Philosophizing the Indefensible: Strategic Political Theory 019887216X, 9780198872160

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Philosophizing the Indefensible

Philosophizing the Indefensible Strategic Political Theory SH M U EL N I L I

Great Clarendon Street, Oxford, OX2 6DP, United Kingdom Oxford University Press is a department of the University of Oxford. It furthers the University’s objective of excellence in research, scholarship, and education by publishing worldwide. Oxford is a registered trade mark of Oxford University Press in the UK and in certain other countries © Shmuel Nili 2023 The moral rights of the author have been asserted All rights reserved. No part of this publication may be reproduced, stored in a retrieval system, or transmitted, in any form or by any means, without the prior permission in writing of Oxford University Press, or as expressly permitted by law, by licence or under terms agreed with the appropriate reprographics rights organization. Enquiries concerning reproduction outside the scope of the above should be sent to the Rights Department, Oxford University Press, at the address above You must not circulate this work in any other form and you must impose this same condition on any acquirer Published in the United States of America by Oxford University Press 198 Madison Avenue, New York, NY 10016, United States of America British Library Cataloguing in Publication Data Data available Library of Congress Control Number: 2023935455 ISBN 9780198872160 DOI: 10.1093/oso/9780198872160.001.0001 Printed and bound in the UK by Clays Ltd, Elcograf S.p.A. Links to third party websites are provided by Oxford in good faith and for information only. Oxford disclaims any responsibility for the materials contained in any third party website referenced in this work.

To Maya and Itamar, stellar philosophers, for illuminating And to our family—always a beacon

Preface Ever since I arrived in the United States to begin my PhD, I’ve been asked repeatedly why I do not write more political philosophy about my country of origin. My traditional response was to say that it does not take a philosopher to identify moral failures in Israeli politics. Underlying this response was a more general thought: political philosophers should train their sights on moral questions that give us pause, rather than on abhorrent policies whose wrongness is abundantly clear. Like many other philosophers, I have long taken this conventional wisdom for granted. Over time, however, doubts emerged. The conventional wisdom came to seem overly insular—overly preoccupied with purely intellectual conundrums, at the expense of practical issues that matter to people in the real world, and especially to the world’s most vulnerable. My general disquiet on this large issue, moreover, was joined by a more specific sense of practical helplessness in the face of the ever-deepening chasm between Israel’s founding ideals and its realities. And that helplessness was further amplified in 2016, when my adopted country seemed determined to compete with my native country in making manifestly indefensible political choices. I eventually decided to write this book in an attempt to think through what, if anything, political philosophers—qua philosophers—can contribute in the face of such doom and gloom. Throughout, the book reflects the ongoing political predicaments of the two lands I know most. But I hope that its ideas will be of interest even to those who wish to think about different times and places. Multiple places, institutions, and people deserve thanks for helping me improve these ideas. I have benefited tremendously from presentations and conversations at the Australian National University, Flensburg, Northwestern, Yale, University College London, and Warwick. Chris Armstrong, Christian Barry, Geoff Brennan (sorely missed), Simon Caney, Avner De-Shalit, Tom Donahue, Lisa Ellis, David Enoch, Lior Erez, Jesse Hambly, Burke Hendrix, Jeff Howard, Lizzie Krontiris, Paulina Ochoa, Tom Parr, Tiago Peterlevitz, Philip Pettit, Thomas Pogge, Ian Shapiro, Matt Vermaire, Leif Wenar, and Alex Zakaras all generously devoted time to thinking with me about strategic political theory. Ted Lechterman, who read an entire draft of the manuscript, was extra generous, and I can only regret not being able to incorporate all of his perceptive comments. Agneska Bloch and Thomas Abers-Lourenco provided terrific research assistance at different stages. Financial support from Northwestern’s Crown Center for Jewish and Israel studies facilitated the manuscript’s timely completion.

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Chapter 6 updates, revises, and expands a discussion of green energy and petrocrats that I first offered in “Environmental reform, negative duties, and petrocrats: a strategic green energy argument,” The Journal of Politics 77 (2015): 914–927. I am grateful to the journal’s editors, and to the University of Chicago Press, for permission to reprint parts of this essay here. Last but not least, I am very grateful to my OUP editor Dominic Byatt for his advice and patience as the manuscript evolved, and to three anonymous reviewers, for their comprehensive and constructive feedback. I strongly suspect that there are more people who ought to be thanked, yet who I have somehow managed to forget. I can only hope that they won’t find me indefensible. SN Evanston, Illinois November 2022

Contents

Philosophizing the Obvious?

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1. The Case for Strategic Political Theory

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2. Who’s the Republic’s Enemy? Netanyahu, Arab Political Parties, and Israel’s Political Crisis

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3. The Christian Right, Abortion, and Trump

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4. Too Big to Fail and Too Big to Jail? A Strategic Response to Corporate Crime

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5. Strategic Theorizing, Corporations, and Dictators

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6. Strategic Environmentalism: Oil, Gas, and Green Energy

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Conclusion: One-Handed Philosophers Index

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Philosophizing the Obvious? Whenever people outside the ivory tower inquire what I do for a living, I say that I am an academic. When they ask for my academic field, I answer: “political philosophy.” This answer almost always elicits a morose comment on the present state of politics. But the kindest interlocutors often seem (or at least pretend) to believe that, in virtue of my academic specialization, I have something useful to say about the most urgent political problems. That, at any rate, is how I interpret the ubiquitous reply: “with everything that is going on in politics right now, you must have a lot to write about!” This belief has long caused me unease, because, like most of my fellow political philosophers, I have spent a long time fearing that it is false. More specifically, I have long feared that political philosophers have little distinctive contribution to make in the face of the most pressing political problems of the day. The main reason is that, on too many days, these problems are morally obvious: they concern political choices whose wrongness is plain for all to see. In fact, the wrongness of these choices is usually vastly overdetermined. Governments that pursue patently unjust wars; governments that knowingly incentivize large-scale environmental destruction; governments that do little or nothing in the face of flagrant racial and gender discrimination; governments that are plainly guilty of spectacular corruption and mismanagement of anything from public infrastructure to public health; on these and so many other topics that dominate political headlines worldwide almost constantly, I have long worried that philosophers have virtually nothing to add, qua philosophers, to the public conversation. Underlying this worry is the fact that patently indefensible policies—by definition—feature no genuine puzzle or conflicting weighty considerations: such policies involve no real moral dilemma.¹ But where there is no moral dilemma, it is not clear what role there is for moral and political philosophy to play. Patently indefensible policies therefore seem like a much more natural cause for political activism than for political theory. Why would any decent, minimally reflective citizen need philosophers to recognize such policies for what they are? Political philosophers have accordingly tended to develop arguments that lie at a remove from patently indefensible policies, however urgent the battle against ¹ I am using “moral dilemma” here in the ordinary-language sense of the term, connoting a morally complicated choice, rather than in the technical sense favored by some philosophers to describe tragic situations, wherein every possible choice involves some moral wrong.

Philosophizing the Indefensible. Shmuel Nili, Oxford University Press. © Shmuel Nili (2023). DOI: 10.1093/oso/9780198872160.003.0001

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such policies might be. This remove has been apparent in two ways. First, as a general matter, to the extent that philosophers spend time on indefensible policies at all, they overwhelmingly do so only in order to examine questions that arise in the aftermath of such policies, and/or in response to their obvious wrongness. Under this rubric fall issues such as: who ought to bear what kind of liability and/or remedial responsibility for the policy? Who ought to have the power of assigning the relevant liability? What kinds of indefensible policies call for international action, and how coercive can such action be? What is the morally appropriate way to treat victims of certain indefensible policies? What modes of resistance are justifiable in the face of different kinds of indefensible policies? How ought a political community acknowledge indefensible policies that dominated its past? And so on.² Second, political philosophers have also spent considerable time on the type of moral disagreement that patently indefensible policies do not involve—namely, reasonable disagreement. This is the kind of disagreement that arises when others’ moral judgements about a given policy conflict with ours, even though their reflections on the policy are clearly no less coherent and competent than our own. Democratic theorists, in particular, have been concerned with the authority of majoritarian procedures in the face of such disagreement. Ought we abide by the will of a democratic majority, despite our conviction that our minority view of the policy question is the correct one? Why—if at all—do we owe the majority such deference? What are the moral limits to this deference? And so on.³ Both of these familiar approaches have considerable merits. But in this book, I pursue a different tack. I focus directly on patently indefensible policies, and on the unreasonable disagreements with which they are often associated. More precisely, I assume that patently indefensible policies are exactly those policies whose wrongness lies beyond the scope of reasonable disagreement, meaning that only the unreasonable can endorse such policies. My goal is to defend a new method of political theorizing, which might allow political philosophers to make a distinctive contribution to the social need to confront such unreasonable views and the indefensible policies they underlie. If this method will turn out to be successful, then it will show that political philosophers need not feel entirely helpless in the face of the most urgent political failures: philosophers might have something fruitful to say in the face of these failures after all.

² The philosophical literature on each of these topics is enormous. The only partial exception is the last, relatively understudied subject, which I have tackled elsewhere. See my “Political Leaders and the Morality of Political Honors,” Ethics 130 (2020): 415–445. ³ See, e.g., Allen Buchanan, “Political Legitimacy and Democracy,” Ethics 112 (2002); Thomas Christiano, The Constitution of Equality (Oxford: Oxford University Press, 2008), chap. 6; Daniel Viehoff, “Democratic Equality and Political Authority,” Philosophy and Public Affairs 42 (2014): 337–375; Niko Kolodny, “Rule Over None II: Social Equality and the Justification of Democracy,” Philosophy and Public Affairs 42 (2014): 287–336; Zofia Stemplowska and Adam Swift, “Dethroning democratic legitimacy,” in David Sobel, Peter Vallentyne, and Steven Wall (eds.), Oxford Studies in Political Philosophy 4 (New York: Oxford University Press, 2018), chap. 1.

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I.1 The Indefensible and the Unreasonable It is best to begin with my definition of “reasonable” and “unreasonable.” In contemporary political philosophy, the term “reasonable” often has a specific technical meaning, associated with ideas central to John Rawls’ later work.⁴ In contrast, this book uses the term “reasonable” in its everyday sense. “In this sense,” as David Enoch writes, “someone is reasonable if they are reasoning, willing to listen to reasoning, willing to respond to reasons.”⁵ I use “unreasonable,” in turn, to describe a residual category: the unreasonable are those who fail to respond in minimally adequate ways to key moral reasons that are clearly pertinent to the political subject at hand. My assumption throughout is that only the unreasonable, thus defined, can endorse patently indefensible policies. The mode of political theorizing that I develop in this book seeks to engage with the unreasonable in a particular way. My aim is to expand the scope of intellectual opposition to indefensible policies, by showing how these policies ought to be rejected even if we accept, solely for the sake of discussion, extremely problematic premises associated with these policies’ unreasonable advocates. The goal is to show how the policy conclusions desired by these advocates do not follow, even if we adopt their perspective on the world, arguendo, and even if—crucially—we go beyond the unreasonable themselves in making this perspective as systematic and wide-ranging as it can be. I call this approach strategic political theory. The book’s central ambition is to establish the value of this approach, partly by illustrating it in detail. In order to further frame this task, I should now be a bit more precise about the term “indefensible policies,” to which I have already referred multiple times. Throughout this book, I will use “indefensible policies” and “indefensible political choices” interchangeably. This terminological choice reflects the fact that strategic theorizing is not meant to apply exclusively to public “policy” in the narrow sense of that term—that is, the sense of formal government measures (typically) put in place by public officials. Rather, as will become clear, I believe that strategic

⁴ Accordingly, philosophical efforts to work out which forms of toleration or accommodation (if any) are owed to “unreasonable” citizens typically take the form of attempts to work through the specific commitments of Rawlsian political liberalism as they bear on these citizens. See, e.g., Erin Kelly and Lionel McPherson, “On Tolerating the Unreasonable,” Journal of Political Philosophy 9 (2001): 38–55; Jonathan Quong, “The Rights of Unreasonable Citizens,” Journal of Political Philosophy 12 (2004): 314–335; Gabriele Badano and Alasia Nuti, “Under Pressure: Political Liberalism, the Rise of Unreasonableness, and the Complexity of Containment,” Journal of Political Philosophy 26 (2018): 145–168. While I am sympathetic to these efforts, I want to cast a broader net here, partly because I am doubtful that the technical Rawlsian definition of “reasonableness” maintains sufficient proximity to the everyday sense of this term. My skepticism here follows David Enoch, “Against Public Reason,” in David Sobel, Peter Vallentyne, and Steven Wall (eds.), Oxford Studies in Political Philosophy 1 (2015): 112–142. ⁵ David Enoch, “The Masses and the Elites: Political Philosophy for the Age of Brexit, Trump and Netanyahu,” Jurisprudence (2017): 1–22, at 11.

