants cannot. Duties can move us. Duties cannot move ants. Moral recommendations are useless with ants, whereas (we like to think) not with us. No one denies these differences between humans and ants (without taking a very deflationary view of humans). The question is whether these differences are relevant at the formal level. That is, conduct adhering to a reciprocally cooperative algorithm will tend to serve the interests of such agents better than other types of conduct. When we operationally define as “moral” any agent so following the reciprocally cooperative conduct, we include ants and capuchins along with computer simulations and humans. That should be what we expect if the structure of moral behaviour is a naturally selected trait. Saying that animals – let alone ants – display the reciprocally cooperative algorithms we operationally define as moral does not mean that humans must, therefore, accept moral duties toward these animals. We are not moral to others because those others are moral, as if we recognize an intrinsic value in them that demands our moral allegiance. Instead, we are moral with others who agree to be moral with us. Our morality is always contingent on expected reciprocity. Without that, all bets are off. Thus wolves, while evolutionarily working out social agreements of etiquette among themselves, as Nietzsche might say,34 nevertheless have no qualms killing members outside their wolf pack. To repeat, humans do not have proprietary rights on the structure of morality, but that is not sufficient to make the case that humans must accept moral duties concerning animals. While some animals also operate under an intraspecies reciprocal cooperative model, it does not follow that interspecies cooperation is reciprocal. Thus, I can take a chicken’s eggs without the need of getting its consent first. I cannot take your children without getting your consent first. While I need to make bargains with people, I do not need to make bargains with chickens. Under the evolutionary model, morality comes from interest, not antecedent duty. To stitch together the argument so far, we get: (i) Moral objectivity is a myth. (ii) Once we abandon that myth, an evolutionary account of morality becomes plausible. An evolutionary picture sees morality as reciprocal cooperation. (iii) Humans do not need to reciprocally cooperate with animals, whereas humans need to reciprocally cooperate with humans. This is because humans cannot simply exploit humans without human payback, given the kinds of creatures

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humans are. For the most part, humans can exploit animals without expecting retaliation from them. When no reciprocal cooperation among parties is required, nothing in evolutionary strategies can demand it. Such an a-evolutionary demand could only come from an appeal to the debunked belief in moral objectivity. Our final question is whether or not contractarianism can accommodate at least some protection for animals, and if so, how much.

1 1 . 4 . C a n C o n t r actar i ani s m P ro t e c t A n i mals? Jan Narveson offers a contractarian account for why we should at least avoid wanton cruelty to animals.35 Since people happen to care about animals, we can infer an indirect duty toward animals. Unlike Warren’s property rights analogy, Narveson argues that it is our caring about animals that gives animals a prima facie protection against abuse. That we care about a cat, say, means we will not like your deciding to burn it, and if we do not like what you are doing, you stand to lose cooperative dividends with us, or worse. If you knew the socially imposed negative repercussion to cat burning, you would see the self-interested merit in your respecting my caring about cats, if you benefit from social cooperation with me and other carers of animals, which you most assuredly do. The caring argument would not be enough to forbid eating animals, since, as Narveson points out, we also care about eating meat. Still, we could reduce the harm done to animals destined for the butcher, as Temple Grandin advocates.36 The caring-cum-limited-rights argument would foster only negative rights of nonharm. We could not garner positive rights in a­ nimals. From the fact that many of us care about the nonharm of animals, we could not derive a duty in us to increase their welfare. Contractarians have difficulty enough assigning positive rights to people (see chapter 10), and so, presumably, doing so with animals would be even harder. So, whether our mere reliance on our general caring for animals can lead to a right of sorts in animals, it would not be the kind of thing that would placate Singer and Regan. Nor would it placate Hursthouse who would argue that our putting our gustatory taste ahead of the life of an animal shows skewed life goals. The question is, can it placate anyone? Is it a sufficient argument to imply limited rights in animals, or does it merely amount to saying that the people who care about animals will not tend to harm them?



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My worry about relying on our caring is not so much the worry about what happens when some people do not care, like the kids burning a stray cat, or what happens when most of us do not care, say concerning the fate of rats or snakes. Those are just empirical matters that would not have any bearing on Narveson’s argument. After all, if we do not care about x, our not doing anything to protect x is not going to be something about which we care. Recall, contractarians reject the claim that there are objective things about which we ought to care. No summum bonum haunts us.37 My concern, instead, is to show that Narveson’s argument does more than he thinks (or more than I think he thinks). Since our caring about animals is so prevalent, would not such care itself have an evolutionary backing? Since rights ascriptions have an evolutionary backing, would it not be plausible that our caring and our rights ascriptions are intertwined? For example, would we not cash out our caring about animals by assigning rights to animals? If so, Narveson is making – or is committed to making – a grander gesture than pointing out that animal carers will tend to care for animals. Of course, on the contractarian model, humans do not assign rights to other humans because we care about them, but we do assign rights to things about which we care. Still, the libertarian Narveson would complain that not all people necessarily care about animals in the requisite way to make it worthwhile for us all to accept the duty that comes with offering animals rights. If the duty to care for animals applies only to the few whose care would drive them to take care of animals anyway, and does not apply to those who do not care sufficiently about animals, talk of duty and rights is useless. Anyone harming animals is deemed not to care about animals, and is thus exempt from any duty not to harm animals. Fair enough, but contractarians do not accord duties quite so simply. It is conceivable that, if more of us care about animals than not, the animal carers could gang up and retaliate against the animal noncarers. We could make it difficult for them to persist in their noncaring of animals. We could refuse to cooperate with those who like to harm animals. We can boycott their enterprises, as Europe has done with Canada for Canada’s endorsing regulated seal hunting. Perhaps we could do even worse things to noncarers of animals, depending on how much we care about animals and how little we need the animal noncarers’ social cooperation. The structure that would allow transforming our caring into a right is identical to how Hobbes envisioned our ascent

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from the state of nature. Not everyone in the state of nature found it in her interest to lay down her liberty. When this happened, we did not exempt such people from our agreements to lay down our liberty. We retaliated against them, thus making it in their interests, after all. A large range of interests can motivate boycotting, however, including racist, sexist, homophobic, or religious ones.38 Morality does not necessarily support our urge to change people’s ways. The fact that we can bully people into endorsing a “duty” to fulfil our interests is not the picture contractarians have in mind. Holdouts in the state of nature were refusing to refrain from harming us or killing us. So, given our interests not to be harmed or killed, we obviously would not just let them persist in their ways. Those who do not care about animals, however, do not interfere so drastically with the pursuit of our interests – only with a tiny subset of our interests and one that is, at best, equivocal, anyway, given our penchant to eat animals, wear leather belts, and benefit from medical experimentation on animals. Nor should our care for animals be strong enough to override prior duties we made to each other: those duties that allow us our general freedom to care about whatever we want without interference. More than our care for animals, we care to pursue the things we care about, assuming our pursuits do not prevent others from pursuing the things about which they care. This means we each have to forbear killing the other, since whatever we care about, we do better attaining it while alive than while dead. It cannot carry over to protecting everything we care about, however, since some things we care about impede on some things about which others care. A homophobe’s caring about stomping out homosexuality, for example, is forbidden, since it impedes on homosexuals’ pursuits. Narveson’s point is this: when I care for animals, I am motivated not to harm them, but that does not mean I can interfere with the things you care about when such pursuits involve the harming of animals.39 In other words, Narveson’s caring argument does not really prevent wanton cruelty to animals. It points out merely the obvious: those who care about animals will not likely commit wanton cruelty to them. I think a contractarian can extend the caring argument into a bona fide, though limited, right to animals. A game hunter, a fur wearer, and a steak eater each have cares that involve death to animals but not necessarily cruelty to animals. Assuming we can distinguish between the instrumental use of animals and how we use animals – whether cruelly or humanely – we can agree with Narveson that



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one’s mere interests cannot be sufficient to interfere with others’ interests in using animals. Our caring can be sufficient, however, to interfere with how those people go about using those animals. While we admit that boycotts may be immorally motivated, it does not follow that objection to wanton cruelty of animals is of the same kind. Allowing boycotting of inhumane treatment of animals opens the door for assigning animals limited rights. Our boycotting offers the animal noncarers added motivation to accept the duty of noncruel treatment of animals that we willingly impose on ourselves, given our caring. If enforced and generally abided, this grants the animals a limited right – the right not to suffer wanton cruelty. While this right is far less than what Singer, Regan, and Hursthouse want, it is far more than what Narveson’s claim initially appears to say: namely that people who care about animals will not harm animals, whereas those who do want to harm them can go ahead, since that is what they care about.

1 1 . 5 . S u mmary Common arguments in favour of granting animals full rights seem destined to abandon a human-centred approach to morality. Abandoning human interests in one’s conception of morality entails moral objectivity. Moral objectivity suffers the argument from queerness. Critics commonly think that a human-centred contractarian approach is unable to credit animals with any rights at all. Extending Narveson’s care theory and distinguishing between the goal of animal use and the means of animal use, however, allows us to credit animals with rights against wanton cruelty. Such a right in animals entails a duty in humans to uphold that right. One way to motivate that duty in persons is by boycotting noncompliers. This follows only if most of us do generally care for animals and can afford the loss incurred to us during the boycotting. I think we currently meet both those antecedent conditions. Hence, contractarians may ascribe in animals a right against cruelty, though not a right against instrumental use.

12 The Environment and Its Future Tenants

In this chapter, I explore whether we have obligations toward the environment and future generations. An anthropomorphic contractarianism is adequate to ground an obligation to do our bit to clean up at least part of the mess we have made of the environment. The problem for contractarians, however, concerns the extension of the duty. Can we say we have a duty toward future generations? I argue that we can, although it will be limited.

1 2. 1 . Im p e n d in g E n v ironmental Di sas ter 12.1.1. Global Warming The sun’s rays enter our atmosphere. Our little planet absorbs some of those rays, but most of them bounce back. Most of that bounceback passes through our atmosphere again and heads off into stellar space. Not all, however. Some heat bounces off our earth’s atmosphere back down to earth, again. The more such bounce-back, or greenhouse effect, the hotter the overall temperature of our earth becomes. Meanwhile, the greater release of carbon dioxide emissions, caused mainly by fossil fuel use, causes more such bounceback. The result: a sustained increase in global temperatures. Since the early twentieth century, the global air and sea surface temperature has increased by about 0.8°C (1.4°F), with about 90 per cent of the warming occurring in the oceans.1 About twothirds of the global warming increase has occurred since 1980. Each of the last three decades has been successively warmer at the



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Earth’s surface than any preceding decade since 1850.2 Meanwhile, the energy released from the sun has not significantly changed over that period.3 The result: polar ice-melt, floods, drought, famine, pestilence, hurricanes, tornados.4 The solution: reduce carbon dioxide emissions – mainly automobiles and fossil fuels. The problem: to reduce our carbon emissions – especially to the degree needed – requires a drastic change in our lives. Being forced to make such changes is counter to our liberty. Besides, even if we spew no further carbon dioxide into our atmosphere, the current levels will persist for a thousand years.5 The backlog is mind-boggling.6 We need not blame consumerism or capitalism for the rampant pollution if we could develop technologies to reduce harmful emissions while keeping our factories and power plants and transportation.7 Perhaps we could even develop technologies that will trap the  carbon dioxide, like a kind of carbon dioxide eating algae.8 Until such developments occur, however, we need reduction methods now. If someone is burning in a house, we can run in and try to pull the person out, at risk to ourselves, or we can suggest that someone design and build a fireproof robot that can do such things for us. However good the suggestion, the timing is inapt. Scientists have no difficulty crediting human activity as the major cause of global warming.9 One need not morally blame our ancestors for that, but we do need to fix it. The problem: how to motivate us to do so. One approach is an appeal to human flourishing. Thomas Hill Jr, for example, complains that insensitivity to nature is a human failure in and of itself.10 We ought to flourish, and certain attitudes are conducive to that, and others are not. The reason we should constrain our current polluting practices, then, is not for the protection of the environment but for the proper development of our human potential. While I sympathize with Hill on the kinds of attitudes we can develop to make our lives go best, such justification confuses strategies of well-being with moral obligation. It is one thing to limit car use and factory emissions, another thing to say doing so is good for us independently of the carbon dioxide emissions. That running regularly is good for me I need not doubt; that I am now morally obligated to run because it is good for me, I can doubt very much. Besides, going for a Sunday drive to appreciate nature is not obviously a violation of human flourishing,

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although giving up Sunday driving may be one thing we ought to do to help prevent global warming.11 12.1.2. Anthropocentricism Contractarianism is a person-centred (or anthropocentric) view. That is to say, contractarians believe humans invent morals for humans. Environmental philosophy is famous for wanting to reject anthropomorphism and replace it with an ecocentric or a biocentric view. The ecocentric view grants rights not so much to individual organisms but to the whole ecosystem itself.12 The ecocentric view is not simply saying that manipulation of one part may have adverse impact on other parts, something anyone can accept, but that the biota manipulates the environment for its own sake. Thus, the ecocentric view ascribes intentionality to the biota, apart from their claiming it has intrinsic value. As such, we may discredit this view for being incompatible with Darwinian evolution.13 A biocentric view dispenses with intentionality, at least. They keep the notion that every living organism has intrinsic value, however, and that, therefore, every organism has rights. Some biocentrics see those rights on a par with human rights,14 whereas others admit human rights can trump nonhuman rights, if and only if doing so is necessary, in some sense, for humans.15 They may proffer this last view as a compromise, but anything that ascribes intrinsic value to nature independently of human ascription of value is counter to the metaethical discourse upon which contractarianism is founded.16 Apart from an appeal to intuition and sentiment, arguments for giving rights to nonsentient life-forms revolve around rejecting an imperialist view that most environmental ethicists claim underpins anthropocentricism. Holmes Rolston I I I ’s conception of anthropocentricism, for example, is the view that humans feel they can do as they please.17 James Sterba defines anthropocentrics as claiming that humans are superior creatures and thereby deserve all the moral respect.18 Paul Taylor takes pains to object to anthropocentricism by noting that humans are no more intrinsically valuable than any other species, an effort that makes sense only assuming that anthropocentrics believe only humans have intrinsic value.19 All are false portrayals: they reject a position no one holds. Contractarians can agree with Taylor, since they deny intrinsic value to humans as well. It is not that humans recognize inherent value in humans that they undertake



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obligations to humans. Instead, humans recognize that mutually allowing room for others’ interests better serve their own interests, assuming those others reciprocate such constraints. When contractarians, for example, say that x is valuable because humans value it, Sterba wonders why one cannot as easily say x is valuable because a cockroach values it.20 The reply is straightforward. First off, it is not simply that because humans value x, x is valuable. Rather, from our valuing x, we will accept a duty toward others concerning x. My liking my tulips untrammelled means I have to get you not to trammel on my tulips and for me to do that, I have to offer you something in return, perhaps my not trammelling on your lilies. Once we reach this agreement, we form our duties to each other concerning our gardens. Thus the cockroach valuing the cereal in my kitchen cannot by itself justify its having a right to the cereal in my kitchen, unless it was willing to negotiate with me and have me expect it not to renege. Notice that I need not assume humans are superior to cockroaches to make this argument, either morally or even intellectually. We can even concede they are superior to us since they have been residents on earth quite a bit longer. Such a concession does not mean the cockroach has a right to my cereal. James Anderson and Ronald Sandler offer a better depiction of the anthropocentric view. They claim that anthropocentrics ascribe value to humans because humans have interests worth preserving. Their objection is that consistency demands we should ascribe value to everything that has interests.21 Minimally, this would include all sentient creatures, but we could easily ascribe interests to nonsentient life as well. Trees have an interest in not having their roots cut, for example.22 Anthropocentrics do believe human interests matter, but consistency does not demand they extend rights to everything deemed to have interests, even if we can properly speak of a tree, let alone a forest, having an interest. Because we are the ones taking on the duties, our interests matter in ways nonhuman interests do not. Since duties cost the duty-holders, putative duty-holders need an argument to convince us to absorb these costs. Appealing to moral obligation begs the question. The only non-question-begging argument is one that can show our taking on these duties will further, or enhance, our overall interests. If nothing convincing is forthcoming, we ought to reject the duty-claim. The above follows if we view moral values as invented human conventions. If, on the other hand, moral values are found resplendent in

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nature, then, and only then, would our interests in taking on duties not affect what moral duties we have. So biocentrics must defend the claim that moral value is found in nature. Simply assuming it is so is insufficient. Rolston, at least, recognizes the need to defend the belief. He argues that moral value is an adaptation in organisms and, as such, must be objective. Similarly, vision and armoured plating are adaptations and are also objective. By A recognizing intrinsic value in B, A will less likely harm B. This fact gives B a better chance at passing on its genes, particularly the genes expressing the trait of an inherent, objective moral value. How else, Rolston wonders, could a feeble trillium have survived for billions of years, unless others recognized its inherent value and let it alone to thrive?23 Conclusion: inherent value is an adaptation of the trillium. Rolston asks, “How else do we humans come to be charged up with values, if there was and is nothing in nature charging us up so?”24 Well, a far more plausible answer is available. If the survival of a species, A, is useful, or at least innocuous, to another species, B, then B will not have any motive in destroying A. Whether B finds A innocuous or useful will, of course, connect to something objective about A, but the valuing it so has everything to do with B. For example, we might find a trillium pretty and so not destroy trilliums. While “prettiness” in flowers is an adaptation to help with seed ­dissemination, we do not imagine a Platonic idea of prettiness to which the flowers intentionally strive to emulate. Instead, certain new flowers have certain variant strains, and the ones that attract more pollen carriers tend to win out. When the trait that attracts pollen disseminators is what we call “prettiness,” we can claim that prettiness is an adaptation of the trillium. This does not support Rolston’s view, however. Rather, species that thrive are those whose continued survival happens to fit with the needs and interests of other successful species; those species that do not fit do less well. By this account, valuing is not due to things with value, but things valued by flourishing valuers tend to flourish as well. Can we not say that the value in a mountain or forest is intrinsic, as even Mary Ann Warren concedes?25 Yes, but only because intrinsic value is ambiguous. When we like x for its own sake, we deem x has intrinsic value. Such use of “intrinsic” is not a problem for anthropocentrics. This is not the sense that biocentrics need, however. They need the sense of intrinsic that grounds value in objective nature, independently of any valuer. We do not want equivocation to fool us



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when we say, “Yes, mountains and forests are intrinsically valuable.” We mean only that we have an appreciation of the mountain and forest independent of their instrumental value to us. We like them for their own sake, as we like music for its own sake. When we say we like music for its own sake, we are not committed to crediting music with rights. The lure of the nonanthropocentric view is that we can better preserve nature should we see that nature has intrinsic rights independent of human interests. Nonanthropocentricism renders idle the selfish complaint about not wanting to so drastically alter our lives to combat global warming. After all, if x really has a right, that means y really has a duty to uphold x’s right, and no one thinks y should get off the hook merely because the duty is inconvenient to y. (Think of the case where x has the right not to be intentionally run over by a car, but y is in a hurry, after all.) Saying this is not sufficient to prove that the environment itself has a right, however. In fact, the conclusion obviously precedes the premises in such arguments. They start with the claim that we must save the planet and then look to see what sort of belief would best get us there. At least Garrett Hardin is upfront about that. Recognizing the failure of any anthropocentric theory to cope with the impending environmental disaster, Hardin offers a fictionalist stance. He notes that groups who deem natural objects “sacred” preserve those natural objects better than groups who eschew such talk. Perhaps, then, what we need to do is reintroduce the notion of sacred into our vocabularies. Since few would be convinced, he suggests we start duping our progeny so that future generations come to believe in the sacredness of nature.26 While duping our progeny may be an effective fix to environmental disaster, teaching children a known falsehood for a good consequence is counter to contractarianism. Falsifying information to get someone to purchase your idea fails the condition of proper consent. To repeat, an anthropocentric view is not selfish. Contractarian anthropocentricism, at any rate, recognizes that moral rights are not out there in the world but that such things would be useful if we could invent them. Hence we invent them. The only way we will get everyone on board with accepting the requisite duties of our invented rights is to show that duty-holders themselves benefit in the end from reciprocal cooperation among others equally willing to reciprocally cooperate. The only agents we know of that will pass that test are humans. That is why morals revolve around making life better for

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humans.27 If morals did not make life better for moral agents, moral traits would disappear along with other nonadaptations.28 Is a contractarian anthropocentrism sufficient to support a duty to lower carbon dioxide emissions? 12.1.3. Can Contractarianism Save the Planet? To use contractarian lingo, we can claim that reasonable persons interested only in their own welfare would nevertheless agree to bind themselves to certain duties to other persons, assuming they reciprocate such duties. Thus, we can agree not to put knives in our backs because, although we lose the freedom to put knives in peoples’ backs, we gain the security of having those others (who far outnumber us, anyway) not put knives in our backs. We can form a contract, and any noncompliance should spell disaster for the reneger.29 By such means, we derive our regular negative rights and duties. The cost is that we have to allow others like liberty. The payoff is that we have the right to do what we want while doing so does not interfere with anyone else’s like right. As noted in 1.4.4., we may also have duties toward nonreciprocating others so long as those reciprocators to whom we have duties have sufficient interests in these other entities, such that they would decline to cooperate with us if we fail to respect these other things or entities. Examples include their children, their pets, their artwork, and their religious idols. In such cases, our duties toward these nonreciprocating agents still have benefits to us, the duty-holders, through the mutual interests we share with reciprocating agents. Duty, whether to (direct) or concerning (indirect), must offer an overall net gain to the duty-holder. Can the contractarian concept of beneficial duty be extended toward the environment? Two arguments get close: (i) liberty and (ii) defence. (i) Liberty. Our use of carbon dioxide is interfering with others pursuing their liberties. We now know that my innocently doing x, driving a car, say, has adverse effects on your ability to live, given global warming. Because your smoking a cigarette in my vicinity increases my chance of cancer, we can ask you to refrain from smoking in a particular area. This approach simply follows from the liberty principle of not causing unconsented harms to others. We need simply point out that carbon dioxide emissions cause unconsented harms. One difficulty with this approach is whether we have really not consented to the harm caused by carbon dioxide emissions. After all,



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I too am participating in carbon dioxide emissions. Analogously, the secondhand smoke rule does not apply to smokers huddled in the designated smoking area. When the whole world is the smoking area, the secondhand smoke rule is idle. Another difficulty concerns whether we are the ones harmed, as opposed to our progeny, or whether our progeny being harmed harms us. (ii) Defence. An alternative contractarian argument to ground a duty toward the environment is a defence model. When all goes well in the contractarian world, we each uphold relatively costless duties of not interfering with others without their consent and living our lives as we choose, as opposed to someone else choosing for us. To live in such peace, we have to be wary of invaders who have no wish to uphold our little agreements. If country X invades country Y, Yers have to be ready to do their part to defend their way of life. Today, that means having paid into an army of some sort. Sometimes the army is not sufficient. Then, tragically, the citizenry is supposed to pick up their shovels and pitchforks and do their part or simply succumb to being enslaved. Either way – fighting or paying for others to fight – the duty of protecting the society falls on every citizen within the happy contractarian commune. The analogy is not hard to see. Global warming is the invader, and so we each must do our part to cease its threat. The same two problems exist for the defence approach as with the liberty approach. In a contractarian society, the duties and benefits have to be reciprocal, even if indirectly. This condition does not obviously apply for global warming. Someone has to persuade us that the impediment on our freedom to fight global warming will produce greater benefits to us while we are still alive, compared to doing nothing. If the damage done already will continue to escalate the greenhouse effect, which will thus escalate the global temperature rise, which will thus escalate the green house effect, etc., no payoff to our current generation is forthcoming. Our current actions might help distant future generations, but contractarians are adamant that duty-holders themselves benefit from withstanding negative duties, otherwise the moral project cannot get off the ground. That means we may have duties toward the environment when the benefit from those duties impact us, the duty-holders. The needed extent of environmental cleanup and harm-prevention, however, will accrue no benefit to current duty-holders. The call for us all to accept duties for which no one alive will benefit has not the same structure

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of mutual benefit that contractarians normally emphasize. Can contractarians circumvent the problem by recognizing duties concerning the environment based on duties we may have toward future generations? (I assume we cannot pretend we have duties to future generations. Yes, they will be able to reciprocate duties among themselves but not back in time to us.)

1 2. 2. O b l ig at io n s towa r d Future Generati ons 12.2.1. The Lockean Proviso The worry about future generations may have started with John Locke. In Locke’s view, God gave the world to all humans equally.30 Thus, appropriating property for private use requires justification: otherwise it seems like theft.31 For Locke, privatization is justified when one improves the land, since our improving the land is God’s will.32 By improve, Locke meant increased market production.33 To improve the land in this way necessitates mixing our labour with it,34 and to mix our labour with the land necessitates privatization.35 I cannot plant my tomatoes and have you come by and roil up the earth to plant your potatoes. The justification of private property has two restrictions: one concerning acquisition and one concerning maintenance. Concerning acquisition, we must leave as much and as good for others.36 Concerning maintenance, we must not let anything go to waste.37 We call the first the “enough and as good” proviso and the second the “no waste” proviso. Jeremy Waldron sees the “enough and as good” proviso as a result of the “no waste proviso.” That is, if you do not waste your possessions, you will by necessity leave as much and as good for others.38 Since gold, silver, and diamonds do not perish, Locke claims you can possess as much as you want. As Locke says, “the exceeding bounds of his just property not being in the largeness of his possessions, but the perishing of anything useless in it.”39 This lends support to Waldron’s interpretation. Locke seems to define leaving as much and as good on the basis of whether what you take into your possession goes to waste or not. Perhaps he ought not to have thought this, however, particularly since natural resources are not unlimited. Waldron’s view that the no waste restriction is Locke’s only restriction, however, does not fit some other things Locke claims. For example, after Locke claims that “[a]s much land as a man tills,



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plants, improves, cultivates, and can use the product of, so much is his property,”40 he adds, “since there was still enough and as good left, and more than the yet unprovided could use.”41 By saying this, the no waste condition assumes the enough and as good condition is already met. Robert Nozick sees the enough and as good restriction as subsuming the no waste condition.42 What he calls “the Lockean Proviso” is the enough and as good rule, which he interprets as “do not make others worse off.”43 Whether I eat my tomato or let it waste, you seem to be in the same state: not having that tomato. So if Locke’s restrictions on property can be interpreted as a nonharms restriction only, the no waste provision is idle. This fits with Locke’s emphasis that “nobody could think himself injured by the drinking of another man, though he took himself a good draught, who had a whole river of the same water left him to quench his thirst. And the case of land and water, where there is enough of both, is perfectly the same.”44 On the other hand, it renders inexplicable all of Locke’s no waste talk. The no waste condition is problematic not merely for libertarians, by the way. It is also – or at least Locke’s explicit version of it – problematic for naturalists. After all, Native Americans are singled out as “wasting” nature for not doing anything to it, whereas, presumably, Fort McMurray’s tar sands operation is an improvement.45 James Tully interprets Locke as offering two separate justifications for property acquisition: state of nature acquisition and acquisition under scarcity. The enough and as good condition satisfies the first; the no waste satisfies the second.46 Tully’s interpretation flounders a bit, however, against Locke’s admission that when the world is full, “the same rule of propriety – vis., that every man should have as much as he could make use of, would still hold in the world, without straitening anybody, since there is land enough in the world to suffice double the inhabitants.”47 For Locke, therefore, what changes is not the rule but the invention of money. According to Locke, the invention of money allows greater flexibility in how we use our resources. Rather than letting our crop rot, we can sell it. This allows for a much larger appropriation of property,48 and Locke still seems to think there is no end in sight of usable property. I tend to think Locke seriously meant to give us two distinct restrictions on property: one concerning acquisition and another concerning maintenance. If you fail to use your property, it could justly be “taken over by anyone else.”49 On the one hand, being unable to use

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it can mean you took too much. Taking too much means you did not leave as much (and as good) for others. But had you used it well, it would mean that you did not take too much, that you did leave enough (and as good) for others. Apart from whether we interpret Locke as offering one proviso (the no waste one that subsumes the as much and as good one, or the reverse) or two, another interpretive distinction remains. What did Locke mean by enough and as good? As Nozick notes, if he takes one grain of sand from Coney Island, no one else can take that grain of sand.50 But even if we admit lots of grains of sand are left on Coney Island, there is now one less. So even in that sense, the “enough” condition is not met. Did Locke understand resources as being in infinite supply? Or perhaps he meant that “enough and as good” refers to others’ opportunity to secure their own preservation, not to secure the exact same commodity, either through mixing their labour elsewhere or through trade. This fits with some of what Locke says,51 but even if it is not what Locke meant, David Schmidtz argues it is what he ought to have meant.52 In any event, concerning future generations, it is the enough and as good proviso that should cause us worry. Given that Locke seemed unaware that the earth’s population would reach seven and a half billion in 2016, and is destined to keep growing until we smother ourselves, defending property rights at all seems impossible if we include future generations in the set of “others.” All anyone can hope  for are smaller and smaller parcels of estate bequeathment. Three solutions are possible: abandon private property, abandon the Lockean proviso, or find something in between.53 Even if we managed to salvage some variant of Locke’s proviso, however, Derek Parfit has raised another problem. 12.2.2. Parfit’s Puzzle Derek Parfit presents a problem for anyone espousing obligations toward future generations.54 Consider the precariousness of being you. First off, had your parents not met, you would never be. Secondly, had they not had intercourse when they did, you would not be you, since your mother’s egg and your father’s sperm would have been different. Even when they conceived you, any number of other sperms may have won out in the race to your mother’s egg. If we alter the world only a little, such that any of the things that had to be in place



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for you to be you at all would no longer be in place, then you would not have existed. We can link the precariousness of being you to the problem of personal identity. When we ask whether you are the same person as you were or whether you will be the same person in the future as you are now, we are looking for some kind of stable connector between your past, present, and future selves. This thing that is identical across the different selves must also be specific enough to capture who you take yourself to be. Philosophers are not in agreement that such a thing can be found. If, after contemplating the nature of what it is to be you, we feel sceptical about such a thing as a “self,” how much more we should be sceptical about a “future self”? Worries about personal identity may undermine obligations concerning your future selves. Why should you (present self) undergo hardship now to benefit someone who is not you now (your future self)? Why bother to quit smoking or eat right or exercise or go to university or do anything at all? If metaphysical contemplation about personal identity leads us to doubt our obligations toward our future selves, think how much more difficult it is to convince ourselves that we have obligations toward future others.55 Personal identity is only part of the problem. According to Gregory Kavka, we have an obligation to do A rather than B if at least some person, P, is better off in A than P would be in B, and we affect no one else.56 This putative obligation principle needs clarification. As put, it is unclear whether the duty-holder counts as “an affected other.” If yes, then every putative duty necessarily has an affected other – the duty-holder herself. Having an obligation is a cost to the duty-holder, if only in terms of being unable to do anything else at the time. If the duty-holder counts as an affected other, and obligations are overridden with the presence of affected others, every putative duty would be overridden. To exclude the duty-holder herself from counting as an affected person, on the other hand, undermines individual liberty far too much. If A is the act of donating my live organs to an organ-deficient passerby P, and B is the act of keeping my organs, the principle seems to force me to donate my organs to P, since I benefit someone else and we discount the cost to me. To avoid this, we can limit Kavka’s principle of obligation to negative obligations only. For example, A is the situation where I do not shoot my gun at P, and B is the situation where I shoot my gun at P. All else being equal, P is worse off in B than in A: thus I have an obligation

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to choose A. Concerning environmental obligations to future persons, imagine A being the situation where we severely limit CO2 emissions and B is the CO2-rich status quo. Imagine, too, that although A costs us more than B, the inevitable global warming from heavy use of carbon dioxide will seriously harm people who live in the future.57 Given the precariousness of personal identity, the choices we make today will alter who will exist in the future. Let us imagine that in A, Man1 meets Woman1, since both walk to work, and Woman2 meets Man2 in a food bank line-up. Both couples have offspring. In B, Man1 and Woman2 meet at a monster truck rally, while Woman1 and Man2 meet in a global warming protest rally. Both couples have offspring. The problem, then, is that by moving from A to B, we are creating different future people. Thus it is not true that a specific future person P is better off from invoking A than she would have been had we invoked B, since P would not have existed in B. Conversely, whoever exists in B, however damaged by global warming, is still better off than she would have been in A, since she would not have existed at all in A, and we assume a damaged life is better than no life. In Parfit’s and Kavka’s examples, the altered social situations c­ reate different sexual partners, therefore different future people. Imagining that every coupling would be different in the two worlds may be hard, however. If so, we ought to go with A over B, since the same number of persons would not exist at all in either case, whereas fewer would be damaged in A than in B. Yet Kavka and Parfit are asking us to imagine otherwise. For both of them, given very subtle differences between any two social possibilities, it is impossible for the same persons to exist in any altered world. This sounds implausible to me. When I decide to commute by bicycle rather than by car, it is possible that I would have otherwise met a woman (at a gas station or in a parking lot or at a car accident) who, moreover, would have consented to have sex with me, such that, moreover, we would conceive a child. I would not bet on it, however. Even if the precarious identity argument is plausible, it seems one of those speculations that have no practical import, much like the claim that everything is an illusion. True or not, it cannot alter how we conduct our lives. All we need, however, is a single case where the altered social arrangement would likely influence some couplings, so that the specific people in the



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future would not be the same. If so, we could not apply the obligation principle concerning those people. Since someone is always better off in A than in B, because she exists in A but not in B, and someone else is always better off in B than in A, since he would not have existed in A, we would have a duty to do both A and B, although A and B are mutually exclusive. In other words, any duty toward future generations is self-contradictory. To reject obligations toward future generations, however, would mean that planting a time bomb that would go off in one hundred years is morally permissible – assuming planting the bomb somehow alters who exists in a hundred years compared with not planting the bomb. Parfit’s solution to the problem is to ignore who is harmed and focus on whether our actions would make whoever will live in the future worse off than an alternative action.58 That we can speak of harming the interests of future people, while false, is nevertheless not misleading – like when we speak of sunsets. An action or inaction of ours is bad if those who live are worse off than those who might have lived. This avoids Kavka’s complaint about mandatory conception. Since being alive is better than not being alive, an absurd implication is that we have a moral obligation to procreate. After all, if my procreating creates some life (A), whereas my abstinence creates no life (B), and some life is better than no life, I am obligated to choose A. For Parfit, nothing of the sort follows, since his focus maintains the antecedent condition that we assume someone will come into existence; it has no implications concerning whether the antecedent is true. Moreover, if our obligation principle is wholly negative, the obligation to create future children cannot follow, since any obligation to procreate would be a positive obligation, if we deem a nonlife as not a harm. If we deem a nonlife as not a harm to the person not existing, and our obligation principle only applies to negative duties, then we cannot say we have a duty to create A rather than B. All we can say is we would make the people who exist in A better off than the people who would exist in B, but that cannot ground a duty to make it so without mandating that I must give up my organs to an organ-needy passerby. If we accept Parfit’s reply to the problem of future generations, can contractarians ground any obligation toward future generations? After all, some people will (likely) exist, and if you leave a time bomb that will blow up in one hundred years, it falls to reason that you will (likely) harm whoever those people will be. That we cannot say

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exactly who will be harmed is less relevant than that, whoever they are, they will be harmed. In the same way, we know I ought not to intentionally aim my rifle at you and fire, but nor can I fire my rifle randomly, since it may harm some people – even though unspecified people. The fact that we cannot specify them is irrelevant. My random rifle shooting is likely to harm someone, and that is, one would think, good enough to condemn my action. Even if future persons do not exist at present, we are likely to conceive as wrong any action that places them in direct line of fire – whoever they may be.59 Even if what I say here solves Parfit’s problem, a different conceptual problem still plagues us. 12.2.3. The Baseline Problem The problem contractarians have concerning duties toward future generations has nothing to do with the precariousness of being you. Nor is it a mere matter of whether duties toward future generations are positive or negative. If we can show that our actions would harm people in the future, that seems sufficient for contractarians to advise us not to do it. Our problem concerns whether we can actually harm future people. For contractarians, we harm someone when we remove their status quo as a baseline. I harm you if I shoot you. Your status quo was not being shot. By shooting you without your permission, I did not give you an option to remain at that state. Hence I harmed you. If I bury nuclear waste in your backyard without your consent, I have removed your option of remaining at your status quo: the state of having a radioactive-free backyard. So I cannot do that. When A buries nuclear waste in A’s backyard, and we assume the waste is well-contained to cause no current externality, and A bequeaths the radioactive yard to a future generation B, B’s status quo is having a backyard with nuclear waste buried there. If so, A’s burying nuclear waste is not a harm to future generations. This may seem wrong. If A gives to current neighbour B a broken relic that B must dispose of at B’s expense, B’s accepting the broken relic means B’s status quo is being in possession of a broken relic, and the disposal fee is B’s to bear. B may decline the gift, however. We allow B to decline the broken relic because, prior to her accepting it, B’s status quo is not having a broken relic. Future generations do not have the ability to decline ancestral bequests, however. When I give my grandchildren my debt, they cannot decline it. The debt



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would not dissipate merely by their refusal. Thus, their status quo is having my debt. The status quo of future generations is having a decrepit biosphere. We misspeak to say they are harmed by a decrepit biosphere. I presume I have not dispelled the seeming wrongness. I have merely explained why a harm based on status quo means that future generations are not harmed by our present contamination. Does it matter that future people do not presently exist? If I place a land mine in a field and some pedestrian eventually steps on it, we would say I have altered the pedestrian’s status quo of not stepping on land mines. Therefore, I have done a wrong. Can we not say the same about future generations? If I leave a thumbtack on a public bench, we would not say that the future bench occupier’s status quo is sitting on a tack. We would say the future bench sitter’s status quo is a tackless bench. We would say I have altered her status quo. We would say that I have committed a wrong. Even if I leave a note informing the future sitter about the thumbtack, we would still complain that I ought not to have left the thumbtack. Not leaving thumbtacks on benches is easy. Is the cost of fixing global warming the same (in form) as not leaving thumbtacks on public benches and not burying bombs? If stopping CO2 emissions was as simple as refraining from leaving tacks on benches or refraining from building and burying time bombs, perhaps the analogy would fit. Unfortunately, it is not, as David Schmidtz makes clear. 12.2.4. The Type–Token Worry David Schmidtz distinguished between “type” and “token” costs.60 A type refers to a set of things; a token refers to an object in the set. Buttons are a type of thing. A particular button is a token of that set. Collectors of buttons might like both token buttons and buttons in general (the type) but more common is to like a token button without caring too much about buttons in general (the type). Schmidtz raised the type–token distinction to complain about arguments for general welfare. Peter Singer, for example, suggested that from a single act of helping someone out, you are thereby committed to helping everyone out.61 The logic does not hold, however. Your valuing a token button does not commit you to value the type button. Because you can afford to buy one button does not mean you must buy all the buttons you can afford.62 That you find it worth your while to save one person in

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one situation does not entail that you ought to find it worth your while to save everyone in every situation. To apply the type–token worry to future generations is not hard. That we can afford to do our part for the environment (because of our existing needs), it does not follow that we can afford to do our part for the future generations to come. All duties cost. They cost in terms of constraints on our liberties. We are willing to accept such costs only when the return payoff to us gives us a net gain. Since the future generations clearly outnumber us, any duty toward them all will entail a net loss to us. Since we agree upon duties, as opposed to discover our duties in the fabric of the world, we have little incentive to accept onerous duties.

1 2 . 3 . A C o n t r ac tari an Defence That contractarians cannot find a consistent argument for claiming we have duties toward future generations strikes environmentalists as a sufficient reason to abandon contractarian models.63 Kavka, for example, believes the duty not to create situations where we make future people worse off than “they” could have been, is best supported by invoking Kant. We must never use people. We must always treat people as ends in themselves, rather than as means only. Following this principle will show that we cannot create children to sell into slavery or to harvest their kidneys, and this is so even if such children are better off living such restricted lives than not living at all. Applying Kantian principles to the environmental case, however, breaks down. By failing to lower our carbon dioxide emissions, we supposedly create children who we use to pay for our sloth. Whether we are using children who suffer from our environmental lapses in the same way we use children we create to be our slaves, is not at all obvious. If I pollute my yard and, as a result, your yard gets polluted, we may want to say what I have done is wrong. Describing the wrongness of my inaction as a case of using you, however, is difficult if I am the sort to pollute my yard whether anyone is my neighbour or not. Similarly, when I plant a bomb that will blow up in a hundred years, the wrongness seems to have nothing to do with my using the future bomb victims. Perhaps all I want is an explosion to go off on a certain date. Whether it will kill people may not be my concern. We would still want to call the action wrong. When I point a gun at you



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and demand your money lest you be shot, we may say that I treat you merely as a means to my end. When I just like to shoot my gun randomly, however, the harm that befalls you has nothing to do with my using you. On the other hand, it is an action where you are a concerned party who (presumably) has not consented to my action. The fact that a moral theory fails to give you what you want is not necessarily a mark against the theory, particularly when contractarianism is a cure for those moral theories relying on sketchy metaphysics. So far, it seems we can have no moral obligation toward future generations without abandoning contractarianism, and to abandon contractarianism will introduce the very sorts of metaethical worries contractarianism was designed to avoid. The real issue, however, is not with granting rights to future generations; it is with reducing our environmental footprints so that future generations have a better hope of living at all. Can contractarians make such a claim? I think so, though in a qualified sense. Evolutionarily, we are motivated to benefit our future genes. If this is the motivation behind our reducing carbon dioxide emissions, it attaches to our present interests, our interest in our future progeny. We tend to have an interest in raising the baseline as high as possible for our own progeny. We are also likely to be more willing to absorb the costs so that our grandchildren benefit. Our actions benefit the current interests we have in the well-being of our children and their children. By emphasizing how generations overlap,64 we avoid Parfit’s paradox about future generations, we avoid worries about baselines, and we can impose (limited) duties on each of us to do our part to reduce carbon dioxide emissions for benefits that will not come directly to us. If we each do our part for our own progeny, future generations will tend to benefit.65 We need another feature, however, to make the duty stick. Emphasizing that we have an interest in enhancing the lives of our grandchildren does not establish a duty to do so. Given our genetic interests in our immediate offspring, however, we could accept limited duties to lower carbon dioxide emissions that we feel would benefit them. No commitment becomes a duty by being self-imposed, however. Our willingness to accept duties is conditional on others doing so, too. If we each lower our carbon dioxide emissions, for example, the relative cost to each of us will not be as bad, given the “misery loves company” rule. Nor are we falling into the trap of assuming a token cost commits us to a type cost. To get such global agreement that we

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each ought to do our share, however, will take both political will and education about the dire state in which we are placing our children and their children – education that does not resort to falsehoods about intrinsic values, or sacredness, or objective moral duties.

1 2 . 4 . S u mmary A contractarian can allow for moral duties that pay the duty-holder in ways the duty-holder can appreciate. The argument that we can have duties to future generations is not one of those, but the argument that our current interests can support duties toward future generations is possible. The appeal to future generations rises from our concern about our children and their children. Such a genetic concern allows contractarians to devise duties to preserve our environment. All duties cost, however. When the costs outweigh the reciprocal benefit to the duty-holder, the duty is unsupported. Much of the benefit from our environmental duty will not accrue even to our great grandchildren. Thus any environmental duty we uphold will be more limited than what may be necessary in the long, long run. Duties concerning the preservation of our environment are based on self-interest in two ways: (i) our own preservation and (ii) the preservation of our children and our children’s children. The duty does not come about merely by recognizing one’s interests in accepting the duty, however. Everyone, globally, has to reciprocate the duty to make it worth the cost. To get such global reciprocity, we need political will and education first. False claims about the inherent value of a trillium or about an objective morality independent of human interests, impede that goal.

P art f i ve Liberty

13 Genetic Meddling and Organ Sales

1 3 . 1 . G e n e t ic Medd li ng Our being able to meddle with human genetics does not mean that we should. Nor does my being able to smash a window mean that I should. On the other hand, I may have a good reason to smash a particular window, perhaps to rescue a trapped child. Similarly, perhaps we have good reasons for meddling with our D N A. We can divide genetic meddling into four types: 1. reproductive cloning, 2. therapeutic cloning, 3. genetic treatment, and 4. genetic enhancement. Some people deem only some of these types to be morally permissible activities. Other people deem them all to be morally problematic. Contractarians deem them all to be morally innocuous, even when the intention is not obviously beneficial. All contractarians require is the informed, voluntary consent of all competent concerned parties.1 13.1.1. Reproductive Cloning When cells develop, they divide and differentiate. In an organized division of labour, one cell becomes skin tissue, another bone marrow, etc. To clone a human, we start with an already differentiated cell from an adult. Then we need to get the adult cell to revert to its undifferentiated state. The ability to change from a differentiated state back to an undifferentiated state already occurs in worms, newts, and plants. The nucleus of the differentiated cell replaces the nucleus of a fertilized egg. We implant this new egg into a willing

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uterus. Once reverted, it can begin the process of division and differentiation anew. A person’s DNA is encoded in her every cell, and so the clone will share the DNA of the person with the donor cell. A clone of x is an exact copy of x’s genotype. Genes can be expressed in different ways, however. We call the expression of the gene, or the gene’s behaviour, the phenotype. The environment always plays a part in the expression of genes; even the protein at the cellular level influences the ­differentiation patterns, the phenotype. Having identical genotypes, then, is not necessarily having identical phenotypes, as any twin can attest. Reproductive cloning involves having yourself or your child cloned as a way of having a child or having another child. The simple question, “Who is your father?” will be more complicated for the clone when you have cloned yourself, as opposed to having cloned your child. If I clone myself to have a child, I am not its biological father; my father is. While we might say that I am the clone’s social father, the clone is also my twin. If I clone my child so that I may have another child, the clone is the twin of my first child, I am the clone’s social parent, and I am also the clone’s biological parent. One might opt for cloning because (i) one cannot have a child (or another child) naturally or (ii) one prefers a child clone over natural methods. One’s reason for (ii) is, presumably, self-glorifying. Society might allow (i), although other means of having children are available, but frown upon (ii).2 We would frown upon a person who thinks so much of himself that he believes the world would benefit from more of him. Such people are tedious. Is that a sufficient moral reason to prevent them from cloning, however? Is an unworthy motive to do x sufficient grounds to prevent people from doing x? If you feel you cannot answer that question unless I specify what x is (is it writing poetry or robbing a bank?), then the motive itself is not the issue. After all, many people have children for the ill-defined hope of immortality, for continuing their particular genetic code. If that is fine for them, (ii) type cloning should also be fine. Objectors to cloning, however, usually address even (i) types. Apart from the sense of hubris, the “playing God” complaint amounts to the worries about unknown physical dangers to the cloned person.3 For example, the first successfully cloned animal, a sheep named Dolly, had a slight defect. The tips of Dolly’s chromosomes (the telomeres) were shorter than average sheep telomeres at birth. Telomeres



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typically shrink with age, and thus starting with shorter telomeres might be a sign of reduced longevity. Future clones with calves did not have short telomeres, however. While the worry about unknown side-effects is not entirely unreasonable, the recent success of cloning with nonhuman animals should allay much of that worry.4 Besides, no one can use such fears to prevent human cloning, but only to prevent doing a poor job of cloning humans. A more common complaint focuses on the anticipated socialpsychological harm of being a clone. Leon Kass, for example, complains that cloning oneself to have progeny is unfair to the progeny. The child will repeat the life of the donor. Her life is already laid out. If so, cloning deprives the cloned child of a unique individuality and also of liberty. The claim is that cloned individuals would not have an “open future.”5 Such a worry is due to a misconception. As mentioned above, a clone of x is an exact copy of the genotype x. A genotype is different from a phenotype, however. A phenotype concerns how the gene is expressed. Genes can be expressed in different ways, as is evident by observing twins. Twins share genotypes but not phenotypes. The environment severely influences the phenotypic expression of genes. A plant cutting is a clone of the plant someone cut it from, but the cloned pant will not form branching patterns identical to its parent.6 The point: the nonopen future fear confuses genotype with phenotype. Another worry about cloning concerns aborting the unused embryos.7 As with many nonsexual reproductive techniques, we need many embryos to ensure one going full term. The first successfully cloned sheep, Dolly, for example was one of twenty-nine embryos.8 At such a rate, one clone equals twenty-eight abortions. Since Dolly, cloning wastes fewer embryos. Even still, the problem concerns abortion and not reproductive cloning.9 If they improve cloning to avoid any unused embryos, like plant cuttings, would naysayers relent, or would they still complain? If they would still complain, embryo waste is irrelevant. If they would no longer complain, then abortion is their concern, not reproductive cloning. Either way, then, what happens to unused embryos is a non sequitur in the argument against cloning. A last worry about cloning concerns general abuse. James Q. Wilson, for example, imagines cloning children to sell on the black market.10 Perhaps he imagines cloned children can come about easily and quickly. In any event, since selling sexually reproduced children is logically possible, this sort of argument is also a non sequitur.

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13.1.2. Therapeutic Cloning The idea behind therapeutic cloning is to clone yourself to use the clone’s organs as your own organ replacement. The point of doing so is that one of your organs needs replacement, as opposed to cloning ahead of time just in case. Relying on donated organs has risks, since one’s immune system often attacks transplanted organs. To be a good match means the immune system must “believe” the transplanted organ really belongs, so does not attack it. If we can grow our own organs from our own D N A , we solve the organ matching problem. People often respond to such an idea with horror: not at the fact that one can get a successful organ transplant but at the abject use of these new cloned slaves lurking about merely to be butchered when needed.11 If therapeutic cloning amounts to harvesting organs from humans chained in dank basements, even contractarians can complain. This is not the picture, however. Therapeutic cloning does not involve the creation of a human being. In therapeutic cloning, no sperm fertilization is involved nor is there implantation into the uterus to create a child. Instead, we extract the nucleus from the host’s somatic cell (any body cell other than an egg or sperm in the patient) and then insert it into an egg, which had its nucleus previously removed. The egg now contains the patient’s genetic material. We stimulate the egg to divide and form into a cluster of cells known as a blastocyst. The inner cell mass of the blastocyst is rich in stem cells. Once isolated, we use this inner cell mass to create embryonic stem cell lines. We infuse these stem cell lines into the patient where, if all goes well, they integrate into the host tissues, imparting the requisite organ structure and function as needed, for example to grow into skin grafts, a kidney, a liver, or a heart. No horror. No dehumanizing. No clones chained in basements. Simply a case of prodding the host’s D N A to produce specific organs as it did when the host originally formed.12 13.1.3. Genetic Treatment We also have the technology to manipulate regular embryos in the womb to tweak various genetic traits. Under the heading of genetic treatment, we may tweak traits that we know cause genetic problems in the life of the future person. If we can alter a genetic strand in the embryo to ward off Down’s syndrome or multiple sclerosis or



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leukemia, most think this would be a good thing, assuming the manipulation causes no adverse side effects. Apart from sensible worries about side effects, which we will assume have been solved, the typical complaint about genetic treatment takes a Kantian line. Abby Lippman, for example, complains that a society that allows genetic treatment is a society that treats its children as commodities, consumer products, subject to quality control.13 Even deciding that a specific disease warrants intervention is evidence of consumerism. We might think that disease x is bad and that therefore we should treat it. Lippman suggests it is the reverse. The fact that a group has found a way of controlling x, makes it profitable for them to convince you that x is bad, much like advertisers create a fear in you about body odour and then offer you its cure in a convenient tube available wherever the gullible shop. A feminist critique is lurking in Lippman’s objection, as well. The medicalization of the birthing process takes the power from women and puts it into patriarchy’s hands. A pregnant mother is in a vulnerable position. Telling her that her child is “defective” with disease x but not to worry, since with some very expensive technologies we can “fix” her defective child, leaves the mother with little choice, little power. Lippman asks, Why does society need to fix “defective” babies? Why do we not learn to accommodate them, instead? Marc Lappé has similar worries, though seemingly from a utilitarian perspective. Had we fixed Sylvia Plath’s manic depression, he muses, we would never have had The Bell Jar.14 Looking at bodies as commodities is bad if one believes in some intentional design or intentional function for humans. For those who think a nonintentional evolution a better explanation for how and why our bodies do the things they do, such talk is a bit embarrassing. Ignoring that, when an autonomous patient is diagnosed with leukemia or M S or arthritis, we allow her to seek medical help. We would think her neither immoral nor nonautonomous for doing so. Concerning vulnerable mothers, ask them whether they would consent to a risk-free genetic tweak of their offspring to reduce the chances that their offspring will suffer from some debilitating disease. The fact that they might say yes need not prove they had no choice. It would prove only that they care about the well-being of their offspring. It does not show that society exploits their caring, unless we can point out deception. When we reluctantly agree to a veterinarian’s claim that an operation would do our pet some good, we do not think something immoral has occurred unless we discover the

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veterinarian lied to us. Perhaps the surgery is unnecessary, or the surgery has greater risks than revealed. Then we can complain. We may fully endorse Lippman’s plea to accommodate people with varying abilities. Such an endorsement does not get at the issue, however. Ask the person with MS whether she would prefer accommodation to not having to be accommodated in the first place. Everything else being equal, the answer seems obvious. True, given personal identity the way it is, “everything’s being equal” is not likely possible. One becomes the person one is by having lived the life one did. To wish an alteration at one’s birth would be to wish one’s life is different from what it was, thus wishing one’s personal identity is different from what it is. Assuming we can be content with our general personal identities no matter our situations, few might so wish the change. Still, if who we take ourselves to be remains fundamentally unchanged, we would probably all prefer not to suffer debilitations that require others’ accommodations. While we might enjoy the product of Sylvia Plath’s neuroses, ask whether you would want your child to suffer so much merely so that her fiction may make others slightly better off. 13.1.4. Genetic Enhancement Genetic enhancement concerns manipulating embryos for nonmedical reasons. Perhaps we want children who are smarter, stronger, taller, more courageous, more beautiful (according to the given ­cultural norm), more sociable, less shy and anxious, kinder, more sympathetic, more creative, more artistic, more athletic, etc. Some of these are not possible yet, but they are not beyond the pale of what is possible. To focus our attention on genetic enhancement itself, let us gratuitously assume that they have solved otherwise sensible worries about side effects and interaction effects. For example, if being taller means having weaker bone mass, this may not be a good thing. If being kinder means being more vapid, this, too, would not be a good thing. Given the human genome project, however, in which scientists have mapped all human genetic traits, we may now tweak one simple genetic strand to affect one trait without undermining any other useful trait. If so, contractarians claim that genetic enhancement ought to be morally permissible. Unlike John Harris,15 they do not suggest it be morally mandatory.



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Apart from interaction effects, people have condemned genetic enhancement for, at least, the following reasons. (i) It is unfair, since only the rich can reap the advantages. (ii) It is self-defeating, since the benefits of many traits are merely relativistic, like height. Being taller or more beautiful or stronger than others, can be an advantage in a society that values height and beauty and strength, but if everyone becomes taller, more beautiful, and stronger, the advantage is lost. Besides, we should exert our energy into making our society put less value on superficial traits. (iii) Genetic enhancement erodes moral equality, since we would be building a group of empirically superior people. (iv) The “designer babies” lose autonomy and free will. They will become merely the product of their manipulations. Their success will be through technology, not through their own doing. (v) The whole enterprise reeks of dehumanization. We set up a market for the commodification of babies, much like Aldous Huxley’s Brave New World. We treat children as objects to be fixed or manufactured. In comparison, we would see regular children as obsolete. This objection has ties to Kantianism: we would be treating our children as means to our ends. (vi) Being interested in meddling with nature reveals a wrong attitude: a lack of reverence. It treats life as an impediment to conquer, as opposed to appreciating life as a gift. Apart from its obvious theistic roots, this objection has ties to virtue theory. Type (vi) objections aim their complaints at the parents’ contorted values for thinking designer babies is a good idea. By thinking they can achieve human excellence by a quick technological fix, such parents paradoxically fail the pursuit of human excellence. (vii) With a growth in genetic enhancement, we lose genetic diversity – a necessary component in the continuation of our species. (viii) It is simply unnatural, as we can see by our gut reaction of disgust and repugnance.16 The reply to each is straightforward. (i) The rich already send their children to private schools, sports camps, music institutes, art programs, universities, etc. If the unfairness argument is sufficient to disallow therapeutic treatment, we should also disallow the freedom of the rich to do anything special for their children. Other than Marxists, few would accept such constraints on individual liberty. (ii) First, and particularly given (i), not every parent will be therapeutically enhancing every child, and not every enhancing parent will choose the same trait to enhance. A similar complaint used to be raised against homosexuality. If everyone becomes homosexual the species will die off

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(ignoring technological reproduction). Permitting homosexuality or genetic enhancement is not the same as demanding everyone do it, however, let alone assuming everyone will do it. When we morally allow tuba playing, for example, we are not worried about the world collapsing because everyone is playing the tuba at once. Besides, not all enhanced traits are only relativistically good. Being intelligent or kind or courageous, for example, are good in themselves even if others are just as intelligent or kind or courageous. (iii) We do not, or  ought not, determine moral value by physiological phenotypes. Someone more artistically inclined, for example, has as much moral value as someone less artistically inclined. People already differ in degrees of intelligence, beauty, athleticism, grace, etc. We do not, or ought not, deem them to differ in moral value. Even if we could enhance moral dealing itself, such that we can create future people who behave more morally than you, like a Mother Theresa or a Gandhi or a Martin Luther King Jr, that would not give those persons any extra moral value over anyone else. Neither Mother Theresa nor a prostitute should be subject to assault. Neither Martin Luther King Jr nor a taxi driver should be subject to racist slurs. (iv) Genetics play a role in how our lives are lived but not at the exclusion of environmental factors that impact how the genes are expressed. The notion of a loss of free will and autonomy is a simple, even if persistent, misunderstanding. For that matter, the same “problem” exists without the genetic enhancement. People are under control of their genetic makeup, whether tweaked or not. So, all that would happen is our altering one deterministic rut for another. As with the worry about cloning, this objection fails to distinguish phenotype from genotype. (v) The worry about the process being dehumanizing gets the same response as I made to Lippman above. We already manipulate our children to be better. We get them to be literate, to have numeracy skills, to understand logic, to have social grace, to exercise and eat healthily, to love education and art for its own sake, to play sports, to learn to play well with others, to become employable. We shape them to become something in our society. We can give these actions the same commodification rhetoric as that applied to genetic enhancement. We are fashioning our children into little social products. Are we to say we ought to stop all attempts at improving our children? If not, the rhetoric about dehumanization and commodification fails. While Kant rightly opposes using people only as means rather than ends, the little word “only” is a caveat often forgotten.



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We can use people, if we also treat them as means. With genetic enhancement, if our motive is also for our child’s well-being, no one can invoke Kant in an objection. (vi) The virtue theory line, meanwhile, presupposes humans have a specific function and our being moral is simply a matter of abiding by nature’s intentions. Alas, such intentional functionality dissolved with Darwin. To think otherwise cannot be supported but by faith. (vii) As we discussed with the selfdefeating argument, not everyone will genetically enhance their children or do so for the same trait. Objectors overstate the worry about lack of diversity. Besides, we are dealing with genetic traits that would not normally be associated with being unable to handle shifts in the environment. Assuming no interaction effects, having blue eyes rather than brown or a better memory or an enhanced aesthetic sense are not traits that environmental fluxes can obviously affect, unlike, say, lung capacity, lowered resistance to disease, obesity, and the like. Besides, we would not socially arrange marriages to ensure diversity, even if sex selection weeded out certain traits. Your choosing your mate is likely due to self-selected traits you find desirable in a mate. Shall we prevent such liberty, such hubris? (viii) That x repulses many people is not a guarantee that x is naturally immoral. Our repulsion may be rooted in our cultural heritage. Heterosexuals may have grown up in a world that finds homosexuality repulsive. That does not mean homosexuality is therefore immoral. Even when repugnance has some evolutionary backing, one still needs to distinguish between the activity and our interpretation of the activity. Seeing a man roughly knock a small girl to the ground can incense us. Once we learn that he was rescuing her from being electrocuted, our moral outrage should dissolve. Similarly, being frightened of deadly snakes might have been useful to our ancestors. That garter snakes frighten us is a useless carry-over. To understand what counts as natural, meanwhile, is already presumptive. Look at nature, and you will see almost every sort of trait, including traits that are unique to a particular species. We cannot deem what humans do to be unnatural simply because no other species does it.17 13.1.5. Summary No argument against the moral permissibility of genetic meddling is sound. The idea behind contractarian morality is to carve a space for people to pursue their own notions of the good. We have justification

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to interfere only in those cases where the pursuit of one’s notion of the good interferes with a competent other without her informed, voluntary consent. Neither reproductive cloning, therapeutic cloning, genetic treatment, nor genetic enhancement does this. Manipulating the genes of my child does not interfere with your not manipulating the genes of your child. My manipulated child will not interfere with your unmanipulated child any more than providing swimming lessons for my child will interfere with your child’s swimming ability.

1 3 . 2 . O r g a n S elli ng Donating one’s organs is morally permissible, in fact, praiseworthy. The question is whether selling one’s organs is also fine. After all, playing music for charity may be praiseworthy, but playing music for pay is not thereby impermissible. If organ sellers are competent, informed, and do so voluntarily, contractarians will not find the selling of organs immoral. The reason is simple. It is your body. Only you have the right to do with it as you want. If that includes giving bits of it away for money, then so be it. Contractarians ask only that you be an autonomous adult with sufficient information about the repercussions of your actions before you voluntarily choose. If those conditions are satisfied, go ahead. I like to dissociate myself from bad arguments, including the following three bad arguments in favour of organ selling. (i) Selling organs increases the number of available organs.18 Thousands of lives depend on receiving organs and tissues for transplant, but there is a severe and chronic shortage of donor organs. According to the American Liver Foundation, more than 1,500 people die every year in the United States waiting for a donated liver to become available.19 When looking at people who die in the US while waiting for organs in general, the number exceeds 6,500 people per year.20 In Canada, the number of deaths per year on an organ waiting list is 256, one third of those wanted a kidney.21 While increasing organ supplies is undoubtedly a good thing for the long list of people looking for suitable organ transplants, the benefit to those needing organ transplants cannot be the reason for deeming organ sales to be morally permissible. After all, taking the organs of vagabonds and criminals without their consent would help lower the number of people who die awaiting an organ, too, but we would not think the mere benefit to



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would-be recipients is sufficient justification. A need for organs shows only that there is a market for organ sales. We know that. The question is, can we morally allow the market to operate or not? (ii) Another bad argument for organ selling uses a slippery slope to make us afraid of what will happen if we do not allow organ sales. A black market will inevitably arise introducing shady procurement practices, unsanitary operating sites, and falsifying information about the health of the donor organs.22 We would do better with sanctioned, controlled, monitored, organ sales. No one needs to doubt the predicted result. We see it already. The bad consequences from not allowing organ selling cannot be a moral reason for allowing it, however. We think it right to outlaw sex with children even if we could have a government controlled child sex industry that would be safer for the children than the current black market in child sex. (iii) A third bad justification for selling organs relates to its humanitarian nature. You are helping another person out, and no humanitarian gesture should be outlawed.23 While some selling of organs may be for altruistic reasons (despite remuneration), their nice motive should not matter when considering the morality of the transaction. Selling your coffee table is morally permissible, even if the motive is not altruistic. Stealing your neighbour’s cigarettes is immoral even if your intent is altruistic – for example, to improve your neighbour’s health. What follows are the standard reasons against selling organs, followed by my account of why they also fail. 13.2.1. Exploitation and Undue Incentive Exploitation involves offering the least amount possible to entice consent. Undue incentive involves offering an amount so excessive that it impairs one’s normal rational functioning. Like an addict, one impulsively jumps at the offer without reflection. People seem to believe that exploitation and undue incentive undermine proper consent. Contractarians find nothing wrong with either. All that is problematic about the activities is the emotional rhetoric employed. Take undue incentives first. The idea is that the monetary gain to poor people by selling their organs is too great. The lure obscures the harm. In the same way, advertising how much one can win in a lottery drowns out one’s probability reasoning. This is an odd argument. For one, it assumes that the excessive amount is still not worth

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the risk to the self. That we ask for live donations shows that the risk to the self is not deemed too great. And if we think live donations are permissible and we think we ought to make the poor better off, the conclusion should be to not prevent the poor from being paid to do that which is morally permissible. When we complain about exploitation of the poor, our motive is not to have the poor paid less but to have them paid more. If someone offers me one thousand dollars for a painting handed down to me over the generations, I might decline. If the price goes up to a million, I might jump on the deal. Is my jumping on the deal evidence that I have lost my reasoning abilities? If I would not sell for one thousand dollars, does it follow that I should not sell for any amount? Is it that the incentive is now too high for me to reflect properly or does reflection tell me that the price makes it worthwhile to sell? Why is the latter not a permissible consideration? The charge of exploitation is a bit more plausible. The contractarian line is that organ selling is fine if it involves proper consent. Sometimes organ plundering is done without proper consent. Black market abuse in organ procurement strategies may be common.24 Even assuming no coercion by unscrupulous sorts, however, many feel that a market in live organs is a clear exploitation of people already in crisis. Allowing a market in organs allows the rich to plunder the disenfranchised poor. What civil state would allow further exploitation of the poor for the benefit of the rich?25 For most of us, it is patently true that we would not dream of selling our organs to make some money unless we were in deep poverty. That this is true, however, does not mean we should prevent the transaction. Only the poor may be regular eaters of spam but that cannot count as a reason to forbid spam or to accuse spam manufacturers of exploitation of the downtrodden. Besides, if a market opens up to relieve the impoverished, one would think that a good thing not a bad thing. Rather than think mere desperation undermines proper consent, Janet Radcliffe Richards thinks it would make selling organs much more rational.26 Why else would one sell an organ? Thinking it a shame that someone has to sell their prize possessions (whether paintings or organs) due to poverty is different from thinking they are not properly consenting to do so. That one is in need cannot give us a reason to prevent them from alleviating their need.27 Requiring the consent of others gets in the way of maximizing one’s profit. Hence, whenever profit is possible, people will try to



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circumvent the principles of consent. We know that. But unilateral maximization is at the expense of others, and the point of morality is to corral such leanings, to ensure a compromise where all parties can mutually gain, not just one party. This is what the principle of consent provides. Whenever we cannot vouchsafe proper consent, contractarians can complain. This does not mean contractarianism is against profitable markets. It means only that any market transaction is morally permissible when no violation of the consent procedure occurs. That abuse can happen with the sale of x should make that particular sale of x problematic but not the sale of x in general. Whether x be paintings, toothpaste, or organs should not matter. Is there something about organ sales that would make consent impossible? We can agree that people would not consent to anything that would worsen their situation. What counts as worse or better, however, has to be left to the individual, not an outsider. To say selling your organs would be worse for you no matter what you think is to be paternalistic in a way that contractarians disallow. Saying that contractarians would not allow paternalist arguments about what is in one’s own good may not be persuasive to noncontractarians. A paternalist argument against organ selling, however, would also have to forbid donating one’s organs, even to one’s siblings, children, nieces, or nephews.28 A donor of a live kidney, for example, would be worse off, supposedly, no matter her own subjective calculations. If the worry concerns our exploiting organ sellers, do not forget that exploitation can happen in donation as well. The fact that a niece needs a kidney may exert as much pressure on an uncle to donate as the pressure a poor man feels to do what he can to feed his family.29 Perhaps some organ sellers are coerced. Perhaps some organ sellers are not sufficiently informed about the long-term health risks of a body operating with fewer organs or the dangers of the medical procedure itself. Assuming they are informed of such things, however, and still think it raises their net status quo, we cannot complain about lack of consent. To prevent them from voluntarily choosing a way out of their misery could hardly be doing them a favour. For that reason, Radcliffe Richards suspects the real motive of preventing organ sales is so that we rich nations need not face the inconvenient fact that poverty is so great that people deem it a benefit to sell their organs.30 Assuming bargainers are sufficiently informed and competent, we call the consent voluntary when one’s status quo remains a live

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option. But perhaps we wish not to call it consent when a person’s status quo is too low at the outset. To even contemplate the merit of selling one’s own organ is to have a decidedly low status quo. The difficulty with this attempt at banning organ sales is that we would render the potential organ seller’s every action to be involuntary, not just the selling of her kidney. If her status quo is too low to make her decision to sell her kidney voluntary, it would also render nonvoluntary her decision to sell goat’s milk or meet a friend for coffee. Her low status quo continues to exist during her every act. If her low status quo is what renders organ selling nonvoluntary, then her every act is nonvoluntary. If so, we could interfere with her entire life, not just that part of her life where she wants to sell her kidney. We may assume such an implication is unintended. That organ selling is not a choice we would make in our situation does not count against the voluntariness of organ sellers given their situation. At one time, no one thought of selling one’s organs to escape poverty. Let us suppose that selling one’s organs when organ selling is a choice may be the best option for some people. Simon Rippon argues, however, that selling one’s organs when organ selling is an option is not better than not selling one’s organs when no one had the option.31 In other words, the choice to sell one’s organs is worse than never having conceived of the choice. In bargaining, for example, we may sometimes find it useful to convince the other side that certain options are not even to be considered. It is better for the union that a pay cut is not an option, for example. Therefore we may sometimes be better off without a choice, even when, given that choice, we may be better off taking it than not.32 Limiting choices makes sense in cases of strategic interaction, like negotiations. Organ sales, however, are not strategic but parametric. To illustrate, consider the difference between deciding a chess move and deciding what fruit to buy. The benefit to White in White’s moving a bishop rather than a knight depends largely on how Black will respond. The benefit in choosing a pear over a peach for oneself depends solely on one’s preferences. Chess choices are strategic. Fruit choices are parametric. Apart from settling on a price, the decision to sell one’s organs is strictly parametric, not strategic. Thus, Rippon’s argument is out of place. Let us say circumstance 1 (C1) is the case where I have no choice but to have x, and circumstance 2 (C2) is the case where I have a choice between x and y. Also imagine that in C2 I prefer y to x (y > x), all things considered. With Rippon, we could say that I am better off with x in C1



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than I would be with x in C2. We cannot say that I am better off with x in C1 than I would be with y in C2, however, and that is what Rippon needs to show. Even ignoring this, the same sort of argument would imply that we would be better off not having the choice of donating our live organs. Again, we do not think donating organs is immoral. 13.2.2. Dignity and Commodification The preceding argument complained that no one properly consents to selling organs. I denied this. A different argument can accept that impoverished people may be properly consenting to selling their organs but that doing so is wrong nevertheless. It is wrong because a market of body parts treats a person as any other commodity, an object, a thing to be used, a thing lacking dignity and respect, a thing without intrinsic value.33 For Kant, “a human being is not entitled to sell his limbs for money, even if he were offered ten thousand thalers for a single finger.”34 For Kant, one’s humanity, evidently, even includes one’s nonessential body parts, such as a tooth.35 The reason is that if we sell our body parts, we are treating ourselves as a resource, a means, and not as an end. Normally, one might suspect that selling one’s body parts is an exercise of personal autonomy and not a violation of one’s humanity.36 To think this, however, means that one treats one’s own body as one’s property. To do so, Kant argues, is incoherent. “[I]f he was his own property, he would be a thing over which he could have ownership. But a person cannot be a property and so cannot be a thing which can be owned, for it is impossible for a person to be a thing, the proprietor and the property.”37 We may agree that a person cannot be his own property, but the issue is not that. The issue is whether a person’s dispensable body parts can be her own property. I may say that I have injured myself when I have cut my finger, but I am not committing some logical gaff when I specify that I have injured my finger. If I accidently lopped off my finger, we can say that my body parts are less than they once were, but we would not say my person is less than it once was. If so, selling organs does not undermine the intrinsic value of being a person. After all, if persons have intrinsic value for being persons, that must be because we take people to be autonomous entities, with the right to choose for themselves what to do with their bodies.38 When we ask what is special about being a

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person or what gives a person this moral dignity, the answer is not “having two kidneys.” Whoever we are, whatever dignity we possess, seems unconnected to our actual body parts. People have dignity, not their body parts.39 So an appeal to the special dignity of being a person should not rule out organ selling. Besides, the Kantian normative principle is never to treat oneself or another as only a means.40 While I might treat myself as a means to escape abject poverty, nothing in that transaction demands I treat myself as only a means. When I buy toothpaste, I treat the clerk as a means to my end but not (necessarily) only as a means. I can also respect her as a person beyond her role as my means to toothpaste. If Kant allows my toothpaste transaction, he should also allow me to do the same with my body parts: treat them as a means to my ends but not only as such. Moreover, if an implication of the Kantian line is that one could not sell one’s body parts, one would not be able to donate one’s body parts either. I can give my neighbour some ferns because I treat those ferns as my property. I cannot give my neighbour your ferns. When I give my neighbour my kidney, I treat that kidney as mine to give. I cannot give my neighbour your kidney. When we rent an apartment, we have to follow the rules of the landlord. Perhaps we cannot have pets or paint the walls in vivid purple. If it is our house, however, we can do those things. The same goes for our bodies. If it is my body, I should decide how to use it, not people who think my body is some temple that I am destroying. If it is not my body to do with as I wish, that would also rule out organ donation. If we find donating our live organs commendable, or even just morally permissible, using Kant to rule out organ sales will not work. Ruth Chadwick and Mario Morelli independently respond to this last objection. The difference between organ selling and organ donation, for Chadwick, is that organ selling exploits the poor, whereas organ donation does not.41 In other words, she defends the commodification argument by invoking the exploitation argument. Since the two are conceptually different, all the defence amounts to is abandoning the commodification argument in favour of the exploitation argument. If she claims not to be abandoning the commodification argument, her talk of exploitation is irrelevant, even if the exploitation argument succeeded. Morelli claims that selling one’s body parts treats oneself as a mere means, an object with a market price, a commodity, whereas donating one’s body parts does none of these things. In other words, it is the treating oneself as a commodity



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for money that is objectionable.42 This does not count as an argument, however. All it does is highlight the descriptive difference between selling and donating. We need an argument for why selling is objectionable, not a simple presumption of it. After all, when M lies to W about his undying love merely to increase M’s chance at having sex with W, we say what M has done is objectionable for using W despite lack of monetary gain. When I offer my labour for monetary gain, we do not call what I have done immoral, despite my using my body for monetary gain. So far, I have argued that even if we take the Kantian line that persons have inviolable intrinsic value, this would not rule out selling organs. Contractarians have doubts about whether persons are intrinsically valuable. The notion of persons having special value independent of what values people invent is a metaphysically weird notion. Those against the commodification of bodies situate moral values external to the uses people derive from morality. In that sense, they are moral objectivists. They think we discover morals in the world, as opposed to inventing them and as such, face Mackie’s objection from queerness.43 In brief, when we look at an action that we think immoral, we can extricate all the facts we want but we will not find alongside those facts a moral fact. Moral values are things we ascribe to the facts.44 They come from us. The contractarian account of how they come from us is clear. We see the value to reciprocally agree to certain behavioural constraints. By so doing, we reap the benefits of others not doing to us things we do not want done to us, and we get that benefit by paying the costs of not doing to others what they do not like us doing to them. If a net benefit did not accrue to the agents who adopt the constraints, they would lack the incentive to do so (and the question-begging appeal to what one morally ought to do does not count as an incentive). Morality has to be useful to the moral agent and, for the standard moral restrictions, it generally is. Nowhere in such an ontology of morals does it permit any metaphysically suspect notion of things having intrinsic values independent of people’s instrumental long-term interests. This is so even for the moral agents themselves. The commodification argument rests on a metaphysically shaky foundation. 13.2.3. Queue Jumping and Suspect Quality I will briefly examine two further arguments against selling organs. The first argument concerns queue jumping. Selling organs, or more

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specifically being able to buy organs, undermines the “first come first served” principle in organ waiting lists. If someone can use money to get ahead of me on the waiting list for an organ transplant, then this is unfair to me.45 The second argument concerns quality control. Selling organs means that the poor and needy will be the main donors. The worry here is not about exploitation of the downtrodden but of the quality of sold organs. People prone to sell their organs tend to be very poor or drug addicts, for who else would have the motivation? Neither the very poor nor drug addicts are likely to have good diets or good hygiene, and thus their overall health will be suspect. We cannot count on the organs of such people to be of high quality. Thus, the expected benefit of organ transplantation will be lacking.46 In reply to the queue jumping worry, if the current queue is for donated organs, someone new who comes along and gets a purchased organ has not in fact jumped ahead of you in the queue. The queue for donated organs remains untouched. If every sold organ would have been a donated organ absent organ sales, perhaps things would be different. Far more plausible, however, is that if the organ was not sold, it was not going to be donated either. Therefore, you are no worse off than you had been. Besides, queue jumping already happens when relatives step forward to offer their organs to family members in the queue. Those individuals may have been behind you in the queue. If organ selling is wrong for queue jumping, we would have to prevent organ donations for specific family members, too. No one would suggest such a thing. In reply to the quality assurance argument, a contractarian argument for the moral permissibility of organ sales is not an argument for zero quality assessment of the organs before extraction. The contractarian requirement that all concerned parties should be suitability informed before the transaction should increase the odds of receiving a healthy organ. 13.2.4. Summary Contractarians believe that morality’s rise comes from humans seeing the overall individual benefit of mutual constraint on social behaviour. The benefit goes to the constrained agent herself. Without that self-benefit, morality would not be an adaptive trait. The benefit in particular comes from reciprocal cooperation. At the applied level, this means that you can do whatever you want while all concerned



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parties consent. We can meet this requirement for organ selling. That violations of the consent principle have occurred in organ sales does not mean that organ selling in general cannot satisfy the consent principle. Those who identify organ selling with dignity erosion presuppose the very thing contractarians reject – namely belief in an objective, people-independent, moral value. Intrinsic moral value is a myth. If we focus on respecting people’s autonomy, that means we should let them make their own decisions. Organ selling is morally permissible for contractarians.