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political theorizing can in principle be applied to a very wide range of indefensible political choices, regardless of the identity of the actors who are making these choices. Thus, for example, ordinary citizens are not normally thought of as “policymakers” when casting ballots in elections. But, as I go on to show, ordinary citizens in their electoral capacity can be the targets of a strategic argument in much the same way as can public officials, as can (for that matter) private companies who are lobbying for certain policies. Similarly, members of parliament who have to decide whether to vote a given government into or out of office are not typically thought to be voting on “policy” in any direct sense. But their vote in favor or against the establishment of a given government, as we will see, can also be the subject of a strategic argument. So long as the political choice in question is both (a) patently indefensible and (b) does not actually align with the premises of its unreasonable proponents (or at least, does not align with the strongest, most systematic version of their premises), it can, in principle, fall within the scope of the strategic method.⁶ However, in order to keep the inquiry tractable, I am going to focus on four main variants of indefensible political choices or policies. I take these variants to correspond to four types of serious failures of reasoning.⁷ First, if a given political choice not merely understates, but entirely ignores what is plainly a vital moral factor, it qualifies as indefensible, and anyone who supports it qualifies as unreasonable, simply because they fail to account for that crucial factor in a minimally adequate way. Consider, for instance, a policy that, in the name of protecting proprietary information, shields chemical industries emitting dangerous toxins from any requirement to reveal to neighbors who are breathing the toxins precisely what substances might be threatening their health. Such a policy does not merely understate the significance of the neighbors’ moral claim to know information that is essential to their health. Rather, the policy effectively ignores this claim entirely. This fact suffices for us to designate the policy as indefensible, and anyone who supports it as unreasonable. Second, a policy is indefensible if it reflects an entirely implausible interpretation of a central moral factor, and/or of its relationship to other central factors. Policies concerning sexual behavior, for example, must always pay attention to ⁶ Though there is an important normative question as to whether there are some indefensible political choices to which the strategic method ought not be applied. As I indicate below, chapter 1 explores this question at length. ⁷ Christopher McMahon, in arguably the most elaborate treatment of “reasonable disagreement” in the literature, suggests that such disagreement with regard to political morality involves either (1) differences over value choices, (2) differences in value interpretation, or (3) differences in the relative priorities assigned to competing values. See McMahon’s Reasonable Disagreement (Cambridge: Cambridge University Press, 2009). If we follow this typology, then we might say that a policy’s wrongness lies beyond the scope of reasonable disagreement if no minimally adequate value choice, value interpretation, or priority assignment would fail to recognize that this policy is unjustified. My remarks in the body of the text can be seen as a way of spelling out different ways in which this “minimal adequacy” demand can be violated.

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consent as a pivotal factor. But a given policy’s interpretation of consent, and of consent’s interaction with other morally salient factors, such as duress and coercion, could still be so implausible so as to render the policy indefensible. Thus there can be no reasonable disagreement about the moral wrongness of a policy which treats even “consent to sex” extracted at gunpoint, for instance, as legally valid. Nor can there be reasonable disagreement about the moral wrongness of a policy that refuses to recognize marital rape as a crime.⁸ Anyone who supports policies of this sort is plainly unreasonable in the same basic sense highlighted above—namely, in the sense of failing to respond in a minimally adequate manner to moral reasons that are clearly germane to the subject at hand. Third, a policy is indefensible if it depends for its purported justification on factual or empirical assumptions that are manifestly implausible. The assumptions in question might pertain to the past and present. Thus, for instance, a government is carrying out an indefensible policy if it ignores incontrovertible past and present evidence regarding the severity of a fast-spreading disease, and accordingly fails to devote adequate resources to combating or containing the disease. In other instances, the relevant assumptions can also be centered on the future, taking the form of extremely implausible predictions. Consider, for instance, governments in affluent democracies who fear that enforcing rudimentary labor standards or environmental regulations will alienate major corporations to such an extent these corporations will move to another country. In many instances, such fears cannot be entirely disproven. But in any instance where these fears are extraordinarily far-fetched, the wrongness of the policy they support lies beyond reasonable dispute. Fourth, multiple policies can be indefensible when taken as a set. This is especially the case when the risks inherent in the relevant policies depend for their purported justification on premises that are mutually contradictory. Suppose, for instance, that in a given place and time, the only moral factor supporting an executive immunity clause in the constitution, with all the risks of abuse of power that such a clause entails, is the interest in the stability of government. But suppose further that the relevant constitution features not just executive immunity; it also includes an unchecked presidential prerogative to fire every other public official: every other official serves at the president’s pleasure, and will be removed from office immediately at the president’s say-so. This combination renders an appeal to the stability of government entirely moot. So if the same stability provides the

⁸ Nor, to take an adjacent example, can there be any reasonable disagreement on the fact that the legal repercussions of rape cannot be erased through marriage between the rapist and the victim (contra the chief justice of India’s Supreme Court, who caused an uproar by telling a defendant accused of rape that he can “solve the problem” by “simply marrying” the woman he was accused of assaulting. See, e.g., Anuradha Nagaraj, “India’s top judge urged to quit for suggesting rape defendant marry victim,” Reuters, March 5, 2021, at https://www.reuters.com/article/us-india-women-rape-trfn-idUSKBN2AX1LV).

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only supposed justification for the relevant set of constitutional provisions, the wrongness of this set should once again lie beyond reasonable disagreement. A few qualifications. I do not mean to suggest that the four types of flaws I just laid out are mutually exclusive: it is quite easy to think of deeply troubling policies which feature more than one type. Partly for this reason, I also do not want to deny that the distinction among these types can get blurry in various instances. Moreover, even though all of the political problems that I will take up in the course of this book exhibit at least one of these types of flaws, I do not mean to suggest that the four types necessarily exhaust the category of indefensible policies. Finally, I want to grant that, in some cases, there might be meta-disagreement on whether the wrongness of a given policy actually lies beyond dispute. I suspect that such disagreement will often be due to the disputants effectively talking past each other, operating with (more or less subtly) different conceptions of the issue under discussion. I further suspect that such misunderstandings will typically be due to different definitions of the policy’s scope. To anticipate a topic that will be central to chapters 5 and 6, even among those who agree that it is obviously wrong for democratic governments to support severely repressive regimes, there can be different views on how to define the category of “severely repressive regimes,” and/or on how broad is the range of government actions that “support” such regimes. So in borderline cases, where it is not obvious that a given regime counts as “severely repressive,” and/or that a given democratic foreign policy actually “supports” this regime, there may be reasonable (meta)disagreement on the moral status of the policy in question.⁹

I.2 What Follows: Strategic Theorizing, Intellectual Fanatics, and Amoralists Having sketched the kinds of political problems that the book explores, I now want to be a bit more specific about the content of each of its chapters. The first (and longest) chapter is devoted to a general presentation and defense of strategic political theorizing, elaborating on the strategic effort to argue from bad premises to better policies. I link this effort to a democratic hope regarding ⁹ Admittedly, even when the relevant definitions are widely shared, meta-disagreement is still possible. As a way of preempting expectations, let me say already at this stage that I do not aim to settle such meta-disagreements at any point in the book. Much more modestly, I only want to register the thought that such disagreements are likely to increase in proportion to the policy’s distance from the imposition of grave harms. Thus for example, no one will deny that systematically torturing innocents is obviously wrong. And very few will deny that it is (normally) obviously wrong to bestow official honors on political leaders responsible for the systematic torture of innocents, regardless of any public achievements the relevant leaders might claim. But if basic social stability is at stake, is it obviously wrong for a government to look the other way when large portions of society express reverence for such leaders? The latter question, which has been real in societies ranging from Russia to Chile, can trigger reasonable disagreement, even if the former questions cannot.

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the possible philosophical quality of political discourse. I argue that respect for our fellow citizens requires that we retain this hope, and explain why the strategic attempt to systematize even unreasonable views held by our fellow citizens embodies multiple valuable forms of respect among co-citizens. I also anticipate in detail a key worry—namely, that by working to systematize unreasonable positions, strategic theorizing legitimates reprehensible views. I respond to this worry in two main ways. First, I distinguish between repugnant unreasonable premises (which strategic theorists should be extremely reluctant to deploy) and nonrepugnant unreasonable premises (which should trigger far less reluctance). Second, I introduce the concept of the burdens of politics: self-reinforcing political dynamics, which impede decent people’s moral reasoning about specific areas of public policy. I explain why the vicious cycles associated with the burdens of politics warrant strategic argumentation which utilizes problematic premises, with the hope that the better policies they support will in turn facilitate a public discourse that is more conducive to better premises. In the latter part of the chapter, I anticipate skepticism concerning strategic theorizing’s practical hopes. More specifically, I address the concern that the strategic method is too far removed from philosophy’s theoretical inquiries, and that it has slim prospects of actually contributing to real-world policy discourse. I also preempt likely skepticism associated with a purely intellectual view of political philosophy. Lastly, I take up applied issues concerning the actual pursuit of strategic theorizing, bearing both on the choice among possible subjects for such theorizing, and on the audience that strategic theorists should seek. Building on the general framework laid out in the opening chapter, each of the book’s subsequent chapters illustrates strategic theorizing in action by delving into detailed examples. In chapters 2 and 3, I offer examples that are centered on what might be termed intellectual fanatics. Intellectual fanatics are unreasonable because, while their positions reflect genuine engagement with moral reasons, this engagement is extremely lopsided: their views reflect a tunnel-vision devotion to a single moral factor, or to a very narrow set of moral factors, at the expense of all other factors, to which they give implausibly little weight, or no weight at all. Chapter 2 provides the first extended illustration of strategic theorizing operating within the premises of intellectual fanatics. This illustration focuses on Israeli politics, and, more specifically, on the indefensible boycott of Israel’s anti-Zionist political parties by certain Jewish hawks in the Israeli parliament (Knesset). I discuss this boycott in the context of recurrent efforts by Binyamin Netanyahu, Israel’s longest-serving prime minister, to secure immunity from criminal prosecution for multiple corruption charges. Netanyahu’s persistence has united politicians of the Israeli left, right, and center in an effort to end his increasingly authoritarian rule. Yet the anti-Netanyahu alliance has been fatally hamstrung by the fact that some of its key hawkish members have refused to rely on anti-Zionist votes in parliament to actually form an anti-Netanyahu government. This hawkish refusal, in turn,