14 Terrorism and Torture

In this chapter, I define terrorism, assess it against the backdrop of just war theory, and find it, unsurprisingly, immoral. I then speak about how to morally respond to terrorism. Concerning this latter task, the importance of collaboration with the state(s) where terrorists reside is essential. The final question is whether we may torture terrorists to get information on other terrorists. On this point, my contractarian answer is “yes in theory, but no in practice.”

1 4 . 1 . T e r rori s m 14.1.1. A Neutral Definition of Terrorism I define terrorism as a nonstate group deliberately targeting a salient, though otherwise arbitrary, collection of another state’s civilians (or property or infrastructure) with violence in order to exert political or social change.1 My definition of terrorism omits three usual features of how we tend to think of terrorism: (i) the very concept of terror, (ii) betweenstate violence, and (iii) within-state violence. For example, R.G. Frey and Christopher Morris conceive of terrorism as the use of random or arbitrary violence inflicted on citizens (or noncombatants) that usually involves creating terror or fear or panic in a population typically for some political/social purpose.2 Perhaps, by being terrorized, citizens will exert pressure on their government to acquiesce to terrorists’ demands. My account does not mention the fear factor at all. And under Frey and Morris’s account, we would call “terrorist” an army strategy that skins alive captured soldiers to terrorize the



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noncaptured soldiers to undermine their resolve to fight. The bombing of Hiroshima, Nagasaki, and Dresden, would also be seen as terrorist under Frey and Morris’s account, since the Allies violently targeted noncombatants to incite fear and alter political will. My account will be unable to call these atrocities terrorist because I limit terrorism to nonstate initiators. Similarly, Timothy McVeigh bombed an Oklahoma office building to complain about his own government’s policies. Under Frey and Morris’s definition, McVeigh is a terrorist but not under my definition. My reasoning for the exclusion is that we already have categories for such crimes. We already know how to deal with mass murderers and war criminals. The philosophical problem with terrorism concerns how to deal with people who do not represent any state and who commit violent acts to civilians, or noncombatants, in our state. In this, I follow David Luban, who notes the issue about calling an individual or group, A, “terrorist” is to recognize that we cannot call A either a criminal (a member of a state S who targets a civilian of state S) or a war criminal (defined as a violator of just war protocols when state S1 attacks civilians of S2). 3 We already have laws dealing with how to respond to both (civilian laws and just war criteria). When one state attacks another state, we call it war rather than terrorism. When atrocities are done to noncombatants during war, we invoke rules of war that forbid such acts. We call them war crimes and the perpetrators war criminals. We do not need to invoke another term for them. Similarly, we already have ways of dealing with substate groups or individuals who target civilians of their own state to make some political point, as McVeigh did. We call McVeigh a mass murderer and we invoke criminal law. We do not need another category to contend with such people. We do not have to invent a new hybrid law to handle them. With terrorists, things are different. They are different precisely because of the nonstate nature of terrorism. A state’s criminal law does not apply to citizens of another state. And since these nonstate citizens are not themselves representing the states to which they belong, we cannot deal with them under the auspices of war. It is this in-between domain that makes terrorism so intractable. Defining terrorists as a nonstate group means that the US’s bombing of Nagasaki and Hiroshima cannot count as terrorist acts. This may seem too convenient for the US government. Douglas Lackey, for example, is adamant that dropping atomic bombs on nonmilitary targets counts as terrorism if anything does.4 Our not defining as

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terrorist a state that intentionally and violently targets civilians or noncombatants to send a political message, does not mean we cannot condemn the action, let alone condemn it with less vigour than we condemn nonstate terrorism.5 Bombing Nagasaki, for example, is certainly a heinous and morally unjustifiable atrocity, but we can condemn it as a violation of just war rules. We can call it a war crime and prosecute accordingly. (I am not saying prosecuting victors of war crimes is successful.) Being a war crime does not mean the bombing of noncombatants is just. The word “terrorism” need not be an epithet of our highest moral condemnation. Since what the US did to the citizens of Nagasaki and Hiroshima is many times worse than what terrorists have done to US citizens, people can rightly wish for a stronger expression of our condemnation for the US nuclear attacks than for the relatively minor disruptions Bin Laden caused the American citizens in September of 2011. But the words “terrorism” and “terrorist” do not have propriety rights on moral condemnation. I am trying to protect the term “terrorism” from being merely an emotive hue we attach to acts we find despicable. My definition of terrorism as being a nonstate act assumes the notion of a modern state. Christopher Morris defines modern states as “distinctive territorial forms of political organization that claim sovereignty over the realm and independence from other states.”6 As put, the modern state did not make an appearance until after the Middle Ages. That means no terrorism could exist in tribal conflicts, Greek poleis, the Roman Empire, or European feudalism. Of course, people did cause terror by harming random people for political purposes during those times. Demanding we call such acts terrorism, however, would be like calling “theft” any usurpation of land before the institution of property rights. In any event, my defining a terrorist as I do is more about what to do about terrorism as opposed to whether we call it a bad act. I have given reasons why my focus on terrorism concerns nonstate perpetrators. I have also omitted the part about terror. Some define terrorism as intentionally arousing such terror.7 While I am not wedded to excluding the terror part, we may presume that any public expression of violence will arouse terror in the public. That targeted citizens live in fear, however, seems less the point than that a political message is delivered. Arousing fear is an ancient and effective tool to do that. Preachers do that. Advertisements for breath fresheners do that. We often use fear to sell our wares. The difference is not in the



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strategy but in the wares. Terrorists aim at political reform. Others who deemphasize terror include Carl Wellman, Tony Coady, Laurie Calhoun, and Louise Richardson.8 The other aspects of my definition, I believe, are less controversial. A political grievance refers to the terrorists’ belief that the attacked state has committed, or is represented to have committed, a wrong of some sort against another nation or its people or a particular group on behalf of which the terrorists are claiming to speak, and that the targeted state needs to correct. Even if the goal is decidedly religious, or ideological, the aim is to alter the state’s political stance on that religion or ideology. For example, the liberal tradition separates religion from the state. To maintain that religion should be above the state or integral to the state, is to argue for a political change: hence a decidedly political goal. No one needs to assume that the state is necessarily doing the thing criticized or believe that the state’s doing the thing is a wrong. Nor need we assume that if the state really has committed a wrong, then the terrorist activity is therefore no longer “terrorist” but a kind of moral reform. As Thomas Nagel says, we ought not to judge an action terrorist by the results: only by the means.9 A terrorist’s grievance is publicly expressed. That it targets the public will arouse the public’s attention. In doing so, the terrorized may exert pressure on their government to acquiesce to the terrorists’ demands. That is the terrorists’ hope, presumptuous or not. When speaking of the intended targets of the violence being civilians, we mean to rule out collateral damage, political attacks that happen to harm civilians. I tend to use the term “civilian” as opposed to “noncombatant.” A noncombatant is normally meant to refer to civilians within an army who do not take part in hostilities, such as medical personnel, military chaplains, and prisoners of war. A civilian is a member of a state – whether a state grieved against or not – who is not part of the armed forces or militia. Given my nonstate definition of terrorism, most attacks on uniformed noncombatants will count as violations of just war, as opposed to terrorism, though not all. If a member of a nonstate group shoots an unarmed corporal on ceremonial watch at a war memorial to make a political point, for example, we can call that terrorism.10 Thus, whenever I say “civilian,” we should read it as “civilian or noncombatant.” In any event, we like to imagine that citizens who have not signed up to wear a military uniform and are nevertheless attacked by terrorists are quite innocent of any wrong doing toward the terrorists.

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As a result, many definitions of terrorism highlight that it is innocent people who are targeted.11 While we think they are innocent, the ­terrorists might not, however.12 Bin Laden, for example, did not view the American civilians killed in the 9-11 attacks as innocent. To the terrorists, the American people were part of, and so endorsed, a corrupt regime.13 As Jesus said, “You are either with me or against me.”14 With such a dichotomy, no one can be an innocent bystander. In September of 2001, Al Qaeda members hijacked passenger planes and intentionally crashed them into the twin towers of New York City. This counts as a terrorist act. Civilians minding their own business were intentionally and violently attacked by a nonstate group as a public message to the US to stay out of the Middle East. That terrorism, as defined, is immoral is not in question, not even for contractarians. The point of defining what we mean by terrorism is to be sure we do not embed its immorality in the definition nor confuse it for other sorts of bad acts, like mass murder or crimes of war. To further make this case, we turn to examine the notion of a just war. 14.1.2. Just War While pacifism may seem like a moral stance, we probably would not tolerate the parallel case of your doing nothing to stop an adult attacking a child merely because you are against violence.15 So long as it is just to use whatever force would be necessary to save the child in such a case, then so too can certain wars be just. It is possible, of course, that no war ever met the just war criteria. One need not be a pacifist to make that claim.16 A war may be unjust when it violates either of two conditions: jus ad bellum and jus in bello.17 Jus ad bellum concerns when it is just to go to war. The answer is in defence only. If state A invades state B, state A violates the jus ad bellum condition, and because of that, state B can go to war against state A in self-defence. The justification is the same as the justification for personal self-defence. If someone attacks you, you have the right to use what force is necessary to defend yourself. Since we also think it permissible to sometimes use force to defend someone else from attack, the jus ad bellum rule permits state C’s attack of state A on the grounds that state A is attacking state B. The UN, for example, interprets its mandate in that way. Any



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state is in violation of the jus ad bellum principle when it, unprompted, attacks another state. Once in violation, other states are allowed to intercede. This fits the contractarian notion of morality. Any state that violates the ex ante agreement not to invade forfeits its rights not to be invaded. Admittedly, the analogy to self-defence is stretched when we speak of states. If a person is attacking herself, say cutting her flesh, we might intervene on her own behalf if we deem her incompetent. So long as she is autonomous, however, we should stand by and let her do what she deems in her best interest. When assessing other state actions, it is imperialistic to suggest incompetence. The assumption of autonomy is not merely the default, but a necessity of good relations. To allow one state to intercede in the self-governance of another state is precisely what would not be tolerated in an ex ante agreement. It violates the principle of self-determination. That means we let states do what they want so long as they are not attacking other states. This has the unfortunate effect of permitting states to attack a subgroup of its own citizens, as in the case of genocide. Can state B attack state A in defence of state A’s citizens? This was the issue splitting the UN and NA T O during the Balkan war in the early 1990s. The U N’s view was that a strict adherence to jus ad bellum forbade intercession of the genocide going on in Yugoslavia. N AT O believed that respecting the self-determination of states does not include allowing genocide. They thought that any state’s duty was to protect persons from assault and in 1995 interceded. Ignoring that N AT O never bothered interceding in other known cases of genocide when the people being slaughtered were not white, for example the Rwanda genocide in 1994, the sentiment seems fine. A further difficulty arises in the analogy to personal self-defence. We say it is wrong to attack another state unprovoked, but this presumes we know what counts as “unprovoked.” If we grant a state full autonomy, then that state is the one to decide whether or not it has been provoked, not us. Need provocation count only when we are dealing with physical invasion or might cultural invasion also count? If you annex my garden, this counts as physical invasion. If I wish to live in a world without sinners and my neighbours are gay and I take that to be a sin, are my neighbours provoking me? If they refuse to  abandon homosexuality despite my reading Leviticus to them, what recourse do I have left? Would I be right, in my own mind, to

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retaliate? Bin Laden claimed that the American irreligious lifestyle was polluting Arabian culture. Can such ideological invasions count as sufficient provocation? Communitarians have made the same sort of arguments. Charles Taylor, for example, defended Quebec’s French language only law against the infraction of the liberty to speak whatever language one wants.18 Given the large pull of the English culture of Canada and the neighbouring United States, people would voluntarily lose their French language over time. A halt on that trend was required to preserve Quebec culture. Bin Laden made the same case. The preservation of Muslim culture requires preventing non-Muslim influences. When asking for those influences to voluntarily stop did not work, does not some sort of retaliation seem justified?19 The worry is that protection from cultural invasion would seem to count as sufficient provocation to satisfy the jus ad bellum criterion to go to war, yet cultural invasion is as inevitable as drifting clouds. The shift from an intentional, physical invasion to nonintentional cultural influences needs to be – if not simply rejected as justifiable provocation – handled with far more care. To think it is just to respond with violence to nonviolent enculturation needs further argument. Perhaps the argument may be eschatological. If harm to one’s ideology entails suffering eternally in hell, for example, compared to residing in heaven, then responding with violence (assuming this does not conflict with the entrance requirements for residing in heaven) may seem justified. On the other hand, so long as I am still free to endorse my own ideologies while others endorse theirs, going to war seems a violation of the jus ad bellum criterion. Leaving aside the question of what counts as sufficient provocation for justly going to war, jus in bello restricts the kinds of things we can do while at war. “Justice in war” covers the following three areas: (i) immunity, (ii) proportionality, and (iii) prisoners. (i) Immunity concerns who count as targets. A just war targets combatants only. All noncombatants are off-limits. Of course, war is messy, and some collateral damage is permitted. A problem arises here, obviously. How much collateral damage is acceptable? To what degree is anticipated collateral damage permitted, compared to unanticipated collateral damage? To what degree does negligence count? Does saying, “We thought Dresden was a military stronghold” absolve our guilt? Does the fact that the collateral damage could have been avoided, or lessened, count in the assessment of whether the act is permissible?



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To what degree can we say the benefit of the intended target outweighs the collateral damage? Does jus in bello say never, or does it allow some kind of utilitarian calculation?20 Such questions need to be settled, obviously, before we can hope to convince someone of the particular justness of a war act. (ii) Proportionality concerns the level of force that is used in one’s defence. Ideological seepage is not violent. To go to war is violent. Responding to alien ideology with violence seems disproportional, even if the cultural invasion satisfies the jus ad bellum. The analogy to self-defence is common. If you are doing everything in your power to kill me, I might be justified to kill you. If all you wanted to do was to slap me, my killing you would be to use too much force. While jus ad bellum allows me to attack you in defending myself from your slap, jus in bello prevents me from killing you. Or even if you intended to kill me, if my kicking you were sufficient to end your attack, then the proportionality clause of jus in bello forbids me from doing more. A restriction on types of weaponry is incorporated under the proportionality clause. Death and injury are to be expected, of course, but some kinds of death and injury are far worse than others. For example, weapons that leave fragments of glass in the body are excessive, as are poisons. I would include flame throwers in that list. Nuclear bombs are deemed unjust but not necessarily for the excessive harm they do to people (in the first ten seconds of both the Hiroshima and Nagasaki blasts, more than 100,000 people died) but for their inherent inability to distinguish combatants from noncombatants. Again, the analogy between self-defence and war breaks down. Along with my successful defence, I expect some criminal charge to be laid upon you for your assault. That added penalty may be enough to prevent you from attacking me in future. In state interactions, what guarantees do I have that you will not attack again? Might my added violence be simply a means of guaranteeing no future attacks? If so, what measurements of proportionality are we using? When the answer is “Only as much as necessary,” one is tempted to interpret that as “Keep going until you win!” – hardly a restriction at all. (iii) How we deal with prisoners of war is also open for ethical reflection. While one may restrain enemy soldiers without a trial, they are to be fairly treated. The “take no prisoners” tactic is a violation of the immunity-for-noncombatants rule. Soldiers, for the most part, are conscripted. They are mere pawns in someone else’s game. Also, following the concept of self-defence, prisoners, stripped of

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their weapons, are no longer threats. They could be threats if you release them, so keeping them imprisoned for the duration of the war is fair. While imprisoned, they should be fed and fairly treated. At the end of the war, or during a prisoner exchange, they should be released. When we say that torture of prisoners is not allowed, that makes sense for soldiers, mere pawns without useful information. When higher officials are caught, however, can we invoke the proportionality clause that says, “No torture unless the benefits (to us) outweigh the cost (to the enemy soldier)”? If torture yields vital information that will end the war quicker, thus saving more lives, might a utilitarian calculation permit it? So far, I have presented the gist of the conditions for a just war, and I have raised interpretation problems with each condition. A further problem concerns enforcement. There is no external referee to whom warring nations can appeal. Rather, what tends to happen is that the victor of the war gets to be the judge retroactively – not the fairest method. It invokes the adage, “might makes right.” By definition, winners will have fought a just war and losers an unjust war. Despite these worries, however, few disagree with the basic intention of preserving some sense of human decency during conflicts, and, at least on simplistic readings, terrorist activity violates both the jus ad bellum and jus in bello conditions of a just war. Their reason for retaliation is ideological, not physical; the violence of their attacks is out of proportion to the supposed slight; they intentionally target civilian bystanders rather than armed culprits; and they often execute prisoners as a tactical manoeuver. On a less simplistic reading of the just war conditions, however, three types of defence for terrorism are available. (a) Precisely given the vagaries of interpreting the jus ad bellum and jus in bello conditions, terrorist activities can be interpreted as abiding by the rules of a just war.21 (b) Terrorists do not follow the just war conditions, but nor do we. Our fervour over terrorism is hypocritical.22 The Russians’ massacre of Polish soldiers in the Katyn Forest during W W I I and the torture of Guantanamo Bay prisoners during the US war on terrorism, for example, violated the proper handling of prisoners. The Allied bombing of Hiroshima, Nagasaki, Dresden, Hamburg, Tokyo, and Yokohama violated the no noncombatant rule. These acts are as atrocious as any terrorist activity, perhaps more so. (c) Terrorists do not follow the just war conditions, but the rules are created by the oppressive forces the terrorists are fighting and thereby do not apply to them.



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(a) The first defence would be the best, if true. While I might concede that terrorists can be interpreted as passing the when-to-go-towar condition, intentionally targeting citizens cannot be interpreted as passing the second condition concerning what to do while in war. (b) The second defence is not really a defence at all. Rather, it is a tu quoque ad hominem. A tu quoque is that kind of non sequitur people use to defend their own actions by pointing out that others share the same fault. Such a diversion does not show it is not a fault. The fact that we often do x does not make x morally justified. We often had slaves. We often deny people rights on the basis of their race, their sex, their religion, and their sexual orientation. That we have a recent history of violating strict adherence to the criteria of a just war does not mean we should abandon or stretch the criteria of a just war. While the open-endedness of interpreting jus in bello and jus ad b ­ ellum is annoying, terrorism is a clear violation of the donot-do-unto-others-without-their-consent rule. That our own nations have violated just war principles does not make terrorism less heinous. (c) The third defence works only by abandoning moral principles. If there were no moral principles at all, then telling someone to follow what they deem moral would be unconvincing. Such a kind of defence for terrorism amounts to a return to the state of nature.23 We would not be talking about a moral defence: merely a type of prudential defence. Paying attention to that prudential defence, however, may help us to understand – and perhaps counteract – terrorism. 14.1.3. A Prudential Defence of Terrorism According to Paul Viminitz, the history of war may be summarized as a succession of breaking the rules.24 For example, in 1759, led by General Wolfe, English ships sailed past fortified Quebec City, and the English forces scaled the cliffs and surprised the French army, led by General Montcalm. How did Wolfe’s ships escape notice? Rumour has it the ships were flying French flags. Such deception was not done at the time. Meanwhile, the bright-red-coated English army fought the bright-blue-coated French army on the Plains of Abraham. Both sides followed the rule of standing in line and firing at the enemy. This rule was violated in subsequent wars, when one side learned to hide behind rocks or tunnel into the ground or wear camouflage. Even camouflage took on a new look in the Viet Nam war. American soldiers faced combatants who were dressed sometimes as civilians.

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Afraid to violate the immunity clause of jus in bello, the normally quick-triggered American soldiers now hesitated. Hesitation in war is lethal. Not wearing a distinguishing uniform and concealing one’s weapons were violations of the rules of war. What rule did the terrorists break? The answer, “The restriction against intentionally targeting noncombatants,” is incorrect. That is only the symptom. According to Viminitz, the standard rule is to send your best trained, best equipped soldiers. By that rule, countries with lesser soldiers are at a perpetual disadvantage, and any of the ideologies that they want to maintain for their state will have to make way for the ideologies of the better-armed states. A way around that is to refuse the best-warrior rule. By refusing the best-warrior rule, they now attack the least-prepared, the least-armed, the weakest: the noncombatants. Nagel concurs. “So long as [attacking civilians] remains an effective means for weak parties to exert pressure on their more powerful enemies, terrorism cannot be expected to disappear.”25 While it may be a descriptive fact that the history of war reveals a succession of breaking the rules, nothing in what Viminitz says makes the normative (or more specifically, moral) claim that each rule of war ought to be broken. A further difficulty confronts this picture of how terrorism is a natural progression in warfare. The rules of war are not natural laws, in place from all eternity. The explicit rule forbidding the intentional attack of noncombatants developed over time.26 Not long ago, relative to the history of humans, it was common fare to kill noncombatants. The Bible’s God approved it. “Now go and strike Amalek and utterly destroy all that they have, and spare them not; but slay both man and woman, infant and suckling, ox and sheep, camel and ass.”27 And David, the favoured of God, “brought out the people that were in [the city of Rabbah], and cut them with saws, and with harrows of iron, and with axes. Even so dealt David with all the cities of the children of Ammon.”28 Ignoring what such quotes tell us about the sanctity of the Bible, they tell us that killing noncombatants is not a new development but a very old one. Bin Laden, the Koran’s Allah, and the Bible’s God are one of a kind. They believe that all the citizens of a corrupt state are guilty. It was to combat such barbarism that rules of war were invented. As Lomasky remarks, terrorism wants us to return to Hobbes’s state of nature.29 We try to formalize rules of war to avoid such barbarity. Even still, such rules apply only to



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cosigners. At the Geneva Convention, the Allies and Axis agreed to certain codes of future war behaviour. Such an agreement does not apply to Arab nations, for example. Viminitz’s main point is still correct, however. The mutual acceptance of rules of war is more likely the more equal the combatants are. Chess is fair, since at the beginning of a chess game, the size of the army and the types of weaponry are equal. When the size of the army, the training of the soldiers, and the types of weaponry are not equal, agreeing to a “fair” fight from that point forward spells disaster to the weaker side. It is not “fair” to begin with. Given this inequality, the stronger side can intercede in other states without fear of effective retaliation – unless the weaker side rejects the “fair” rules of war. Again, this does not mean that terrorism is justified. Viminitz’s point is that terrorism is understandable, predictable. Knowing this may better enable us to combat it. 14.1.4. Chicken Games Terrorism is an understandable response to a system of rules that do not benefit terrorists’ interests.30 The rules fail to benefit their interests not because the rules put individual liberty ahead of state or religious ideology. Rather, the rules assume an equal playing field of best against best. When such a playing field is unequal from the start, the rules seem unfair. That it is rational to break the best-warrior rule, by attacking civilians, does not say that terrorism is justified. Contractarians cannot tolerate citizens being intentional targets of violence. We need to come up with a way of making such actions irrational. Doing so is not simple, however, as the game of chicken demonstrates. In one variant of chicken, two cars race toward each other and the first to swerve loses. The other wins. With two players, A and B, four logical permutations ensue: (i) A goes straight, B swerves; (ii) A swerves, B swerves; (iii) A swerves, B goes straight; and (iv) A goes straight, B goes straight. A’s ordinal ranking is: (i) > (ii) > (iii) > (iv). Assuming (ii) represents the players’ status quo (the state of affairs they would be in if they did not play), we can give the following values to A’s ordinal ranking: (i) = 1, (2) = 0, (iii) = -1, and (iv) = -2. B’s ordinal ranking would be: (iii) = 1 > (ii) = 0 > (i) = -1 > (iv) = -2. As depicted in table 14.1, the chicken matrix, then, gives the following payoffs.

272 Liberty Table 14.1  Chicken payoffs B

A

swerve straight

swerve 0,0 1,-1

straight -1,1 -2,-2

Assume you were A in this game, and your goal is to get the most utility possible. To the question, “What should you do?” the answer seems to be, “Whatever B doesn’t do!” (If B goes straight, your swerving gives you 0, which is better than your going straight which gives you -2. If B swerves, your going straight would get you 1, rather than 0 had you swerved.) The problem is that if B knows this, B should go straight. Thus, you will swerve. Thus, you will always lose. So, you reassess your answer and think to yourself, “Okay, then, why don’t I go straight, and if B were rational, now B will have to swerve, and thus I will win.” The problem is that B knows you are rational, and so if B refuses to swerve, that would force you to swerve. In other words, given that you are rational, B can call your bluff. You need to rethink your strategy one more time. Might you not, at this point, say to yourself, “But wait, is not B rational, too? So can’t I call B’s bluff?” Here is where the power of being branded insane comes to B’s advantage. You know you are rational but every time you see B in the media, B is a ululating, sweating, maniacal-eyed, peculiarly dressed supporter of weird metaphysics. Of course I am playing on the stereotype. My point is that the stereotype provides an advantage to terrorists. In chicken games, we might call the bluff of someone we are convinced is sane, but if we are not so convinced, it is rational for us to swerve. From what we have learned in analyzing chicken games, it would seem that we need to send out our “go straight” players into the fray. These will be trained individuals who cannot swerve. We publicize this broadly, and we send them out to chicken matches against terrorists. The obvious problem is that there is no arena in which to send our go-straighters. There is no Plains of Abraham where chicken players routinely meet. Terrorists are nonstate groups. There is no home field. Moreover, our go-straighters are simply our best-trained, best-armed soldiers. Such a solution will hardly work against a club whose first rule is to avoid playing with our best players. To root out terrorists among the populace of similar looking nonterrorists, many believe individual rights will be lost. The right to privacy, the right to be assumed innocent, the right to free expression,



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the right to free association, the right not to be racially profiled, and the right of due process have been curtailed for “homeland security.”31 While in time of war, we might understand certain rights being forfeited, though even then such suspensions of rights are typically temporary.32 Wars have time limits. The war against terrorism, however, is endless. As David Luban notes, the difficulty is that terrorists lie between criminal law (they are not citizens of the attacked state) and just war (they are not states but subgroups of that state or those states).33 Terrorists fall between the cracks of justice, and trying to root them out seems to inevitably curtail our civilian rights. On the other hand, to say war on terrorism is itself unjust, as Claudia Card claims,34 is unhelpful. Perhaps current tactics are unjust. Certainly, if terrorist cells hide out in state A, we cannot seek them out without the permission of state A. It is A’s house. If state A does not agree to our entry, it does not necessarily mean that state A actually endorses the terrorists’ activities. If such were the case, things would be easier. We call war on state A, and one of the conditions of surrender is their handing over all the terrorists. More likely, however, is that state A is interested in protecting its own autonomy and, particularly, the civil rights of its own people. State A’s reason for not letting us in may be that they have no good assurance that we will not indiscriminately kill and bomb and detain those state A citizens who are not terrorists. Unless we can assure state A that we will not otherwise violate the rights of state A’s nonterrorist citizens, it makes sense for state A to refuse our entry. We can foresee them refusing to let us in despite their condemning terrorism. The contractarian insight into the ontogeny of morality helps here. The rule is do not do unto others without their consent. To elicit state A’s consent for us to root out terrorists hiding there, we must negotiate in good faith with state A. We cannot do that unless our methods for uprooting the terrorists will not violate normal citizen rights. In other words, while we want to get the terrorists, we need to sincerely respect the citizen’s rights of the state where the terrorists reside. Going to war with the state where the terrorists reside cannot be just unless we have clear, good grounds that the state supports the terrorists. 14.1.5. Summary Terrorism is wrong for intentionally attacking civilians. While terrorists may or may not have legitimate grievances, the moral complaint

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is with their method, not their purpose. Understanding why some disenfranchised people would resort to terrorism is not the same as justifying terrorism. Since terrorism is unjust, retaliation against terrorism is justified. Saying that does not say that any method will do, however. Responses to terrorism must elicit the full consent of the state in which the terrorists reside. Proceeding against such states without seeking consent is wrong. Failing to secure consent, however, does not preclude going to war with that state, so long as it is reasonable to conclude that nonconsent entails endorsing the terrorists’ methods. Nonconsent may not mean endorsement of terrorism, however. It may, rather, mean the state wishes to protect its autonomy and self-determination. What is needed is better assurance that our rooting out terrorists will not abrogate citizens’ rights. The following section will address whether terrorists have, or ought to have, the right not to be tortured.

1 4 . 2 . T o rture 14.2.1. Torture Variables Let us assume that torture involves the intentional infliction of very unpleasant experiences on the tortured. Torture may be distinguished along three variables: who, how, and why. Concerning the who variable, we can distinguish between (A) the guilty and (B) the nonguilty. When I say “guilty,” I mean individually responsible guilt. I very much mean to exclude the idea of collective guilt. That is to say, “being guilty” refers to something the tortured did that supposedly warrants being tortured, as opposed to something they are – like being a member of a racial, religious or ideological group. When a sociopath tortures a woman for being a woman, we do not say the victim is guilty for being a woman. When we say an American is guilty of her nation’s cultural invasion of the Middle East, I am not counting that as guilty in the requisite sense. When I have kidnapped your daughter and you torture me in hopes I will tell you where I have hid her, we can say that I am a guilty party relative to the reason I am being tortured. Concerning the how variable, we can distinguish (i) first-person torture and (ii) third-person torture. In the case of first-person torture, we torture or threaten to torture A for purposes related to A, such as getting A to give us something or do something for us. In the



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case of third-person torture, we torture B for purposes related to A, so that A does something for us. Perhaps we torture B because B is A’s child, for example. We torture the child in front of A, or we send A the child’s finger, and we stop our torturing the child only when we get what we want from A. Concerning the why variable, there are four demarcations we can make: (i) reparation, (ii) retribution, (iii) extortion, and (iv) pleasure.35 In the case of (i) reparation, we torture someone primarily to get information that would lead to setting matters right. Reparation torture need not be a kind of interrogation. Perhaps we could torture or threaten to torture someone to get them to go and do some specific action. Perhaps we want them to go and kill a terrorist leader for us. Perhaps we want the victim to renounce her faith, if this is seen as reparation of a wrong. (ii) Retribution torture would be a kind of punishment we deem the tortured deserves. It is conceivable that reparation torture may be given a justification that includes retribution, but it is worthwhile to separate the two. (iii) Extortion torture involves getting something from the victim for self-profit. Perhaps I torture you until you give me your A T M number. That is information I find handy, already having your bank card. Perhaps I torture you and threaten you with greater torture unless you go and rob a bank for me. The purpose is not reparation so much as my own profit. Of course, if my use of the money was to fund terrorism to repair the wrongs my people have suffered (in my estimation), then this would be reparation torture, although nonguilty reparation or possibly third-person reparation. (iv) Torturing for the sheer sadistic pleasure it gives to the torturer, meanwhile, is a case of pleasure torture. Given these variables and values, we get sixteen separate categories of torture (see table 14.2). Perhaps a few of the sixteen categories of torture may be null sets. If retribution is the reason, we wouldn’t imagine a category of nonguilty retribution. Nor might we expect a case of guilty extortion or guilty pleasure. That they would not be typical does not mean they cannot occur, however. We could increase the number of types of torture if we also distinguish a what variable – the instruments of torture itself, which we might classify under a severity heading: light, medium, and heavy, say, and whether the torture is primarily physical or primarily psychological. A severity distinction may be handy if we think light or medium torture permissible, but not more severe.

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Only one of the sixteen kinds of torture has a hope of being given a contractarian justification – guilty first-person reparation torture – but only under extremely limited circumstances, circumstances that may not have ever occurred. Table 14.2  Torture Variables

Reparation Retribution Extortion Pleasure

First-person

Third-person

guilty/nonguilty guilty/nonguilty guilty/nonguilty guilty/nonguilty

guilty/nonguilty guilty/nonguilty guilty/nonguilty guilty/nonguilty

Contractarians claim it is immoral to do things to others without their consent. This rule is grounded on the notion of reciprocity. If A violates that rule, then we are no longer bound to honour our promise not to do unto A, at least regarding the specific action A did to us. In other words, morality is conditional upon others reciprocating in kind. When those others do not reciprocate, that is they renege on the social agreement, the moral constraints on us are relaxed vis-à-vis those specific others. In the case of third-person torture, the person we are torturing has not herself violated that reciprocal arrangement. Thus, contractarians could not justify any third-person torture, even if it leads to thousands of lives saved. Only utilitarians would have a chance of justifying third-person torture.36 That thirdparty torture may be permissible for utilitarians is not the same as saying it is morally permissible, of course, nor, for that matter, does it show that utilitarianism is a wrong moral theory for permitting third-party torture, since that would beg the question against the morality of third-party torture. Still, it is nice to be clear on the implications of one’s theory. While people appeal to the utilitarian calculations for guilty first-person reparation torture, they conveniently forget that the same calculations would permit third-party torture. Contractarians (as well as Kantians and virtue theorists) cannot tolerate third-party torture. Pleasure torture, or sadistic torture, would also be impermissible for contractarians since the pleasure is not reciprocated. Utilitarians could only say that so long as the sadistic pleasure does not outweigh the tortured’s pain. Of course, mutual-pleasure torture, or a kind of sadomasochism, would be permissible for contractarians so long as



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all parties are informed, competent, and voluntarily agree throughout the entire process. If so, such mutually satisfying adventures are not normally referred to as torture. Extortion torture is similarly banned from a contractarian perspective. They are all cases of doing to others without their consent in situations where those others are not themselves renegers of agreements with the torturers. In terms of first-person reparation torture when the person is not guilty, this too will be forbidden by contractarians. It is a case of punishing the wrong person. When you torture me in hopes that I tell you where your kidnapped daughter is but I am not the kidnapper nor know anything about the whereabouts of your daughter, your presumption that I am guilty can explain why you torture me but cannot justify your torture. I am not in fact the guilty party. I have not abrogated any reciprocal arrangement we agree to concerning each other. Treating me as if I have is therefore a wrong. While retribution is a fair concept for contractarians, it is never intended to be a literal eye-for-eye, tooth-for-tooth conception. As discussed in chapter 6, we do not rape rapists, eat cannibals, or burn the houses of arsonists.37 That terrorists forfeit their rights by being terrorists, therefore, does not necessarily entail that we are allowed to torture them – even if a terrorist is himself a torturer. Admittedly, that contractarians do not treat retribution as a literal eye-for-an-eye conception does not by itself rule out the prospect of using torture as a retributive practice. Certainly ex ante bargainers in a state of nature can have no moral compunction against torture, as against any other form of punishment, so long as it is as cost effective as other sorts of punishment methods. I shall return to that issue when discussing guilty first-person reparation torture. As put, then, contractarians will deem all third-person torture as immoral, all nonconsensual pleasure torture as immoral, all extortion torture as immoral, all retribution torture as immoral, and all nonguilty first-person reparation torture as immoral. What about guilty first-person reparation torture? This is the kind of torture that is used in the war against terrorism. Can it be given a contractarian justification? 14.2.2. Guilty First-Person Reparation Torture When torture is offered some kind of justification, it is typically to get vital information. Your A T M password may be vital information to

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me, or the code to locked passageways to evade airport security may be deemed vital to the terrorists intent on hijacking a plane. When such information is used for personal gain, it counts as extortion justification. When such information is used in order to respond to consent violations – either intended or a past instance of consent violations – we call it reparation torture. Typically guilty first-person reparation torture is justified by appeal to the following kind of “ticking bomb” case. Imagine Smith has planted a bomb that will kill thousands, and we need to find out where it is to see if we can defuse it. Only Smith knows where the bomb is, and we happen to have Smith strapped to a chair. He is not telling us when we ask. May we torture him to see if that will get him to tell us? Many people say yes, but they have to assume four things. (i) Torture is the last resort method for getting the requisite information. There is no point to torture if the information can be gleaned without torture. (ii) This really is the person who planted the bomb. If it is not, our torture is not only useless but also unjust. In such a case, it would fall under the not guilty first-person reparation torture, a kind of torture everyone – except maybe some utilitarians – have ruled out. (iii) We know that, or have very good grounds to believe that, the person is guilty. It is one thing to torture a guilty person, but if we do not in fact know the person is guilty, our torturing the right person is more by chance than by design. Conversely, we may have good grounds for believing the person is guilty, but we would not be justified in torturing him if he is not in fact guilty, despite our good reasons for believing he is. This is because we deem torture to be such a terrible thing to do to someone. If we have hope of justifying the practice, we should increase the odds of being sure we have the guilty person. (iv) Even if Smith is the guilty bomber, and we know it, we also have to assume what he tells us is the truth. That is, despite his liking to kill thousands of people, we have to assume he is against lying. Torture, of course, is supposed to offer the incentive to tell the truth.38 All it need induce, however, is the telling of something. We stop the torture, check the location out, find out it is a lie, and come back to torture him. He tells us another location, etc. While no testimony induced by torture can legally count, nothing prevents us from using information gleaned from torture as an investigable lead. Such a process takes time, however, and time is what we may not have in ticking bomb scenarios.



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Satisfying all four assumptions will not be easy. Even if the guilty party tells us valuable information without our torturing him, perhaps he holds even more valuable information that might come out if we did torture him. Henry Shue believes focusing on the assumptions for permissible torture is irrelevant. Allowing torture only in cases where we have the right culprit, and we know we have the right culprit, and in which the culprit tells the truth, is to say that torture is not permissible. Such conditions are not the conditions in which we are normally operating.39 David Luban offers stronger condemnation. Such ticking bomb cases count as intellectual fraud. They manipulate us into thinking torture is conceptually permissible, and this immediately relaxes our moral sensibilities even in those cases where any of the assumptions are not met.40 Nevertheless, satisfying all four conditions is possible. We have cases where torture has led to preventing ticking bombs from exploding.41 This does not mean torture is morally permissible even in these cases, but if torture is not morally permissible, an argument will be needed to explain why not even for these cases. After all, those who believe torture is morally permissible tend to limit their concept of torture to such cases only.42 14.2.3. The Contractarian Stand on Torture? A contractarian argument for the moral permissibility of guilty firstperson reparation torture may seem possible. Contractarianism, recall, bases its construction of morality on reciprocity. A and B agree not to do x to each other so long as the other complies. If A does not comply, the constraint on B doing x to A is lifted. Selfdefence is justified for this reason. Normally A is not allowed to harm B, but if B is trying to harm A, the constraint on A not to harm B is relaxed. If B is a terrorist, similarly, the normal restraint we have against B should be relaxed. Following this line, we should be allowed to torture terrorists because they have voluntarily forfeited their rights not to be tortured. Hypothetical ex ante rule-makers, per hypothesis, have no moral inclinations against torture. They would agree not to torture one another so long as the other reciprocates. Once the other fails to reciprocate, one is no longer bound by the agreement not to torture. Nevertheless, such agents contracting for a civil code that would

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perpetually bind them would also be interested in due process. Vigilantism would be frowned upon. Thus, a justice system would be erected. The justice system would embed constraints on its mechanism to better serve the notion of due process. Foremost, it would try to make sure it has the right reneger. Hypothetical agents may also be interested in placing constraints on how we treat the guilty. This would be so for those sorts of actions that we know we ourselves can  easily be tempted to perform. To steal, to murder, to aggress, are consistent with our human psychology. Importantly, amoral, self-­ interested ex ante negotiators would know this. While creating the constraints of morality, they wish to preserve their hope of maximizing self-interest. Thus, for treatment of the usual criminals, bans against torture would be expected. It will be harder to imagine ex ante bargainers being concerned about protecting terrorists, however. That an ex ante contractor would be in need of protection from being a terrorist is the same as saying that such a person is not agreeing to any of the rules proposed in the ex ante contract. As Loren Lomasky notes, terrorists wish to bring us back to the state of nature, not contract out of it.43 Therefore, it would be unlikely that ex ante negotiations would forbid torture of terrorists – especially if torture had some hope of providing some leads to help prevent other terrorist activity. Saying this assumes that the person we have strapped to the chair is a terrorist, and that we know that person is a terrorist, and that we can expect useful information from this individual in our battle against terrorism. It is this set of assumptions that is the sticky point. That sometimes torture works to provide useful information that helps ward off future terrorist attacks is not enough. Ex ante negotiators would still need to know the percentage of times we would torture nonguilty persons, as well as the percentage of times when a terrorist fails to provide reliable and helpful information even with torture. The latter cases would include not merely the torture of guilty persons who have no information to divulge but also the torture of guilty persons with information to divulge and who refuse to divulge it even when tortured. If we can limit mistaken identity in torture cases to 1 per cent, yet torture provides useful information only 5 per cent of the time, harms to that 1 per cent may not be justifiable. A further caveat is needed before we can move from the contractarian stipulation of reciprocity to torture. While it makes sense that



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A does not abide by her agreements made vis-à-vis B should B renege on his agreement with A, this does not mean A can therefore do anything to B. When B breaks his promise to not to steal from A, we do not permit A to steal from B. That would be a kind of vigilante justice. Vigilantism is normally outlawed for reasons of due process. We want to make sure people punished are in fact the culprits. Ex ante bargainers would not agree to a justice system that would increase the chances that they would be punished whether they did the crime or not. As already mentioned, to ensure due process, the justice system will include constraints on how to handle prisoners and suspects. This is why contractarians cannot – or cannot likely – endorse torture as a retributive measure. That terrorists forfeit their rights by being terrorists, therefore, does not necessarily entail that we are allowed to torture them. Similarly, self-defence is limited to what is necessary. While killing in self-defence can be legitimate, if A can defend against B’s attack by something less than killing B, then killing B would not be morally approved. When someone is intent on torturing you, killing him might be justified (if that is the only way to prevent his torturing you), but torturing him will not (normally) be a necessary action to prevent him from killing you, let alone torturing you. Neither caveat defeats the hope that contractarianism can support guilty first-person reparation torture. It shows, however, that the argument for torturing terrorists in limited cases is not as simple as saying that terrorists forfeit their contractarian rights. What else is needed is to argue that reasonable amoral individuals agreeing to social rules ex ante would permit state sanctioned torture in cases of guilty first-person reparation. Can such an argument be made? Here we return to the worries noted by Luban and Shue. We would need to assess the probability of successful torture against the base rate of unsuccessful torture. Unsuccessful torture occurs when we have the wrong person, when we do not know for sure whether we have the right person, when the person has no useful information to provide us in our campaign against terrorism, or the person does not truthfully provide the information we seek in time to be effective. Pointing out cases of successful torture is useless unless we fill in the base rate of unsuccessful tortures. Given this, the ex ante agreement about torturing terrorists would have to stipulate that we would permit torture only for known guilty first-person reparation cases and only when the odds of success are high enough. I am not sure what

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“high enough” would mean for our hypothetical ex ante agents, but we might think it should be considerably high to avoid torturing people needlessly. No one wants to be subjected to a law that would permit their own torture when they have done nothing wrong. Shue and Luban can say the odds of successful torture will never get high enough. Even if their claim is exaggerated, we can safely agree it is not that high now. Pointing out cases where torture has met all these conditions is not yet sufficient. We also need the base rate of unsuccessful tortures. In other words, we need to apply the following formula: (prob) right person x (prob) useful information (prob) wrong person x (prob) useless information A complaint may be raised. Ex ante bargainers might use expected utility theory to denounce torture to ward off torturing guilty persons on the grounds that they would not want to be exposed to the prospect of being wrongly assumed a terrorist. Expected utility theory, however, will not show that amoral bargainers would rule out torture in the case where we have the right person but where the odds of useful information are too low. Such amoral agents cannot base any reluctance to torture in such cases on the fear of being themselves tortured, at any rate, assuming they are not terrorists. My reply will sound feeble to those looking for a moral appeal to some objective standard of wrongness. Basically, to institutionalize torture of terrorists will cost us. If the payoff is lowered terrorism in the future, the cost may be worth it. If there is no guarantee of such a benefit, then our ex ante bargainers have no incentive to agree to torture. For that reason, the effectiveness of gaining valuable information from torture needs to be factored into the expected utility theory alongside the prospects of having a guilty terrorist. 14.2.4. Ways of Increasing the Odds? So far, torture is not likely to get contractarian approval until we have the assurance that the odds of our torturing an actual terrorist are high enough, the odds such a person has valuable information for us are high enough, and that the odds that such a person will provide us with that information by our torturing him rather than by any other way are high enough. Can we do something to increase such



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odds in favour of torture? Alan Dershowitz suggests we could considerably increase the successful cases of torture by requiring “torture warrants.” A torture warrant will be similar to search warrants. Police cannot just barge into someone’s home without first making a case to a judicial magistrate that there is good justification for doing so. Torture warrants would be granted by the judicial body based on the arguments presented to them. If the arguments are not substantial enough, the torture warrants are not granted and torturing in that case would be unlawful. If the torture warrant is granted, torture in that case would be lawful. Requiring torture warrants would better ensure the person we have strapped to the chair is guilty and has valuable information. The torture warrant itself cannot guarantee such valuable information will be forthcoming, however. Torture warrants, therefore, can increase only one factor in the expected utility formula, and this is not yet sufficient. Mark Bowden tries to get at the same result. He believes we should publicly ban torture but permit torture in certain cases to be defended after the fact.44 In this sense, the default is not to torture, but when the torturers sincerely believe they have the real culprit, feel confident they can defend their actions in a court of law, and are aware that they may face punitive treatment should they fail to make their case, then, and only then, should they go ahead and torture. The need to provide after-the-fact justification would lessen instances of unsuccessful torture. The defend-afterward method has the advantage of being quicker than the torture warrant method and so might be better in ticking bomb cases. Judges are more prone to forgive than permit, however, in which case we might expect a greater incident of unsuccessful tortures than by the torture-warrant method. As with Dershowitz’s solution, however, getting useful information through torture is not vouchsafed by the defend-afterward method unless part of the defence rests on the ascertaining of strategically useful information. Heather MacDonald argues that our society’s ban on torture simply plays into the hands of terrorist groups.45 Without our sanctioning the use of torture, terrorists are not afraid of us, she argues. When torture is publicly banned, interrogation tactics can no longer include the threat of torture. At any rate, doing so will not dupe terrorists. Since the success of torture is always based on the fear of what is to come, the hope of getting any information from terrorists is nil. If we publicly allow torture of terrorists, even if we ban it in private, our interrogation techniques will be far better. In that sense,

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we can get the vital information without torture or with only light torture. Assuming we can successfully act on the useful information gleaned from the threat of torture, we will lower the incidence of future terrorist acts. In other words, for MacDonald, only by publicly allowing torture can we hope to lessen both torture and terrorism. A few problems lurk for MacDonald’s argument, however. First, she assumes that information can be gleaned merely from the threat of torture. Secondly, if we could offer a satisfactory moral justification to the public, one that the public would accept, we should at the same time have a satisfactory moral argument for torture. That is, we would not need any hidden ban on torture. If we need to dupe the public into believing we have grounds to torture, this confirms the sentiment that no such grounds exist. If no grounds exist, MacDonald’s plan rests on the assumption that the public is gullible enough to swallow the public-relations rhetoric. Perhaps the odds of enough of us being so naive are higher than we would like. The odds of the terrorists believing the rhetoric would also have to be high, however, something MacDonald’s own argument rules out.46 Besides, it is also possible that our publicly endorsing torture of terrorists may make terrorists more inclined to die rather than be caught, as the fact of suicide bombers attests, thus lowering the odds of getting any vital information. Those who allow themselves to be caught alive, in fact, would be less likely to be the ones eligible for torture. 14.2.5. Conclusion While contractarians need not be against guilty first-person reparation torture in principle, they would first need an assurance that the odds of our torturing an actual terrorist are high enough, that the odds that such a person has valuable information for us are high enough, and that the odds that such a person will provide us with that information by our torturing him rather than by any other way are high enough. Pointing out cases where torture has met all these conditions is not yet sufficient. We also need the base rate of unsuccessful tortures. Saying this does not mean that contractarians cannot endorse the torture of terrorists. What would be required is, perhaps, torture warrants plus some means of better determining who has valuable information and, within that group, who is likely to divulge it only through torture. This means that contractarians cannot endorse torture right now.

15 Blackmail and Imprudence

1 5 . 1 . T h e S t ru c t u re of B lackmai l Contractarians claim that any voluntary transaction among all competent, suitably informed, concerned parties is necessarily moral. If blackmail is a voluntary negotiation between concerned parties who are rational and suitably informed, then blackmail is a moral transaction for contractarians. Typically, people assume that blackmail is not a moral negotiation: so if contractarians have the right moral theory, they better show that blackmail violates at least one of their conditions. This, however, is a far more daunting task than commonly thought. Suspecting faulty intuitions about blackmail is easier. Consider the following two cases: Case 1: Jones claims Jones will let Smith’s spouse take a painting if Smith pays Jones $10,000. Case 2: Jones claims Jones will not inform Smith’s spouse of Smith’s infidelities if Smith pays Jones $10,000. Everything else being equal, case 1 is a straightforward moral transaction in structure identical to any common business deal. Smith’s spouse praises the painting and leaves. The curator approaches Smith to make a sale. Consider case 2. Jones is free to tell Smith’s spouse about Smith’s infidelities. Likewise, Jones is free to tell Smith that Jones will tell Smith’s spouse about Smith’s infidelity. For that matter, Jones is free not to tell Smith’s spouse about Smith’s infidelity, and Jones is also free to tell Smith that Jones will not tell Smith’s spouse

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about Smith’s infidelity. By implication, then, Jones is free to tell Smith that Jones might or might not tell Smith’s spouse about Smith’s affair. Typically, if we are free to do something, we are also free to ask for a fee for our doing that thing.1 Meanwhile, others are free to accept our offers or not, and if they accept our offers, we assume they do so because they believe they stand to benefit from them. If Smith pays the money in case 2, we assume Smith prefers paying the $10,000 to having Smith’s secret revealed to Smith’s spouse. Likewise with case 1. If Smith accepts Jones’s offer, we assume Smith prefers Smith’s spouse having the painting to Smith having $10,000. In both cases, then, Jones makes an offer that Smith is free to accept or decline. In both cases, the principal parties stand to benefit from the transaction.2 On what grounds, then, can we say case 2 is wrong while case 1 is morally permissible?3 While most authors try to explain why blackmail is immoral despite its component actions being moral, my conclusion is that contractarians cannot deem blackmail to be immoral. When we find something morally problematic with a particular act that looks like blackmail, we will discover it is immoral for reasons independent of being blackmail. Conversely, we might even say it is not a case of blackmail at all. To make my case, I begin with offering the following account of the structure of Blackmail. A blackmails B whenever A informs B that A will do, or forbear doing, action x unless B does, or forebears doing, action y, while doing, or not doing, x and y are independently morally permissible actions. This structure, or definition, captures the paradigmatic blackmail case (case 2). All else being equal, it is morally permissible for Jones to tell or not to tell Smith’s spouse of Smith’s infidelities. All else being equal, it is morally permissible for Jones to pay Smith $10,000. The problem, if there is a problem, comes when we conjoin the two. The puzzle about blackmail comes from precisely this conjoining of two independently moral actions. True, what Smith does may be immoral, but if blackmail is wrong, we are to say that the blackmailer is doing something wrong, not the blackmailee. Normally, when we conjoin two independently moral components of an action, we get a morally permissible action, as in case 1. Is there something about the transaction in case 1 that is missing from the transaction in



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case 2? While many people wish to say case 1 misses the immoral predication that blackmail carries, I argue that case 1 misses merely the imprudence embedded in case 2. My definition of blackmail captures both informational and noninformational cases.4 The typical case of blackmail has it that x is a withholding of information but, claims Leo Katz, it may also entail withholding actions, such as giving your reckless daughter a motorcycle or convincing your impressionable son to enlist in the army.5 For that matter, y need not be money. “Do not take the last cookie, and I will refrain from telling Mom about your having a cigarette.” Similarly, my definition ignores whether the component acts in blackmail are commissions or omissions. The typical blackmail case involves payment for omissions, such as Jones’s refraining from ­telling Smith’s spouse something. Conversely, business transactions ­typically pay for acts of commission. Something somebody does is typically worth more to buyers than something somebody does not do. “Fix my lawnmower, and I will pay you $75. Do not fix it, and I will pay you nothing.” Despite such norms, the commission–­ omission distinction is morally irrelevant, at least concerning business or blackmail. Imagine viewing an unfinished painting in an artist’s studio. The way it is now may be worth more in the eyes of a buyer than if the painter continues working on it, judging by the finished works in the gallery. If a buyer wants to pay for the painter not to do anything else to the painting, that is an offer she can legitimately make. “I’ll give you $500 for it.” “No, it’s not finished yet.” “Okay, I’ll give you $700 for it if I can take it away right now.” Value is found in an act of omission. My formal definition of blackmail includes the rider about x and y (or their negations) being morally permissible actions. If one of the  independent actions is itself immoral, we can complain about immorality (on the basis that one component of the action is immoral), but can no longer call it “blackmail.” Consider the following five cases. Case 3: Jones claims Jones will go public with intentionally f­ abricated information that will harm Smith’s reputation, unless Smith pays Jones $10,000. Case 4: Jones claims Jones will not inform Smith’s spouse of Smith’s infidelities, if Smith lets Jones’s daughter into law school.

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Case 5: Jones claims Jones will not inform Smith’s spouse of Smith’s infidelities (information Jones garnered through wire­ tapping, home invasion, and computer hacking), if Smith pays Jones $10,000. Case 6: Jones kidnaps Smith’s daughter and tells Smith that Jones will kill Smith’s daughter unless Smith pays Jones $10,000. Case 7: Jones tells Smith to rob a bank and give the money to Jones, or Jones will kill Smith’s daughter. In none of the cases can we say that we have conjoined independently moral actions. In case 3, Jones’s telling falsehoods is not a moral action. In case 4, Jones asks Smith to abrogate Smith’s responsibility concerning agreed upon entry protocol for law school. If Smith does so, Smith performs an immoral action. Thus Jones is immoral to incite Smith to do an immoral action. In case 5, the moral problem comes from how Jones gathered the information. If Jones gathered the information improperly, the use of that information by Jones is not morally permissible, therefore the whole transaction, by virtue of the rule of conjunction, is not moral. Case 6 involves kidnapping and murder. Case 7 involves armed robbery. In other words, cases 3 to 7 do not have the feature that each independent act – x and y – is itself morally innocuous. Therefore, they fail to count as cases of blackmail, at least so defined. A natural complaint is why the definition of blackmail needs the rider that each component part is morally fine.6 My response is twofold. First, if we abandon the morally fine rider, the puzzle about blackmail disappears. The puzzle arises precisely because independent moral actions conjoined somehow make (or are supposed to make) the transaction immoral.7 No one should find it puzzling that an immoral component of an action makes the whole action immoral. The rule of conjunction demands as much. Secondly, ridding the rider that each component part is morally permissible would still not show blackmail to be immoral in structure. Rather, for any action we deem both blackmail and immoral (e.g., cases 3–7), we will find the immorality separable from the fact that we call it blackmail. That is to say, it is not the blackmail that makes the component wrong but the component that makes the particular case of blackmail wrong.



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Such cases would not show blackmail itself to be wrong any more than lying in  a business transaction makes business transactions wrong. The wrongness is not found in the formal structure of blackmail but in other sorts of moral violations – lying (case 3), misuse of authority (case 4), privacy invasion (case 5), kidnapping and murder (cases 6 and 7), robbery (case 7), etc. While I maintain that blackmail, in itself, is not morally problematic, I do believe our intuitions about blackmail do capture something unsettling about it: responding to blackmail is imprudent. Before I examine its imprudence, I will offer the standard reasons why other people think blackmail is immoral and what makes those reasons unconvincing.

15 . 2 . W h at is W ro n g wi th Blackmai l? I will look at eight different attempts to explain the wrongness of blackmail. 1. It involves bad motives. 2. It leads to bad consequences. 3. It is coercive, in that it undermines voluntariness. 4. It is exploitive, taking advantage of another’s vulnerability. 5. It asks for payment to waive a moral duty. 6. It is an abuse of privacy. 7. It uses information that the user does not own. 8. It neglects the interests of concerned parties. None pan out. 15.2.1. Bad Motives The paradigmatic case of blackmail has bad motives: personal gain at the expense of another’s vulnerability.8 Katz claims we cannot even count a transaction as blackmail if the motive is not something like retaliation for not paying.9 Even Walter Block, while defending the legal right to blackmail, admits that he is not speaking about the morality of it. By that, he seems to imply some unethical motivation.10 While the motive in blackmail is self-gain, so does selfgain motivate all business transactions. Of course, in business transactions, we demand the interaction be mutually beneficial. If the blackmailee accepts the offer voluntarily (which we will question in section 15.2.3), that presupposes the blackmailee finds accepting the offer more advantageous than not. As put, the blackmailee benefits as well as the blackmailer. Nothing demands that mutuality be identical or that payoffs must be in similar units, such as money.11

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Moreover, I can have bad motives and commit perfectly moral acts. Perhaps I am mad at my roommate and, for retaliation, buy a brand of toothpaste my roommate hates. My spiteful action may be blameworthy, but the blameworthiness would not transfer to the purchase of toothpaste. Ignoring that, one may blackmail for nice motives. Consider the following case. Case 8: Jones claims Jones will go on a hunger strike and alert the media about it unless Smith improves prison conditions. The structure of case 8 is the same as the structure of cases 2 and 1. Jones may or may not go on a self-imposed fast. Smith may or may not improve prison conditions. The conjoining of the two seems to create a case of blackmail. To avoid being tarnished with a bad public image, Smith may be motivated to succumb to Jones’s request. Meanwhile, the blackmailer’s motive seems, at face value, morally praiseworthy. If something is wrong with blackmail, it cannot be due to the bad motive of the blackmailer. 15.2.2. Bad Consequences Richard Epstein suggests bad social consequences would occur if we permit blackmail.12 Large organizations would emerge and trade in dirty information about people’s private lives. Like paparazzi swarming famous people to sell photos to gossip magazines, blackmail sleuths will swarm the wealthy to dig out blackmailable grime. If the information the blackmail paparazzi glean is not itself an invasion of privacy (see 15.2.6), we cannot say that the increase of a thing already moral is immoral. We cannot show something to be wrong by pointing out that, if we permit it, more of those things will come about. That more violinists will emerge if we permit violin playing (and violin schools and violinist associations) is hardly a justification to outlaw violin playing. If something is immoral, it must be so on its own terms, not merely because more of it will come about if allowed. True, I may not mind a few ants, though I mind a horde of ants. Sometimes, then, a little bit is acceptable and a lot, not. With morality, however, we do not think a few murders are fine but draw the line at a lot of murders. If murder is bad, it is bad independently of how often it occurs. The same with blackmail.



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15.2.3. Coercion If Smith declines in case 2, bad things will happen to Smith. Not so in case 1. In essence, then, Smith’s action is not voluntary in case 2 as it is in case 1. Blackmail, in this sense, is simply camouflaged robbery.13 “Give me $10,000 or I will shoot you” is similar in form to “Give me $10,000 or I will tell your spouse about your affair.” While robbery and blackmail are similar in form, the puzzling feature of blackmail is that all the components are morally fine but, for some reason, deemed not fine when conjoined. The robbery case does not fit this pattern since one of the components – the killing – is not morally fine. Moreover, we deem robbery immoral because the robber denies the victim the chance of remaining at her status quo. The status quo is the state of affairs one was in before the offer.14 Contractarians call any act “voluntary” if at least one option is to remain at one’s status quo baseline. In the robber case, that was having $10,000 and one’s life. Precisely by denying one’s status quo, robbery is coercive. In the blackmail case, on the other hand, the status quo remains a live option. In case 2, Smith’s status quo is already a marriage at risk. After all, Smith is the one who had the affair. Jones obviously knew about the affair and has already been contemplating informing Smith’s spouse. We cannot count Smith’s status quo baseline as simply what Smith believes it to be. Some beliefs might be false. Smith’s believing incorrectly that Jones has left Smith $1,000,000 in Jones’s will does not make it the case that Jones’s estate owes Smith $1,000,000. Despite Smith’s belief, Smith’s real baseline is not being assigned anything in Jones’s will. Likewise, Smith’s real baseline is a marriage in jeopardy of Jones telling Smith’s spouse about Smith’s affair. Jones allows this option in case 2: hence Smith’s choice is voluntary. One might object to this assessment. Surely in the blackmail case (case 2), Smith is better off without Jones’s offer.15 If Smith refuses Jones’s proposal in case 2, Smith is out of a marriage (or at least the marriage is in peril), whereas if Smith refuses Jones’s offer in case 1, Smith remains at the status quo. Hence only in case 1 is Smith’s action voluntary. Thus, one might argue, blackmail violates the contractarian credo of not doing to others without their voluntary consent. Many cases exist, however, where Smith would be better off without the existence of an offer by Jones, without making Jones’s

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offer coercive. For example, Jones and Smith vie to mate with Williams. Jones approaches Smith and makes the following offer. “Stop wooing Williams or I will fly Williams to Paris for a weekend date.” Smith would be better off without either of Jones’s options, but that does not mean Jones alters Smith’s status quo. Jones could have flown Williams to Paris with or without Smith’s consent, and Smith could have stopped wooing Williams with or without Jones’s consent. Imagine in case 1 that Smith’s spouse has all along been demanding a painting from Smith and will contemplate separation on the grounds of Smith’s stinginess. Imagine, too, that Smith’s spouse is present when Jones makes the offer to Smith. The brute fact of Jones’s offer would itself appear to remove Smith’s status quo option. Smith’s refusal may be bad for Smith’s marriage, thus adding equal pressure on Smith to accept Jones’s offer in case 1 as in case 2. Pressure alone, however, does not make Smith’s acceptance involuntary in case 1, and nor should it in case 2. In modified case 1, Smith’s status quo is to remain with a spouse who demands a painting. By declining Jones’s offer, Smith can remain at that state. Ditto for case 2. Consider an alternative blackmail case (case 9) where it is clearer that Jones allows Smith the choice of remaining at Smith’s status quo. Case 9: Jones puts a vase into a box, and inside the vase is a note to Smith’s spouse with pictures and details depicting Smith’s indiscretions. Jones seals the parcel with the vase and the note, and ships it by courier delivery with explicit instructions that only Smith’s spouse may sign for the package upon receipt. Jones insures the package for a small fee entitling Jones to collect $10,000 should it transpire that the vase is broken or undelivered. Afterward, Jones informs Smith about the package and where the delivery truck is parked while the driver takes her habitual coffee break. Smith takes the information, steals the package out of the delivery truck, and Jones collects $10,000 from the insurance on the undelivered package.16 What Smith has done is wrong, since it involves theft – in essence theft of $10,000 from the insurance company – but has Jones done anything wrong? More to the point, has Jones denied Smith a voluntary action? The baseline in case 9 is the imminence of Smith’s infidelity being revealed. Smith has an option of doing nothing, and doing



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nothing is precisely Smith’s status quo baseline. If blackmail is wrong, it cannot be so for curtailing voluntary choice. Katz suggests another view. Jones has incited Smith to commit a criminal act. The wrongness we attribute to Smith’s act not only rebounds to Jones but increases in volume.17 Similarly, we may think hate speech wrong for its intent to incite immoral action. In case 9, Jones clearly incited Smith’s immoral action, and thus we may accuse Jones of abetting a crime. Convicting Jones for inciting theft, however, is not to convict Jones of blackmail. To say it is also wrong for being blackmail is to double count the wrongness entailed by Jones’ act of inciting theft. 15.2.4. Exploitation In the paradigmatic blackmail case (case 2), Jones takes advantage of Smith’s vulnerability for Jones’s own pecuniary interests. As such, blackmail is wrong for being a case of exploitation.18 The paradigmatic case of blackmail, then, should be not case 2, but the following case (case 10). Case 10: Smith is drowning. Jones offers to save Smith for a fee of $10,000. Otherwise, Jones will do nothing. Notice that whatever is wrong with case 10, it cannot be due to a loss of voluntariness in Smith. As noted in the previous section, we define voluntariness by one’s occurrent status quo. In case 10, assuming Jones is not the cause of Smith’s drowning, Smith’s status quo is drowning. In Jones’s offer, Jones allows Smith’s status quo to be an option. The difficulty with case 10, presumably, is that we believe that Jones has a moral obligation to rescue Smith from drowning, all else being equal.19 If Jones has a moral obligation to save Smith, Jones’s asking for money from Smith for Jones to do Jones’s moral duty will be problematic. Saying, “Pay me $10,000 to refrain from killing you,” is the same sort of violation. Asking for payment to do that which I ought to do anyway (refrain from killing you) is wrong, and contractarians would agree. If a component of the transaction is immoral, either we ought not to call the transaction a case of blackmail or, what amounts to the same thing, we recognize that what is wrong with this example has nothing to do with the rightness or wrongness of blackmail.

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Consider a different example. Smith is stuck on the Coquihalla Highway during a snowstorm, and Jones comes by in a tow truck. For $300, Jones offers to pull Smith to the top of the desolate pass. Smith’s relief is short-lived, since Smith is still at risk of becoming stuck if he continues along the highway beyond the summit. Jones may keep watch for just that possibility and charge another fee for another partial rescue. Does Jones exploit Smith? We assume nothing is wrong with tow trucks charging for their services. When is charging too much wrong? In economical terms, charging too much is the point where no one buys. One charges as much as one can. One pays as little as one can. Under normal conditions, with competition and lack of urgency to purchase certain wares, prices will be much lower. One ought not to compare the tow-truck fee on the Coquihalla pass in a snowstorm to tow-truck fees under normal conditions in a city. Since the conditions are significantly different between the two cases, demanding comparable prices is illegitimate. Of course, some say that while the Coquihalla tow-truck driver can legally get away with an exorbitant fee, the driver is still immoral for doing so. Supporting such a claim seems problematic, however. Is there some eternal law about fair tow-truck prices on the Coquihalla Highway during snowstorms? The idea is absurd. Yes, we can say Jones exploits Smith’s unfortunate predicament. On the other hand, we can say Smith is lucky Jones is present. The tow truck is offering Smith a service given Smith’s situation, a service that costs Jones (costs for the tow truck and driving about in stormy conditions looking for sales). It is a risk on Jones’s part and surely Jones has a right to try to recoup any losses. If Jones were forbidden to do that, Jones would not be out there and Smith would suffer more – perhaps hypothermia. To be clear, contractarians would call the tow-truck driver’s actions morally permissible. After all, Jones did not cause it to snow and nor did Jones cause Smith to become stuck in the snow. That was due to Smith’s being insufficiently prepared for mountain weather. The state of affairs Smith was in before Jones’s arrival was being stuck, and Jones left that option available to Smith. Smith’s accepting Jones’s exorbitant fee is therefore voluntary. The transaction between the tow-truck driver and Smith is morally permissible. Blackmail takes the same pattern as the tow-truck scenario. The blackmailer did not cause Smith to have an affair any more than the tow-truck driver caused Smith to become stuck in the snow. Smith



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had the affair voluntarily. The blackmailer is not the cause of jeopardizing Smith’s marriage. This is due to Smith’s being insufficiently prepared for the consequences of extramarital sex. In essence, the blackmailer is offering Smith a service – the service of protecting the secrecy of the affair. In any event, Smith’s accepting Jones’s terms is strictly voluntary on Smith’s part because the state of affairs Smith was in before Jones’s presenting Smith with the blackmail option was being at risk of someone’s reporting the affair to Smith’s spouse. The fact that Smith’s protector is also the person from whom Smith needs protection is unimportant. What matters is that someone was going to tell Smith’s spouse, and a service to prevent that from happening is worth the fee or it is not. Exploitation, on the other hand, suggests a disservice. 15.2.5. Moral Obligations Another argument against blackmail concerns our moral duty to rat on immoral agents. We are all supposed to uphold morality. Our moral duty extends beyond merely forbearing to do bad acts but also includes social policing. We like to imagine blackmail requires someone to have something to hide. Otherwise, no leverage exists. Typically, we want hidden that which would harm our reputation. Being engaged in immoral activities would be a good thing to hide. From this, we infer that anyone hiding something is involved in immoral activity. From this, we think blackmail is a case of benefiting from someone’s immoral activity, and from this we condemn blackmail.20 The blackmailer is asking for a fee to forebear doing something the blackmailer morally ought to do. Even if we have no moral obligation to report immorality, we have a moral obligation not to collude with immorality. Assuming infidelity is immoral, the blackmailer violates that in case 2. By offering to forego what the blackmailer morally ought to do, the blackmailer becomes an accomplice to the original crime.21 Resurrecting the drowning case (case 10), serves well here. We think Jones has a moral obligation to save Smith and so asking for a fee to do so is wrong. Conversely, threatening not to do one’s moral obligations is wrong. One may attract blackmailers for reasons other than by being engaged in immoral activity, however. Embarrassment can suffice. A picture catching a tenure applicant sneezing out of a car window makes her look like she is making a rude face at her dean. Despite her

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innocence, she might prefer the picture not get public attention. Her sneeze defence may be less successful than paying off the blackmailer. As put, the drowning case is too narrow to capture blackmail in general. To make the prototypical case of blackmail (case 2) and the drowning case (case 10) analogous, we cannot simply say that informing Smith’s spouse of Smith’s affair is morally permissible. We need also to assert that we have a moral obligation to inform Smith’s spouse about Smith’s affair. To convince someone of that seems a harder task than convincing someone that blackmail is wrong. The problem of infidelity for contractarians involves a violation of the marriage contract. Whether explicitly stated or merely implied, most marriages begin with the idea that the parties involved will be faithful to each other. Nevertheless, we almost expect infidelity. Not that that makes infidelity morally permissible, though one might ­suggest the demand for lifelong fidelity to one person is too much to ask.22 Such vows seem as sensible as promising to love someone’s next poem. Heartfelt, yet hollow, promises. Still, marriages do not necessarily crumble from revelations of infidelity. Infidelity is often a symptom, as opposed to the cause, of a failing marriage. The problem of marriage is that people change. Predicting how my future self will feel about your future self because of how my present self feels about your present self is hardly a sound inference.23 Nevertheless, marriages are more likely to blossom from revealed infidelities if it is the unfaithful who confess, not a third-party. Thus, if we are focusing on what Jones morally ought to do, it is not clear that Jones ought to rat on Smith. If anything, Jones ought to encourage Smith to confess to Smith’s spouse voluntarily. Only in that way can the Smiths rebuild the trust and intimacy upon which a good marriage is based. One creative way of encouraging Smith to confess is to blackmail Smith. Similarly, if we discover a friend is a thief, our moral obligation to society may permit us to first talk to our friend, rather than simply rat her out. If Smith were an unrepentant child abuser, and Jones knows this, then we might say that Jones has an obligation to rat on Smith. If Jones suggests to Smith that Jones will refrain from ratting on Smith if Smith gives Jones $10,000, then we can complain about Jones’s action. To say this is what is wrong with blackmail, however, would be misleading. The puzzle about blackmail occurs only when the independent actions (telling or refraining from telling someone something and asking for a fee for doing or not doing something) are each morally permissible taken in isolation. The puzzle about blackmail



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occurs when somehow those two rights become a wrong. As put, then, we cannot say blackmail is wrong because one or both of the independent actions is wrong, for that would no longer be speaking about blackmail. Conversely, what is wrong with this blackmail transaction is the failure to report a crime or abetting a crime. Saying this says nothing about blackmail overall, however, since blackmail can occur without either failing to report a crime or abetting a crime. Consider the following two cases. Case 11: Smith is running for political office. Jones decides to falsely accuse Smith of having an affair, unless Smith pays Jones $10,000. Case 12: Smith, a former nude model, is running for political office. Jones tells Smith that Jones will tell the press about Smith’s past life, unless Smith pays Jones $10,000. In case 11, since the accusation is false, there is no moral obligation on Jones’s part to tell the world about the affair. Since a component in case 11 is immoral (an intentionally false accusation), I would not call case 11 blackmail. Most people do. If we do call case 11 a case of blackmail (by tossing out my rider about all components being independently moral) the problem would be with the false accusation, not blackmail. Of course, if all blackmail has immoral components, then we could say all blackmail is wrong for violating some moral code. Even still, it would not show that blackmail itself is wrong; only anything with immoral components is wrong. Ignoring all that, case 12 has no immoral components. Posing nude is morally permissible, at least for contractarians. Telling someone a truth is morally permissible, and we assume the particular truth is neither private (it is the opposite of private, one may say) nor improperly accessed. To say Jones ought to inform the public about Smith’s past life would be hard to maintain. If blackmail were wrong because one ought to inform, we could not say that case 12 was wrong. This captures, I think, Katz’s claim that blackmail will always involve, if not moral infractions, at least petty motives. Someone who blackmails Smith for Smith’s past life is not the kind of person we would want as a friend. While behaving in ways that reduce the prospect of friendship is not generally conducive to well-being, contractarians distinguish theories of well-being from theories of morality (see chapter 3).