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combined with Netanyahu’s obstinacy, has been a key cause of Israel’s unprecedented political crisis, featuring five national elections in less than four years, the last of which featured a decisive victory for Netanyahu and his Jewish-supremacist backers.¹⁰ In response to this hawkish obstinacy, I develop a pair of strategic arguments. The first argument is that even if (solely for the sake of discussion) one adopts the hawks’ intellectual fanaticism regarding the supposed dangers of anti-Zionist sway in the Israeli parliament, their own repeated warnings regarding the dangers of Netanyahu’s continued rule must take precedence: These dangers clearly justify narrowly circumscribed cooperation with anti-Zionist parties, even assuming the hawks’ own worldview. The second argument highlights the relevant hawks’ explicit disavowal of any prejudice towards Israel’s Palestinian citizens, who overwhelmingly vote for anti-Zionist parties. I suggest that, contrary to these hawks’ rhetoric, their professed commitment to the equal “civic” rights of Palestinian-Israelis does not align with their boycott of the parties through which Palestinian-Israelis act in the country’s politics. This misalignment, moreover, obtains even if one accepts, arguendo, the hawks’ axiomatic rejection of the relevant parties’ vision of Israel as a binational rather than Jewish state. I close the chapter by considering Israel’s extremely short-lived Jewish–Arab governing coalition (2021–2), explaining why both the genesis and the predictable demise of this coalition align with my arguments. Chapter 3 takes up intellectual fanatics of a different sort, in a largely (though not entirely) different context. This chapter targets single-issue anti-abortion voters in the United States, heavily associated with the Christian right. I argue that, contrary to familiar progressive critiques, the fact that the Christian right has overwhelmingly backed Donald Trump in recent American presidential elections— and is very likely to continue to back Trump and his associates in any future election—does not, by itself, expose the Christian right to charges of hypocrisy or internal incoherence. The real incoherence, I suggest, lies with the Christian right’s anti-abortion rationale for backing Trump. This rationale has been decisive in right-wing Christians’ lining up behind Trump—relying on Trump to nominate firm opponents of abortion to the Supreme Court, with an eye towards overturning Roe v. Wade. But—I contend—this rationale for supporting Trump does not align with the only rationale for anti-abortion laws which remains intact once one accounts for overwhelming empirical evidence regarding the consequences of anti-abortion laws. Since there is unequivocal evidence that anti-abortion laws do not actually stop abortions from happening, but merely push abortions into the shadows, the only possible rationale for anti-abortion laws is an expressive one: The thought must be that a legal ban on abortions has intrinsic moral significance insofar as it expresses the political community’s ¹⁰ See, e.g., Thomas Friedman, “The Israel we knew is gone,” The New York Times, Nov. 4, 2022.

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disapproval of abortions—and thus the community’s symbolic affirmation of the “equal human dignity” of abortion’s victims. However, I argue that even if one adopts—arguendo—the implausible idea that (any and all) abortion is tantamount to murder, this expressive rationale cannot align with a vote for Donald Trump, given the extraordinary expressive offense that is inherent in the very elevation of Trump into the highest elected office in the land. Trump’s blatant and recurrent disregard for the equal dignity of numerous human beings, especially among the most vulnerable, renders incoherent an expressive anti-abortion rationale for a pro-Trump vote. Starting in chapter 4, I turn from intellectual fanatics to another brand of unreasonable interlocutors—the amoralists. Whereas intellectual fanatics are exclusively devoted to a specific subset of moral considerations pertaining to the policy problems with which they are preoccupied—at the expense of all other moral considerations—the problem with amoralists is different: Amoralists simply appeal to whatever normative premises might serve their pragmatic interests in a given context. The prime example of amoral actors in chapter 4, as well as in the final two chapters of the book, is that of corporations. My focus on corporations in the latter part of the book (or, more precisely, on what a “corporate defender” might say to defend a variety of corporate-friendly government policies) follows directly from the aforementioned idea of the “burdens of politics.” As the opening chapter makes clear, attention to the burdens of politics should lead us to put center stage self-perpetuating political dynamics, which constantly tilt the basic premises shaping public and policy discourse ever further away from reasonable starting points. And in the beginning of chapter 4, I argue that spiraling inequality continuously cements the ability of the economically powerful—particularly, of global corporations—to shape core premises underlying policy debates. In the remainder of the book, I accordingly make a sustained effort to come to terms with corporations’ self-reinforcing political clout. I do so by seeking to justify important policy reforms going against corporate interests, even while using, arguendo, corporate-friendly premises. With that purpose in mind, the latter part of chapter 4 examines the American legal system’s lenience with regard to severe wrongdoing by major banks. In recent years, legal authorities in the United States have been extremely reluctant to pursue criminal charges against either major banks themselves or their senior executives, even with regard to extremely severe transnational crimes, such as laundering billions of dollars for drug cartels. I construct the most plausible justification that corporate defenders might offer for this reluctance. This justification appeals to fears of drastic negative consequences following criminal prosecution of major banks, while also appealing to the constraints of criminal law and the complexity of large corporations to shield individual executives from criminal sanctions, despite the positive consequences likely to follow from such sanctions. I show why these

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two appeals are difficult to combine. I then argue that the corporate defender’s best hope of combining them is to invoke a public/private distinction: to argue that it is much worse for public authorities themselves to infringe upon the constraints of criminal law when prosecuting individual executives, than it is for public authorities to allow major banks as private actors to seriously wrong other private actors in their pursuit of profits. However, I argue that the myriad forms of significant public support currently accorded to the major banks blur this private/public distinction. Accordingly, the largest banks have to relinquish such support—from bailouts and huge government loans to multiple tax subsidies—as a necessary condition for justifying the legal system’s current lenience towards them and their executives. Chapter 5 provides a second example of strategic political theorizing within corporate-friendly premises. Here I take up the commercial ties that major corporations have long pursued with unsavory regimes, providing such regimes with nontax revenue in exchange for state property. Emphasizing a nonconsequentialist presumption against such customary ties, I zoom in on two central responses that a corporate defender might offer to try to defeat this presumption. According to the first, vulnerable innocents argument, customary commercial ties ought to be continued even when they benefit highly repressive regimes, since boycotting these regimes is bound to hurt their vulnerable victims. The second argument, which I label the challenge from soft authoritarianism, holds that outside of a few extreme cases, de facto rulers ought to be treated by outsiders as representative of the people over whom they preside, not least because they channel the lion’s share of public revenues towards purposes that are not alien to public interests. I explain why both of these arguments rest on flawed premises, but why reform of customary commercial ties can be defended even within these corporate-friendly premises. I deploy a novel strategy in responding to the vulnerable innocents argument: I compare the risks to innocents highlighted by this argument to the risks that a “no payment” policy poses in the face of familiar ransom demands made by hostage-takers. I argue that the corporate defender has difficulty accounting for the gap between our willingness to consider a rigorist policy in these smaller-scale ransom cases, and our reluctance to endorse a “no payment” policy in the case of commercial ties with dictatorships. This difficulty, in turn, leads me to suggest that it is ultimately the challenge from soft authoritarianism which is truly central to the corporate defender. I accordingly illustrate a creative strategy for dealing with the soft authoritarian challenge. Finally, I outline policy prescriptions which take seriously the nonconsequentialist impulse favoring reform of customary commercial ties, while also accounting for vulnerable innocents concerns. The final chapter 6 continues the strategic argumentation of chapter 5, but from a different perspective, zooming in on the fossil fuel industry’s ties with dictatorships. Linking oil and gas trade with dictators to environmental reform, I suggest that the nonconsequentialist presumption against commercial ties with dictators

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can yield a distinctive argument for the development of green energy, which will do away with affluent democracies’ overwhelming reliance on fossil fuels. More specifically, recognizing the unfortunate public salience of climate change skepticism in the United States, I seek to construct an argument for the development of green energy that can appeal to Americans moderately skeptical of climate change and swayed by various forms of corporate rhetoric about environmental issues. Accepting—arguendo and in a qualified way—key empirical and normative assumptions of American environmental skeptics, I proceed in two stages. First, while environmentalists have often justified the development of green energy through references to future generations, I try to show that they need a presentoriented argument focused on negative duties to respect rights, in order to justify prioritizing the development of green energy to environmental skeptics in the United States. Second, I construct such an argument, calling on affluent democracies to develop green energy in order to be able to stop their complicity, through oil and gas trade, in dictators’ violation of their peoples’ property rights. Along the way, I once again anticipate multiple objections that the corporate defender might make.

1 The Case for Strategic Political Theory What can political philosophers contribute in the face of patently indefensible public policies? What can we say when confronted with policies whose wrongness lies beyond the scope of reasonable disagreement? As the introduction made clear, this book is devoted to a particular mode of philosophical engagement with such policies: crafting arguments against them that begin with, and that seek to systematize, unreasonable premises. The core idea is to expand the scope of intellectual opposition to patently indefensible policies by using premises associated with unreasonable opponents, albeit in a qualified manner and solely for the sake of discussion. I refer to this exercise in philosophical coalition-building as strategic political theorizing. This opening chapter provides a general account of this mode of political theorizing, and defends its value. Strategic political theorizing builds upon a standard mode of philosophical conversation. Philosophers frequently try to establish that their favored conclusions follow even when granting, arguendo, the premises favored by their opponents. Thus a nontrivial portion of professional philosophical exchange takes the form of saying “I think that the premise you are invoking is false, but even if it were true, it would be my conclusion rather than yours that would follow.” Strategic theorizing expands this common method in two related respects. First, strategic theorizing does not limit itself to an isolated premise favored by those on the other side of a dispute: Instead, it examines multiple premises that can be plausibly associated with one’s opponents, and that can be brought together to form a coherent set. Second, strategic political theorizing is not concerned solely with the faulty premises—whether normative or empirical—that one’s opponents actually endorse. Rather, strategic political theorizing focuses on the strongest (most wide-ranging, internally coherent, and at least somewhat intuitive) combination of relevant premises that one’s opponents could sensibly endorse, given their more general, long-established commitments. Strategic political theorizing is driven by the thought that there can be value in such embellishment of opponents’ views. But this thought may also seem somewhat mysterious. Why—critics are bound ask—should it ever make sense to try to (re)cast weak positions in their strongest possible light? Underlying this question is a natural concern: that any effort to engage in strategic political theorizing represents an unstable hybrid between pure normative inquiry and persuasion. The reason, in turn, is that there is no stable middle ground between striving for the moral truth about a public policy issue, in classic Philosophizing the Indefensible. Shmuel Nili, Oxford University Press. © Shmuel Nili (2023). DOI: 10.1093/oso/9780198872160.003.0002

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philosophical spirit, and striving to persuade people to adopt one’s favored policies. Persuasion, after all, can often come at the truth’s expense. Bas van der Vossen provides a particularly explicit statement of this concern: Philosophy is a discipline of reason. We try to reconcile our initial views or intuitions with abstract principles we see reason to accept, rendering the whole of our beliefs internally consistent and as plausible as we might hope for. Clearly, such a discipline need not be particularly well-suited for producing persuasive views. Psychologists teach us that reason isn’t great at persuading. What really sways people’s opinions are appeals to emotion or sentiment . . . the thing that changes people’s minds is rarely the philosophical quality of one’s argument. The standards of success for persuasiveness of an argument do not coincide with its truth-value . . . It’s one thing to know the right answer about something, quite another to persuade others of that answer. And saying the thing that’s persuasive can require something quite different from saying what’s true.¹

In order to defend strategic political theorizing as a respectable philosophical endeavor, one must confront this tension between persuasion and philosophy’s traditional quest for truth. I will accordingly try to address different permutations of this tension throughout the chapter. I proceed as follows. I begin by temporarily putting aside my interest in unreasonable political views, instead highlighting a broader democratic hope regarding the possible philosophical quality of political discourse. I argue that respect for our fellow citizens generally bars us from completely abandoning this hope, and explain why strategic political theorizing embodies several valuable forms of respect among citizens (1.1 and 1.2). Equipped with this general background, I return the focus to unreasonable political views. I take up the worry that, in being willing to work within such views, even if solely for the sake of discussion, the strategic political theorist might be conferring legitimacy on reprehensible positions that ought not be legitimated. I respond to this concern by reflecting on the divide between what I call repugnant and nonrepugnant unreasonable premises (1.3 and 1.4). In 1.5 and 1.6, I develop a further response to the objection that strategic theorizing gives excessive attention to problematic views. This response revolves around what I term “the burdens of politics.” I use this term to capture self-reinforcing political dynamics, which impede decent people’s moral reasoning about specific areas of public policy. I contend that the vicious cycles associated with the burdens of politics give us weighty reasons to engage in strategic argumentation that deploys problematic premises, with the hope that the better policies they support ¹ Bas van der Vossen, “Political Philosophy as Love of Wisdom,” Australasian Philosophical Review 4 (2020): 23–31, at 27.