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15.2.6. Privacy For others, blackmail is wrong for being an invasion of privacy.24 Blackmail uses someone’s private information against them. When we admitted, however reluctantly, that the tow-truck driver’s offer was morally permissible, we can now explain that is because the offer did not exploit Smith’s privacy. Blackmail cases, on the other hand, do. Should Jones gain information on Smith through invading Smith’s privacy – by wiretapping, computer hacking, or home burglary – we can complain. As noted, our complaint would not be about blackmail but invasion of privacy. When Jones stumbles on the relevant information by simply being at the right place at the right time, however, Jones’s possession of the information concerning Smith is not an invasion of privacy. Imagine Jones repeatedly saw Smith enter a motel room with a person who was not Smith’s spouse. If Jones were the motel clerk, one could say Jones has moral constraints concerning confidentiality. If Jones was a patron of the motel, however, or happened to be passing, the knowledge Jones has is public information – at least it is information any passerby could glean, that is, any passerby who can recognize Smith and Smith’s spouse and realize Smith’s motel companion is not Smith’s spouse. As such, the information is not in this sense “private” anymore. The all-blackmail-is-an-invasion-of-privacy argument would need also to argue that Jones cannot use the information concerning Smith’s private life without invading Smith’s privacy. Sissela Bok, however, argues that we can only understand privacy rights in terms of access.25 Judith Jarvis Thomson suggests that our claims to privacy are either unfounded or subsumed by another principle, like property or liberty.26 In any event, we can blackmail people without invading their privacy. If Smith willingly posed nude in a magazine, we can hardly say that anyone who buys the magazine is invading Smith’s privacy. Nor can we say that anyone who discusses what is available in that magazine is invading Smith’s privacy. Nor do we suppose that this fact changes after a few months, years, or decades go by. To point out to the world the existence of this magazine is not an invasion of Smith’s privacy, since Smith willingly consented to its publication. Nevertheless, case 12 (threatening to publicize a politician’s past nude modelling career) is still a case of blackmail. Smith may regret posing nude and may be motivated to keep the



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information to himself, given Smith’s current political career, but that hardly makes it a private matter. We do not count as “private” merely that information we would not want to be public. Contractarians require merchants to provide sufficient information in their business transactions, information that – other than trade secrets – they may otherwise wish to withhold, such as information about toxic chemicals or about the likelihood of their product exploding or about abuse to their workers. The hunger strike in case 8 should also suffice to reveal that the structure of blackmail need not involve privacy invasion.27 Since we can blackmail people without invading their privacy, the wrongness of blackmail cannot be predicated on an invasion of privacy, assuming the blackmailer gleaned the information from public sources. 15.2.7. Ownership Perhaps the worry about privacy is better expressed as a worry about ownership. A thief may tempt you to buy a T V set cheap. You agree and the thief agrees, so what could be wrong? The contractarian answer is that the proper owner of the T V has not been consulted in this agreement. The T V is not the thief’s to sell. Some argue that blackmail is like this. Imagine the case where Jones steals Smith’s T V, and then asks whether Smith wants to buy it back. Jones is asking Smith to buy back what is already rightfully Smith’s. Analogously, blackmail is wrong because the blackmailer is selling to the victim something that the victim already owns.28 A moral infraction occurs in stealing Smith’s T V and selling it. Whether this sufficiently captures the problem with blackmail is another matter. Compare the fencing case with case 13. Case 13: Jones discovers that Smith is abusing Smith’s child. Jones suggests Smith pay Jones $10,000, or Jones will tell the police. If the problem with Jones’s act in case 13 is that only Smith owns the right to inform the police about Smith’s abuse of Smith’s child, then we could never complain about Smith’s abuse of Smith’s child – an unwanted result. Besides, the prototypical blackmail case (case 2) consists of individual acts none of which are by themselves necessarily immoral

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(telling Smith’s spouse a truth, telling Smith that Jones might or might not tell Smith’s spouse this truth, asking for money, etc.). Not so with the fencing case. The problem is the original theft. The act is wrong whether or not Jones offers Smith the chance to buy back the T V. In case 2, we cannot say that Smith owns Jones’s right to convey information to Smith’s spouse. Nor, as mentioned above, is it obviously wrong to tell Smith’s spouse about Smith’s affairs, although having stolen Smith’s T V is clearly wrong.29 This remains so even if Jones merely threatens to steal Smith’s T V unless Smith pays up, since the threatened action is itself clearly wrong – unlike the action Jones is threatening to do in the case of Smith’s infidelity. Telling someone a truth is not wrong. If anything, the ownership argument should work in reverse. Imagine a third party, Taylor, who is aware of Smith’s infidelities and intends to inform Smith’s spouse. Jones finds out and tells Smith that, for $10,000, Jones will prevent Taylor from informing Smith’s spouse. Jones can in no way guarantee success unless Jones’s methods violate the consent principle. For example, Jones’s killing Taylor before Taylor can converse with Smith’s spouse would guarantee Taylor’s not informing Smith’s spouse. Without such a violation, however, Jones can make no such guarantee precisely because Jones does not own Taylor. Jones cannot forbid Taylor to do what Taylor desires to do, and so Jones’s service to Smith is not Jones’s to offer. In the original case, however, the situation is different. Jones clearly owns Jones’s actions. Jones is in a paradigmatically legitimate position to negotiate on Jones’s behalf. 15.2.8. Concerned Parties Smith and Jones are not the only concerned parties: Smith’s spouse is and Smith’s paramour. Thus, case 2 fails the condition of contractarian morality concerning getting the approval of all concerned parties.30 Smith’s spouse was a concerned party when Smith decided to have the affair, and to the extent that Smith’s spouse was not consulted about it, the affair is immoral for contractarians. Smith’s spouse is not obviously a concerned party in the transaction between Smith and Jones, however – at least no more than Smith’s spouse is a concerned party in Smith’s buying the painting in case 1. We do not



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typically say the transaction between Smith and Jones in case 1 is immoral because Smith’s spouse was not consulted, even if we can imagine at that price some sort of row ensuing. Stores may morally sell merchandise to customers who are buying gifts for someone else. The fact that the purchase will affect someone else is a concern between the purchaser and that other person, not between the merchant and the consumer. If Smith buys an expensive toy for personal use, the spouse may be a concerned party to how money is spent, but we do not expect merchants to check patrons’ financial arrangements with their spouses. That is a concern between spouses, not between merchants and customers. Likewise, blackmail case 2 concerns Smith and Jones only. Jones does nothing wrong to Smith’s spouse. If Smith pays Jones, Smith’s spouse remains at the status quo: the state of affairs of being ignorant of Smith’s infidelity. If Smith does not purchase Jones’s service, then Jones tells something true to Smith’s spouse, and telling something true to someone is not forbidden on contractarian grounds. Whatever Smith decides to do, Jones has not done anything wrong to Smith’s spouse. It may seem a different matter concerning Smith’s paramour. If Smith’s spouse finds out, this may adversely affect the relations between Smith and the paramour. In this sense, we may think of the paramour as being an uninformed concerned party concerning the interaction between Jones and Smith’s spouse. Not all people whom third-party agreements affect count as a concerned party, however.31 Imagine Jones and Smith competing for a job. Smith would not agree that the company hire Jones rather than Smith. Jones’s getting the job adversely affects Smith, who remains unemployed as a result. Nevertheless, Jones’s being hired is not up to Smith to decide, and thus, despite Smith’s being an uninformed and adversely affected party, Smith is not a concerned party in the contractarian sense. Similarly, the fact that the paramour may be negatively affected is not sufficient to call the paramour a neglected concerned party. The above aside, blackmail can occur when we have no third party to worry about. Imagine if Smith is a self-employed, unattached homosexual with no living relations and Jones threatens to publicize Smith’s sexual orientation unless Smith pays Jones $10,000. It looks like a typical blackmail scenario but without any unconsulted third parties. This is sufficient to show that if something makes blackmail wrong, it cannot be the existence of unconsulted third parties.

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1 5 . 3 . P ru d e n c e a nd Mo rali ty 15.3.1. Prudence A blackmails B whenever A informs B that A will do, or forebear doing, action x unless B does, or forebears doing, action y – and doing or not doing x and y are morally permissible actions. Cases that even contractarians will call immoral, will be immoral for independent reasons than for having the structure of blackmail. When we cannot morally fault any of the components of a case of blackmail, at least concerning the blackmailer’s doings, contractarians are committed to calling the action morally fine. This includes the type of action that falls under case 2. While we cannot find moral fault with case 2 types of blackmail, my concluding suggestion is to say that we can, nevertheless, find prudential fault with succumbing to blackmail. We frown upon blackmail because it is a bad deal. No right-­ thinking person ought (prudentially) to accept the blackmailer’s services for five reasons. (i) There is little guarantee that the payment will secure the intended service, especially when the blackmailer’s offer is to forebear doing something. If Jones, the blackmailer, forbears telling your spouse this week, is Jones’s obligation to you satisfied? Can Jones tell your spouse next week? Do you have to pay Jones off again in a year’s time? To calm yourself of these fears, you will need a contract with the blackmailer, which, of course, would be useless. Any legally sanctioned contract is a public document – precisely the thing you are motivated to avoid if you were susceptible to being blackmailed. Going to the police about a breach of contract with a blackmailer is tantamount to just going to your spouse about it. The prudent choice for any deal the success of which we cannot sufficiently guarantee is not to accept it. You risk having your spouse know about the affair and lose $10,00032 too. (ii) The service is for one person to do or to forebear doing x. The payment cannot prevent others from doing or not doing x. How many others know about the affair? Will others come to you and charge for the same service? Assuming you cannot afford to pay off blackmailers indefinitely, your spouse will find out despite your previous payments.33 (iii) Consider your spouse. It is likely that your spouse would prefer to know about the affair than be out $10,000 on top of your having an affair. For that matter, once the bank account is down $10,000, and you have no ready explanation, the marriage you wanted protected



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is at risk anyway. (iv) Any behaviourist would say your infidelity shows that you are not concerned about protecting the marriage. So why would you choose to pay $10,000 for something you do not even want? What is the big deal about failed marriages, these days? Presumably the benefit of an affair is partly to avoid the hassles of divorce. Whether hassle-avoidance is still worth it after blackmail payments, however, one can decide for oneself. (v) Lastly, if you call the blackmailer’s bluff, what motivation has the blackmailer to carry through with the threat? Failing to sell a painting to Smith’s spouse does not rob the art merchant of the ability to sell the painting to someone else. Without the money, however, Jones’s telling Smith’s spouse has no benefit to Jones, other than the perverse satisfaction of annoying Smith for failing to accept Jones’s offer.34 Overall, the prudent choice is to call the blackmailer’s bluff. Paternalistic interests try to prevent people from being suckered into bad deals. If our society wants to forbid all bad deals, blackmail would be one of those forbidden exchanges. Contractarians are against paternalism, however. Contractarians find nothing inherently wrong with bad business deals – assuming all concerned p ­ arties have sufficient information, are competent, and enter the agreement voluntarily. Since, as I have argued, this is what occurs with typical transactions of blackmail, we can find nothing immoral with blackmail. 15.3.2. Morals In this chapter, I first offered a preliminary definition of blackmail. I examined and rejected the typical reasons people give for why blackmail is wrong. Nevertheless, succumbing to blackmail is decidedly imprudent. A new question confronts us: since contractarians believe morality is a subset of prudence (see chapters 1, 2, and 3), might the imprudent nature of succumbing to blackmail be sufficient grounds to deem it immoral? For example, contractarians do not say, “Murder is wrong: so do not do it.” We say, “Those who murder are likely to be set upon by the rest of us who do not like to be murdered: so, all things considered, do not do it.” Only by viewing morality as a subset of prudence are we able to offer a non-question-begging grounding for morality.35 If murder is immoral for being imprudent and blackmail is imprudent, are contractarians not committed to say that blackmail is immoral?

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If every imprudent action were immoral, playing the lottery would be immoral too. Being imprudent is a liberty right we have. Contractarians do not wish to be paternalistic. Morality must be a subset of prudence. For contractarians, morality is prudent advice for social interactions, specifically the subset connected with strategic social behaviours, rather than merely parametric choices. As discussed in chapter 3, section 2, strategic choice involves others, parametric choice does not. All moral advice revolves around whether or not an action affects others and how those others are expected to reply. Since how they reply affects your payoffs, morality is both strategic and prudent. Defection in iterated prisoner dilemma games is strategically imprudent. Brushing one’s teeth after meals is parametrically prudent. Buying a lottery ticket is parametrically imprudent. Whether your ticket is the winning one or not has nothing to do with anyone else’s play. The same goes with horse races. While your payoffs will vary depending on actions the horses do, their actions are independent of your bet. Since morality speaks not to parametric prudence, only strategic prudence, morality does not concern itself with lotteries or horse races. (Though it may concern itself with ­certain advertisements of lotteries or whether the government should be involved in taxing the probability-challenged.) Meanwhile, the choice a blackmailer offers is simply parametric. The payoffs are known up front and do not shift (assuming the blackmailer keeps her  word) by others’ play. Whether to pay the blackmailer or call the bluff is a simple parametric choice. Thus, although imprudent to play, blackmail fails to qualify as something that ex ante bargainers would invest in banning. Ex ante bargainers demand only that all competent, concerned parties are sufficiently informed and voluntarily consent. Blackmail, footwear purchases, lotteries, and horse races allow that. Murder, theft, rape, and assault do not.

Notes

C h a p t e r O ne  1 Nietzsche, Beyond Good and Evil; Nietzsche, Genealogy of Morals.   2 For my reasoning, see chapter 3.   3 Pateman cannot see contractarians escaping the conclusion. Pateman, Sexual Contract, 257, n16.   4 Morris, “Justice, Reasons, and Moral Standing.”   5 I use “homophobe” the way it is commonly used: as someone who thinks homosexuality is immoral. It ought to mean simply someone who is afraid of homosexuals or homosexuality. As put, a homophobe may not think homosexuality is immoral, just as someone who is afraid of flying need not think flying is immoral.   6 Some social harms such as libel may be financially calculable.   7 This is slightly different than how I defined a concerned party in my “Concerned Parties.”   8 As Gauthier makes explicit. Gauthier, Morals by Agreement, 9–10.   9 This is Nozick’s example. Nozick, Anarchy, State, and Utopia, 171. 10 See, for example, Gauthier, “Three against Justice.” 11 According to Hobbes, “the Foole does not therein deny, that there be covenants; and that they are sometimes broken, sometimes kept; and that such breach of them may be called Injustice, and the observance of them Justice; but he questioneth, whether Injustice … may not sometimes stand with that Reason, that dictate to every man his own good.” Hobbes, Leviathan, ch. 15, 75. My emphasis. 12 Hume, “An Enquiry concerning the Principles of Morals,” in Enquiries, IX, 282–3.

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Notes to pages 18–24

13 Gass, “Case of the Obliging Stranger,” 193. Gass’s actual example seemed to allow that the obliging stranger was not given adequate information as to what the “experiment” involved, and, as put, even contractarians could complain. I thank Louis Groarke for the rendition offered here. 14 Claire Finkelstein, a Hobbesian contractarian, agrees. In such cases, as with Russian roulette, “consent is reasonably seen as inadequate.” “A Contractarian Argument,” 1310. 15 Accordingly, Meiwes cut off Brandes’s penis, flambéed it, and the two of them ate it together. After the meal, Meiwes stabbed Brandes repeatedly in the neck and dissected the corpse. The first detail casts doubt on whether Brandes was of sound mind. The second detail casts doubt on whether Meiwes fully informed Brandes. I assume there are more pleasant ways of dying. 16 I believe this is Finkelstein’s argument against Russian roulette. “Some treatments are so extreme that the consent of the recipient cannot dispel the moral doubt that infects them.” Finkelstein, “A Contractarian Argument,” 1310. At least that would be consistent with contractarianism. If she is appealing to our own intuitions about what is moral, then it is not consistent. 17 Kant, Grounding for the Metaphysics of Morals, 30, n12 [Ak. 421], and 32 [Ak. 424]. 18 … are not disadvantaged relative to others. Helping will typically disadvantage us in nonrelativistic terms. 19 The helping dilemma is then portrayed as a coordination problem, not a prisoner’s dilemma. 20 Lerner and Miller, “Just World Research.” 21 See, for example, Darley and Latané, “Bystander Intervention in Emergencies”; Latané and Darley, Unresponsive Bystander. 22 Darley and Batson, “From Jerusalem to Jericho.” 23 For example, see Narveson, Libertarian Idea. 24 Gauthier, Morals by Agreement, 17. 25 See, for example, Kavka, Hobbesian Moral and Political Theory, 437–46; and Morris, “Idea of Moral Standing.” 26 “Nature hath made men so equall, in the faculties of body, and mind; as that though there bee found one man sometimes manifestly stronger in body, or of quicker mind then another; yet when all is reckoned together, the difference between man, and man, is not so considerable, as that one man can thereupon claim to himself any benefit. To which another may not pretend, as well as he.” Hobbes, Leviathan, 63. 27 For example, Narveson, Libertarian Idea, 269–74.



Notes to pages 25–38

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28 Morris, “Moral Standing and Rational-Choice Contractarianism,” 82–3. 29 Morris suggests that cooperators could insist on treating each other’s children with full rights like any other moral agent. Morris, “Idea of Moral Standing,” 267. Of course, his main argument is that we abandon internalism and the neurotic drive to justify every duty under a Hobbesian notion of justice. 30 Louis Groarke, for example, complains that contractarians “simply assume that agreements are morally good because they are agreed to.” Groake, Moral Reasoning, 420. 31 See, for example, Sandel, Liberalism and the Limits of Justice; C. Taylor, Philosophy and the Human Sciences, 187–210; Walzer, Spheres of Justice; and Gutmann, “Communitarian Critics of Liberalism.”

C h a p t e r T wo   1 The grass-counting example comes from Rawls, Theory of Justice, 432–3, but see also Parfit, Reasons and Persons, 499–500; Griffin, Well Being, 323, n29. For similar examples and discussion, see Murray, “Catalogue of Mistaken Interests”; Brink, Moral Realism and the Foundations of Ethics, 227; Wolf, “Happiness and Meaning,” 211; Scanlon, What We Owe, 89–90; and Raz, Morality of Freedom, 301, 307–8, 316.   2 In Plato’s Republic, Glaucon and Adeimantus present the basic contractarian picture as the established view. They wanted Socrates to explain what was wrong with it. For Epicurus’s account, see his Letter to Menoeceus.  3 Hobbes, Leviathan, ch. 13.  4 Hobbes, Leviathan, 65.   5 Groake, for example, complains that game theory can only tell us what benefits us “economically” and thereby cannot hope to capture anything about morality. Groarke, Moral Reasoning, 420.  6 Hobbes, Leviathan, 63.   7 For reciprocal altruists, see Trivers, “Evolution of Reciprocal Cooperation.” For constrained maximization in PDs, see Gauthier, Morals by Agreement, and Danielson, Artificial Morality. For the “fairman” strategy in ultimatum games, see Skyrms, Evolution of the Social Contract. For queuing behaviours in chicken-like games, see M. Murray, Moral Wager, 117–21. See also Alexander, “Group Dynamics in the State of Nature”; and Danielson, “Evolutionary Models of Co-Operative Mechanisms.”  8 Another N E is A D,AD, admittedly, assuming a shift from A D is cooperate, not reciprocally cooperate. The fact that R C ,R C is a superior NE to AD,A D, however, gives us all that we need.

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Notes to pages 38–43

  9 For the success of tit-for-tat in PD games, see Axelrod, Evolution of Cooperation; and Freidman, “NonCooperative Equilibrium for Supergames.” 10 See, for example, Danielson, Artificial Morality, 12–16. 11 S.J. Gould, Panda’s Thumb. 12 Brian Garvey gives the analogy of tinkering with your car engine. Without knowing what you are doing, a small tinker might make the car work better whereas a large tinker will much more likely make the engine stop working altogether. Garvey, Philosophy of Biology, 11. 13 See, for example, Gould and Vrba, “Exaptation”; or S.J. Gould, “Exaptation.” See also Ostrom, “Archaeopteryx and the Origin of Flight”; or Ostrom, “Bird Flight.” 14 See Selten, “What Is Bounded Rationality?”; or Boyd and Richerson, Culture and the Evolutionary Process. 15 J.L. Gould, Ethology, 164. 16 Cf. Sober and Wilson, Unto Others; Sober and Wilson, “Critical Review of Philosophical Work.” For why their arguments fail to be convincing, see M. Murray, Moral Wager, 135–40, or Garvey, Philosophy of Biology, 35–9. 17 Gigerenzer, Swijtink, Porter, Datson, Beatty, and Krüger, Empire of Change, 66. See also Ariew, “Population Thinking.” 18 Smith, “Science and Myth,” 374. 19 Moore’s “naturalist fallacy” occurs when one defines a nonnatural property in terms of a natural property. (G.E. Moore, Principia Ethica, 10.) It is true that if x is nonnatural, it cannot be reduced to something natural. That is a subset of the general error of claiming one thing is like a totally different thing. Admitting that naturalistic fallacies are fallacies, however, does not mean moral reductions are naturalistic fallacies, since it has not been established that morality is nonnatural. This is the thrust of Geach and Frankena’s rebuttals to Moore. (Geach, “Good and Evil”; Frankena, “The Naturalistic Fallacy.”) Most people, however, interpret Moore’s naturalistic fallacy as the familiar is–ought problem. (Hume, Treatise of Human Nature, 469–70.) 20 For Binmore’s objection to Social Darwinism, see Binmore, Game Theory and the Social Contract, 99–100. See also Joyce, Evolution of Morality, 221–2. 21 A word of caution is needed. Evolutionary theory does not demand that everything which survives must have evolutionary fit. Fitness cannot be defined in terms of actual survivability while survivability is predicated on the basis of fitness. We say, instead, trait x is fitter than trait y if and only if it has a higher probability of survival and/or a greater expectation of reproductive success than y. But x’s actual survivability does not entail x’s



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fitness. A trait now at fixation in some population may have reached fixation for any number of reasons. Natural selection is one possible cause but so are random genetic drift, mutation, and migration. And even if trait x’s survival is due to its past fitness, that does not guarantee it has fitness now. Having fitness in one environment does not guarantee its fitness in a changed environment. And what would have fitness now may have become extinct before an environment favourable to it arose. Still, empirical data favours the connection between fitness and survivability with a high enough probability that the onus lies in explaining how a trait survives that has no fitness. If moral behaviour really disadvantages owners of that disposition in terms of evolutionary fit, then we should predict the weeding out of morality. Conversely, if morality has remained, we should presume our ability to track its evolutionary benefits. 22 Though it is textbook, the explanation may seem problematic. The pepper moths’ main predator is the bat. Bats are not only nocturnal creatures – hence eating the nocturnal moths while they flit, not while they sleep on trees – they also hunt by sonar, not sight, so moth colouring should be irrelevant. The example would work if the moths’ main predators were birds, say, who hunt in the daylight by sight. 23 de Waal, Good Natured, 72–3, 145. 24 A difference between genetic and “memetic” evolution is that once a genetic trait dies off, it is not coming back. Not so with cultural fads; they can be resurrected at any time and in any combination, even with intent. 25 Kitano, “Biological Robustness”; West-Eberhard, Developmental Plasticity and Phenotypic Evolution. 26 See, for example, Sayre-McCord, “Introduction.” For an evolutionary ­noncognitivist position, see Prinz, Emotional Construction of Morals. 27 This is the Hobbesian contractarian line well argued in Gauthier’s Morals by Agreement. 28 Further distinctions may be necessary. For example, rules of the road concern strategic interactions with others but may not be deemed moral. 29 People commonly believe that morality and prudence may overlap but that there is a part of morality that lies outside of prudence. See the ­distinction between diagrams 3.1 and 3.2 in chapter 3. 30 David Hume concurs. Hume, Enquiries, 183–92. 31 See Mackie, Ethics, 25–7. 32 Kant, Grounding for the Metaphysics of Morals, Ak 416, 419–20. 33 For a nonnatural realist, see G.E. Moore, Principia Ethica. Natural realists include Bloomfield, Moral Reality; Brink, Moral Realism; Casebeer, Natural Ethical Facts; and Robinson, Praise and Blame.

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34 Mackie, Ethics, 38–42. 35 We can call this the fact–value problem. The burning cat example is Harman’s. Harman, Nature of Morality, 4–5. 36 Butler, “Upon Human Nature.” “[T]he light of natural reason, whereby we discern what is good and what is evil, which is the function of the natural law, is nothing else than an imprint on us by the divine light.” Aquinas, Summa Theologica. (XCI , 2nd Article). 37 Sturgeon, “Moral Explanations.” Page references are to the reprint edition. 38 Ibid., 234–35, though he uses Hitler’s depravity as the moral explanation. 39 Ibid., 248. 40 “[I]t should be clear that assessment of [Harman’s] thesis not merely permits, but requires, that we provisionally assume the existence of moral facts.” Ibid., 237. 41 “Otherwise his argument is not worth independent discussion.” Ibid., 237. 42 Harman, Nature of Morality, 8. 43 Ibid., 8. 44 Quine, “Epistemology Naturalized.” 45 Sturgeon, “Moral Explanations,” 251. Boyd and Wiggins also defend moral realism on a similar appeal. Boyd, “How to Be a Moral Realist”; Wiggins, “Truth, Invention, and the Meaning of Life.” See also McDowell, “Values and Secondary Qualities.” 46 Quine, “Epistemology Naturalized.”

C h a p t e r T hree  1 Gauthier, Morals by Agreement; Hobbes, Leviathan. In Plato’s Republic, Glaucon and Adeimantus present the basic contractarian picture as the established view. They wanted Socrates to explain what was wrong with it. For Epicurus’s account, see his Letter to Menoeceus. See also Hampton, Hobbes and the Social Contract Tradition; and Kraus, Limits of Hobbesian Contractarianism.   2 See Hampton, “Two Faces of Contractarian Thought,” 36; Kymlicka, “Social Contract Tradition,” 195–6; Kraus, Limits of Hobbesian Contractarianism, 27–8; B. Williams, Ethics and the Limits of Philosophy, 75. The distinction between contractarianism and contractualism is not uniform. Gary Watson, for example, treats the terms synonymously. Watson, “Some Considerations in Favor of Contractualism.” And rather than contractualism and contractarianism, Morris distinguishes between “constrained” and “unconstrained” contractarianism. Constrained contractarianism maintains that agreements are morally constrained; unconstrained



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contractarianism removes all moral preconceptions. Morris, “Justice, ­Reasons, and Moral Standing,” 189.  3 Scanlon, What We Owe; Scanlon, “Contractualism and Utilitarianism”; Rawls, Theory of Justice; Kant, Metaphysics of Morals; Rousseau, Social Contract.   4 Scanlon, “Contractualism and Utilitarianism,” 110.  5 Scanlon, What We Owe, 153.  6 Rawls, Theory of Justice, 17–22, 136–50.   7 This is too simplistic, as put, given Rawls’s endorsement of reflective equilibrium (Rawls, Theory of Justice, 20). We have a mechanism to yield a preconceived notion of fairness. If the mechanism fails to do so, we tinker with it until it does. Still, the preconceived notion is open for critical reflection through this process as well, or so we are led to believe.   8 See R. Dworkin, “Original Position,” 17–18.   9 Rawls’s thinking here is dubious. If everyone’s risk-behaviour were such that everyone always avoided the worst-case scenario, he would be hard pressed to explain skydiving or even driving a car. Even behind the veil of ignorance, we are presumably rational enough to recognize that wealth distribution is a relative concept, not an absolute concept. As put, we should expect a wealth distribution in the form of a bell curve where the very rich and the very poor represent a small fraction compared to the bulge in the middle. Thus, a rational gambler can predict that the probability of getting dealt the worst hand is too low to worry about. 10 Scanlon, What We Owe, 153. 11 See, for example, Morris, “Moral Standing and Rational-Choice Contractarianism,” 84. 12 Gauthier, Morals by Agreement, 4. See also Rawls, Theory of Justice, 16. 13 Gauthier, “Rational Constraint,” 327–8. See also Brandt, Theory of the Good and the Right, 110–15, and Griffin, Well Being, 10–17, for similar discussions. See also Rawls, Theory of Justice, 16. 14 Gauthier, “Why Contractarianism?,” 25. Finkelstein concurs: “That a certain treatment of another human being is consensual does not mean it is morally permissible,” in her “A Contractarian Argument,” 1310. 15 Rawls, Theory of Justice, 7. 16 Gauthier, Morals by Agreement, 21. 17 This also conforms to Raz’s account of how consent must be “performative.” Raz, Morality of Freedom, 81. 18 Hobbes, Leviathan, ch. 14, 67. 19 Perhaps this should read “… other reciprocal compliers.” See Danielson, Artificial Morality, 88–90.

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Notes to pages 59–72

20 Ken Binmore misrepresents Gauthier as following Locke’s natural law justification for morality in Binmore, Game Theory and the Social Contract, 14. Gauthier’s use of the Lockean proviso has nothing to do with that (Gauthier, Morals by Agreement, 222). On the other hand, the content of an appropriate agreement for Gauthier is tied with the antecedent constraints of the minimax relative concession, and it is not at all obvious that agreements by rational persons would necessarily invoke such demands without merely presuming equal starting positions. 21 Hobbes should have said “freedom,” since liberty is a right, and no rights exist yet. 22 Kraus, Limits of Hobbesian Contractarianism, 31. Contractualists also accuse contractarians of offering a purely self-regarding account of practical reason. That is, contractarians, but not contractualists, refuse to give any credence to the intuition that other persons or their well-being can provide a basic reason for one to act. For example, “our moral intuitions push us to assent to the idea that one owes that person respectful treatment simply in virtue of the fact that he or she is a person.” Hampton, “Two Faces of Contractarian Thought,” 49. 23 Gauthier, Morals by Agreement, 4–5; Rawls, Theory of Justice, 16. 24 For illustration, we say an elm tree is a subset of trees. There are distinct features about elm trees that other types of trees lack, but since it is a subset of trees in general, we do not feel we are amiss to call an elm tree just a kind of tree. We think it would be weird to say, “No, an elm tree is more than just a kind of tree.” When people speak of morality, however, they do not think it weird to say that morality is something more than prudential advice. They feel that we lose something when we say morality is just a kind of prudential advice. For them, morality is its own set, not a mere subset. I do not agree with them. No true reductionist can agree with them. But I think that same feeling of loss is lurking when people condemn evolutionary reductions.

C h a p t e r F our   1 See, for example, Steinbock, “Intentional Termination of Life.”   2 Robert Latimer, a Saskatchewan farmer, killed his twelve-year-old daughter, Tracy, on 24 October 1993. Latimer told police he loved his daughter and could not bear to watch her suffer from a severe form of cerebral palsy. He placed her in the cab of his Chevy pickup, ran a hose from the exhaust to the cab, climbed into the box of the truck, sat on a tire, and watched her die. Tracy had been repeatedly operated on and was due for



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more surgery, this time to remove a thigh bone. She could not walk, talk, or feed herself, though she responded to affection and occasionally smiled. According to her father, Tracy was in constant, excruciating pain yet could not be treated with a painkiller stronger than Tylenol. In 1994, Latimer was convicted of second-degree murder.  3 Mill, On Liberty, 133.   4 Recall caveat one. The bereaved family members of suicide victims are not concerned parties in the relevant sense, unless moral actions are equated to doing only what one’s family wants one to do.   5 See, for example, Callahan, “When Self-Determination Runs Amok”; Pellegrino, “Intending to Kill and the Principle of Double Effect.”   6 Foot, “Problem of Abortion and the Doctrine of Double Effect”; Thomson, “Killing, Letting Die, and the Trolley Problem”; Thomson, “Trolley Problem.”   7 Scanlon uses motives in this way to distinguish right actions from wrong actions, and, to that extent, dissolves the doctrine of double effect. Scanlon, Moral Dimensions.   8 See, for example, Foot, “Euthanasia.”   9 For example, McIntyre, “Doing Away with Double Effect.” See also Mill’s line: “He who saves a fellow creature from drowning does what is morally right, whether his motive be duty, or the hope of being paid for his trouble; he who betrays the friend that trusts him, is guilty of a crime, even if his object be to serve another friend to whom he is under greater obligations.” Mill, Utilitarianism, 26. 10 Geach invented the concept and term. See Geach, God and the Soul, 99. Parfit clarifies what is meant by a Cambridge change: “Any object undergoes a Cambridge change if there is any change in the true statements that can be made about that object. Suppose that I cut my cheek while shaving. This causes a real change in me. It also causes a change in Confucius. It becomes true, of Confucius, that he lived on a planet on which later one more cheek was cut. This is merely a Cambridge change.” Parfit, Reasons and Persons, Appendix I, 494. 11 Rachels, “Active and Passive Euthanasia.” 12 Steinbock, “The Intentional Termination of Life,” 60. 13 Rachels’s bathtub drowning analogy depicts two cases where an uncle intends to kill his nephew for an inheritance. In the first case, the uncle drowned the child; in the second case, the uncle watched the child drown, though his hand was ready to drown the child in case he recovered on his own. The common objection, therefore, focused on the immoral motive of each uncle in each case. Whereas in euthanasia, the motive is not itself

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immoral. (For example, Nesbitt, “Is Killing No Worse Than Letting Die?”) Such talk is irrelevant to Rachels’s point. 14 We can imagine scenarios where contractarians would allow you to knock the cigarette out of my mouth. Perhaps I am in your home or in a nonsmoking space or it is your cigarette or I have hired you to follow me around knocking cigarettes from my mouth in my attempt to quit smoking, etc. 15 Dowbiggin, for example, fears that euthanasia “initially designed to kill those who are a nuisance to themselves may someday engulf those who are a nuisance to others.” Dowbiggin, Concise History of Euthanasia, 107. See also Doerflinger, “Assisted Suicide”; Gay-Williams, “Wrongfulness of Euthanasia”; Callahan, “When Self-Determination Runs Amok”; and Dyck, “Alternative to the Ethic of Euthansia.” 16 Apart from Callahan’s “When Self-Determination Runs Amok,” see Kass, “Neither for Love or Money.” 17 Hardwig, “Duty to Die.” 18 This fits with Pineau’s discussion on date rape. Pineau, “Date Rape.” 19 Velleman, “Against the Right to Die,” 342. See also Callahan, “When SelfDetermination Runs Amok,” 53. 20 For example, Gaylin, Kass, Pellegrino, and Siegler, “Doctors Must Not Kill”; Gay-Williams, “The Wrongfulness of Euthanasia”; Pellegrino, “Distortion of the Healing Relationship.” 21 For example, Doerflinger, “Assisted Suicide,” and Foot, “Euthanasia.” 22 For more on the problems of living wills, see Fisher and Meslin, “Should Living Wills Be Legalized?” 23 “By selling himself for a slave, he abdicates his liberty; he foregoes any future use of it beyond that single act. He therefore defeats, in his own case, the very purpose which is the justification of allowing him to dispose of himself. … The principle of freedom cannot require that he should be free not to be free. It is not freedom to be allowed to alienate his freedom,” Mill, On Liberty, 158. 24 See Callahan, “When Self-Determination Runs Amok,” 53.

C h a p t e r Fi ve   1 For a non-Simpsons example, see English, “Abortion and the Concept of a Person.”   2 For Marquis, the moral permissibility of abortion stands or falls on the status of the fetus. Marquis, “Why Abortion Is Immoral.” See also Noonan, “Almost Absolute Value in History”; George and Lee, “Wrong of Abortion”; and Beckwith, “Arguments from Bodily Rights.”



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  3  Apart from English, “Abortion and the Concept of a Person,” see also Cudd, “Sensationalized Philosophy.”   4 Warren, “On the Moral and Legal Status of Abortion”; Tooley, “Abortion and Infanticide.” See also Paske, “Abortion and the Neo-Natal Right to a Life.”   5 English, “Abortion and the Concept of a Person.” See also Sumner, “Toward a Credible View of Abortion”; Sumner, Abortion and Moral Theory; McMahan, Ethics of Killing, 267–80; Quinn, “Abortion: Identity and Loss”; Gomberg, “Abortion and the Morality of Nurturance”; and Singer, “Taking Life,” 151.   6 Noonan, “An Almost Absolute Value.”   7 Callahan, “Abortion and the Sexual Agenda.”   8 I subscribe to an evolutionary account of morality (see chapter 2) and thus can tolerate “morals by momentum” (or overextended heuristics) in ways other theories cannot.   9 For argument’s sake, let us assume you are not the father of my child. I would make the same case even if you were but that requires extra manoeuvring. 10 Marquis, “Why Abortion Is Immoral.” 11 For criticisms of Marquis’s potentiality argument, see Paske, “Abortion and the Neo-Natal Right to a Life,” Norcross, “Killing, Abortion, and Contraception”; McInerney, “Does a Fetus Already Have a Future-LikeOurs?”; and Mills, “The Egg and I.” 12 Beckwith (“Arguments from Bodily Rights”), Callahan (“Abortion and the Sexual Agenda”), George and Lee (“The Wrong of Abortion”), Marquis (“Why Abortion is Immoral”), and Noonan (“An Almost Absolute Value”) all appeal to the shaky metaphysics of so-called inherent, natural, and intrinsic rights found in – not attributed to – all living things. 13 For arguments along this line, see Brandt, “Morality of Abortion”; but also McInerney, “Does a Fetus Already Have a Future-Like-Ours?,” and McMahan, The Ethics of Killing. 14 See Norcross, “Killing, Abortion, and Contraception,” and Mills, “The Egg and I,” for example. 15 I have modified the case given by Norcross, “Killing, Abortion, and Contraception.” Norcoss adds an (or another) interesting perspective. If a range of future possibilities include nice lives and terrible lives, might not nonexistence count in the middle of that continuum? If so, nonexistence can itself be deemed a future possibility. If so, denying abortion would be wrong for denying this fetus the potential of nonexistence. An interesting reductio ad absurdum. 16 Paske, “Abortion and the Neo-Natal Right to a Life.”

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Notes to pages 94–102

17 George and Lee highlight how the “morally required” sacrifice of the mother is less burdensome than the harm that would be done to the “child” by abortion. George and Lee, “The Wrong of Abortion,” 85. 18 English (“Abortion and the Concept of a Person”) argues that all abortions are cases of self-defence, if we mean the defence of our livelihoods. 19 See also Jagger, “Abortion and a Woman’s Right to Decide.” 20 Thomson, “Defense of Abortion.” For a similar point, though not related to abortion, see Schmidtz’s discussion of the difference between type and token costs. Schmidtz, “Islands in a Sea of Obligation.” 21 Brody, “Thomson on Abortion.” 22 Callahan, “Abortion and the Sexual Agenda.” For similar arguments emphasizing the overriding responsibility to the child that comes with being pregnant, see Marquis’s “Why Abortion Is Immoral,” Noonan’s “An Almost Absolute Value,” George and Lee’s “The Wrong of Abortion,” and Beckwith’s “Arguments from Bodily Rights.” 23 Gomberg, “Abortion and the Morality of Nurturance.” 24 For example, Elizabeth Harman, “Creation Ethics: The Moral Status of Early Fetuses and the Ethics of Abortion”; and Hursthouse, “Virtue Theory and Abortion.” 25 As well as Beckwith, “Arguments from Bodily Rights,” and Callahan, “Abortion and the Sexual Agenda,” see Wolf-Devine, “Abortion and the ‘Feminine Voice.’” 26 Radcliffe Richards, Sceptical Feminist, 221–6. For a similar worry, this time with multiple fetuses, see Overall, “Selective Termination of Pregnancy.” If abortion in the case of multiple yet compatible fetuses – for the benefit of the surviving fetus – is permissible, then it cannot be said that any fetus has a right to be carried to term. Admittedly, denying the antecedent is logically possible. 27 English, “Abortion and the Concept of a Person,” also takes the line that every abortion should count as a case of self-defence. 28 Gomberg, “Abortion and the Morality of Nurturance.” 29 Callahan, “Abortion and the Sexual Agenda,” Beckwith, “Arguments from Bodily Rights,” and Hursthouse, “Virtue Theory and Abortion,” for example. 30 Thomson, “A Defense of Abortion.” 31 George and Lee, “The Wrong of Abortion,” 83–4. But see also Beckwith, who, in her “Arguments from Bodily Rights,” complains that when one is completely responsible for dependence, refusing to help constitutes killing. For Wolf-Devine, “Abortion and the ‘Feminine Voice,’” killing of fetuses is the opposite of caring – the component on which, supposedly, all feminists



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base their ethics. Callahan, “Abortion and the Sexual Agenda,” fits in here as well. 32 For worries about abortions for sex selection, see Hursthouse, Beginning Lives; and Shrage, Abortion and Social Responsibility. Harris gives a case where a woman has an abortion in order to punish the man. (Harris, “Fathers and Fetuses.”) In such cases, the wrongs can be identified independently of the abortion and, thus, are irrelevant to the moral status of abortion. 33 See Dimock, “Why All Feminists Should Be Contractarians.” 34 Contra McDonagh, Breaking the Abortion Deadlock; Petchesky, Abortion and Women’s Choice; and S. Sherwin, No Longer Patient.

Chapter Six   1 See, for example, Bedau, “Case against the Death Penalty.”   2 This favour may come from a witness to your altruism, not necessarily the recipient of your altruism. It may even come from a nonwitness as long as that person also buys into an ex ante agreement to be periodically altruistic when periodic altruism is not too costly and enough others also buy into the pact. See chapter 10.   3 William Rhodes, C. Dyous, R. Kling, D. Hunt, J. Luallen, “Recidivism of Offenders on Federal Community Supervision,” prepared for the Bureau of Justice Statistics and Office of Probation and Pretrial Services, 2010; or Michael Crews, “Factors Affecting Recidivism Rates,” prepared for the Florida Department of Corrections, 2001.   4 Two million persons are in prisons and jails in the US in a given year. On average, 650,000 are released every year. Two thirds of those are expected to return to jail within three years. Most rehabilitation programs show no significant decline in recidivism rates, though slight variation depending on the type of crime can be found (e.g., Duwe and Kerschner, “Removing a Nail from the Boot Camp Coffin”). And even programs that claim ­success boast no more than 8 to 11 per cent reduction in recidivism rates (e.g., Anderson et al., “Does Correctional Treatment Work?”; D. Robinson, “The Impact of Cognitive Skills Training on Post-Release Recidivism among Canadian Federal Offenders” (Ottawa Correctional Service Canada, 1995); Lösel, “Efficacy of Correctional Treatment”; Lipsey and Wilson, “Efficacy of Psychological, Educational and Behavioral Treatment”).   5 “[M]any were left unsatisfied by [McVeigh’s] clinical, imperceptible demise” quoted in [CP], “Relatives’ Hopes for Deathbed Contrition

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Denied,” Guardian, 12 June 2001, B5. Not all executions go so neatly, however. For some unsavoury examples, see Bedau, “Case against the Death Penalty,” 223–5.   6 See, for example, Perlmutter, “Desert and Capital Punishment”; Hook, “The Death Sentence”; Gelernter, “What Do Murderers Deserve?”   7 See, for example, Reiman, “Justice, Civilization, and the Death Penalty.” Bedau, “Case against the Death Penalty,” 225.   8 “For there to be equivalence, the death penalty would have to punish a criminal who had warned his victim of the date at which he would inflict a horrible death on him and who, from that moment onward, had confined him at his mercy for months. Such a monster is not encountered in private life.” Camus, “Reflections on the Guillotine,” 195.   9 Prior to the execution of the 1995 Oklahoma City bomber, Timothy McVeigh, a cartoon by Dolighan depicted a befuddled Uncle Sam holding in one hand a dull, bloody sword with the word “vengeance.” In his other arm, he holds a small child. The earnest child asks, “Uncle Sam, why do we have the death penalty if killing is wrong?” Uncle Sam answers, “… It’s because killing is wrong … And uh … Say how old are you anyway?!” 10 Or, worse, that only the state has the right to kill. See Nathanson, “An Eye for an Eye?” 11 “Innocent” is not the best word, I admit. An innocent person may be hypnotized to kill you, and your killing that hypnotized person in self-defence may be justified. Nor can I say “currently threatening” for that would bias the argument against capital punishment. 12 The same response may be given to those who argue that the death penalty robs people of their dignity. See Murphy, Retribution, Justice and Therapy, 223–49. By extension, so, too, would any form of punishment. 13 See van den Haag, “The Ultimate Punishment”; Pojman, “Why the Death Penalty Is Morally Permissible”; Shaw, “Punishment and the Justice System.” 14 Bedau, “Case against the Death Penalty,” Hook, “Death Sentence,” and Glover, Causing Death and Saving Lives, 228–40. 15 We may give certain probabilities for (1) being apprehended for a crime warranting the death penalty, (2) being convicted, (3) being given the death penalty instead of imprisonment, (4) losing an appeal, and (5) the death penalty being applied promptly enough. The combined probability seems too low to secure a feasible deterrence factor for the death penalty. 16 See Reiman, “Justice, Civilization, and the Death Penalty.” 17 For the opposite view, however, see Marquart and Sorensen, “National Study of the Furman-Commuted Inmates.”



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18 In my undergraduate days, I volunteered for the John Howard Society, a penal reform group. I also worked as a researcher for the Correctional Service Canada examining the effectiveness of treatment programs. In both capacities, I received tours of various institutions, including the ­special handling units. 19 Bedau, “Case against the Death Penalty,” 226; Spangenberg and Walsh, “Capital Punishment or Life Imprisonment”; Bright, “Death Penalty as the Answer.” 20 For cases, see Bedau and Radelet, “Miscarriages of Justice in Potentially Capital Cases.” 21 Black, Capital Punishment; Bowers and Pierce, “Arbitrariness and Discrimination under Post-Furman Capital Statutes”; Gross and Mauro, Death and Discrimination. 22 Hook (“Death Sentence”) raises the worry, but see also Acker, “Empire Strikes Back”; Gerbasi, Zuckerman, and Reis, “Justice Needs a New Blindfold”; Bowers, “Capital Jury Project”; Lafferty, “Florida’s Capital Sentencing Jury Override”; Hood, Seemungal, Mendes, and Fagan, Penalty without Legitimacy. 23 Nathanson, “Does It Matter If the Death Penalty Is Arbitrarily Administered?” 24 Gross, “Risks of Death”; Penrod and Hastie, “Models of Jury Decision Making”; Erlanger, “Jury Research in America.” 25 For example, Narveson, Moral Matters, 81–108, and Nino, “Consensual Theory of Punishment.” 26 Morris, “Punishment and Loss of Moral Standing.” 27 Ibid., 75. 28 This should prevent Alexander, for example, from saying that contractarians cannot complain about the use of capital punishment for any crime, including stealing a loaf of bread. See Alexander, “Consent, Punishment, and Proportionality.” 29 Or hypothetically agreed or ought to have agreed. For more on this complication, see chapter 3. 30 Finkelstein, “A Contractarian Argument,” 1322. 31 Hobbes, Leviathan, ch. 14, ¶8, 68. 32 Finkelstein, “A Contractarian Argument,” 1316. 33 Ibid., 1317. 34 Ibid. 35 Finkelstein makes a strange remark about driving. “That I consent to run a risk that someone will crash his car into mine … does not entail that I consent to his doing so” (ibid., 1312). On the one hand you do. What you

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Notes to pages 117–22

do not accept is that he did so intentionally. The accepted risk calculation concerns accidents, not intentional harms. 36 The “avoid risks at all costs” mentality is Rawls’s maximin formula. Rawls, Theory of Justice, 154–5. 37 Reiman, “Justice, Civilization, and the Death Penalty.” 38 It is true that a prisoner can still achieve certain goals that one cannot when dead, as Finkelstein elaborates in her “Contractarian Legal Theory” (unpublished M S , 16 September 2011 draft), 308. One has to balance that against the horrors of being imprisoned. 39 Narveson, Moral Matters, 98–9. 40 Claire Finkelstein also takes this default stance. “The death penalty cannot legitimately be imposed unless there is some affirmative argument justifying it, which is not overcome by arguments against it.” Finkelstein, “A Contractarian Argument,” 1307.

C h a p t e r S e ven  1 MacKinnon, Feminism Unmodified, 172–6; Dworkin, “Pornography Is a Civil Rights Issue.” For both, pornography sexualizes rape.   2 Hill, “Pornography and Degradation”; Longino, “Pornography, Oppression, and Freedom”; Garry, “Pornography and Respect for Woman.”   3 For those against interference, see Tong, “Feminism, Pornography, and Censorship”; Wicclair, “Feminism, Pornography, and Censorship”; Strossen, “Why Censoring Pornography.”   4 As Willis suspects, for example. Willis, “Feminism, Moralism, and Pornography.” See also Segal, Straight Sex.   5 That is why Andrea Dworkin feels justified to claim, “When your rape is entertainment, your worthlessness is absolute” (A. Dworkin, “Pornography Is a Civil Rights Issue,” 279). For MacKinnon, “Pornography sexualizes rape, battery, sexual harassment, prostitution, and child sexual abuse” (MacKinnon, Feminism Unmodified, 171).   6 Steinberg, “Roots of Pornography,” 397; Palys, “Testing the Common Wisdom”; Christensen, Pornography, 58–61.  7 Brownmiller, Against Our Will, 394.   8 For example, Scoccia permits banning violent pornography on liberal grounds but not pornography in general. Scoccia, “Can Liberals Support a Ban on Violent Pornography?”   9 As Willis, for example, defines pornography. Willis, “Feminism, Moralism, and Pornography,” 446. 10 See the discussion in Rosen, “‘Miller’ Time.”



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11 See the harrowing story of the Deep Throat actress née Linda Boreman. Lovelace and McGrady, Ordeal. 12 For present purposes, I will avoid the worry about when a child becomes competent. 13 See Hartsock, Money, Sex, and Power, 169–70. For Alan Soble, pornography attracts and maintains powerlessness. Soble, Pornography, 78–84. 14 Here I assume marriage, or relationships, can be viewed as a kind of contract among consenting participants and that one of the explicit or implicit clauses of that contract is sexual exclusivity. As put, adultery appears to be a clear case of a violation of the contractarian principle demanding consent. (Mendus, “Marital Faithfulness.”) On the other hand, perhaps the standard Western marriage vow of “I will love you [etc.] for the rest of my life” is the sort of promise no one can rightfully make. We might tolerate it as a boast but not a binding oath. Beyond the worry about one’s distant future selves (Parfit, Reasons and Persons), love is not typically something that can be willed (Firestone, Dialectic of Sex, 222–32). It is as sensible as promising to love someone’s next poem. They are hollow promises. Besides, all contracts are conditional, never unconditional. Adultery, thereby, is not necessarily a violation of the contract if one of the implicit conditions of sound relations is already missing. (hooks, Talking Back, 84–91; Nozick, The Examined Life, 68–86; and Halwani, “Virtue Ethics and Adultery.”) 15 At least one study indicates a negative correlation between a woman’s sexual satisfaction and her partner’s pornography use. Stewart and Szymanski, “Young Adult Women’s Reports.” 16 For a nice overview, see Strossen, “Why Censoring Pornography.” For detailed studies, see Linz, Penrod, and Donnerstein, “Attorney General’s Commission”; Linz, Donnerstein, and Penrod, “Effects of Long-Term Exposure”; Luder, Pittet, and Berchold, “Associations between Online Pornography.” 17 Gentry, “Pornography and Rape”; Baron and Straus, “Four Theories of Rape”; Scott and Schwalm, “Pornography and Rape”; Pally, Sex and Sensibility. 18 MacKinnon, Feminism Unmodified, 193. 19 In response to the lack of empirical data, MacKinnon says that is because the harms from pornography are so prevalent, society no longer see them as harms (ibid., 155). Andrea Dworkin claims that we are so saturated with both pornography and violence against women, that any social ­scientific research not finding a link is obviously “invalid” (Dworkin, “Pornography Is a Civil Rights Issue,” 282). 20 Hill, “Pornography and Degradation,” 157. 21 Beneke, Men on Rape.

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22 Or almost. She says that “[w]hatever negative consequences the sale of pornography might have … they are not thought to be serious enough to warrant censorship.” J. Hill, “Pornography and Degradation,” 160. 23 Steinberg, “Roots of Pornography,” 397. See also Palys, “Testing the Common Wisdom,” and Christensen, “Pornography.” Strossen (“Why Censoring Pornography”) notes how pornography constitutes only a small subset of sexist or violent imagery that pervades our culture, an idea shared by Duggan, Hunter, and Vance, “False Promises.” 24 Demare, Bruce, and Lips, “Violent Pornography and Self-Reported Likelihood.” 25 According to Steinberg, female lust and female expression of male desirability account for at least 75 per cent of pornography imagery. Steinberg, “Roots of Pornography,” 397. 26 Ibid., 397–8. See also Barbaree and Marshall, “Role of Male Sexual Arousal.” 27 Hill, “Pornography and Degradation,” 157. 28 Ibid., 156. 29 Apart from Wicclair (“Feminism, Pornography, and Censorship”) and Willis (“Feminism, Moralism, and Pornography”), see R. Dworkin, “Liberty and Pornography”; and Richards, “Moral Theory of Free Speech.” 30 The claim of libel is not that pornography’s misrepresentation of women is a violation of women’s right to be heard (MacKinnon, Feminism Unmodified, 172–6). Nor is it the claim that pornography silences women’s ability to define themselves as nonsexualized agents (Tirrell, “Pornographic Subordination”). While anyone can understand the frustration of not being taken seriously, the right of free expression does not equal the right to be heard (R. Dworkin, “Liberty and Pornography”). No one has that latter right. So, even if pornography lowers men’s ability to take a woman seriously, that would not be a rights violation. 31 See also Longino, “Pornography, Oppression, and Freedom,” 193. And Garry (“Pornography and Respect for Woman”) complains about how pornography depicts women as having no interests other than having indiscriminate sex … against the background, admittedly, of an already sexist culture. 32 One might as well say, “No woman would autonomously consent to participate in pornography or its depicted acts because doing so is evidence they have not autonomously consented.” A nice definitional fiat. 33 Longino, “Pornography, Oppression, and Freedom,” 191. Her evidence? She does not have to research, given the covers of porn magazines staring at her from corner store displays (ibid., 194).



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34 See Steinberg, “Roots of Pornography,” 397–8. 35 Longino, “Pornography, Oppression, and Freedom,” 192. See also MacKinnon, Feminism Unmodified, 148. 36 J. Hill, “Pornography and Degradation,” 118. Her examples include the “mindless playmate” and the “nymphomaniac.” 37 Garry (“Pornography and Respect for Woman”), A. Dworkin (“Pornography Is a Civil Rights Issue”), and MacKinnon (Feminism Unmodified) all believe so. 38 For the worry about what counts as “derogatory,” see also Radcliffe Richards, Sceptical Feminist, 197–202. 39 Hill, “Pornography and Degradation,” 118. 40 Or at least generally. Female pornographers exist. 41 Garry, “Pornography and Respect for Woman.” 42 Austin, How to Do Things with Words. 43 For MacKinnon, “saying it is doing it.” MacKinnon, Only Words, 13. For clearer presentations, see Saul, “Pornography, Speech Acts and Context”; and Langton, “Speech Acts and Unspeakable Acts.” 44 For example, Forna, “Pornography and Racism.” 45 Hill, “Pornography and Degradation,” 161, n3. 46 For Soble, pornography users are too powerless to have dates. Pornography is a crutch for men, not an expression of male power. Soble, Pornography, 78–84. 47 For the view that pornography is no worse for women than any other aspect of a misogynist culture, see Duggan, Hunter, and Vance, “False Promises,” 286, 290. 48 For those noting little difference between marriage and prostitution, see Lathan, “Selling Celibacy”; Wollstonecraft, “A Vindication of the Rights of Men,” 247; Goldman, “Traffic in Women,” 179; de Beauvoir, The Second Sex, 619. For those who see prostitutes having more power than wives, see D’Aaran, “I’m a Hooker”; Chapkis, “Power and Control in the Commercial Sex Trade”; and Chapkis, Live Sex Acts. 49 Though Pateman believes, given patriarchy, a prostitute is necessarily a woman. Pateman, Sexual Contract, 192. 50 As Pateman complains. Ibid., 193. 51 Carter gives a nicer account of her patrons. Carter, “A Most Useful Tool.” 52 For somewhat similar defences, see Ericsson, “Charges against Prostitution”; Radcliffe Richards, Sceptical Feminist, 198–202; and Richards, Sex, Drugs, Death, and the Law. 53 See Jaggar, “Prostitution”; and Pateman, “Defending Prostitution.” 54 Hoigard and Finstad, Backstreets, 180.

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55 For example, see Pateman, Sexual Contract, 195–9. 56 Jaggar, “Prostitution,” 108. 57 Pateman, “Defending Prostitution,” 564. 58 Pateman, Sexual Contract, 1–2, 6–8. 59 Ibid., 198. 60 Gauthier, Morals by Agreement, 11. 61 Pateman, Sexual Contract, 200. 62 Kant, Grounding for the Metaphysics of Morals, Ak. 427–8. 63 Jaggar, “Prostitution,” 103; Pateman, “Defending Prostitution,” 562; and Barry, Female Sexual Slavery, for example. 64 Ericsson, “Charges against Prostitution,” 341. See also D’Aaran, “I’m a Hooker,” 381. 65 Pateman, “Defending Prostitution,” 562. Miriam notes that prostitutes sell – if not their bodies – command over their bodies. Miriam, “Stopping the Traffic in Women.” 66 “Mankind are greater gainers by suffering each other to live as seems good to themselves, than by compelling each to live as seems good to the rest.” Mill, On Liberty, ch.1, pr 13. 67 See, for example, Radin, “Market-Inalienability,” 1884; and Anderson, Value in Ethics and Economics, 45. 68 Pateman, Sexual Contract, 206. 69 Mackie, Ethics. 70 I discuss this argument in more detail in chapter 2. 71 Hume, Enquiries, III, I, 145–9 (183–8); Gauthier, Morals by Agreement, 16. 72 For example, Shrage, “Should Feminists Oppose Prostitution?”; Pateman, Sexual Contract, 189–218; Jaggar, “Prostitution”; Jeffreys, The Idea of Prostitution; Barry, The Prostitution of Sexuality; Millett, The Prostitution Papers. 73 Kesler, “Is a Feminist Stance in Support,” 219. 74 Pateman, Sexual Contract, 196. Some of the feminist charges are speculative, to say the least. Pateman, for example, suspects that the increase in fellatio over the years has a causal link to the increase in feminist voice over those years, as if men are intent on stifling women’s freedom of speech. Ibid., 259n33. 75 Satz believes the second option would hold. Satz, “Markets in Women’s Sexual Labor.” 76 For MacKinnon, “Money is the medium of force and provides the cover of consent.” MacKinnon, Only Words, 28. 77 See Millett, Sexual Politics, 123. 78 Pateman, Sexual Contract, 192–3.



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79 See Chapkis, Live Sex Acts. 80 For example, the views expressed by MacKinnon, Feminism Unmodified, and A. Dworkin, Intercourse.

C h a p t e r E ight   1   2   3   4   5

Pineau, “Date Rape.” Ibid., 308. For example, Paglia, Sex, Art, and American Culture. Bellioti, “Philosophical Analysis of Sexual Ethics.” Kittay, “Ah, My Foolish Heart.” “The belief that a woman generates some sort of contractual obligation whenever her behavior is interpreted as seductive is the most indefensible part of the mythology of rape.” Pineau, “Date Rape,” 308.   6 As Antioch’s Sexual Policy recognizes. See Soble, “Antioch’s ‘Sexual Offence Policy.’”   7 In rites, the final bit of the process of consent may be an act, like “I do” in a wedding vow. Oaths or signatures make the contract official, but no contractarian can view marriage oaths as permanent and unconditional, since that would allow abuse. See Firestone, The Dialectic of Sex, 222–32; hooks, Talking Back, 84–91; Nozick, Examined Life, 68–86; and Halwani, “Virtue Ethics and Adultery,” 5–18. For a contrary view, see Mendus, “Marital Faithfulness.”  8 Narveson, Moral Matters, 298, for example.   9 Pineau, “Date Rape,” 310. See also Pateman, Sexual Contract, 14–15; and Kittay, “Ah, My Foolish Heart.” 10 Among others making this point, see Tong, Women, Sex, and the Law, 63–89. 11 MacKinnon also wants to reverse the burden of proof: that is, we ought to assume nonconsent unless proven otherwise. MacKinnon, Sexual Harassment of Working Women; MacKinnon, Towards a Feminist Theory of the State, 172–83. 12 Pineau, “Date Rape,” 305–6. 13 West, “Harms of Consensual Sex.” 14 Farrell defends a man’s persistence for sex. Farrell, “Politics and Psychology of Rape, Sex, and Love,” 43. 15 As West maintains in “Harms of Consensual Sex.” For arguments against such nonfalsifiable thinking, see Radcliffe Richards, Sceptical Feminist, 76–88. 16 Pineau, “Date Rape,” 310.

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17 Muehlenhard and Linton, “Date Rape and Sexual Aggression.” 18 Farrell, “Politics and Psychology of Rape,” 42–3. He seems only to consider mutual inebriation, however. 19 See, for example, Bayles, “Coercive Offers and Public Benefits,” 142–3. 20 Tong, Women, Sex, and the Law, 69. See also Hughes and May, “Sexual Harassment,” 255–6. 21 See David Velleman, for example, “Against the Right to Die.” 22 This is Velleman’s own example. Ibid., 340. 23 Parfit, Reasons and Persons, Appendix I: “What Makes a Person’s Life go Best?,” 494. 24 For worries about how many women fear sexual assault, see BurgessJackson, “Justice and the Distribution of Fear”; and Gordon and Riger, Female Fear. 25 Mappes, “Sexual Morality.” 26 See also Goldman, “Plain Sex.” 27 See, for example, Dziech and Weiner, Lecherous Professor. 28 This thinking coincides with Bradley, “My Station and Its Duties.” 29 Gass offered this latter hypothetical example as an objection to contractarian theory. Gass, “Case of the Obliging Stranger,” 193–204. See my response in chapter 1, section 4.2. 30 See, for example, Nozick, Anarchy, State, and Utopia, 84; and Gauthier, Morals by Agreement, 204. Rosemarie Tong, on the other hand, defines coercion as “adversely changing the options available for the victim’s choosing” (Tong, Women, Sex, and the Law, 68). Offering something wonderful and then recanting can hardly be deemed coercive, though. 31 May and Strikwerda, “Men in Groups.” 32 Contrary to LeMoncheck, Dehumanizing Women, 5–42. 33 See Austin, How to Do Things with Words; and Searle, Speech Acts. Of mild concern is Austin’s weakening of the distinction between speech acts and statements: “[S]tating something is performing an act just as much as is giving an order or giving a warning.” Austin, Philosophical Papers, 251. 34 Saul interprets requests to make a request for sex as also being cases of sexual harassment under certain situations. Saul, Feminism, 63. 35 Gauthier, Morals by Agreement, 23, 29–38. 36 I thank Peter Vallentyne for giving me this example in conversation. 37 See Mill, On Liberty, chapter 5, 95. 38 Rawls, Political Liberalism, 3–4. See also Hobbes, Leviathan, chapter 6, 24. 39 Gauthier, Morals by Agreement, 9. 40 For Scanlon, an act is right if it is permitted by principles that could not reasonably be rejected. Scanlon, What We Owe, 4–5.



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41 The following is due to one of my many profitable discussions with Paul Viminitz. 42 Importantly, he is not treating her as a mere means to his sexual gratification. If he did not ask, but merely forced himself upon her, then he would be treating her as a mere means to his ends. 43 For similar concerns, see Paul, “Bared Buttocks and Federal Cases,” 4–7. 44 See LeMoncheck, Dehumanizing Women, 6, for example. 45 Apart from Farrell, “Politics and Psychology of Rape,” Radcliffe Richards, The Sceptical Feminist, and Paul, “Bared Buttocks,” see Roiphe, Morning After; Christensen, “‘Sexual Harassment’ Must Be Eliminated”; and Crouch, Thinking about Sexual Harassment, 169.

C h a p t e r Ni ne   1 We do not think it odd to hear how many Americans were killed in Afghanistan, but the tragedy befalls anyone killed, not just Americans. As Basu notes, imagine the uproar if the news reported the number of whites killed in Afghanistan today or the number of Catholics killed in Afghanistan today. Basu, “Racial Conflict and Malignancy of Identity,” 223.   2 See, for example, Shipman, Evolution of Racism.   3 Contractarians permit same-sex marriage. This may seem to conflict with an evolutionary account. After all, it is difficult to see in what sense homosexuality is a naturally selected trait. If everyone became homosexual and no artificial means of reproduction were used, humans would die out. Variation is an essential ingredient in evolution, however, given changing environments. This means that no evolutionary argument can say that a nonadaptive trait is nonnatural, let alone abnormal. Approximately 99 per cent of all known species are extinct. This shows that the evolutionary norm is nonadaptation. Surviving traits are the nonnormal ones. For more on this, see my “Homosexuals and the Adoption Question.”   4 See, for example, Prinz, Emotional Construction of Morals.   5 For the success of tit-for-tat in prisoner dilemma (PD) games, see Axelrod, Evolution of Cooperation; and Freidman, “NonCooperative Equilibrium,” 1–12. For reciprocal altruists, see Trivers, “Evolution of Reciprocal Cooperation.” For constrained maximization in PDs, see Gauthier, Morals by Agreement, and Danielson, Artificial Morality. For the “fairman” strategy in ultimatum games, see Skyrms, Evolution of the Social Contract. For queuing behaviours in chicken-like games, see M. Murray, Moral Wager, 117–21.

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  6 “Like-minded” is best translated as “similarly programmed” to avoid assuming our agents are psychological beings. This worry does not come up for “mind” reductionists.   7 Defection is the rational choice in a single PD, since whatever the other player does, you do one better defecting compared to cooperating. As Binmore reminds us, “[i]f the players have the power to alter their preferences or to commit themselves to behaving in ways before the play of the Prisoner’s Dilemma, then it is not the Prisoner’s Dilemma that they are playing.” (Binmore, Game Theory and Social Contract, 27). There are situations in which the prudent resolve under uncertainty may be to cooperate, however. This would be when the odds of bumping into a cooperator are sufficiently higher than the odds of bumping into a defector. Such a world is not Hobbes’s state of nature. If we are no longer in a state of nature, and cooperators sufficiently outnumber defectors, and one’s detection skills are only periodically damaged, testing the waters with a tentative “coop” move when in doubt will do better than the so-called prudent “defect.” But part of the lure of replicator dynamics is to explain how we got to such a state in the first place. Similarly, one might be inclined to conceive tit-for-tat (TFT) as a strategy in which “cooperate” is the default. Certainly this is so on the first move. Since TFT generally prevails in competitions, this may undermine treating “defect” as the prudent default. But here, I am speaking of uncertainty. To make that fit the TFT strategy, a T F T agent will be unable to remember a previous play. A memory-taxed T F T would be indistinguishable from an unreciprocal cooperator and would fare poorly. A partially forgetful TFT, on the other hand, may be closer in line to tit-for-two-tats.   8 Paul Viminitz has made a case for this in his game theoretic analysis of racism (unpublished).  9 T F T responds to you according to how you responded with him in the previous play. An RC, on the other hand, predicts how you will likely respond in the current interaction. Thus, while a TFT can get exploited by a defector on the first play, an RC should avoid that initial cost. Thus an RC can do better than a TFT. 10 Allport, Nature of Prejudice. 11 See Basu, “Racial Conflict and Malignancy,” 224, who cites Li, Dunning, and Malpass, “Cross-Racial Identification.” 12 Grim et al., “Modelling Prejudice Reduction.” I use R C agents in nonspatialized games and, counter to Grim et al.’s expectation, get similar results. 13 Kollock, “Transforming Social Dilemmas.” See also Deutsch, “Social Psychology’s Contributions.”



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14 For an account of the game theoretic method and results, see M. Murray, “Prejudice and Evolutionary Game Theory.” 15 See Jones, “Fairness, Meritocracy, and Reverse Discrimination.” 16 For quota defences, see, for example, Rachels, “In Defence of Quotas.” 17 For example, see O. O’Neill, “How Do We Know When Opportunities Are Equal?” 18 In particular cases, doubt may exist, since alternative explanations for systematic differences in pay, for example, can be given without recourse to racial or sexist discrimination. For example, women, not men, tend to leave work to raise children, and this may account for some of the differences between men and women’s pay and promotion. J. O’Neill, “Argument against Comparable Worth.” Similarly, differences in pay between men and women in academia may exist not because of present discrimination but past discrimination. In Canadian universities, for example, the percentage of women hired in the 1995–96 academic year was 18 per cent. In the 2001–02 academic year it rose to 44 per cent primarily due to affirmative action programs. Since so many women are new hires compared to the number of men who are old hires, differences between men’s and women’s pay in academia will not reflect current sexism but seniority. In both cases, sexism is revealed, however. Why is it that men do not take more responsibility with child rearing? Why does past discrimination have a long shelf life? 19 Narveson, Moral Matters, 301–16. Because Narveson focuses on private business exclusively, one might suspect his argument is irrelevant for public institutions. He happens also to think much of what we take as natural public institutions ought also to be private, however. See Narveson, Libertarian Idea. See also Thomson on the private–public distinction. Thomson, “Preferential Hiring.” 20 See also Newton for worries about shifting from rights to merely petitioning for favours. Newton, “Reverse Discrimination as Unjustified.” 21 Narveson, Moral Matters, 310. 22 Ibid., 311. 23 Beauchamp, “Goals and Quotas,” 397. 24 Narveson, Moral Matters, 308. 25 Ibid., 305, 308–9. 26 The rule is not to hire on the basis of sex or race when neither sex nor race are relevant features to the job description. A strip joint for heterosexual males can refuse to hire male dancers, for example. Narveson speaks about it being fine for a basketball team to hire mainly blacks for being black (Narveson, Moral Matters, 314). I think he is wrong. Even if being a

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good player and being black are positively correlated, this shows only an explanation for the higher proportion of blacks on the team, as opposed to showing that they hired on the basis of being black. 27 See Newton, “Reverse Discrimination”; Scalia, “The Disease as Cure”; and C. Murray, “Affirmative Racism.” 28 See, for example, Thomson, “Preferential Hiring”; Mosley, “Affirmative Action: Pro”; Sunstein, “Limits of Compensatory Justice,” 306; and Bayles, “Compensatory Reverse Discrimination in Hiring.” 29 Hettinger, “What Is Wrong with Reverse Discrimination?”; Nagel, “Defence of Affirmative Action”; R. Dworkin, “Bakke’s Case”; Goldman, “Limits to the Justification of Reverse Discrimination”; Sumner, “Positive Sexism”; Hurka, Principles, 161–4; and Beauchamp, “Goals and Quotas.” 30 Sowell, “‘Affirmative Action’”; Pojman, “Why Affirmative Action Is Immoral”; Blackstone, “Reverse Discrimination and Compensatory Justice”; Steele, “Affirmative Action”; Heilman, “Sex Discrimination and the Affirmative Action Remedy”; and Dimock and Tucker, “Affirmative Action and Employment Equity in Canada.” 31 See both Thomson, “Preferential Hiring,” and J. O’Neill, “Argument against Comparable Worth.” 32 Slippery slope complaints can be found in Newton, “Reverse Discrimination”; Goldman, “Limits to the Justification of Reverse Discrimination”; Scalia, “Disease as Cure”; Steele, “Affirmative Action”; and Sowell, “‘Affirmative Action.’” 33 Jones, “Fairness, Meritocracy, and Reverse Discrimination”; Thomson, “Preferential Hiring”; Mosley, “Affirmative Action: Pro.” 34 For a similar response, see Rachels, “In Defence of Quotas,” 304. 35 There are a minority who disagree. See, for example, Sober and Wilson, “Critical Review,” and Sober and Wilson, Unto Others. For why the arguments have been discredited, see my Moral Wager, 135–41; or Garvey, Philosophy of Biology, 35–9. 36 Jan Narveson disagrees, at least as long as we keep the concept of “harm” out of the meaning of discrimination. I may harm you because I am racist, but the wrong of my harming you already condemns me. If discrimination has no harm, we cannot automatically claim discrimination harms. Narveson, Moral Matters, 302. Of course, if courts, police, and white people in general fail to prosecute whites who have harmed blacks, that is a kind of discrimination that perpetuates the harm. When a sign goes up in a window and says, “Hiring: Whites only,” we can say, with Narveson, that no Black is owed the job, but this does not settle whether any Black is harmed. To be fair to Narveson, his point is that prejudice has its own



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internal costs to those who are prejudiced and thus will wither on its own, and he is all in favour of prosecuting anyone who harms others – whether due to prejudicial attitudes or not. 37 Apart from Thomson, “Preferential Hiring”; Mosley, “Affirmative Action: Pro”; and Jones, “Fairness, Meritocracy, and Reverse Discrimination”; see also Wasserstrom, “Defence of Programs of Preferential Hiring”; and Crocker, “Preferential Treatment.” 38 Hobbes, Leviathan, chapter 13, 65. 39 Cf. ibid., chapter 14, 67. 40 For similar objections, see R. Simon, “Preferential Hiring”; P. Taylor, “Reverse Discrimination and Compensatory Justice”; Fiscus, Constitutional Logic of Affirmative Action; Fullenwider, “On Preferential Hiring”; A. Goldman, “Limits to the Justification of Reverse Discrimination”; Narveson, Moral Matters, 310–11; and Dimock and Tucker, “Affirmative Action and Employment Equity,” 113–15. 41 Jones, “Fairness, Meritocracy, and Reverse Discrimination,” Crocker, “Preferential Treatment,” Wasserstrom, “Defence of Programs,” and Thomson, “Preferential Hiring,” each emphasize the benefit to members of a group, at least, if not the individual who suffered. 42 Thomson, “Preferential Hiring,” concedes the point. It would be better to target those who have had a hard life, rather than women, for example. Since, statistically, the harder life will belong to a woman or a nonwhite person, she thinks sex- and race-group-focused affirmative action programs suffice. 43 See also Newton, “Reverse Discrimination,” 44 See Jones, “Fairness, Meritocracy, and Reverse Discrimination.” 45 Fullenwider gives a similar analogy: If you destroy my antique gun, you should give me back an equal gun. But what if there is only one other gun like it, owned by my brother. Do you have the right to take my brother’s gun and give it to me? Fullenwider, “Preferential Hiring,” 216. 46 Nor is simply stopping discrimination sufficient. Fullenwider, “Affirmative Action and Fairness,” 10. 47 Ibid., 10–13. 48 Proponents of the distributive justice line include Goldman, “Limits to the Justification of Reverse Discrimination”; Rachels, “In Defence of Quotas”; J. O’Neill, “Argument against Comparable Worth”; Jones, “Fairness, Meritocracy, and Reverse Discrimination”; Bayles, “Compensatory Reverse Discrimination”; and Wasserstrom, “Defence of Programs.” 49 J. O’Neill, “Argument against Comparable Worth,” 188, for example, but see also Jones, “Fairness, Meritocracy, and Reverse Discrimination.”

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50 Nozick, Anarchy, State, and Utopia, 235. 51 Jones, “Fairness, Meritocracy, and Reverse Discrimination.” 52 Jones (ibid.) does make that demand, however. For her, existing qualifications are due to past discriminations. So she argues for a “counterfactual merit,” where companies hire according to the merit a person from a discriminated group would have absent prejudice.

C h a p t e r T en   1 Hardin, “Living on a Lifeboat.”   2 A. Smith, The Wealth of Nations, 260. Basically let the free market be, and everyone will prosper. The problem with famine is (often, at least) the result of free market interference.  3 Gauthier, Morals by Agreement.   4 Many object to contractarianism precisely on this point. For example, Brink, “Self-Love and Altruism,” 123. See also Brink, “Rational Egoism, Self, and Others”; Kraus, Limits of Hobbesian Contractarianism, 38–9, 45; and M. Smith, “Beyond the Error Theory,” 126.   5 Communitarians blame the problem on contractarians’ commitment to pinning morality on individual self-interest. Their worry is not (only) that we cannot get to morality from self-interest, but that the concept of atomistic self-interest is metaphysically false. See Sandel, Liberalism and the Limits of Justice; C. Taylor, Sources of the Self; and Walzer, Interpretation and Social Criticism. I have replied to this objection in chapter 1, section 1.3.5.   6 See, for example, Morris, “Idea of Moral Standing.”   7 See Gauthier, Morals by Agreement, 9.  8 Hume, Enquiry, Appendix 3, 257, 306.   9 See G. Dworkin, Theory and Practice of Autonomy, 104–8; R. Dworkin, A Matter of Principle, 228–32; Kymlicka, Liberalism, Community, and Culture, 16–19; Moore, Foundations of Liberalism, 188–98; and Raz, Morality of Freedom, 407–29. 10 Imagine if helping costs you on average two utiles per helping encounter, while being helped benefits you fifty utiles on average per helping encounter. So long as your being required to help outweighs your need to be helped more than 25:1, it would be irrational for you to make an ex ante agreement committing yourself to help. 11 The wisdom of such an ex ante agreement depends on the total number of distinct interests that are possible (I), divided by the number of distinct interests a given individual has (i) factored by how many players are



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involved in the potential agreement (n). The odds of a given person having a given interest is the combined probability of (I/i)n. Imagine a world where each individual has merely five distinct interests among a total of only ten possible interests. In this world, imagine two players enter the sphere where an agreement could be made. The odds of mutual benefit, then, is (5/10)2 = .25. If the expectation of mutual benefit among fully transparent reciprocally cooperative agents is only .25, it would no longer pay to be a reciprocally cooperative agent. Defectors would do better. The prospect of mutual advantage being gained between members of a party decreases substantially the more disparate interests they have and the more players are allowed into the game. 12 The helping dilemma is then portrayed as a coordination problem, not a prisoner’s dilemma. 13 Aside from Aristotelean doctrines (for example, Wolf, “Happiness and Meaning,” and Brink, “Self-Love and Altruism”), see Kavka, “A Reconciliation Project”; and Schmidtz, “Reasons for Altruism.” 14 For example, see Nozick, Anarchy, State, and Utopia, 84. See also Gauthier, Morals by Agreement, 204. 15 One may contest that Joseph’s suffering is increased, and it is increased precisely because of Mary’s indifference. Should Joseph not consent to be made worse off by Mary’s indifference, then Mary cannot morally be indifferent on contractarian grounds. We would have reason to force Mary to not make Joseph worse off, and this is instantiated by forcing Mary to help relieve Joseph’s suffering. With only a little reflection we can see the paucity of such a manoeuvre. That a man deems himself to suffer in the absence of sex is not a sufficient defence for rape. For a similar argument, see Arthur, “World Hunger and Moral Obligation,” 587. 16 Rawls’s use of the veil of ignorance is to do just this. Rawls, Theory of Justice, 136. 17 Ibid., 60. I am paraphrasing. 18 Ibid., 250. 19 See, for example, Narveson, “Puzzle about Economic Justice”; and Hart, “Rawls on Liberty and Its Priority.” 20 Rawls, Political Liberalism, 5, my emphasis. 21 Thomson also raises this conundrum. “[I]t is the patent wrongfulness of the conduct that explains why there would be general agreement to disallow it.” Thomson, Realm of Rights, 30, n19. 22 Sen, “Property and Hunger.” See also Nielsen, “Capitalism, Socialism, and Justice”; and Waldron, “Homelessness and the Issue of Freedom.” 23 See Narveson, Libertarian Idea.