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will in turn pave the way towards a public sphere in which it is easier to reason from better premises. In 1.7, I explain why this hope is compatible with maintaining a presumption against reasoning from repugnant premises, even solely for the sake of discussion. In 1.8, I take up multiple challenges concerning the practical aspirations of strategic political theory. Here I discuss the charge that the strategic method steps too far away from philosophy’s theoretical inquiries, and that it has slim prospects of actually contributing to public discourse. Finally, in 1.9, I consider applied questions concerning the actual implications of the strategic method for its would-be practitioners. Here I focus on how strategic theorists should choose among possible subjects, as well as on how they should conceive—and approach—their multiple audiences.

1.1 Truth, Persuasion, and Strategic Political Theory as Activist Philosophy Let us begin by distinguishing among three different ways of balancing truth and persuasion in democratic politics. First, there is what we might call the purely activist approach. This approach prioritizes public persuasion whenever it comes into conflict with truth. Assuming that the public goal (be it the enactment of some public policy, or the ending of another) is important enough, the purely activist approach—whether practiced by politicians or by their backers—licenses whatever dissimulation might be necessary to secure public support. If persuasion requires one to pretend to believe what one knows to be false, so be it. Second, there is the purely philosophical approach, which insists that any public argument one makes must be rooted in principles that one regards as true. If this constraint limits one’s ability to persuade others, then that is simply further proof, as theorists such as van der Vossen would quickly point out, that the practice of philosophy is often at odds with public persuasion. Strategic political theorizing, however, represents a third option, which we might term activist philosophy. The strategic political theorist openly admits to her interlocutors that she does not share some of their policy commitments. But she still makes an effort at persuading her interlocutors to converge on what she regards as the correct moral answer to the relevant policy questions. She tries to achieve this convergence by showing to her interlocutors that, when cast in their strongest and most comprehensive light, their commitments have different policy implications than those implications that the interlocutors themselves currently recognize.² ² I am partly inspired here by what Rawls called “reasoning from conjecture,” a mode of reasoning in which “we argue from what we believe, or conjecture, are other people’s basic doctrines, religious

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Strategic political theory is a form of activist philosophy, then, insofar as it aims at a distinctly philosophical form of political persuasion. Paraphrasing Kant, we might dub this “persuasion within the bounds of reason alone.”³ This method is demanding in its rigorist reliance on honest argumentation: By insisting on truthfulness in public discourse, strategic political theory retains the belief that neither philosophy nor public life should make peace with deception.⁴ Alongside its demandingness, strategic political theory is also ambitious in its hope regarding democratic citizens’ potential capacity to reason about public policy. In this kind of democratic optimism, strategic political theory consciously follows the likes of John Dewey: Democracy is a way of personal life controlled not merely by faith in human nature in general but by faith in the capacity of human beings for intelligent judgment and action if proper conditions are furnished . . . For what is the faith of democracy in the role of consultation, of conference, of persuasion, of discussion, in formation of public opinion, which in the long run is self-corrective, except faith in the capacity of the intelligence of the common man to respond with commonsense to the free play of facts and ideas which are secured by effective guarantees of free inquiry, free assembly and free communication? I am willing to leave to upholders of totalitarian states of the right and the left the view that faith in the capacities of intelligence is utopia. For the faith is so deeply embedded in the methods which are intrinsic to democracy that when a professed democrat denies the faith he convicts himself of treachery to his profession.⁵ or secular, and try to show them that, despite what they might think, they can still endorse a reasonable political conception that can provide a basis for public reasons . . . However, it is important that conjecture be sincere and not manipulative. We must openly explain our intentions and state that we do not assert the premises from which we argue, but that we proceed as we do to clear up what we take to be a misunderstanding on others’ part, and perhaps on ours.” Rawls, The Idea of Public Reason Revisited,” in Samuel Freeman (ed.), Collected Papers (Cambridge, MA: Harvard University Press, 1999), 573–615. That said, I share the common view that Rawls’ remarks here are heavily underdeveloped (see, e.g., Andrew March, Islam and Liberal Citizenship: The Search for an Overlapping Consensus [New York: Oxford University Press, 2009]; Micah Schwartzman, “The Ethics of Reasoning from Conjecture,” Journal of Moral Philosophy 9 [2012]: 1–24; Robert Taylor, “Religious Conservatives and Safe Sex: Reconciliation by Nonpublic Reason,” American Political Thought 3 [2014]: 322–340); Gabriele Badano and Alasia Nuti, “The Limits of Conjecture: Political Liberalism, CounterRadicalisation and Unreasonable Religious Views,” Ethnicities 20 [2020]: 293–311. I also suspect that religious argumentation—to which the bulk of the resulting “conjecture” literature has been devoted— faces sui generis challenges, which do not apply to other contexts where strategic argumentation is pertinent. ³ March (Islam and Liberal Citizenship, 23–33), paraphrasing Rawls, similarly speaks of “persuasion for the right reasons.” ⁴ As Rawls says in Political Liberalism (New York: Columbia University Press, second edition, 2005), 68, in “public political life, nothing need be hidden.” To be clear, my point here is not that any technique which goes beyond “cold” philosophical argumentation is necessarily irrational or dabbles in deception. As an anonymous reviewer points out, art, life stories, and appeals to empathy are examples of perfectly legitimate means of trying to sway opinions, which need not necessarily be irrational or deceptive. Nothing in what I am saying here should be interpreted as suggesting otherwise. ⁵ John Dewey, “Creative Democracy—The Task Before Us,” in Jo Ann Boydston (ed.), John Dewey: The Later Works, Vol. 14 (Carbondale: Southern Illinois University Press, 2008), 224–230, at 226.

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Deweyan optimism is of course not unique to strategic political theory. But strategic political theory does capture, in an especially direct way, key moral ideas which (arguably) underlie the appeal of such optimism, starting with the fundamental idea of respect among citizens. Insisting on viewing our fellow citizens as (at least potential) fellow reasoners is an essential way of respecting them, just as automatically writing off fellow citizens as inevitably lying beyond the reach of rational persuasion is a quintessential example of disrespect. To insist, for example, that fellow citizens will always be in the thralls of some malign ideology, prejudice, or bigotry, or that they will always refuse to listen to any arguments that threaten their amoral interests, or that they will always lack the temperament or the capacity to engage in sustained arguments, is to adopt not only an implausibly fatalist mindset, but also an intrinsically objectionable attitude towards fellow members of the political community.⁶ Strategic political theorizing, however, goes further than this. To reiterate, strategic political theorizing also requires that we strive to render the commitments of our political opponents as systematic and coherent as they can be—even when this effort entails various improvements over how our opponents actually present their views. Strategic political theorizing, in other words, demands that we make every effort to render our interlocutors’ commitments (broadly construed) as intellectually respectable as we can, even if (and partly because) our ultimate aim is to show how these very commitments should lead our interlocutors to accept policies which we favor but which they currently reject. Before proceeding, a brief remark might be appropriate about the terminology that I will use to describe this effort. The idea that we ought to examine our opponents’ ideas in their strongest light has a venerable intellectual history. In recent popular writing, this idea has been captured through the term “steelmaning,”⁷ suggesting an obvious contrast to the ubiquitous practice of picking strawmen as intellectual opponents. But while “steelmaning” is an evocative phrase, I take it to connote a form of argumentation that takes our opponents’ actual positions (more or less) as a given—simply opting to confront the strongest rather than the weakest of these positions. So we need another term to capture the effort to Admittedly, some of Dewey’s language here is too strong. After all, those who defend democracy on Churchillian grounds, as the least worst form of government, can consider themselves firm opponents of totalitarian states of any sort, while still endorsing the statement that “the best argument against democracy is a five minute conversation with the average voter.” This statement too is often attributed to Churchill (to the chagrin of the International Churchill Society—https://winstonchurchill.org/ publications/finest-hour/finest-hour-141/red-herrings-famous-quotes-churchill-never-said/). ⁶ This claim places me in the vicinity of the ever-expanding tradition of “deliberative democracy,” though it should already be obvious that I am much more interested in manifestly nonideal political circumstances and problems than deliberative democrats typically are. For a useful overview of the huge literature arguing for and against deliberative democracy, see Assaf Sharon, “Populism and Democracy: The Challenge for Deliberative Democracy,” European Journal of Philosophy 27 (2019): 359–376. ⁷ See, e.g., Conor Friedersdorf, “The highest form of disagreement,” The Atlantic, June 26, 2017, at https://www.theatlantic.com/politics/archive/2017/06/the-highest-form-of-disagreement/531597/

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create the strongest position that our opponents could endorse in light of their broader commitments.⁸ For this more ambitious undertaking—developing opponents’ arguments in a deeper, more coherent, and more wide-ranging fashion than is pursued by the opponents themselves—I propose a grander label: worldviewing.⁹ This label reflects the difference between strategic theorizing and much more run-of-the-mill arguendo reasoning. Moreover, the term “worldviewing” links up with an attractive picture of political philosophers’ place in the academic and social distribution of labor—an issue that will prove significant in due course.

1.2 Worldviewing and Respect among Citizens I said that strategic political theory embodies a morally important form of respect towards fellow citizens. There are several reasons why this is particularly true for worldviewing, as the activity at the heart of strategic theorizing. First, attempting to argue from general commitments that our interlocutors hold is a way of looking at the world through their eyes—and thus taking seriously their perspective on the world. Such an “effort at understanding” (to borrow Bernard Williams’ propitious phrase¹⁰) represents an important way of respecting our fellow citizens. Second, to pursue worldviewing with our fellow citizens is to impute to them commitments that are both sincere and reflective. To pursue worldviewing with our fellow citizens is thus to ascribe to them a basic integrity. This too is an important form of respect among co-citizens: it is natural to think that there is (in normal circumstances, at least) moral value in a society whose members are disposed— and recognize one another as disposed—to view each other as people of integrity thus conceived. In one sense, what I just said is fairly obvious: If our interlocutors’ professed commitments are entirely insincere or unreflective, there is no point in reasoning with them about the implications of these commitments. But the point goes deeper. We accord yet another form of respect to our fellow citizens, by imputing to them—qua sincere, reflective co-deliberators—a genuine interest in tracing out the full implications of their own commitments. ⁸ To be clear, strategic theorizing does share with “steelmanning” the idea that we normally ought to take our interlocutors’ policy views seriously, and to focus from the outset on the best version of these views. What sets strategic theorizing apart is (1) its effort to further strengthen that best version, and (2) to do so through broader intellectual resources that can plausibly be associated with the relevant interlocutors, but which they themselves have failed to deploy. ⁹ I owe this term, in part, to the insightful reflections in Zsolt Kapelner’s “What Can We Offer?,” in Megyer Gyo¨ngyo¨si, Zsolt Kapelner, Zsófia Ádám, and István Faragó-Szabó (eds.), On What It Is: Perspectives on Metaphilosophy (Budapest: Eo¨tvo¨s József Collegium, 2016): 333–343 (discussed below). ¹⁰ Bernard Williams, “The Idea of Equality,” in Problems of the Self (Cambridge, UK: Cambridge University Press, 1973): 230–249.