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24 Singer, “Famine, Affluence, and Morality.” Pogge backs up Singer’s claim in terms of its feasibility. Pogge, “The Moral Demands of Global Justice.” For a Kantian view with similar results, see O. O’Neill, “Kantian Approaches to Some Famine Problems”; and Van Wyk, “World Hunger and the Extent of Our Positive Duties.” 25 Singer, “Famine, Affluence, and Morality,” 230–1, 236. 26 For a defence of psychological realism, see also Flanagan, The Varieties of Moral Personality. 27 “[I]f it is in our power to prevent something very bad from happening, without thereby sacrificing anything morally significant, we ought, morally, to do it.” Singer, “Famine, Affluence, and Morality,” 231. 28 In 1964, spanning about half an hour, Catherine “Kitty” Genovese was raped and murdered on the grounds of her apartment building in Queens, New York City. About twelve witnesses observed various parts of the ordeal, none of whom did anything in time. These witnesses were not bad people, and all wanted to help or would have wanted to help if they had fully understood the situation. One explanation for their nonaction, the “bystander effect,” is that they each saw the other witnesses doing nothing. See Darley and Latané, “Bystander Intervention in Emergencies.” Latané and Darley, The Unresponsive Bystander. 29 Singer expressly denies this (Singer, “Famine, Affluence, and Morality,” 235), as does Walzer, “Achieving Global and Local Justice.” In both cases, the denial follows only if we accept the antecedent: that beneficence is an obligation. 30 He also expressly denies this, allowing the “duty” to make people extremely happy may be supererogatory (Singer, “Famine, Affluence, and Morality,” 236). For utilitarians, however, an action is right to the extent that it raises the group net utility, wrong otherwise. As put, then, there is no room for actions that raise the group net happiness that would be merely nice, rather than mandatory. 31 See Wolf’s explanation for why we might not call it a recommended behaviour – at least for anyone we care about. See Wolf, “Moral Saints.” 32 Mother Theresa described her action as a duty, a duty that only she had, however. That is to say, she admitted it was not something anyone else was bound to follow. Such “personal duties,” like sit-ups or putting flowers on a particular grave, however, are not to be confused with moral duties – which are supposed to be universal. 33 Of course where we place charity (positive obligation or supererogation) is exactly what is at issue. The point still holds if we place minimal and somewhat subjectively determined charity as a positive obligation, as long



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as we can still distinguish the kind of charity Singer (“Famine, Affluence, and Morality”) is talking about – i.e. the supererogatory. 34 Kant, Grounding for the Metaphysics of Morals, 30, n12 [Ak. 421] and 32 [Ak. 424]. Mill, too, spoke of obligations we have that, although not punishable by law for omission, are open to social censure: “punishable by opinion, though not by law.” (Mill, On Liberty, chapter 4, 73.) 35 For Kant, one is not culpable for failing to fulfil one’s imperfect duties, although it does reveal “a deficiency in moral worth.” Kant, The Metaphysics of Morals, 153 [Ak.390–1]. For an extended discussion, see T. Hill, Dignity and Practical Reason in Kant’s Moral Theory, chapter 8. 36 See also Gert, Morality, xi, 13–18. 37 Schmidtz, “Islands in a Sea of Obligation.” 38 Hampton, “Selflessness and the Loss of Self.” Slote agrees, though he puts it in terms of what induces empathy. Slote, “Famine, Affluence, and Empathy.” 39 For example, Gauthier, Morals by Agreement, 167–70; and Danielson, Artificial Morality, 88–90, 114–18. Gauthier speaks of a Constrained Maximizer (C M ), rather than my more generic R C . His claim that C M is “rational” is not without detractors. See, among others, Binmore, Game Theory and the Social Contract, 78–86; H. Smith, “Deriving Morality from Rationality,”; Skyrms, Evolution of the Social Contract, 39–40; Campbell, “Background for the Uninitiated,” 11; and Sugden, “Rationality and Impartiality.” 40 Skyrms, Evolution of the Social Contract, 63–79. See also Alexander, “Group Dynamics,” and Alexander, Structural Evolution of Morality. 41 See chapter 2 for how evolutionary game theory supports contractarian normative theory. 42 Cavalli-Sforza and Feldman, Cultural Transmission and Evolution; Sperba, Explaining Culture. 43 Konrad Lorenz demonstrated imprinting with geese. Lorenz, Studies in Animal and Human Behavior. 44 A famous study by Asch offers ample illustration. Participants are asked to identify in public which of three lines are longer, when it is clearly the case that line A is longer than lines B or C. Few in such cases have the courage to pick A when all the other “participants” – confederates of Asch – have already publicly picked C. Asch, “Studies of Independence and Conformity”; Asch, “Effects of Group Pressure.” 45 Mimicking the prestigious is what Aristotle recommended, assuming the wise were the prestigious members of the group to which Aristotle identified himself. Aristotle, Nicomachean Ethics, book 2. chapter 8 [1108b] 962.

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46 Boyd and Richerson, Culture and the Evolutionary Process. 47 Boyd and Richerson, “Norms and Bounded Rationality.” 48 Ibid., 286. 49 Trivers, “Evolution of Reciprocal Cooperation.” 50 Gauthier, Morals by Agreement, 174–7. 51 There may be a margin of diminishing return, where the exceedingly prestigious may believe their prestige is untarnishable, in which case moral ­fetters would likely be loosened, not tightened. In any event, the exception does not refute the probabilistic claim. See my Moral Wager, 208–11. 52 For a nice account of the merits of fuzziness in moral thinking, however, see Campbell and Woodrow, “Why Moore’s Open Question Is Open,” particularly the discussion on 356–7. 53 Heinrich et al., “What Is the Role of Culture in Bounded Rationality?” It is the same in biology. See Gould and Lewontin, “Spandrels of San Marco”; and Gould and Vrba, “Exaptation.”

C h a p t e r E l even   1 For the (unsupportable) human superior view, see Machan, “Do Animals Have Rights?”; Frey, “Moral Standing, the Value of Lives, and Speciesism”; and Steinbock, “Species and the Idea of Equality.”   2 Singer, “All Animals Are Equal.” Crisp suggests that utilitarianism will make meat eating a moral obligation. Crisp, “Utilitarianism and Vegetarianism.”   3 While all vertebrates meet the criteria for sentience, as do mammals and birds (Smith and Boyd, Lives in the Balance), as well as fish (Braithwaite, Do Fish Feel Pain?), some claim that sentience also exists in some of the invertebrates. While Eisemann and colleagues have presented a list of reasons why it is unlikely that insects are able to feel pain (including their lack of a behavioural response to protect an injured limb), Lockwood and Sherwin, relying primarily on behavioural evidence, have argued that we should consider extending the argument of analogy to support the conclusion that insects are sentient beings. Eisemann et al., “Do Insects Feel Pain”; Lockwood, “Moral Standing of Insects”; C.M. Sherwin, “Can Invertebrates Suffer?”   4 See also Midgley. “Belief in their sentience is essential even for exploiting them successfully,” Midgley, Animals and Why They Matter, 114.   5 For a sceptical position concerning whether animals can feel pain (as opposed to displaying evolutionarily beneficial behavioural responses to damaging stimuli), see Harrison, “Do Animals Feel Pain?” Though well



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argued, I see his conclusion as saying nothing more than that it is possible that, despite appearances, animals do not feel pain.   6 For others who argue that if you would not do x to humans, you had ­better not do it to any sort of animal, see Donaldson and Kymlicka, Zoopolis; Norcross, “Puppies, Pigs, and People”; Matheny, “Utilitarianism and Animals”; and Engel, “The Immorality of Eating Meat.”   7 Warren, “Difficulties with the Strong Animal Rights Position.” See also Cohen, “Do Animals Have Rights?”; and Scruton, Animal Rights and Wrongs.   8 For an excellent discussion on moral standing, see Morris, “Idea of Moral Standing.” For a good, but insufficient, distinction between agent and patient, see Norcross, “Puppies, Pigs, and People,” 244. Cohen rejects the notion that obligations entail rights at all. While my dog has no rights to my care, I still have an obligation to care for it, supposedly. C. Cohen, “Case for the Use of Animals.”   9 For details about animal abuse in factory farming, see Singer, Animal Liberation, 95–158. Early detection of male chicks saves chicken farmers money; they do not have to keep them alive as long. This has created a new career called chicken sexers. My information on this comes from Foer, Moonwalking with Einstein, 49–50. 10 Regan, The Case for Animal Rights. See also Bernard Rollin, “Sentience as the Criterion for Moral Worth,” in Environmental Ethics, 2nd edition, ed. Louis Pojman (Belmont: Wadsworth Publishing Company, 1998), 35–8. 11 See also Nagel, “What Is It Like to Be a Bat?” 12 Regan, “The Case for Animal Rights.” 13 For a Rossian flavour of the Kantian account, see Curnutt, “New Argument for Vegetarianism.” 14 Regan, “The Case for Animal Rights,” 13. 15 For queasy-inducing accounts of experimentation on animals, see Gendin, “The Use of Animals in Science.” 16 There are also arguments of efficiency. More grain is used to feed cattle that can be converted to feed starving humans. (See, for example, Hurka, Principles, 41–4; or Engel, “Immorality of Eating Meat,” 870–2.) Simon, however, suggests the analysis is amiss. While it is true that more grain is used to feed cattle than humans, the two types of grain are not equivalent. The soil that can support feed grain cannot support grain for human consumption. (J. Simon, The Ultimate Resource, 288.) Even if Simon is correct, efficiency arguments should be irrelevant to Regan’s case, since his focus is on intrinsic rights, which should remain even if it were inefficient to stop eating meat.

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17 Warren also worries about the mystery of inherent value. Warren, “Difficulties with the Strong Animal Rights Position,” 165. 18 Rating different species of animals according to “cuteness” is part of “the socio-zoological scale.” See Arluke and Sanders, Regarding Animals. The central idea of the scale is that people rate animal species as more or less important, and therefore more or less worth protecting, on the basis of a number of factors including how useful an animal is, how closely people typically associate with it, and how “cute” it is. In other words, people are more interested in giving rights to dogs and cats than rats and fish. Other factors may include how dangerous the animal is capable of being and how “demonic” it is perceived to be. Noncognitivsts will also bank on the cute vs ugly model. See Prinz, Emotional Construction of Morals, who argues that our emotional ejaculations around disgust and cuteness had evolutionary advantage and still guide us despite how our reasoning may complain about shallowness. 19 Hursthouse, “Applying Virtue Theory to Animal Rights.” 20 Ibid., 142. 21 Carruthers, “Against the Moral Standing of Animals.” Rawls and Scanlon are two key proponents of contractualism, and they both appeal to a hypothetical model that would help determine fair outcomes (Rawls, Theory of Justice; Scanlon, What We Owe). For the difference between contractarianism and contractualism, see chapter 3. 22 In “Against the Moral Standing of Animals,” Carruthers uses Rawls’s veil of ignorance to demonstrate animals’ lack of rights. For Rawls, once behind the veil of ignorance, we are supposed to be bereft of any information that we would normally use to judge political institutions. Rawls, Theory of Justice, 136. For example, if I do not know whether I will be black or white in society, I would not likely be in favour of a racist society. Carruthers assumes that once we step behind the veil of ignorance, we would still know we are human, at least, and thus would not favour a world where we have duties toward animals (Carruthers, “Against the Moral Standing of Animals,” 279). After all, if we are reasoning out what society would be best to live in, we must be human, given the options. Regan thinks otherwise. He argues that being behind the veil of ignorance would mean you would not know whether you would step into the world as an animal or as a human, and that therefore you would opt for a society which grants rights to animals, much as you would believe the new society should not be racist. (Regan, The Case for Animal Rights, 171–4.) After all, even if you knew that you were using reason to pick the ensuing society, you would be ignorant of whether that fact would rule out your



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being an animal. Conversely, given the magic nature of the machine, perhaps despite your knowing you are human now, the machine has a way of randomly altering who you will be upon exiting the veil of ignorance. The ease in which we can create the machine to do anything we want tells us two things: 1. Carruthers cannot be right, and 2. the exercise is useless, since, the output is only as good as the input. 23 A similar move is made by Kant. Animals are merely a means to our ends, but we should not be cruel to animals lest we become cruel to people. Kant, Lectures on Ethics, 239. See, too, the discussion in Wood, “Kant on Duties Regarding Nonrational Nature,” 194. Skidmore’s appraisal of this Kantian move is similar to my appraisal of Carruthers. Skidmore, “Duties to Animals.” 24 Carruthers, “Against the Moral Standing of Animals,” 283. 25 We can find reciprocity in human–animal interactions, of course. Animals react in kind as much as people. If I pet a cat, it will be less likely to bite me than if I poke the cat. In order to get something from animals that we want, at least more easily, we often do rely on their cooperation. Such reciprocity is not sufficient to ground rights, however. The individual must benefit from accepting the duty otherwise the duty will not stick. There are benefits for humans accepting negative duties vis-à-vis other humans, since they are capable of mounting an effective retaliation if you do not leave them alone. Such benefits do not obviously accrue to humans accepting a duty to leave animals alone. For example, seals will leave us alone even if we club them over the skull with hakapiks. 26 Mackie, Ethics, 38–42. 27 Rejecting natural objectivity does not necessarily reject natural realism, so long as those realists reject any pretensions of pointing at moral values in the world. See, for example, Blackburn, “Moral Realism,”; Copp, Morality, Normativity, and Society; Sayer-McCord, “Coherentist Epistemology and Moral Theory.” 28 de Waal, Good Natured, 209–16. 29 See also Matt Ridley, The Origins of Virtue. 30 Prinz, Emotional Construction of Morals, 259–63. 31 Apart from my Moral Wager, 117–21, see J.M. Alexander, Structural Evolution of Morality; R. Alexander, The Biology of Moral Systems; Axelrod, Evolution of Cooperation; Binmore, Game Theory and the Social Contract; Danielson, Artificial Morality; Ellison, “Cooperation in the Prisoner’s Dilemma”; Samuelson, Evolutionary Games and Equilibrium Selection; Skyrms, Evolution of the Social Contract; Sugden, Economics of Rights, Cooperation and Welfare; Taylor and Jonker, “Evolutionary Stable

340

Notes to pages 214–21

Strategies and Game Dynamics”; Trivers, “Evolution of Reciprocal Cooperation”; and Weibull, Evolutionary Game Theory, 69–119. 32 Kant connects morality to good will, though good will, for Kant, is doing one’s duty because it is one’s duty. Kant, Grounding for the Metaphysics of Morals, Ak. 393. 33 Sanders, “Contracting Justice,” 25, 31, n22. 34 Friedrich Nietzsche, Beyond Good and Evil, 259. 35 Narveson, Moral Matters, 133–42. 36 Using her own experience with battling autism, Grandin makes the case that the alleviation of anxiety, rather than the maximum extension of life, should be the priority for those keeping animals. Grandin, Animals Make Us Human. While striving to make the killing of livestock more humane, some animal rights proponents criticize her for working with fast-food companies and abattoir owners. Frey and Varner also believe that vegetarianism is not a necessary strategy to prevent animal abuse. Frey, Rights, Killing, and Suffering; Varner, “The Prospects for Consensus.” Rachels and Engel think otherwise. Rachels, “A Moral Defence of Vegetarianism,” 861–3; Engel, “Immorality of Eating Meat,” 880–2. 37 Hobbes, Leviathan, chapter 11, ¶1, 49. 38 As Narveson warns. Narveson, Moral Matters, 139. 39 “[W]e should let each person do pretty much what he or she wants … [I]f some people like to wear furs and other people are willing to grow or kill animals to provide them with furs, then the people who don’t like this can protest. But they have no business ganging up on them with legislation and the like: that’s not fair, any more than that it’s fair for Catholics to gang up on everyone else and declare a church state.” Ibid.

C h a p t e r T w elve   1 Behrenfeld, O’Malley, and Siegel, “Climate-Driven Trends in Contemporary Ocean Productivity”; Hood, “Global Warming”; Norton, Toward Unity among Environmentalists; IPC C , Climate Change 2007.   2 Hansen, “Earth’s Energy Imbalance”; Ruddiman, Earth’s Climate Past and Future ; Gore, An Inconvenient Truth; Karnaukhov, “Role of the Biosphere.”   3 Ammann, “Solar Influence on Climate”; Solanki et al., “Unusual Activity of the Sun.”   4 Global warming does not create hurricanes, but it does make them stronger and more dangerous. Because the ocean is getting warmer, tropical storms can pick up more energy and become more powerful. So global warming could turn a category 3 storm into a category 4 storm, for example. The destructive potential of hurricanes has greatly increased along



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with ocean temperature over the past thirty-five years, and this is not taking into account rise in population and property value. Emanuel, “Increasing Destructiveness of Tropical Cyclones.”  5 IPC C , Climate Change 2007. Archer, “Fate of Fossil Fuel CO2.”   6 Gardiner, “A Perfect Moral Storm.”   7 Those who think the cure to our environmental crisis is anticonsumerism include Durning, How Much Is Enough? See also Bradford, “We All Live in Bhopal”; Wenz,“Synergistic Environmental Virtues”; and Meaton and Morrice, “Individual Freedom and the Ethics of Private Car Use.”   8 As Lomberg, The Skeptical Environmentalist, suggests.   9 Naysayers include Ray and Guzzo, Environmental Overkill; J. Simon, The Ultimate Resource; Lomberg, Skeptical Environmentalist; and Narveson, Moral Matters, 197–228. It is always possible that scientists have made some sort of blunder. We have evidence of such cases over history. For ­outsiders to the scientific community, as philosophers are, our role is to accept what the majority of scientific studies tell us. That we can always find some study – even relatively reputable ones, but especially the nonreputable ones – that offer counter claims, should be irrelevant. 10 Hill, “Ideals of Human Excellence.” 11 A similar objection to virtue theory approaches can be found in SinnottArmstrong, “It’s Not My Fault,” 649–50. 12 Leopold, Sand County Almanac; Devall and Sessions, Deep Ecology; Lovelock and Epton, “In Quest of Gaia”; Callicott, Thinking Like a Planet. 13 Kirchner, “The Gaia Hypotheses”; Kirchner, “The Gaia Hypothesis”; Ruse, The Gaia Hypothesis. 14 Taylor, Respect for Nature; Rolston, “Are Values in Nature Subjective or Objective?”; Stone, Should Trees Have Rights?; Attfield, “The Good of Trees.” 15 Regan, “The Nature and Possibility of an Environmental Ethic”; Goodpaster, “On Being Morally Considerable”; Anderson and Sandler, “The Least We Can Do”; Sterba, “Reconciling Anthropocentric and Nonanthropocentric Environmental Ethics”; Hargrove, “Weak Anthropocentric Intrinsic Value.” 16 For more on the metaethical foundations, see chapter 2. 17 Rolston, “Values in Nature,” 148. 18 Sterba, “Reconciling,” 199, 205. Admittedly, he backs off of such an extreme view but does so in terms of his hybrid model, not the anthropomorphic model alone. 19 Taylor, Respect for Nature, 41–7. 20 Sterba, “Reconciling,” 207–8. 21 Anderson and Sandler, “The Least We Can Do,” 673–4.

342

Notes to pages 223–30

22 Taylor, Respect for Nature, 71. 23 Rolston, “Values in Nature,” 6. 24 Ibid., 138. 25 Warren, “The Rights of the Nonhuman World,” 189. 26 Hardin, The Limits of Altruism, 76–8. 27 For other anthropocentric views, see Warren, “Rights of the Non Human World”; Baxter, People or Penguins; R. Watson, “A Critique of AntiAnthropocentric Ethics”; Partridge, “Value in Nature”; Elder, “Legal Rights for Nature”; and Passmore, Man’s Responsibility for Nature. 28 For the argument concerning the evolutionary origin of morality, see ­chapter 2. 29 Emphasizing “generally” avoids the Ring of Gyges problem. This is the main point of my book, The Moral Wager. 30 Locke, Second Treatise, 25. 31 Ibid., 27 32 Ibid., 31. 33 Ibid., 26, 40, 43. 34 Ibid., 26. 35 Ibid., 26, 34. 36 Ibid., 26. 37 Ibid., 30, 31, 37, 38. 38 Waldron, The Right to Private Property, 210–11. 39 Locke, Second Treatise, 46. 40 Ibid., 31. 41 Ibid., 32. 42 Nozick, Anarchy, State, and Utopia, 178–82. See also Sreenivasan, The Limits of Lockean Rights in Property, 40. 43 Nozick, Anarchy, State, and Utopia, 175. 44 Locke, Second Treatise, 33. 45 Ibid., 40, 43. 46 Tully, A Discourse on Property, 164–5. 47 Locke, Second Treatise, 36. 48 Ibid., 47–8. 49 Ibid., 38. 50 Nozick, Anarchy, State, and Utopia, 175. 51 E.g., Locke, Second Treatise, 48. 52 Schmidtz, The Limits of Government, 17–20. See also Sreenivasan, Limits of Lockean Rights. 53 The first is an egalitarian solution. See Nielsen, Equality and Liberty; Cohen, Self-Ownership, Freedom, and Equality. The second is a libertarian solution. Apart from Nozick, Anarchy, State, and Utopia, 175, see



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Narveson, Libertarian Idea. The third – though a broad category, ­obviously – is a moderate liberal position. See Vallentyne,“On Original Appropriation”; Levey, “Liberty, Property, and The Libertarian Idea”; and Kymlicka, Liberalism, Community and Culture. 54 Parfit, “On Doing the Best for Our Children”; Parfit, “Future Generations”; Parfit, “Energy Policy and the Further Future.” But see also Schwartz, “Obligations to Posterity”; and Adams, “Must God Create the Best?” 55 For other such impediments to our doing anything about global warming, see Gardiner, “A Perfect Moral Storm.” 56 Kavka, “The Paradox of Future Individuals.” 57 Kavka’s example concerned nuclear energy. Parfit focused on resource depletion. Times change. 58 As Govier also decides. Govier, “New and Future People.” 59 A related question concerns whether we can harm people who once existed but do so no longer. If your mother asked you to scatter her ashes on Mt Tremblant and you do not, is that a harm to her? Or if your friend wrote fiction and asked you to publish it for him posthumously but you put your name on it instead, is that a harm to your friend? It may well be a harm to your friend’s estate, but that shifts the harm to living people. 60 Schmidtz, “Islands in a Sea of Obligation.” 61 Singer, “Famine, Affluence, and Morality.”. 62 For my earlier discussion on this, see chapter 10, section 10.2.4. 63 Heilbroner, “What Has Posterity Ever Done for Me?” 64 Gauthier, Morals by Agreement, 298–9. 65 See, for example, Golding, “Limited Obligations to Future Generations.”

C h a p t e r T h i rteen   1 Consent distinguishes eugenics from genetic enhancement. Ridley, “The New Eugenics.”   2 Some people defend cloning only in the case of (a). See, for example, Elliott, “Uniqueness, Individuality, and Human Cloning”; and Hershenov, “An Argument for Limited Cloning.”   3 Such hubris is well explored in Nathaniel Hawthorn’s short story “The Birthmark,” in his collection Mosses from an Old Manse.   4 Sunstein exemplifies the typical fears in his mock Supreme Court ruling. Sunstein, “The Constitution and the Clone.” To quell such fears, see Pence, Cloning after Dolly.   5 Kass, “Preventing a Brave New World.” See also Annas, “Why We Should Ban Human Cloning”; D. Callahan, “Perspective on Cloning”; Rifkin and

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Howard, Who Shall Play God?; Feinberg, “The Child’s Right to an OpenFuture”; and Jonas, Philosophical Essay.   6 See also Lewontin, “Confusion over Cloning”; Wachbroit, “Genetic Encores”; Rollin, “Keeping Up With the Cloneses”; Robertson, “Human Cloning and the Challenge of Regulation”; Robertson, “Liberty, Identity, and Human Cloning”; Tooley, “The Moral Status of the Cloning of Humans”; Brock, “Cloning Human Beings”; and Pence, “Will Cloning Harm People?”   7 For example, George and Gomez-Lobo, “Human Cloning and Human Dignity.”   8 Di Berardino and McKinnell, “Backward Compatible,” 37.   9 See chapter 5 for the argument that a mother may abort her fetus, certainly within the first trimester. To argue that an embryo has greater rights than a fetus will be difficult. 10 Wilson, “The Paradox of Cloning.” 11 Kass, “The Wisdom of Repugnance.” 12 Some people have argued that even the inner cells of the blastocyst deserve full rights on the basis of their being intrinsically valuable (George and Gomez-Lobo, e.g.). 13 Lippman, “Prenatal Genetic Testing.” 14 Lappé, “The Limits of Genetic Inquiry.” 15 Harris, Enhancing Evolution. 16 For such arguments, see Kass, Life, Liberty, and the Defence of Dignity [(ii), (iv), (vi)), (vii), (viii)]; Glannon, Genes and Future People [(i), (ii), (iii), (iv)]; McKibben, Enough [(i), (ii), (iii), (iv), (v), (vi)]; Callahan, What Price Better Health? [(i), (iv), (vi), (viii)]; Elliott, Better Than Well [(i), (v), (viii)]; Fukuyama, Our Posthuman Future [(vii), (viii)]; Rothman and Rothman, The Pursuit of Perfection [(ii), (vi)]; Sandel, “The Case against Perfection” [(vi), (viii)]. 17 For responses similar to these, see Caplan, “Good, Better, or Best?”; and Brock, “Shaping Future Children.” 18 See Kishore, “Human Organs, Scarcities, and Sale.” 19 http://www.liverfoundation.org. 20 Cherry, Kidney for Sale by Owner, ix. 21 http://www.healthycanadians.gc.ca/diseases-conditions-maladies-affections/ donation-contribution-eng.php. 22 Kishore, “Human Organs, Scarcities, and Sale.” 23 Ibid. 24 See, for example, Veatch, Transplantation Ethics, 167–71. 25 See Radcliffe Richards, Careless Thought Costs Lives.



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26 Radcliffe Richards, “Nephrarious Goings On.” 27 See also Cherry, “Is a Market in Human Organs Necessarily Exploitive?” 28 See also Nelson, “The Morality of a Free Market for Transplant Organs.” 29 See also Tadd, “The Market for Body Parts.” 30 Radcliffe Richards, “Nephrarious Goings On,” II.viii. 31 Rippon, “Imposing Options on People in Poverty.” 32 The example is used by Velleman, “Against the Right to Die.” 33 See, for example, Morelli, “Commerce in Organs”; Radin, “MarketInalienability”; Chadwick, “The Market for Bodily Parts”; Sandel, What Money Can’t Buy; and Pellegrino, “The Commodification of Medicine and Health Care.” 34 Kant, Lecture on Ethics, 124. 35 Kant, Metaphysical Principles of Virtue, 84. 36 See, for example, Richards, Sex, Drugs, Death, and the Law, 109–10. 37 Kant, Lecture on Ethics, 165. 38 See, for example, J.S. Taylor, Stakes and Kidneys; G. Dworkin, “Markets and Morals.” 39 Nelson, “Morality of a Free Market for Transplant Organs.” 40 “Act in such a way that you treat humanity, whether in your own person or in the person of another, always at the same time as an end and never simply as a means.” Kant, Grounding for the Metaphysics of Morals, Ak. 429. Or “Act so as you treat humanity, whether in your own person or that of another, always as an end and never as a means only.” Kant, Foundations of the Metaphysics of Morals, Ak 429. 41 Chadwick, “The Market for Bodily Parts.” 42 Morelli, “Commerce in Organs.” 43 Mackie, Ethics, 38–42. 44 See my discussion in chapter 2 (2.2.2). 45 Kondro, “Debate over Online Recruitment of Organ Donors.” 46 Titmuss made such a case against selling blood. Titmuss, The Gift Relationship.

C h a p t e r F o urteen   1 I see my definition as being consistent with those given by Richardson, What Terrorists Want, 4–6; Lackey, The Ethics of War and Peace, 85; and Khatchadourian, The Morality of Terrorism, 1–6.   2 Frey and Morris, “Violence, Terrorism, and Justice,” 2.   3 See Luban, “The War on Terrorism and the End of Human Rights.”   4 Lackey, “The Evolution of the Modern Terrorist State,” 128–38.

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  5 For example, Rawls, “Fifty Years after Hiroshima”; Walzer, “After 9/11”; and Sterba, “Terrorism and International Justice.” The lone defender of the action as consistent with a just war is O’Brien, The Conduct of Just and Limited War.  6 Morris, An Essay on the Modern State, 46.   7 People who define terrorism as intending to spread fear include Walzer, “After 9/11,” Sterba, “Terrorism and International Justice,” and Primoratz, “What Is Terrorism?” Loren Lomasky emphasizes the expressivist nature of terrorist activity. Lomasky, “The Political Significance of Terrorism.”   8 Coady, “The Morality of Terrorism,” 53; Wellman, “On Terrorism Itself,” 250–1; Calhoun, “The Terrorists’ Tacit Message”; and Richardson, What Terrorists Want.   9 Nagel, “What Is Wrong with Terrorism?” 10 I am referring to the shooting death of the unarmed Corporal Nathan Cirillo in Ottawa on 22 October 2014. Cirillo’s killer, Michael ZehafBibeau, a convert to Islam, made a video of himself before his attack saying he was motivated by his opposition to Canadian foreign policy. In this case, Zehaf-Bibeau was a Canadian citizen, so prosecuting him need not require we define him as a terrorist. 11 Those defining terrorists as attacking the “innocent” include Walzer, “After 9/11,” Sterba, “Terrorism and International Justice,” and Primoratz, Terrorism. 12 For those who agree that innocence is not the issue, see Fullenwider, “Terrorism, Innocence and War”; Ignatieff, “Human Rights, the Laws of War, and Terrorism.” 13 Wilkins agrees with Bin Laden, to the extent, at least, that we all share “collective guilt” for doing nothing to stop our governments from invading other nations’ political and cultural autonomy. Wilkins, Terrorism and Collective Responsibility. See also Green, “War, Innocence, and Theories of Sovereignty.” Buzan agrees, at least for democratic states that elect their leaders. Buzan, “Who May We Bomb?” 14 Matthew 12:30. 15 See, for example, Narveson, Moral Matters, 115–22. 16 Sterba’s view is different. He thinks one who agrees (i) to the concept of a just war, and (ii) that no war has ever been just, is a kind of pacifist – a just war pacifist. 17 For a more extensive account than what I offer here, see Lackey, The Ethics of War and Peace; Orend, The Morality of War; and Reisman and Antoniou, The Laws of War. 18 Taylor, Sources of the Self.



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19 The form of the argument that al Qaeda used is the same form as communitarian arguments. This is not to say the methods to invoke the change are the same. 20 Nathanson offers a rule-utilitarian argument to ban attacks on civilians, especially, but not exclusively, intentional attacks. Nathanson, Terrorism and the Ethics of War. Alexander also questions who counts as a combatant. For example, is someone who only delivers potatoes to an army base a combatant? Lawrence Alexander, “Self-Defence and the Killing of Noncombatants.” 21 For arguments of this sort, apart from Calhoun, “Terrorists’ Tacit Message,” see Viminitz, “A Defence of Terrorism.” 22 See Wilkins, Terrorism and Collective Responsibility; and Lackey, “Evolution of the Modern Terrorist State.” 23 Lomasky, “Political Significance of Terrorism.” 24 Viminitz, “A Defence of Terrorism.” 25 Nagel, “What Is Wrong with Terrorism?,” 180. 26 See Green, “War, Innocence, and Theories of Sovereignty.” 27 1 Samuel 15:3. 28 1 Chronicles, 20:3. 29 Lomasky, “Political Significance of Terrorism.” 30 Other reasons may exist. Perhaps terrorism is incited by terrorist leaders in order to seem that they are doing something worthwhile to followers – a kind of PR . After all, to think terrorist demands will be met may be illusory. 31 Walzer (“After 9/11”) thinks our liberty demands our liberty rights be constrained for security. Ignatieff (“Human Rights, the Laws of War, and Terrorism”) is far more sceptical. 32 See Ignatieff, “Human Rights, the Laws of War, and Terrorism,” who speaks of the worry of those in power manufacturing such dangers in order to continually suspend civilian rights. 33 Luban, “War on Terrorism.” 34 Claudia Card, Confronting Evils. 35 Shue calls reparation torture interrogational torture. He calls extortion torture terroristic torture. Shue, “Torture.” 36 I suspect even utilitarians would be loath to do so. They may avoid such a conclusion by accounting for society’s psychic disruption from allowing torture of an innocent person for the benefit of others. After all, any one of us may be unlucky enough to be picked as the random target. Perhaps, as well, real felons would be less deterred, since they can always count on the state’s torturing someone else to suffer for their crimes. Alas, I doubt

348

Notes to pages 277–87

whether utilitarians could succeed in ruling out third-party torture. With third-party torture, the only ones likely picked for torture will have some close relations with terrorists. Most of us will not be in that position and torturing just anyone will have no effect on the culprits. While some people might fear being tortured for actions of their family members who are terrorists, most will have no such fear. Thus the concept of social fear to a rule allowing third-party torture cannot upset the utilitarian benefits of such tortures. The pain caused to these innocent family members is outweighed by reduced terrorism. 37 See Reiman, “Justice, Civilization, and the Death Penalty.” 38 In Coetzee’s Waiting for the Barbarians, Colonel Joll, the torturer, believes that all people lie except when they are tortured. “First I get lies, you see – this is what happens – first lies, then pressure, then more lies, then more pressure, then the break, then more pressure, then the truth. That is how you get the truth.” Coetzee, Waiting for the Barbarians, 5. 39 Shue, “Torture.” 40 Luban, “Liberalism, Torture and the Ticking Bomb.” 41 Carter, “Torture Can Be Wrong and Still Work.” 42 See Dershowitz, Why Terrorism Works; Bowden, “The Dark Art of Terrorism”; and MacDonald, “How to Interrogate Terrorists.” 43 Lomasky, “Political Significance of Terrorism.” 44 Bowden, “Dark Art of Terrorism.” Shue, “Torture,” also believes a case-bycase examination may, in certain unusual circumstances, enable torture to be justified after the fact. 45 MacDonald, “How to Interrogate Terrorists.” 46 According to MacDonald, ibid., terrorists are smart enough to realize that threats of torture are currently empty.

C h a p t e r F if teen   1 Some believe money alone is what makes blackmail wrong, as some argue that while sex is fine, money for sex is not. For example, Altman, “A Patchwork Theory of Blackmail”; and Fletcher, “Blackmail.”   2 This runs counter to Altman (“Patchwork Theory of Blackmail”) who complains that blackmail does not yield mutual advantage. Mutual advantage, however, need not be equal advantage, let alone similarly scaled advantage, like money.   3 The puzzle about blackmail was (perhaps first) raised by G. Williams, “Blackmail,” 79–92, 162–72, 240–6.   4 See Feinberg’s demarcations of blackmail. Feinberg, Harmless Wrongdoing, 238–74.



Notes to pages 287–96

349

 5 Katz, Ill-Gotten Gains, 134.   6 Katz, for example, does not restrict blackmail to cases of conjoining independently moral actions. “[Blackmail] requires the threat of at least mildly wrongfully conduct,” ibid., 163.   7 See Feinberg, Harmless Wrongdoing, 238–40; Katz, Ill-Gotten Gains, 133; and Block, “The Crime of Blackmail,” 3–4.   8 See Gordon, “Truth and Consequences”; Berman, “The Evidentiary Theory of Blackmail”; and Katz, Ill-Gotten Gains, 160, 169.  9 Katz, Ill-Gotten Gains, 160. 10 Block, “The Crime of Blackmail,” n1. 11 See Gauthier, Morals by Agreement, 10–19. 12 Epstein, “Blackmail, Inc.” 13 Wertheimer, Coercion. See also Katz, Ill-Gotten Gains, 163–4. 14 For my account of a baseline, I follow Gauthier, Morals by Agreement, 204. 15 For arguments along this line, see Nozick, Anarchy, State, and Utopia, 84–6; Haskar, “Coercive Proposals”; Katz, “Blackmail and Other Forms of Arm Twisting”; Lyons, “Welcome Threats and Coercive Offers”; and Katz, Ill-Gotten Gains, 162–3. 16 Katz gives a similar case involving two sisters vying for an actress audition (Katz, Ill-Gotten Gains, 2). The one sister wishes to prevent the other sister from arriving at the audition and does so by mailing a letter to the sister’s husband informing him of his spouse’s affairs. She then tells her sister about her actions, including the information that the letter should arrive by the 10:00 post, coincidentally the time of the audition. Unlike Katz’s case, my scenario suffers from the defect of likely failing. The insurance agents would certainly question Jones. I trust this does not hamper the philosophical point. We ought to call something right or wrong independent of its success. A poor bank robbery plan is to be frowned upon not merely because it would not likely work. 17 Katz, Ill-Gotten Gains, 193. 18 For treating blackmail as exploitation, see Daly and Giertz, “Externalities, Extortion, and Efficiency”; Lindgren, “Theory, History, and Practice”; and Altman, “A Patchwork Theory of Blackmail.” 19 See chapter 10, however, for the discussion about how to ground the duty of beneficence. 20 This fits Katz’s conclusion. Katz, Ill-Gotten Gains, 193. 21 See also Altman, “Patchwork Theory of Blackmail,” and, at least for what Feinberg calls blackmail offers but not blackmail threats, see Feinberg, Harmless Wrongdoing, 240–58. 22 Firestone, The Dialectic of Sex, 222–32.

350

Notes to pages 296–303

23 See hooks, Talking Back, 84–91; Nozick, Examined Life, 68–86; and Halwani, “Virtue Ethics and Adultery,” 5–18. 24 For example, Posner, “Blackmail, Privacy and Freedom of Contract.” 25 Bok, Secrets. 26 Thomson, “The Right to Privacy.” For a discussion about the wide range of definitions of privacy, see DeCew, In Pursuit of Privacy. 27 Katz discusses a case where someone with union influence suggests a company pay him $10,000 or he would call his men to strike (Katz, Ill-Gotten Gains, 134). Although Katz used this example to show that blackmail has nothing intrinsically to do with information, it also is a case where no violation of privacy is at stake. 28 Lindgren, “Unravelling the Paradox of Blackmail.” See also Feinberg, Harmless Wrongdoing, 271–6; and Katz, Ill-Gotten Gains, 137–9, 160–3. 29 Lindgren, “Unravelling the Paradox of Blackmail,” admits it is not property that is being offered back for sale, but the blackmailer wrongly uses someone else’s bargaining chips. Surely it is the blackmailer’s bargaining chips the blackmailer uses. The bargaining chip is the information the blackmailer has. Katz notes other kinds of blackmail cases where no ­question about misappropriating someone else’s bargaining chips occurs. “Pay me $10,000 or I will cause bad blood at our club,” for example. Katz, Ill-Gotten Gains, 144. 30 Lindgren, “Unravelling the Paradox of Blackmail,” worries over third party externalities. An externality is an unrecovered cost to a third party. 31 For more on who counts as a concerned party, see chapter 1, section 1.1.5. 32 Fletcher, “Blackmail,” thinks such a worry means we have to ban blackmail. 33 This captures Epstein’s worry, “Blackmail, Inc.” Paying off one blackmailing paparazzi will merely attract more blackmailing paparazzi. 34 Altman notes this difference between blackmail (case 2) and business transactions (case 1) and thinks therefore a moral difference may be made. I claim the difference is merely prudential. 35 See Gauthier, “Why Contractarianism?,” 20.

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Index

abetting, 134, 293, 297 abortion, 86–104; access to, 104; bad reasons for, 103–4; indirect proof against, 102–3; in cases of rape, 97–8 absolutism, 46–7, 48, 197 abuse: of animals, 216; of children, 9, 153, 297, 296, 299; in cloning, 243; of the disenfranchised, 24; in euthanasia, 68, 72, 84; in organ sales, 252, 253; of privacy, 289; of procedure, 174; of property, 207; self, 153; of women, 129, 137, 160, 161; of workers, 299 acquiescing, 3–4, 59; to sex, 148; to terrorists, 260, 263 active/passive distinction, 67, 70–3, 74–80 adaptation, 3, 40, 43, 169, 172, 224, 226 adultery, 126, 321n14. See also infidelity adverse effects, 10–13; 48, 71, 226; blackmail, 301; emotional, 161; genetic, 245; physical, 11–12; 71; psychological, 11–12, 71; social, 12, 71; status quo, 160

advertisements, 31, 123, 124, 164, 245, 251, 262, 304 affirmative action, 172–83; equal qualification, 172, 172, 176, 180; counterfactual qualification, 172, 173, 332n52; quota, 173 agreement: actual, 59; coerced, 5; complying vs. making, 20, 163, 188, 190–1, 203; conditionality of, 59, 115, 179; content of, 4, 20, 56; ex ante, 13, 21, 55–6, 59–69, 116, 189–92, 204, 265, 281; ex post, 56, 59–60, 189– 91; expectation of mutual gain, 146; hypothetical, 6–7, 55–7, 59, 162, 192, 279–80, 282; improper, 5; keeping, 59, 106; rational, 22, 212; reasonable, 56–7; reciprocal, 14, 32, 106. See also consent Alexander, L., 319n28, 347n20 Altman, S., 348nn1–2 altruism, 19–23, 108, 201, 203–4, 214, 251 amorality, 7, 14, 33–4, 37, 55, 58, 61, 189, 280–2 Anderson, J., and R. Sandler, 223

386 Index

animals, 205–19 anthropocentricism, 213, 205–6, 219, 220, 222–6 ants, 90, 213–15, 290 Aquinas, T., 50 Aristotle, 202, 335n45 Arluke, A., and C.R. Sanders, 338n18 Asch, S., 335n44 assurance: argument, 20–3, 59, 273–4, 282, 284; problem, 190–2 attribution error, 22 Austin, J.L., 134, 326n33 autonomy, 19; euthanasia, 70, 73–4, 81–2; genetic, 245, 247–8; organ sales, 250, 255, 259; sex, 149, 153–4, 160, 167; sex trade, 129, 131–3, 140, 142–3; terrorism, 265, 273–4

blackmail, 285–304 Block, W., 289 Bloomfield, P., 309n33 Bok, S., 298 Bowden, M., 283 boycotts, 217–19 Boyd, R., 310n45 Boyd, R., and P. Richerson, 202 Braithwaite, V., 336n3 Brink, D., 309n33, 332n4, 333n13 Brody, B., 96–7, 99 Brownmiller, S., 122 Burgess-Jackson, K., 326n24 burning cat example, 49–50, 52–4, 210–1, 216–17 Butler, J., 50 butterfly illustration, 33 Buzan, B., 346n13 bystander: effect, 334n28; intervention, 22, 82

bargaining: incentive, 24; position, 4–5, 55–6, 72, 193; power, 15, 26, 56, 181; strategic, 57 baseline, 26, 160–3, 193–6, 200; not psychological, 161 Basu, K., 327n1 Beauchamp, T., 174 Beckwith, F., 315n12, 316n22, 316n31 beneficence, 20–3, 187–204. See also charity; welfare benefit: mutual, 27, 35, 41, 139, 142, 148, 190, 228; nonequal, 27, 138–9, 142 best bet argument, 111 best warrior rule, 270–1 Binmore, K., 308n20, 312n20, 328n7 biocentricism, 222, 224 Blackburn, S., 339n27

Calhoun, L., 263 Callahan, D., 96 Callahan, S., 315n12, 316n22, 316–17n31 Cambridge change, 77, 156, 313n10 Campbell, R., and J. Woodrow, 336n52 Camus, A., 318n8 cannibalism, 18–19, 109, 277. See also obliging stranger capital punishment, 105–18 Card, C., 273, 275 caring, 55, 133, 216–19, 245 Carruthers, P., 210, 338n22, 339n23 Carter, Sunny, 323n51 Casebeer, W., 309n33 categoricity, 46, 48, 51–2, 63–4 catharsis, 129

Index 387

Chadwick, R., 256 Chapkis, W., 323n48 charity, 15, 19–20, 23, 48, 82, 199– 201, 250. See also beneficence chicken game, 271–2 chicken sexers, 337n9 chickens, 207, 215 children: abuse of, 48, 153, 236, 245, 247, 296; cloning of, 242– 3; consent of, 83; future, 233–4, 237–8; rights of, 24–5, 96, 99, 207, 215; sex with, 153, 251 choice: parametric, 58–9, 63, 254, 304; strategic, 19, 28, 57–9, 61, 63–4, 254, 304, 309n28 cloning: reproductive, 241–3; therapeutic, 244 closure, 108 Coady, C.A.J., 263 coercion, 24, 27; blackmail, 291–2; 136–8; organ sales, 252; sex, 144–5, 154, 159–60; sex trades, 132 Coetzee, J.M., 348n38 Cohen, C., 337n8 collateral damage, 76–7, 263, 266–7 coma patients, 83, 89–91, 207 commission, 67, 287 commodification, 140–1, 230, 245, 247–8, 255–7 communitarianism, 29, 266 competency, 5, 7–10, 15, 19, 27, 58; blackmail, 283, 303–4; euthanasia, 68–71, 73–4, 82–5; organ sales, 241, 250, 253; sex, 144–5, 147, 153, 157, 177, 188; sex trade, 121, 123, 128, 136, 138; torture, 265, 277 compliance problem, 22, 33, 46, 48–9, 56, 61, 174, 192, 226, 279

concerned party, 5, 10–15, 23; abortion, 86–7, 90; blackmail, 285, 289, 300–4; environment, 237; euthanasia, 70–1; genetic, 241; organ sales, 258; sex, 144, 161–2, 182; sex trade, 121, 125, 136 conditionality, 16–18, 38, 46, 59–60, 101, 146, 188, 237, 276, 321n14 confidentiality, 129, 298 consciousness: abortion, 89, 93; animals, 208–9, 212, 214 consent: actual, 4, 6–7, 55, 59; autonomous, 19, 70, 81–2, 133, 143, 154, 245, 250, 255; coerced, 5–6, 58, 60, 123, 157, 188, 253; content of, 55–6, 60, 123, 157, 188, 253; disappearance of, 55–8; ex ante, 6–7, 13, 21–2, 55–6, 59–60, 116, 118, 166, 189–93, 198, 200, 204, 265, 279–82, 304; ex post, 6–7, 13, 22, 56, 59–61, 189–90, 192; hypothetical, 6–7, 55–7, 59, 162–3, 192, 279–80, 282; improper, 5; informed, 5, 9–10, 15, 19, 27, 68, 70–2, 74, 82, 85, 121, 123, 125, 128, 131, 134, 136, 138, 144–7, 151–4, 157–9, 162, 182, 191, 225, 235, 241, 250–1, 253, 258, 277, 285, 299. 301, 303–4; as process, 12, 81, 147; proper, 8, 14, 19, 70, 79, 81, 132, 138, 142, 146, 148, 150–2, 158, 182, 225, 251–3, 255; rational, 4–5, 16–17, 22, 33–7, 57, 80, 116–17, 189, 193, 285; reasonable, 56–7, 90, 99, 104, 116–17, 146, 152, 159–60, 162–4, 190, 193, 226, 281; reciprocal, 4–6, 14–15, 18, 23–5,

388 Index

32, 38–40, 45–6, 52, 58–60, 90, 99–100, 106, 115, 141–2, 169, 172, 189, 201, 203–4, 213–16, 225, 257–8, 276–7; return of, 58–61; unwavering, 71, 81–2. See also agreement consent principle, 3–30; defined, 4–5; dissected, 6–13; objections to, 15–30 consequences: bad, 80–4, 129, 176, 251, 290; good, 225 consequentialism, 176 constrained maximization, 58–9, 307n7, 335n39 constraint: internal, 69, 163; justifiable, 60, 141; on liberty, 194, 197, 236, 247, 257; moral 4–5, 40, 276; mutual, 189, 223, 258; practical 71; prudential, 57, 187, 257; social, 59; suitable, 56 consumerism, 221, 245, 341n7 contact thesis, 171–2 contractualism, 56–8, 61, 210, 310n2, 312n22 convention, 39–40, 46 cooperation. See reciprocal cooperation coordination problem, 21 Copp, D., 339n27 correlated games, 210 Crisp, R., 336n2 Crocker, L., 331n41 cultural: evolution, 23, 44, 201; heritage, 50, 148–9, 170, 249; invasion, 265–7, 274; transmission, 42, 44 Curnutt, J., 337n13 cuteness, 209, 338n18 D’Aaran, T.-L., 323n48 Daly, G., and F. Giertz, 349n18

Danielson, P., 307n7, 327n5 Darley, J.M., and C.D. Batson, 22 Darwinism, 42, 48, 222, 249 date rape, 144–52 de Beauvoir, S., 323n48 de Waal, F., 213–4 DeCew, J., 350n26 default position, 4–5, 60, 79, 118, 147–8, 150, 170, 283 defection, 16–17, 35–6, 58–60, 169, 188, 204, 316, 328n7 defective babies, 245 dehumanization: in genetics 244, 247–8; of women, 121–2, 127, 131–3, 135, 140, 160 depression, 74, 245 Dershowitz, A., 283 deterrence, 106–8, 110–11, 114, 318n15 doctrine of double effect, 75–80 Donaldson, S., and W. Kymlicka, 337n6 Dowbiggin, I., 314n15 drowning example, 6, 20–1; abortion, 95–7, 100; beneficence, 194, 196–9; blackmail, 293, 295–6; euthanasia, 78 due process, 68, 72, 115, 118, 175, 180–2, 273, 280–1 duelling, 82 Duggan, L., et al., 322n23, 323n47 Durning, A.T., 341n7 duties: accepting, 24, 31, 86, 90–1, 96, 99, 193, 196–7, 212, 225, 238, 339n25; concerning, 26, 189, 209, 212, 215, 223, 226, 228, 231, 238; cost of, 20–1, 46, 86, 90, 95, 190, 196, 200, 235; not discovered, 236; entail rights, 99, 297, 337n8; equally shared,

Index 389

95; imperfect,15, 19–20, 199, 335n35; indirect, 25–6, 34, 216, 226–7; negative, 90, 99, 102, 189, 192, 198–9, 226–7, 231, 233–4; onerous, 95–6, 236; ­perfect, 19–20, 23; personal, 334n32; positive, 95–7, 102, 189, 192, 198–9, 233–4; reciprocal, 212, 227, 238; to vs. toward, 25–6, 91, 207; universal, 47, 189–91, 196, 199–200, 334n32. See also rights duty-holder, 194, 196, 206–7, 223, 225–7, 231, 250 Duwe, G., and D. Kerschner, 317n4 Dworkin, A., 121, 320n1, 320n5, 321n19 Dworkin, R., 322n30 ecocentricism, 222 egalitarianism, 142, 196, 342n53 egoism, 33, 55 Elder, P.S., 342n27 Emanuel, K.A., 340–1n4 emotivism, 45, 168 Engel, M., Jr, 337n6, 337n16 English, J., 316n18, 316n27 enough and as good condition, 228–30 environment: in evolution, 40–4, 47, 202–3, 213, 242–3, 248–9, 309n21, 327n3; influences, 29, 84; protection of, 220–238 Epstein, R., 290, 350n33 equality: of benefit, 27; condition, 3, 37; of liberty, 195; moral, 247; of opportunity, 139, 174–6, 179, 182; of pleasures, 139; of resources, 138, 181; substantive, 142 Ericsson, L., 140

error theory, 26, 169, 187 euthanasia, 67–85; active, 13, 67, 70–85, 147, 155; defined, 67–70; passive, 67–8, 70, 73–80, 85 evolution, 39–45, 237, 249; of altruism, 23, 200–4; cultural, 23, 44, 201; memetic, 309n24; of morals, 3–4, 16–17, 23, 58, 64, 168–72, 213–16 ex ante, 4–7, 13, 21–2, 55–6, 59–61; euthanasia, 72, 80; abortion, 86, 99; death penalty, 116, 118; sex, 153, 163, 166; affirmative action, 174–5; beneficence, 189–93, 198, 200; terrorism, 265; torture, 277, 279–82; blackmail, 304 ex post, 6–7, 13, 22, 56, 59–61; beneficence, 189–90, 192 exploitability, 24, 39, 41, 43–4, 58, 169, 171, 189 exploitation: animals, 208, 215–16; blackmail, 289, 293–5; organ sales, 251–3, 256, 258; sex, 152, 156; sex trades, 122, 138, 147 fact–value problem, 53, 88. See also is–ought; normativity falling piano, 5–6, 13 famine relief, 187 farming, 207; factory, 337n9 Farrell, W., 325n14, 326n18 fictionalism, 36, 225 Finkelstein, C., 116–17, 306n14, 306n16, 311n14, 319n35, 320n38, 320n40 Firestone, S., 321n14, 325n7 Fisher, R., and E. Meslin, 314n22 fitness, 23, 40, 171, 201, 204, 308n21 Fletcher, G., 348n1 flourishing, 210, 221–2, 224

390 Index

Foer, J., 337n9 Foole, 16–17, 305n11 Frankena, W., 308n19 freedom of expression, 134 free-riding, 192 Frey, R.G., 340n36 Frey, R.G., and C. Morris, 260–1 Fullenwider, R., 331n45 future generations: passing traits to, 40, 44, 203; responsibility to, 228–38 Garry, A., 322n31 Garvey, B., 308n12 Gass, W., 18, 306n13 Gauthier, D., 24, 56–9, 62, 138, 203, 307n7, 309n27, 312n20, 327n5, 335n39 Geach, P.T., 308n19, 313n10 Gendin, S., 337n15 genetic: enhancement, 246–50; trait, 40, 43; treatment, 244–6 genocide, 265 genotype, 44, 242–3, 248 George, R., and A. Gomez-Lobo, 344n12 George, R., and P. Lee, 102, 315n12, 316n17, 316n22 global warming, 220–2, 225–7, 232, 235 Goldman, A., 331n48 Goldman, E., 323n48 Gomberg, P., 97 good, the, 3, 104, 140, 163, 178, 249. See also summum bonum Good Samaritan, 22 good will, 303n32 Gordon, M., and S. Riger, 326n24 Grandin, T., 216, 340n36 greenhouse effect, 220, 227 Grim, P., et al., 171

Groake, L., 306n13, 307n30 group selection. See unit of selection guilt, 47, 105, 113, 270, 274–84; collective, 274 Halwani, R., 321n14, 325n7 Hampton, J., 312n22 Hardin, G., 187, 225 Hardwig, J., 81 hardwired problem, 43–5 harm: beneficial, 12; and consent, 14–15; defined, 11–12, 123; residual, 125; side-effects, 75. See also adverse effects Harman, G., 52–4, 210, 310n35, 310n40 Harris, G., 317n32 Harris, J., 246 Harrison, P., 336n5 hate speech, 134–5, 293 Hawthorn, N., 343n3 helping. See beneficence heuristics, 23, 26, 40–1, 170–2; overextended, 200–4 Hill, J., 129–33, 135, 322n22, 323n36 Hill, T., Jr, 221, 335n35 Hobbes, T., 16, 32–3, 36–8, 56, 115–16, 138, 217, 305n11, 306n26, 312n21 Hobbesian contractarianism, 16, 30, 306n14 Hoigard, C., and L. Finstad, 137 homophobia, 11–12, 40, 168, 180, 183, 218, 305n5 homosexuality, 11, 31, 39–40, 48, 50–1, 54, 71, 122, 144, 168–9, 177, 218, 247–9, 265, 301, 327n3 hooks, b., 321n14, 325n7

Index 391

houseboat analogy, 113 Hume, D., 16, 37, 54, 61, 190–1, 308n19 Hursthouse, R., 210, 216, 219, 317n32 Huxley, A., 247

involuntary: blackmail, 292; euthanasia, 69–70; organ sales, 254; sex, 159–61 is–ought problem, 22, 61–2, 308n19. See also fact–value; normativity

Ignatieff, M., 346n12, 347nn31–2 immunity, 266–7, 270 imperialism, 50, 205, 222, 265 indifference, 48, 188–93, 196, 200, 333n15 inequality, 138, 177, 271 infidelity, 126–7, 285–6, 295–6, 303. See also adultery information, 9–10, 15, 19, 74, 125, 154, 158–9; falsifying, 225, 251 innocence, 87, 109, 263–4, 318n11 instrumentalism, 16, 25, 43, 46–7, 51–2, 58, 139, 141, 225, 257 insurance argument, 20–1, 193 interaction: correlated vs. random, 201; strategic vs. parametric, 28, 63–4 interaction effects, 246–7, 249 interests: competing, 57, 60; not economic, 27, 142; encroaching, 33; individual vs. social, 29; intrinsic and instrumental, 47–8; not need, 208; prudential, 33, 57, 59 internalism, 20–1, 50–1, 191, 214, 307n29 intrinsicality, 4, 25, 47–8, 51–2; animals, 208–9, 214–15; beneficence, 192; environment, 222, 224–5, 238; organ sales, 255, 257, 259; sex trade, 139–41 intuitionism, 18–19, 22, 50, 196, 212, 285, 289, 312n22

Jaggar, A., 137 Jones, H., 182, 332n52 jus ad bellum, 264–9 jus in bello, 264, 266–70 just world theory, 22 justice: compensatory, 173, 178– 80; distributive, 173, 180–2; procedural, 107, 113, 173–6; retributive, 105–6; scheme, 72, 80, 107, 118, 280; social, 106, 173, 176–8 Kant, I., 48, 56, 140, 199, 214, 236, 248–9, 255–6, 335n35, 339n23, 340n32, 345n40 Kantianism, 32, 47, 131–3, 139–41, 165, 208, 210, 236, 245, 247, 256–7, 276 Kass, L., 243 Katz, L., 287, 289, 293, 297, 349n6, 349n16, 349n20, 350n27, 350n29 Kavka, G., 231–3, 236 Kesler, K., 141 Kittay, E.F., 146, 325n5 knife example, 14, 32, 45–6, 99, 144, 188, 226 Kraus, J., 310n1–2, 312n22, 332n4 Lackey, D., 261 Lappé, M., 245 Latané, B., and J.M. Darley, 334n28 Lathan, M., 323n48

392 Index

Latimer, Robert and Tracy, 72, 312n2 laws of nature, 59 lewd propositions, 158–67 lex talionis, 105–6 libel, 11, 129–31, 134–5 libertarianism, 118, 174, 217, 229 liberty, 81, 182–3, 247, 266; limitation of, 99, 190, 226–7; a negative right, 95, 99; not freedom, 195–6, 312n21; protection of, 84–5, 193; and selfishness 98, 102, 194, 197; not trivial, 94–5, 99, 104; vs. welfare, 194–6 Lindgren, J., 349n18, 350nn29–30 Lippman, A., 245–6, 248 Lipsey, M.W., and D.B. Wilson, 317n4 living wills, 83–4 Locke, J., 228–30, 312n20 Lockean proviso, 228–30 Lockwood, J.A., 336n3 Lomasky, L., 270, 280, 346n7 Longino, H., 131–2, 322n33 Lorenz, K., 335n43 lottery analogy, 8, 21, 111, 251, 304 Lovelace, L., and M. McGrady, 321n11 Luban, D., 261, 273, 279, 281–2 ludicrous offers, 164–7 MacDonald, H., 283–4 Mackie, J.L., 48, 52, 151, 212, 257 MacKinnon, C., 121, 129, 147, 320n1, 320n5, 322n30, 323n43, 324n76, 325n11 Mappes, T., 156 Marquis, D., 91, 93–4, 314n2, 315nn11–12, 316n22 marriage, 97, 124, 136, 249, 296, 303, 321n14, 325n7

martyrdom, 73–4, 85 Matheny, G., 337n6 maximin formula, 320n36 McInerney, P., 315n11 means–end distinction, 76, 131, 139–40, 161, 208, 236, 247; means only, 131–3, 139–40, 165, 208, 236, 248, 256 Meaton, J., and D. Morrice, 341n7 Meiwes, Armin, 19, 306n15 Mendus, S., 321n14, 325n7 mens rea, 135, 152 metaethics, 4, 6, 25, 45–54, 86, 205, 222, 237; presuppositions, 29, 205, 211–13 Midgley, M., 336n4 Mill, J.S., 84, 140, 313n9, 314n23, 324n66, 335n34 mimicking, 202–2, 204 minimax relative concession, 312n20 Miriam, K., 324n65 misogyny, 131, 135 mixed signal hypothesis, 169–72, 175 Moore, G.E., 43, 308n19, 309n33 moral: agency, 10, 18, 24–6, 33, 42, 55, 77, 135, 141, 226, 257; architecture; 39–40, 43, 104, 188, 215; dubbed, 28, 62–3; myth, 45–52, 62, 215; realism, 49–52, 54, 308n19; standing, 10, 15, 23–6, 188, 207, 216, 227; objectivism, 4, 24, 28–9, 49–51, 215; oughts, 31, 48, 61–4; relativism, 46–7; vs. well-being, 32, 103, 221 morality: content of, 47, 214–15; not categorical, 48–9; conditional, 4, 16–18; defined 28, 31, 46, 58, 61; not discovered, 28–9,

Index 393

49, 141, 208, 211–12, 257; invented, 4, 28, 33, 47, 49, 212, 222–4, 257; as an evolved trait, 4, 16–17, 24, 41–3, 48, 168, 172, 226; as a happy medium, 3–4, 13, 59, 194; instrumental, 4, 16, 43, 45; intrinsic 4, 47–8, 43, 47; as a propensity to reciprocally cooperate, 4, 32–9, 60; and prudence, 14, 16–8, 46, 62–4; serving self-interest, 14, 29, 32–4, 37–8, 46, 55–60 Morelli, M., 256 Morris, C., 114–16, 118, 260–2, 307n29, 310n2, 337n8 motives: bad, 103, 122, 210, 242, 251, 289–90; illicit, 164–5; nice, 249, 251, 290; petty, 103–4, 297; shared, 57 mugging example, 6, 12, 60, 137, 150, 155, 188, 195–6 Murphy, J., 318n12 Murray, M., 307n7, 308n16, 327n5, 329n14 mushroom analogy, 124, 192 mutual benefit, 25, 27, 31, 35, 41, 43, 46, 59; animals, 205, 212; beneficence, 187, 190; blackmail, 289; death penalty, 115; environment, 223, 226, 228; organ sales, 253; prostitution, 139, 142; sex, 146, 148–9, 151, prejudice, 181– 2; torture, 277 Nagel, T., 263, 270 Narveson, J., 118, 174, 216–19, 329n19, 329n26, 330n36, 341n9 Nash equilibrium, 35–6 Nathanson, S., 318n10, 347n20 natural affections, 21, 191–2 natural law, 270

natural selection, 40, 44, 58, 204, 215, 309n21 naturalistic epistemology, 25–6 naturalistic fallacy, 41–3, 192, 308n19 Nesbitt, W., 313–14n13 Newton, L., 329n20 Nietzsche, F., 3, 215 NIM B Y , 124–5 no waste condition, 228–30 noncognitivism, 45, 168 noncombatant, 77, 260–3, 266–8, 270 nonfalsifiability, 143 nonreductionism, 62–4 nonstate agents, 260–4, 272 nonvoluntary, 69–70, 254 Noonan, J., Jr, 315n12, 316n22 Norcross, A., 315n11, 315n15, 337n6, 337n8 normative ethics, 4–6, 39, 45, 47–8, 51–2, 56, 60–1, 122, 206, 256, 270 normativity problem, 61–4. See also fact–value; is–ought Nozick, R., 181–2, 229–30, 321n14, 325n7 nuclear waste, 234 objectification, 47 obligation: to future generations, 228–38; negative, 26, 99–102, 192, 199; noncontractual, 26, 61, 96, 98; positive, 20, 95–99, 187, 189, 192–4, 199, 293; prior, 158, 195; to report immorality, 295–7 obliging stranger, 18–19. See also cannibalism O’Brien, W., 346n5 offer–acts, 161–9

394 Index

omission, 67, 287 O’Neill, J., 329n18, 331n48 open future argument, 243 organ sales, 250–9; vs. organ donation, 256, 258 ought: prudential vs moral, 61–4 Overall, C., 316n26 pacifism, 117, 264, 346n16 pain: excessive, 67, 69, 71, 81, 85; sensation, 89–91, 206, 208, 211–12 painting example, 91, 252–3, 285–6, 292, 300, 303; unfinished, 287 parametric choice, 58–9, 63, 254, 304 Parfit, D., 230–4, 237, 313n10, 321n14, 343n57 Pateman, C., 137–9, 141–2, 305n3, 323n49, 324n74 paternalism, 104, 136, 174, 253, 303–4 patriarchy: abortion, 98; affirmative action, 180; genetic, 245; sex, 147, 157, 160; sex trade, 123, 130, 133–5, 137, 141–3 Pence, G., 343n4 personal identity, 92–3, 231–2, 246 phenotype, 44–5, 64, 242–3, 248 pimps, 137–9 Pogge, T., 334n24 Pojman, L., 111 polyamory, 144 pornography, 121–35; child, 122– 3; defined, 121–3; vs. erotica, 121, 133; depicting rape, 121–2, 128–30; inciting rape, 127–8; victim, 130; violent, 122, 127– 30, 132 potentiality argument, 91–4

power differential, 157–8 preferences: considered, 13–14, 64; sets, 34–5 prejudice: defined, 168; explained, 168–72 prerogatory, 198–9, 201 Primoratz, I., 346n7, 346n11 Prinz, J., 213–14, 309n26, 338n18 prison, 110–13 prisoner’s dilemma (PD), 35–8, 171, 304 prisoners of war, 263, 267–8, 281 progeny, 42, 170, 225, 227, 237, 243 property: acquisition of, 228–30; duties toward, 26; harms to, 11; maintenance of, 228–30; rights of, 207, 216; use of, 11–12, 21 proportionality, 105, 109, 267–8 prostitution, 136–43, 156–7, 159– 61, 248 protection argument, 20 protection of society, 106–7, 111–15 proxies, 5, 8–9, 69–71, 83–4, 153 prudence, 13–14, 16–17, 28, 31–2, 46, 48, 61–4; animals, 214; beneficence, 187–8, 190; blackmail, 302–4; prejudice, 174–5 psychological: harms, 9, 11–12, 71, 98, 155–6, 161, 243; realism, 197–8 punishment, 19, 36, 105–8 pushiness, 149. See also date rape queerness argument, 48–51, 141, 212–13, 257; epistemological, 50; metaphysical, 49; motivational, 50–1 question begging, 22, 31, 33, 52–3, 61, 92, 135, 157, 164, 190, 192, 197, 223, 257, 276, 303

Index 395

queue jumping, 257–8 quid pro quo, 136, 153–6, 158 Quine, W.V.O., 54 Rachels, J., 78, 80, 313n13, 340n36 racism, 104, 113, 135, 168, 180, 183 Radcliffe Richards, J., 98, 252–3 rape, 12, 14–15, 78, 94, 132, 144– 5, 194; abortion, 97–8; pornography, 121–2, 127–30; prostitution, 137. See also date rape rationality, 4, 16–17, 34–7, 44, 55–7, 61–4, 116–17, 138; defined, 55 Rawls, J., 56–8, 181, 193–5, 311n7, 311n9, 320n36, 333n16, 338nn21–2 recidivism, 108, 112 reciprocal cooperation (RC), 4–5, 15, 18, 23–5, 32, 38–41, 45–6, 52, 58–60, 64, 328n9, 328n12, 335n39; abortion, 90, 99–100, animals, 201, 203–4, 214–16; death penalty, 106, 115; environment, 225; organ sales, 258; prejudice, 169–72; prostitution, 141–2 reciprocity, 22, 26; animals, 211– 12, 215, 339n25; beneficence, 188, 203; prejudice, 179; prostitution, 139; torture, 276, 279 reductionism, 62–4, 308n19, 312n24 reflective equilibrium, 311n7 Regan, T., 208–9, 212, 214, 216, 219, 337n16, 338n22 regret, 147, 298 rehabilitation, 107–8, 317n4

Reiman, J., 117 relativism, 46–7, 51 reneging, 7, 19, 21, 59, 115, 147, 190–1; as adultery, 126; with a cockroach, 223; in date rape, 146; mutual, 33; punishment of, 19, 226, 276, 280–1 replicator dynamics, 328n7 reputation, 11, 16, 23, 164, 203–4, 295 respect, 24, 139–40, 255–6, 273; of nature, 222, 226; of patients, 61; of women, 82, 129, 131–2, 134, 140–1, 161, 167 retribution, 105–10, 114–15, 275–7 reverse ordinal ranking, 35 reverse-order objection, 15, 28–9 Richardson, L., 263 Ridley, M., 343n1 rights: ascription of, 24, 88–9, 94, 99, 103, 207, 210–11, 219; competing, 92; degree of, 88; entail duties, 14, 89, 103, 190, 206–7; forfeiting of, 114–15, 118, 194, 265, 273, 277, 279, 281; indirect, 207; negative, 88, 94–6, 98–103, 216, 226; origin of, 24; positive, 88, 94–103, 175, 216; prima facie, 88, 175, 216; protection, 24–5; to refuse treatment, 68–71, 74, 78–9, 158; veto, 10, 27; violations, 29. See also duties rights-holder, 87 Ring of Gyges, 16–18, 342n29 Rippon, S., 254–5 risk, 3, 20, 29, 46, 49; in genetics, 244–6; to helpers, 221; in imitation, 202; of offending, 166; in organ sales, 252–3; in pregnancy,

396 Index

87; of punishment, 106, 110–12, 116–17 Robinson, D., 309n33 Rolston, H., III, 222, 224 rules of the road, 39, 57, 309n28 Russian roulette, 306n14, 306n16 Sandel, M., 332n5 Sanders, J.T., 214 Saul, J.M., 326n34 Sayer-McCord, G., 339n27 Scanlon, T.M., 56–7, 313n7, 326n40, 338n21 Schmidtz, D., 199, 230, 235–6 Scoccia, D., 320n8 self: concept of, 231; future, 93, 231, 296 self-defence analogy, 117–18, 264–5, 267, 281, 316n18 self-interest, 4, 14, 33. See also amorality; interests; prudence Sen, A., 195 sentience, 87, 89–92, 94, 206–7, 212 sex: and abortion, 97–9; with children, 8–9, 153; coercive, 144–52; communicative, 147, 150; homosexual, 11–12; vs. rape, 13–15, 78, 81; selection, 103–4, 249; trades, 121–43 sexism, 50, 103–4, 126, 129, 134, 142, 161, 168, 175, 180, 183 sexual offers, 154–8 sexual threats, 153–4; veiled, 156–7, 159–60 Sherwin, C.M., 336n3 Shrage, L., 317n32 Shue, H., 279, 281–2, 347n35, 348n44 signals, 23, 126–8, 152, 175, 203–4. See also mixed signal hypothesis

Simon, J., 337n16 Singer, P., 196–200, 205–9, 211–12, 214, 216, 219, 235, 334n27, 337nn29–30, 334–5n33, 337n9 Skidmore, J., 339n23 Skyrms, B., 307n7, 327n5 slavery, 84–5, 95, 139–40, 142, 177, 227, 244, 269 slippery slope arguments, 81, 177–8, 251 Slote, M., 335n38 Smith, J.A., and K.M. Boyd, 336n3 Smith, A., 187, 332n2 Smith, J.M., 42–3 Soble, A., 321n13, 323n46 Social Darwinism, 42 social utility, 81, 173, 176–8 sovereign, 32–9 spam analogy, 252 speciesism, 205 speech act, 134; locutionary, 134, 161; perlocutionary, 134–5, 161– 2; illocutionary, 134, 161–2 Spencer, H., 42 state: between, 260–1, 273; modern, 262; sub-, 260–4, 272; within, 260–1 state of nature, 28, 33–4, 36–7, 138, 179, 190–1, 201, 218, 229, 269–70, 280 status quo: 6, 28; abortion, 100–1; affirmative action, 181; beneficence, 193, 195–6; blackmail, 291–3, 301; in chicken games, 271; of future generations, 232, 234–5; organ sales, 253–4; in PDs, 34–5; prostitution, 137–8, 142–3; sex, 149–50, 152, 154–8, 160–1, 163; in trolley cases, 79–80; and voluntariness, 137–8

Index 397

Steinberg, D., 322n25 Sterba, J., 222–3, 341n18, 346n11, 346n16 Stewart, D.N., and D. Szymanski, 321n15 strategic choice, 19, 28, 57–9, 61, 63–4, 254, 304. See also bargaining; choice; interaction; parametric Strossen, N., 322n23 Sturgeon, N., 52–4 subsistence level, 193 suicide, 68, 73–4; assisted, 68 summum bonum, 217 supererogation, 198–9, 201, 204 surprise parties, 5, 7, 162–3 Taylor, C., 266, 332n5 Taylor, Paul, 222 telomeres, 242–3 terrorism, 260–74; as a chicken game, 271–2; defined, 260–4; explained, 269–71; war on, 268, 272–4 Thomson, J.J., 101–2, 298, 329n19, 331nn41–2, 333n21 Tirrell, L., 322n30 tit-for-tat (TFT), 38–9, 170–1, 328n7, 328n9 Titmuss, R., 345n46 tolerance, 46, 48 Tong, R., 155, 326n30 Tooley, M., 89 toothpaste example, 9, 140, 253, 256, 290 torture, 274–84; of cats, 49; of children, 45, 47–8, 105, 212; vs. dentistry, 14–15; guilty first person reparation, 277–9; of murderers, 115; morality of, 279–82,

284; variables, 274–7; of war prisoners, 268; warrants, 282–3; of women, 128 tow truck example, 294 trait selection, 16, 40. See also natural selection translucency, 203 transparency, 60, 203 Trivers, R., 203 trolley problem, 75–7, 79–80 Tully, J., 241 turn the other cheek, 3, 46 type–token distinction, 197, 199– 200, 235–7 ultimatum game, 27 Ulysses and the sirens, 198 undue incentive: euthanasia, 81; organ sales, 251–2; sex, 152, 154–8 unit of selection, 42, 178–9 using people, 12; environment, 236–7; euthanasia, 76; genetic, 248, 257; sex trades, 131, 138–41 utilitarianism, 32, 76–8, 107, 176, 178–9, 245, 267–8, 276, 278 utility: of capital punishment, 116; defined, 56; not economic, 35, 307n5; expected, 21, 36, 55, 191; group, 334n30; of helping, 192, 200; net, 58; scoring, 36; social, 81, 176–8; of torture, 282–3 Vallentyne, P., 326n36 value: ascription of, 25, 43, 49, 141, 211–12, 222, 257; degree of, 25–6; inherent, 132, 211, 222–4, 238; intrinsic, 4, 25,

398 Index

46–8, 51–2, 139–41, 192, 208–9, 214–15, 222, 224–5, 238, 255, 257, 259; instrumental, 23, 43, 46–7, 51–2, 58, 225; invented, 141; subjective, 25, 47–8 van den Haag, E., 111 Varner, G., 340n36 veil of ignorance, 56–7, 311n9; with animals, 338n22 Velleman, D., 82, 155 vengeance, 106, 318n9 victim compensation, 108 vigilantism, 68, 72, 107, 115, 118, 175, 180, 183, 280–1 Viminitz, P., 269–71, 327n41, 328n8 virtue theory, 47, 209–10, 247, 249 virtues, 13, 209–11 Voltaire, 163, 166 voluntariness, 5–7, 15, 22, 27, 60; abortion, 90, 97–8; blackmail, 285, 291–5, 304; euthanasia, 69–71, 82, 84; organ sales, 250, 253–4; sex, 144–5, 147, 150, 152, 159, 162–3, 167; sex trade, 121, 128, 136–8, 142–3

Waldron, J., 228 Walzer, M., 332n5, 334n29, 346n7, 346n11, 347n31 wanton cruelty, 205, 216, 218–19 war: crimes, 261–2; just, 260–9, 273; on terrorism, 268, 272–4 Warren, M.A., 89, 206–7, 216, 224, 338n17 Wasserstrom, R., 331n41, 331n48 Watson, G., 310n2 wealth distribution, 157, 193, 311n9 welfare, 15, 20–1, 139; vs. liberty, 194–6, 200. See also beneficence well-being: of animals, 216; vs. morality, 32, 74, 103, 221, 297 Wellman, C., 263 West, R., 148–9, 152 Wilkins, B., 346n13 Williams, G., 348n3 Wilson, J.Q., 243 Wolf-Devine, C., 316n31, 334n31 Wollstonecraft, M., 323n48 Wood, A., 339n23 wrongful convictions, 113 zero-sum games, 147–8, 181–2