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The underlying thought here might be described as follows. We are not morally entitled to abandon the hope that our political opponents too, whether or not they are philosophers, will appreciate efforts to systematize their convictions about public affairs, and to render these convictions as comprehensive and coherent as they can be. To insist on viewing our opponents in this light is yet another way of viewing them as people of integrity. When we ascribe to our fellow citizens not just sincerity and reflection, but also a concomitant interest in making their view of the world as unified and complete as it can be, we are really “taking their integrity seriously.” Here, for example, is Ronald Dworkin, laying out the background for his famous account of integrity in the law: We want our neighbours to behave, in their day-to-day dealings with us, in the way we think right. But we know that people disagree to some extent about the right principles of behavior, so we distinguish that requirement from the different (and weaker) requirement that they act in important matters with integrity, that is, according to convictions that inform and shape their lives as a whole, rather than capriciously or whimsically. The practical importance of this latter requirement among people who know they disagree about justice is evident . . . we assume . . . that we can recognize other people’s acts as expressing a conception of fairness or justice or decency even when we do not endorse that conception ourselves. This ability is an important part of our more general ability to treat others with respect, and it is therefore a prerequisite for civilization.¹¹

A further way to spell out the kind of respect that worldviewing embodies is to compare it with an adjacent form of intellectual inquiry—namely, intellectual history. Intellectual historians frequently preach—and practice—the virtue of interpretative charity when considering canonical works in various areas of philosophy, including political thought. And at the heart of this charitable approach is precisely the willingness to consider not only those arguments that canonical authors have (explicitly) made, but rather the best arguments that could possibly be imputed to them, given their more fundamental commitments. However, in the case of the history of ideas, the effort to cast canonical arguments in their best possible light often reflects a certain kind of intellectual deference. It is commonly assumed that the greats of the past are wiser than us.¹² ¹¹ Ronald Dworkin, Law’s Empire (Cambridge, MA: Harvard University Press, 1986), at 166. My reference to “taking integrity seriously” consciously echoes Dworkin’s Taking Rights Seriously (Cambridge, MA: Harvard University Press, 1978). There are some interesting affinities between strategic political theorizing and Dworkin’s claim, introduced already in the opening page of Law’s Empire, “that legal reasoning is an exercise in constructive interpretation, that our law consists in the best justification of our legal practices as a whole, that it consists in the narrative story that makes of these practices the best they can be.” I hope to discuss these affinities in more detail in future work. ¹² As a teacher of the history of political thought, Rawls, for example, was emphatic on this score: “I always assumed . . . that the writers we were studying were always much smarter than I was. If they were

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That is one key reason why we strive to see whether, using resources internal to their own views, we can fix whatever apparent inconsistencies we discover in their positions.¹³ In contrast, strategic political theorizing involves no presumption that the interlocutors whose arguments we are polishing have any claim to intellectual superiority over us. We attempt to (re)construct the best argument that these interlocutors could make on the basis of their general commitments, not because we assume them to be giants on whose shoulders we stand, but at least partly because we assume that they are simply our equals. And it is indeed that equality which underlies the hope that we can persuade our interlocutors, by charitably reconstructing their positions, that they too should support rather than oppose the practical conclusions we favor.

1.3 The Scope of Strategic Argumentation Having laid out some of the contours of the strategic method, as well its basic moral appeal, I now want to consider a central question about its scope. On the one hand, the moral claims of the victims of patently indefensible policies seem to militate in favor of engaging in strategic theorizing whenever there is a nonzero probability of swaying some opinions so as to increase opposition to the relevant policy. So, if the argument of the previous section is correct, and we always ought to assume such probability, there are straightforward reasons to pursue strategic political theorizing targeting virtually any indefensible policy, no matter how reprehensible are the premises that one must adopt as part of the exercise. Yet, on the other hand, there is the intuition that some premises are beyond the pale—that there are some starting points for political conversation that we should not accept, not even solely for the sake of discussion. How should we navigate this tension? My response to this question is to adopt a middle ground. I believe that there should be a presumption against arguing from certain premises, even in a not, why was I wasting my time and the student’s time by studying them? If I saw a mistake in their arguments, I supposed they [the philosophers] saw it too and must have dealt with it, but where? So I looked for their way out, not mine.” Rawls, “Some remarks on my teaching,” quoted in Samuel Freeman’s Editor’s Foreword to John Rawls, Lectures on the History of Political Philosophy (Cambridge, MA: Harvard University Press, 2007), at xiii–xiv. Rawls’ instructions to his students on reading Leviathan convey a similar idea: “in looking at a text of this sort, which is so large, and with so many elements in it, if you are to get as much out of it as you can, you must try to interpret it in the best and most interesting way . . . and to try to get a sense of how the overall view might go, if you put it in the best way. Otherwise, I think it is a waste of time to read it, or to read any of the important philosophers.” Rawls, Lectures on the History of Political Philosophy, 52. For an interesting discussion of some of the difficulties with such creative interpretations, see Michael Frazer, “The Modest Professor: Interpretive Charity and Interpretive Humility in John Rawls’s Lectures on the History of Political Philosophy,” European Journal of Political Theory 9 (2010): 218–226. ¹³ Another reason is that we (arguably) acquire more confidence in our own tools for thinking about our own practical problems, to the extent that we can trace these tools to a venerable intellectual tradition, whose supposed internal tensions we are able to resolve (or at least mitigate).

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strategic mode. Like all presumptions, this presumption too is defeasible. But it is nonetheless real. The aim of this section is to explain this presumption. The best way to start is to return to the category of the “unreasonable,” which provides the broader context and motivation for our inquiry. In the book’s introduction, my main emphasis was on the difference between reasonable and unreasonable political views. At this point, however, we should also consider an important distinction that is internal to the category of unreasonable interlocutors. This is the distinction between the repugnant and the nonrepugnant. Unreasonable interlocutors are repugnant, on my proposed definition, if they seek to defend indefensible policies by invoking premises that flatly contradict any plausible interpretation of the demands of universal human equality. In contrast, the unreasonable who are nonrepugnant, although similarly failing to respond to pertinent reasons in minimally adequate way—that is what makes them, too, unreasonable—do not offend rudimentary egalitarian standards in the same blatant fashion. It should be easy to see that both kinds of unreasonable interlocutors can converge in supporting a given indefensible policy. This means that, in order to know whether any such policy is a fitting target for strategic theorizing, we need to inquire into the particular social context in which it is adopted. If, in the context at hand, the policy in question is clearly rooted in premises that are not repugnant, then it is natural to apply strategic theorizing—developing the best version of the reasons that the policy’s proponents could offer for their position, in light of their broader commitments. But in a social context where it is obvious that the relevant policy is rooted in repugnant premises, such a strategic exercise is far more problematic. To illustrate, imagine a government that abolishes every welfare program in a given society, including extremely successful programs that have been vital in securing the basic health, nutritional and educational needs of sizeable portions of the population. Such a draconian policy is patently indefensible, since it ignores the most basic interests of society’s least advantaged, which are bound to be morally decisive when pitted against virtually any other countervailing consideration. Yet, in order to assess whether this policy is an appropriate subject of strategic theorizing, we need to know more about how precisely the policy has emerged. Suppose for example that the extremely harsh cuts to welfare programs come about because an ultra-libertarian view has become ascendant in policy discourse—among ordinary citizens and policymakers alike. Such a view, though unreasonable, is not “repugnant,” on my proposed usage of this term. Someone who really believes, with (the early) Robert Nozick, that only the ultraminimal state has a chance of upholding the basic moral equality of all citizens, is (profoundly) mistaken, but is not necessarily a repugnant individual. Now consider, by way of contrast, a government which enacts the very same ultra-minimalist state, but does so against the background of a very different public

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political culture. Here ultra-libertarian ideas have no foothold whatsoever, and are in fact repeatedly mocked by the overwhelming majority of citizens. At the same time, the most obvious forms of racism are pervasive, and it is that pervasive racism which explains the abolition of welfare programs: As a result of large-scale immigration of a racial minority (let us suppose), once-popular welfare programs have become firmly associated in the majority’s minds with “excessive” benefits to people of the “wrong” skin color. In this scenario, support for the indefensible policy takes on a distinctly repugnant character, insofar as it is clearly rooted in plainold racial discrimination, which is incompatible with any tenable understanding of universal human equality. Now, it seems more intuitive to pursue the method of strategic theorizing in the former case as compared to the latter, even though the method would be applied to the very same policy in both. This intuition obviously comports with the thought I flagged above—that there is a defeasible-but-genuine presumption against resorting to repugnant premises, even arguendo. But how can we actually ground this intuition? How can we explain the suggestion that entertaining repugnant premises—even if only for the sake of discussion—raises qualitatively different worries in comparison to the pursuit of a parallel exercise with regard to nonrepugnant but still unreasonable premises? The most natural answer is that when we entertain premises that are not merely unreasonable but are also repugnant, we undertake a particularly acute risk of contaminating the broader political conversation. We face, more specifically, the risk that the crucial “arguendo” part of the strategic argument will be omitted, whether by the disputants to which we are responding or by third parties, and then carried over in this distorted form to other policy debates. But while this straightforward risk is clearly part of the story, I think that there are more fundamental issues here. Our intuitive reluctance to assume repugnant premises, even just for the sake of discussion, is not well understood in purely instrumental terms, as resulting solely from concerns about the likely political impact. I believe that, alongside these obvious instrumental concerns, there are two more subtle but still powerful sets of considerations, which add to the moral pressure to focus our intellectual engagement with the unreasonable on nonrepugnant premises. In what follows, I elaborate each set in turn.

1.3.1 The Bonds and Bounds of Civic Friendship The first set of considerations has to do with civic friendship, but is best introduced by starting with friendship simpliciter. It is widely thought that when presented with unflattering information regarding our friends, we owe them a special effort to creatively reconstruct such information in the least damaging light. In fact, such a special effort is partly constitutive of friendship. A good friend, as Sarah Stroud

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puts it, “is likely to interpret what she hears in a less damaging way than is a stranger”: she is more likely to look for alternative interpretations to the obvious, and damning, ones and—furthermore—to draw different inferences about her friend’s character than would a stranger. This need not be a matter of flatly denying the obvious. It is rather a matter of extending more interpretive charity to your friends than you naturally would to strangers—of offering your friends more leeway.¹⁴

Worldviewing, the activity at the heart of strategic theorizing, can be seen—as I already noted—as a particular exercise in such charitable interpretation. My suggestion, in turn, is that we owe an effort to engage in worldviewing to our civic friends—including those civic friends who are unreasonable. However, those who subscribe to repugnant views, in the sense specified above, necessarily lie beyond the bounds of civic friendship, and worldviewing is therefore not owed to them in the same way. To unpack this argument, consider two ways in which shared values can underlie friendship. In many cases, the fact that we share certain values with our friends may be an essential precondition for the friendship, but the relevant values do not provide the substance of the friendship. Someone who puts great emphasis on the value of modesty, for instance, might regard this value as a precondition for friendship, in the sense that she immediately strikes any immodest person off the list of her potential friends. Still, it would be bizarre to see one’s friendships as revolving around the shared value of modesty, in the same way that friendships commonly revolve around things like shared hobbies or shared sense of humor: “we bonded over our shared modesty” is hardly an intuitive or even a plausible statement. In the context of shared undertakings, however, shared values can function both as a precondition for the friendship—the friendship cannot really exist in their absence—and as a key part of the substance of the friendship. A good example is the value of mutual sacrifice between comrades in arms. Soldiers who risk life and limb to protect one another commonly form friendships that both presuppose such risk-taking (those who had no excuse for abandoning their fellow soldiers in battle, for instance, are often excluded from the camaraderie) and revolve around it: even years later, the stories of heroism and sense of mutual gratitude naturally form the core of many friendships among veterans. Now, obviously, even the most optimistic view of civic ties must recognize qualitative differences in the intensity of friendship stemming from such micro-level shared undertakings, as compared to the macro-level case of “civic friendship.” Nonetheless, we can use a similar prism to view a political community’s shared undertakings, at least when the community in question has a liberal character. As ¹⁴ Sarah Stroud, “Epistemic Partiality in Friendship,” Ethics 116 (2006): 498–524, at 507.

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I have argued at length elsewhere, to the extent that any liberal polity has a shared, collective undertaking, that undertaking is the realization of the equal rights of all of its citizens: that is the fundamental collective project that co-citizens are supposed to pursue together, first and foremost through their shared government. And this shared egalitarian undertaking, in turn, underlies both the bonds and the bounds of civic friendship among them.¹⁵ Start with the bonds. A key part of what identifies a liberal society as such is precisely the fact that it marks its central successes and failures in realizing equal rights over time as essential to its collective identity, placing these successes and failures at the heart of the collective ethos, and passing them on to future generations as the core of their civic ties, through anything from public monuments and national holidays to core curricula in public education. This collective ethos, in turn, provides the substance of civic friendship: the core of what we have in common. The more salient this ethos, the easier it is to share with our fellow citizens not only an awareness of basic egalitarian values, but also a set of positive assumptions regarding each other’s civic attitudes. Among these assumptions are: that each one of us is more likely than not to accept basic egalitarian values, and to participate in various ways in shared work towards their continued realization; that each one us is more likely than not to take at least a measure of pride in instances of the collective realization of these values, reflected in our society’s particular history; and more likely than not to experience at least a measure of corresponding shame regarding cases—whether past or ongoing— where our society has trampled upon these values. Taken as a whole, this set of assumptions puts us in a default position, vis-à-vis our fellow citizens, that is at least somewhat analogous to the position we adopt vis-à-vis our personal friends, when confronted with information that presents them in an unfavorable light. In the personal realm, our prior positive assumptions about our friends mean that we typically face the moral pressure to become their “spin doctors,”¹⁶ when presented with data suggesting that they have certain problematic characteristics. And, quite similarly, when we encounter data showing our civic friends to have unreasonable attitudes and views regarding public life, the fact that our prior assumptions about them are (much) more positive generates a ¹⁵ See, e.g., Shmuel Nili, The People’s Duty (Cambridge: Cambridge University Press, 2019), chap. 1; Integrity, Personal and Political (Oxford: Oxford University Press, 2020), chap. 2. Though Rawls does not explicitly speak about the realization of equal rights as a constitutive project of a liberal society, what he says about the bonds of civic friendship aligns to a significant extent with the position I am sketching here, for instance in A Theory of Justice (Cambridge, MA: Harvard University Press, revised edition, 1999 [hereafter TJ]), at 454: “The acceptance of the principles of right and justice forges the bonds of civic friendship and establishes the basis of comity amidst the disparities that persist. Citizens are able to recognize one another’s good faith and desire for justice even though agreement may occasionally break down on constitutional questions and most certainly on many issues of policy.” And, similarly in line with my emphasis on shared liberal values as a precondition for civic friendship, Rawls observes (TJ, 417) that “without a common or overlapping sense of justice civic friendship cannot exist.” ¹⁶ Stroud, “Epistemic Partiality,” 508.

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parallel moral pressure, to invest our intellectual energy in casting their positions in the most favorable light possible.¹⁷ However, the moral pressure to make this intellectual investment ends at a certain crucial point—namely, at the boundary of civic friendship. And my suggestion is that we understand this boundary to lie precisely with repugnant views. If and when there is unequivocal evidence that other citizens hold views that are not merely unreasonable but are downright repugnant—that is, if their views flatly contradict any minimally adequate interpretation of the bedrock commitment to the basic equality of all—then both the moral preconditions for civic friendship with them, and the “glue” of such friendship, go away. The reason is that, in the absence of even the most rudimentary ethical common ground, the shared history that is supposed to be constitutive of our friendship loses its shared meaning: What we celebrate as key moral triumphs of our society, and as core features of “who we are as a people,” they likely regard as lamentable at best and disastrous at worst. Conversely, what we regard as key moments and episodes of national shame they might experience as memories of greatness and grandeur that must be cherished. And, against this conflictual background, even remaining cultural commonalities of everyday life (shared language, shared art, shared architecture, and the like) are not enough to preserve the friendship, because are obvious moral reasons to simply dissolve the friendship—much as there would be in the personal realm, if you discovered that your hitherto-close friend is guilty not only of this or that forgivable lapse in judgment or poor conduct, but rather of a heinous crime. This fact matters because, if a friendship ought to be abandoned, it can generate no distinct moral duties to treat someone with special care or to invest any kind of special energy on their behalf—intellectual or otherwise. It is true that we normally owe it to our friends to spend time on coming up with the most charitable

¹⁷ A critic might argue that the parallel I am drawing here is too broad. If the parallel between personal and civic friendship turns on positive prior assumptions that we make in both realms, what is it that distinguishes friends from people who are not our friends at all, but about whom we are inclined to make similar assumptions? Consider, for example, a high-level manager in a company that has a strong culture of veracity and honest dealing. Such a manager can sensibly assume that the vast majority of the workers who have been in the company for many years are (much) more likely than not to be committed to these values, given the company’s dominant ethos. And so, when confronted with information that casts some workers in a problematic light, it might very well be appropriate for the manager to make special efforts (going beyond the efforts that she would apply in the case of outsiders) to cast that information, including in her own mind, in the least damaging form possible. Such an effort seems appropriate even if the manager consciously abstains from forming friendships with low-level workers in any way (say, because she does not want to unfairly pick out some workers as favorites at the expense of others). My response to all this is simply to deny (Contra Stroud, “Epistemic Partiality,” 516–518) that our reasons to grant our friends special interpretative leeway go any deeper than the informational considerations just highlighted. We naturally believe that we have privileged information regarding our friends, given the history we inevitably share with them (without which there can be no deep friendship), and that history might make us especially confident in making favorable assumptions regarding our friends’ character and attitudes. But “epistemic partiality” in the case of friendship is not, at bottom, unique to friendship.

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explanations and renditions of their views and behavior. But we have no such duties of friendship towards former friends whom we had a moral duty to disown.

1.3.2 The Self-Taint Argument With this civic friendship argument in view, let me now turn to the second argument for why we should have a presumption against extending strategic theorizing to the repugnant. I suggested earlier that there is moral value in the “effort at understanding” inherent in strategic theorizing, and specifically in “worldviewing”—in the effort to place ourselves in our interlocutors’ shoes, and to construct an account of the world from their perspective. But at this point we should also observe an important countervailing consideration, which arises once we are trying to see the world from the perspective of the repugnant. This kind of effort involves an important form of self-harm. More precisely, by assuming the repugnant’s perspective on the world, and working within it in the comprehensive fashion sought by the strategic approach, we face a real risk of self-taint. At a certain point, seeing the world through the eyes of the repugnant means becoming the repugnant and thus betraying ourselves in a real, albeit limited way. In order to clarify the kind of self-betrayal I have in mind here, it might be helpful to consider two preparatory cases which concern not strategic theorizing, but rather simpler, more everyday forms of association with the repugnant. The first case is the actual story of Derek Black, a young “star” of the American white supremacy movement, who became a vocal supporter of progressive causes. Alongside his father, a close associate of the notorious white supremacist David Duke, Black spent years (on the radio and online) spreading anti-Semitic propaganda, as well as racist falsehoods about IQ differences between whites and people of color, calls for deportation of nonwhite Americans, and so on. The transformation of the hitherto-home-schooled Black Junior occurred during his time in college. After Black was outed as a prominent white supremacist in a highly racially diverse campus, anti-hate student activists debated how they ought—and ought not—treat him. Should they ostracize Black entirely? Should they engage in any sustained conversation with him? If so, precisely for what purposes and on what terms?¹⁸ Two Jewish students in particular felt the weight of these questions. They took the bold step of repeatedly inviting Black to Shabbat dinners, while committing themselves to keep as far away as possible from any conversation about white supremacy and anti-Semitism, let alone from any conversation in which they would adopt Black’s premises in any way, shape, or form. In other words, the Jewish ¹⁸ See Eli Saslow, Rising Out of Hatred: The Awakening of a Former White Nationalist (New York: Doubleday, 2018), chap. 2.

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students did everything they could not to actively identify with Black’s perspective on the world. Moreover, practically speaking, the students eventually achieved their goal: the dinners, humanizing the targets of racist attacks and turning them from abstract categories into specific individuals that Black came to know and to care for, proved pivotal in (eventually) transforming his views. But despite all this, the Jewish students often found the dinners to be extremely painful. Thus for instance, at the height of his white supremacy days, Black had (among many other moral offenses) publicly expressed sympathy for the views of Holocaust deniers. For the Jewish student whose grandfather was a Holocaust survivor, this fact alone sufficed to infuse the dinners with profound anguish.¹⁹ Now, keeping this actual case in mind, consider a stylized hypothetical one. Suppose that you are a student who is well known for combating bigotry at your university. You want to debate a notoriously racist student group on campus. There is a specific dorm housing a fraternity that is strongly associated with this group. You accept their invitation to a semester-long debate that will take place inside their frat house every evening during the term. But only when you arrive in the building for the first session, you discover that you cannot enter unless you put on a shirt with a swastika: because college administrators constantly look the other way, this fraternity effectively gets to live by its own rules, and it turns out that it now has a new rule, requiring anyone who wishes to enter the building to put on some morally repugnant clothes. Do you have a moral reason—however defeasible—to refuse? It seems clear that the answer is “yes.” You have a moral reason not to associate with the repugnant in this way—and more precisely, not to identify with them in any manner. Furthermore, this moral reason is not well explained in terms of what you owe to other people. Even if everyone else on campus knows exactly what you stand for, and therefore recognize that you do not actually believe in any racist principles, you still have a moral reason not to don racist paraphernalia—ever, but especially not on a recurrent basis. And the best way to explain this intuitive judgment points to the same problem as in the real case just highlighted, of Black and the Jewish students. Here, as there, actively associating with the repugnant seems to involve at least a measure of self-betrayal, even if done with the purest motives. And even in tragic circumstances, where such a betrayal is all-thingsconsidered justified, because it is undertaken in the service of a goal that ought to take precedence, it is nonetheless real, leaving a genuine moral remainder. Much the same, I believe, is true for engaging in strategic argumentation with the repugnant. To pursue such argumentation is once again to identify with the repugnant in a real (albeit limited) sense, and such identification too constitutes a morally salient form of self-betrayal. To be sure, this self-betrayal does not have the same kind of obvious visceral force as one that takes a tangible, physical form: ¹⁹ Saslow, Rising Out of Hatred, chapters 6–8, and passim.

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any decent person who (literally) looks in the mirror and sees himself wearing neo-Nazi clothing might very well experience a much more immediate sense of self-betrayal than that experienced by a person who finds himself trying to mimic a neo-Nazi mind. Still, the latter is no less real than the former.²⁰ In fact, the identification with the repugnant that is inherent in strategic argumentation with them runs deeper than the physical identification I just described, even if—and partly because—it takes a less tangible and more intellectual form. To put sustained intellectual effort into helping the proponents of incoherent views improve their arguments—even if with an eye towards eventually knocking these improved arguments down—is to empathize with their take on the world, in however partial and unusual a fashion. And to empathize with what we correctly regard as a repugnant view of the world—to make a genuine effort to polish and strengthen a mindset that we rightly view as objectionably alien—is once again to betray ourselves. To repeat, this point remains true even if such a betrayal might, in certain specific circumstances, be all-things-considered justified.

1.4 Sorting through Premises: A Brief Example I now want to pause to consider a targeted challenge. Earlier, I emphasized that almost any public policy, including any policy whose wrongness is overdetermined, can have multiple possible premises underlying it. In such ubiquitous circumstances, how do we actually implement the presumption that I have been defending, against reasoning from repugnant premises? The answer is that we must go through the effort, to which I already alluded, to sort through multiple possible rationales that might be offered in support of a given indefensible policy at a certain place and time. More specifically, we must try to distinguish repugnant from nonrepugnant premises that might be invoked in support of the policy. To make this thought more concrete, consider an example from Israel, where both deeply flawed policies and deeply objectionable public attitudes have been proliferating. In the summer of 2005, the Israeli Defense Forces (IDF) evacuated all Jewish settlements from the Gaza Strip, and four settlements from the West Bank. Any impartial perspective would recognize that the justification for this unilateral “disengagement” (as the move was termed) was massively overdetermined. But that, unfortunately, is not how the disengagement plan has been perceived ²⁰ There are possible questions in the background here, as to the exact relationship between a subjective sense of self-betrayal (“I feel as if I betrayed myself ”) and objective moral judgments (“given his professed commitments, he ought to feel as if doing that was a form of self-betrayal”). These in turn lead to deeper questions as to the controversial moral status of duties that we owe to ourselves. I cannot take up these questions here. However, I do wish to note that elsewhere, I have argued at length that moral “duties to self ” are genuine, and that the philosophical challenges regarding the relationship between subjective and objective self-betrayal can be resolved. See Integrity, Personal and Political, chap. 1.

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within the country. Many Jewish Israelis have come to believe that the plan was a grave “strategic error,”²¹ and have accordingly been resisting any further unilateral evacuations of Jewish settlements in the occupied territories. Now, were Israelis to take moral, security, economic, and diplomatic facts sufficiently seriously, this dangerous opposition to further evacuations of Jewish settlements would simply not exist. But the sad reality is that such opposition very much exists, and is indeed dominant in an ever-more hawkish public discourse. How willing should we be, then, to assume hawkish premises on this issue, even solely for the sake of discussion, and even only in order to argue (ultimately) for dovish policy conclusions? The answer depends on exactly which premises we are contemplating. Consider the two very different premises that have driven the negative view of the disengagement plan among Jewish Israelis. First is the messianic premise, according to which the plan was a mistake—and a sin—because the Jewish people have divine permission and in fact a divine obligation to set up a Jewish theocracy in the territories lying within their “promised land.” This premise is repugnant. It ignores the legitimate views, and indeed the most rudimentary rights and interests, of millions of other people—both non-Jews, and nonmessianic Jews who lack any theological commitments. So there should be a strong presumption against reasoning from this premise, even arguendo. The second, and much more influential premise that has driven hawkish sentiments among Jewish Israelis, has nothing to do with any divine mandate over any land. Rather, the secular hawkish premise has been that the Palestinians will keep resorting to violence for (at least) decades to come, regardless of any Israeli actions. Again, this too would ideally not be a serious premise in public discourse, but the sad reality is that it very much is.²² And so the strategic political theorist once again has to be discerning as to what further premises might be at play here. Many hawkish figures in Israel—politicians, journalists, and activists—have long argued that the main reason for the prolonged conflict with the Palestinians is that the Palestinians will never reconcile themselves to Israel’s very existence. This profoundly pessimistic perspective is often encapsulated in the slogans such as “the Arabs won’t change,”²³ which are as offensive as they are implausible.²⁴ ²¹ Amos Yadlin and Gilead Sher, “The disengagement, twelve years on: Implications, lessons, and an eye toward the future,” Institute for National Security Studies, August 6, 2017, at https://www.inss.org. il/publication/disengagement-twelve-years-implications-lessons-eye-toward-future/ ²² See, e.g., Galya Golan, “Trust and Mistrust in Israeli Peace-Making,” in Ilai Alon (ed.), The Role of Trust in Israeli Peace Negotiations: the Israeli-Palestinian Case and Beyond (New York: Springer, 2016): 131–147. ²³ One highly publicized example came in late 2019, when Israel’s then deputy-minister of defense, and former head of internal security, Avi Dichter, used this slogan in a widely circulated post directed at the leader of the center-left who, Dichter argued, was being “shamefully obsequious towards the Arabs.” See https://www.facebook.com/watch/?v=532189907604318 (Hebrew). ²⁴ One only has to imagine the kind of protest that Jewish Israeli politicians would launch if prominent politicians in any foreign country proclaimed that “the Jews wont change.”

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So the strategic political theorist should once again adopt a presumption against reasoning in this manner. There is also, however, a far less repugnant claim that has been present in relevant policy discussions in Israel. This claim is that, into the foreseeable future, neither Israel nor peace-seeking Palestinians have the ability to end the prominence of terrorist organizations (chief among them Hamas) that are vehemently committed to continued warfare. These organizations can never be persuaded to try to end the conflict through a peaceful compromise, and any unilateral concession would only strengthen their resolve to fight. To be sure, this claim is morally problematic as well, and its internal coherence can be doubted fairly easily (as I note below). But it is nonetheless a claim that a decent person can hold. This, then, is a claim that can much more naturally serve as the starting point of an exercise in strategic political theory. Indeed, by focusing on such a claim, and by separating it from far more reprehensible starting points, the strategic political theorist already performs a valuable service.²⁵

1.5 The Burdens of Politics: A First Look If what so far is correct, then there are certain premises—paradigmatically, premises that flatly contradict rudimentary notions of universal human equality— to which the strategic political theorist should be reluctant to stoop, even if only for the sake of discussion. I am aware, however, that even with this reluctance in view, some readers may still find strategic political theorizing to be too permissive. Such readers will still think that strategic theorizing accords more attention to disturbing premises, and perhaps also to disturbing public attitudes, than a morally healthy public sphere would allow. Accordingly, I now want to introduce a concept—“the burdens of politics”—which I believe further pre-empts this concern. I use “the burdens of politics” to refer to self-reinforcing political dynamics which impede decent people’s moral reasoning about specific areas of public policy. This is, of course, a very compressed definition, so let me try to unpack it gradually, starting with some abstract observations before turning to concrete examples. In line with what I said above, I understand “decent people” as those who reject any ideology which casts some human beings as inherently inferior or superior to others, be it on the basis of race, gender, nationality, or any other morally irrelevant attribute. Notwithstanding their basic decency, the specific political dynamics which affect these people systematically thwart their moral reasoning about certain policy issues. These dynamics lead the people in question to be unreasonable in their ²⁵ To be sure, this kind of service has only limited practical value the clearer it is that only repugnant premises hold genuine sway in the relevant policy context. In such circumstances, the main value of sorting exercises of the sort I just defended would presumably lie, once again, in capturing the tragedy of the situation.

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thinking about the relevant policy issues, even when their thinking pertains to a genuine moral factor. For example—illustrating the features of the unreasonable set out in the book’s introduction—people who are subjected to the burdens of politics tend to endorse unreasonable interpretations of a genuine moral factor. Similarly, such people will often give exclusive weight to some single genuine factor, at the expense of all other morally salient factors bearing on the relevant policy issue. Or, having fixated on a policy (close to or embodied in the status quo) which aligns with that single genuine factor, people subjected to the burdens of politics may think of the relevant policy choices in artificially narrow ways, unable to really imagine creative alternatives to the status quo. All of these patterns, in turn, are self-reinforcing, because the political realities they help to perpetuate only serve to further impair decent people’s moral reasoning. The precise way in which such vicious cycles may operate varies considerably across individuals placed in different social contexts and positions. But as I will go on to argue, these cycles can be equally germane whether we are considering high-level policymakers, for instance, or ordinary citizens. Strategic political theorizing accordingly prioritizes the effort to break these vicious cycles, and that is a key reason why such theorizing will often give a hearing to bad premises that ideally would not feature in policy discourse at all. Thus the strategic theorist will sometimes accept, arguendo, even highly problematic policy premises that underlie vicious political cycles, and will try to show that these premises have different practical implications than the implications currently espoused by those whose moral reasoning the relevant cycles thwart. As part of this effort, strategic theorizing will often operate within an unreasonable interpretation of a genuine moral factor, or within an unreasonable view of the relative weight that this genuine moral factor has in relation to countervailing considerations. While this is a manifestly nonideal exercise, the thought is that the policy reforms it justifies will gradually replace vicious cycles with virtuous ones: As political realities shift in a positive direction, even if on the basis of problematic premises, the political dynamics that made these premises appealing will weaken, and decent people’s capacity to reason about the relevant issues in morally adequate ways will improve. In other words, the hope is that doing the right thing now, albeit on the basis of problematic reasons, will open the door to doing more of the right thing later on, on the basis of better reasons.

1.6 The Burdens of Politics: Some Illustrations 1.6.1 Evacuating Settlements With this general sketch in hand, I now want to offer a few specific examples of the burdens of politics at work.

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We can start, once again, with the Israeli–Palestinian conflict. One of the most dispiriting experiences of any progressive Israeli who has lived through this conflict is the sight of fundamentally decent people who have gradually adopted an increasingly unhealthy fixation on a single factor—namely, the interest in security. Were their basic sense of security not so constantly imperiled, one could perhaps retain the hope that the majority in society would recognize significant moral constraints on the pursuit of security, ranging from the familiar constraints of just war theory, to constraints associated with neighbors’ claims to property and self-determination. But this moral hope is very hard to realize in a society scarred by endless terrorist attacks extending over decades. Under these enduring conditions, it is no surprise that talk of the rights (individual and collective) of members of the other side can so effectively—if infuriatingly—be portrayed, by manipulators of public opinion (be they cynical, fanatic, or both) as merely the luxury of “unpatriotic,” “enervated” elites.²⁶ Now, this example, quite clearly, also serves to illustrate the self-reinforcing aspect of the burdens of politics. Every time that the majority of Israelis opt for increasingly hawkish policies, to the detriment of numerous moral considerations, they are not merely responding to previous cycles of violence. They are also precipitating the next cycle, and so—aided, ironically, by parallel mistakes on the Palestinian side—are continuously reinforcing the tragic circumstances which keep impeding their moral reasoning.²⁷ How can the strategic political theorist respond to these vicious cycles? Take again the core issue of unilateral evacuations of Jewish settlements from the occupied territories. The first step is the sorting exercise discussed above: Putting aside repugnant grounds for a hawkish refusal to evacuate settlements, the strategic theorist zeroes in on a specific security rationale for this refusal—namely, the aforementioned claim that there is no way to end terrorists’ sway over Palestinian society anytime soon, and no way to get terrorists to abandon violence. In a second step, the strategic theorist can put pressure on the coherence of this rationale, as follows. If the hawkish premise is that terrorists will have the upper hand within Palestinian society into the foreseeable future, and if hawks believe that the terrorists are trenchantly and perpetually committed to the use of violence, regardless of Israeli actions, then why think that the evacuation of any Jewish settlements will strengthen terrorists’ resolve in any practically meaningful way? The hawks’ own premises, then, should lead them to believe that there are no meaningful security costs to the unilateral evacuation of Jewish settlements. This is all the more true given that the overwhelming majority of Israeli security experts deny that the settlements are a security asset: These settlements endanger at least as many

²⁶ I say more on relevant Israeli political dynamics in chapter 2. ²⁷ See, e.g., Yuval Feinstein and Uri Ben-Eliezer, “Failed Peace and the Decline of Liberalism in Israel: A Spiral Model,” Mediterranean Politics 24 (2019): 568–591.

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(and, on most accounts, many more) Israeli lives than the lives they (ostensibly) protect.²⁸ All this, of course, is manifestly nonideal reasoning not merely in the sense of its subject matter (a long-standing violent conflict) but also in its substance. A morally healthier perspective would give much greater weight, ab initio, to the many countervailing considerations that push against such an exclusive focus on Israeli security considerations, chief among them the urgent and long-violated moral claims of millions of Palestinians. Nonetheless, there is a clear pragmatic advantage to working, arguendo, within a heavily “securitized” framework, and to showing that even when taken on its own terms, its policy implications differ from those that hawks typically draw. By proceeding in this way, one can still defend policy reforms whose realization will, in turn, gradually restrain the political dynamics that perpetuate such flawed thinking (by gradually reducing the violent conflict that has long impaired citizens’ moral reasoning, or at least by proving that unilateral evacuations of settlements do not exacerbate violence).

1.6.2 Curtailing Ultra-Orthodox Privileges A second Israeli example will help to illustrate how the burdens of politics can be associated with structurally entrenched political power. Israel’s parliamentary system often allows even parties with a very limited number of seats to extract dramatic concessions from their coalition partners, by threatening to deprive the coalition of its majority and thus topple the government unless their demands are met. Ultra-orthodox powerbrokers have led the way in exploiting these structural dynamics. On the view that these powerbrokers profess, the ultra-orthodox’ distinct way of life—a life devoted entirely to biblical study (by men, with women providing limited financial support and devoted to child-rearing) is not only of moral value, but is the one supreme value next to which virtually anything else pales in significance. Thus, ultra-orthodox politicians have demanded for years that the secular majority will continue to fund the ultra-orthodox community (which, left to its own devices, would have no hope of sustaining itself economically), and that rudimentary core curricula requirements, providing ultra-orthodox pupils with the minimal tools needed to function in the modern secular economy, will not be enforced.²⁹ ²⁸ See, e.g., Avishay Ben-Sason Gordis, “The strategic balance of Israel’s withdrawal from Gaza (2005–2016),” The Molad Center (2017), at http://www.molad.org/images/upload/files/ Disengagement-Eng-report-full_final-for-website.pdf; Shai Agmon, “Leftists, stop fearing security debates,” Haaretz, July 8, 2021, at www.haaretz.co.il/opinions/.premium-1.9981018 (Hebrew) ²⁹ For extended background, see The People’s Duty, chap. 5.

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Their recurrent success has effectively locked their constituents in cycles of dependency, poverty, and ignorance.³⁰ According to an NGO working with the precious few individuals who leave the ultra-orthodox world for Israeli secular life, “an ultra-orthodox Yeshiva pupil reaches the age of 18 with knowledge in math equivalent to that of a fourth grader; he has no knowledge of English, sciences, history, geography, literature, civics, biology, or economics; he lacks the professional, academic, and social skills needed in the new world of the modern state of Israel.”³¹ The lack of any viable exit options from the ultra-orthodox community is clearly self-perpetuating, as every new generation of young ultra-orthodox adults has little real choice but to create the next such generation, which will in turn be at least as distant from the secular world, and taught with even greater vehemence to distrust and disregard state institutions whenever they do not conform to the ultra-orthodox view of the world. Each new generation of the ultra-orthodox community therefore re-enacts its predecessors’ demands for maximal autonomy from the state, combined with the provision of maximal state budgets. Thus the broader society finances the ultra-orthodox even while it is also effectively forced by ultraorthodox politicians to abdicate on-the-ground authority in managing almost any aspect of ultra-orthodox affairs. Strategic argumentation of some form seems necessary in breaking these vicious cycles, to the extent that they can be broken at all. Such argumentation can proceed, for example, by highlighting the most direct and stark costs that the abdication of state authority regarding ultra-orthodox life carries for the ultraorthodox, in terms that they themselves recognize. In May 2021, for instance, forty-five members of the ultra-orthodox community were killed in Israel’s largest ever civilian infrastructure disaster at an important Kabala site in the country’s north. Roughly twenty thousand people crammed to participate in traditional religious festivities, despite repeated warnings from civil engineers that the safe crowd capacity was a mere fraction of that number.³² These warnings were overruled multiple times by powerful ultra-orthodox government ministers, who effectively steamrolled the police into approving the religious event without imposing any limits on crowd size.³³

³⁰ For the latest example, featuring Israel’s most powerful ultra-orthodox politician, see Refaela Noychman, “To keep the Haredi disconnected, Deri prevented a law that would connect thousands of buildings to optic fibers,” TheMarker, June 22, 2021, at https://www.themarker.com/technation/. premium-1.9929095 (Hebrew). ³¹ Quoted in Mordechai Kremnitzer, Yael Cohen-Rimer, and Roi Konfino, “Who should fund the society of pupils” (op. ed.), The Israeli Democracy Institute, Dec. 15, 2008, at https://idi.org.il/articles/ 7867 (Hebrew). ³² Noa Schpigel, “Engineer expressed concern before Israel’s Mount Meron disaster over ‘bottleneck’ exit.” Haaretz, May 6, 2021, at https://www.haaretz.com/israel-news/.premium-engineer-expressedconcern-before-mount-meron-disaster-over-bottleneck-exit-1.9779988 ³³ See, e.g., Ilan Ben Zion, “Blame for Israel’s deadly stampede arrives at Netanyahu’s door.” The Christian Science Monitor, May 2, 2021, at https://www.csmonitor.com/World/Middle-East/2021/ 0502/Blame-for-Israel-s-deadly-stampede-arrives-at-Netanyahu-s-door

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In the disaster’s aftermath, arguably for the first time in Israeli history, there arose demands in the ultra-orthodox press that the state stop giving the ultraorthodox community so much autonomy in managing its own affairs, simply because the current level of autonomy hinders the community’s own way of life.³⁴ This is of course a morally impoverished form of reasoning: A morally healthier perspective would give far more weight to the legitimate claims and interests of the country’s non-orthodox citizens. But it is nonetheless a pertinent example of strategic reasoning, which arguably carries the best—if not only—hope of getting the ultra-orthodox community to do more of the right thing, and at least acquiesce to more state regulation of its affairs, albeit on the basis of the wrong reasons. It remains to be seen whether such regulation can eventually come to encompass more of the basic elements of civic life that would be taken for granted in virtually any other Western country.

1.6.3 Russian COVID Vaccines: Abroad and at Home Israel provides especially fertile ground for examples of strategic argumentation, as chapter 2 will show in more detail. But Israel is far from the only country where such argumentation can play a role in countering the burdens of politics. A different sort of example comes from Russia, and more specifically from the long-standing efforts of Russian political elites to appeal to the country’s geopolitical aspirations to sustain a sense of national pride that would pepper over acute everyday problems. The Putin regime, in particular, has made recurrent use of the national pride tactic to divert the attention of ordinary citizens both from its ever-increasing authoritarianism and from socioeconomic problems. Already long before Putin’s invasion of Ukraine, the systematic invocation of Russia’s coveted geopolitical status, with everything it means for nationalist sentiment, has been pivotal to the regime’s ongoing efforts to maintain its social legitimacy.³⁵ Now, one way to contest this central regime tactic is to insist that it is only morally appropriate national pride that should really be of collective interest, and that such pride depends precisely on the kinds of liberal values upon which Putin’s regime has been trampling.³⁶ But it has of course been part and parcel of the ³⁴ See, e.g., Haviv Rettig Gur, “After Meron calamity, Haredim question the price of their own autonomy,” The Times of Israel, May 2, 2021, at https://www.timesofisrael.com/after-meron-calamityharedim-question-the-price-of-their-own-autonomy/ ³⁵ See, e.g., Elizabeth Wood, “Performing Memory: Vladimir Putin and the Celebration of World War II in Russia,” The Soviet and Post-Soviet Review 38 (2011) 172–200; Oleg Riabov and Tatiana Riabova, “The Remasculinization of Russia?,” Problems of Post-Communism 61 (2014): 23–35; Shaun Walker, The Long Hangover: Putin’s New Russia and the Ghosts of the Past (Oxford: Oxford University Press, 2018). ³⁶ These claims naturally align with various accounts of liberal nationalism. See, for instance, Yael Tamir, Liberal Nationalism (Princeton: Princeton University Press, 1993); Jan Werner Muller,

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regime’s strategy to do everything in its power to nip any such liberal ideas in the bud, not least through its heavy-handed control of the country’s media environment and education system. So it is not a coincidence that such a liberal form of patriotism has little resonance in Russia: That is precisely the intended result of the regime’s systematic effort to subvert the moral reasoning of ordinary Russians, especially through a constant barrage of propaganda targeting the least well educated. A strategic argument would therefore proceed on much more minimalist grounds. Rather than appealing to broad liberal ideals, the strategic theorist would zero in on specific cases where the regime’s focus on national pride associated with Russia’s geopolitical standing unequivocally comes at the expense of ordinary Russians’ most basic needs—to an extent that makes national pride seem not merely illiberal, but rather preposterous. An especially evocative example—and therefore a case of particular value for the strategic theorist—is the Putin’s regime’s vaccine priorities during the COVID-19 pandemic. In a move that caught the attention of Western press, the regime chose to prioritize exporting Russia’s vaccine—appropriately named “Sputnik V”—in pursuit of international leverage and prestige, over distributing more of the vaccine to Russians themselves. In April 2021, for instance, The New York Times reported that the Russian government has exported 4 million doses of the vaccine—a fifth of its supplies at the time—even though only 5 percent of its own population has been fully vaccinated.³⁷ This is as clear an illustration as one could imagine of the regime’s geopolitical goals being not merely irrelevant to the welfare of ordinary Russians, but directly coming at their expense. Note, moreover, that the issue of vaccine distribution is not a highly technical matter, unlike often-abstruse evidence of how, say, the regime’s military spending (or even general macro-economic mismanagement) sets back the interests of Russia’s most vulnerable. Accordingly, in the case of vaccines that are sent abroad rather than being distributed at home, there is no obvious form of regimeorchestrated media manipulation or deception, and no simple form of propaganda targeting the country’s least educated citizens, which could hide or obscure the stark domestic repercussions of the regime’s international conduct.³⁸ In turn, to the extent that strategic arguments of this sort can help provide momentum for democratic protests against the regime, they can also help in

Constitutional Patriotism (Princeton: Princeton University Press, 2007); Anna Stilz, Liberal Loyalty (Princeton, NJ: Princeton University Press, 2009). See also Rawls, The Law of Peoples (Cambridge, MA: Harvard University Press, 1999), 44. ³⁷ See, e.g., “Why Russia is exporting so much vaccine,” The New York Times, Apr 26, 2021. https:// www.nytimes.com/2021/04/26/podcasts/the-daily/russia-vaccine-coronavirus-vladimir-putin.html ³⁸ The contrast with the war in Ukraine is instructive here. See, e.g., Masha Gessen, “The Russians fleeing Putin’s wartime crackdown,” New Yorker, March 17, 2022.

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ushering a day (which currently, to be sure, remains quite far away) where Russian institutions would take a much more liberal form—one that is conducive to thinking about national pride, ab initio, in a less fanatic and destructive fashion. Before moving on, let me make offer a final set of remarks about the burdens of politics, to anticipate a key part of what is to follow later in the book. As the preceding paragraphs already imply, a complete account of the burdens of politics, while being attuned to direct threats to people’s basic physical survival, must also be alert to political circumstances that go beyond the most extreme such threats. The most obvious reason is that even when such threats are absent, many citizens’ access to basic public services may be sufficiently precarious so as to meaningfully limit their capacity for sustained moral reasoning about public affairs. A poor citizen of the United States, for example, who lacks the income or wealth needed to attend college, and who earns a precarious living through menial work that is nowhere near enough to fund adequate healthcare, is extremely likely to be better off on multiple dimensions than an average citizen of Russia. But (even if to varying degrees) they still share at least one basic predicament. It is implausible, and arguably even unfair, to expect that either one of them will have the time, leisure, and analytical tools with which to reflect on the finer details of moral arguments regarding public policy.³⁹ We might say, then, that in a society where robust public support is unavailable, economic impoverishment produces its own “burdens of politics.” But again, a complete grasp of these burdens obviously has to look beyond the impoverished. It also requires paying close attention to those actors who have a disproportionate stake in perpetuating socioeconomic inequalities. More specifically, from the perspective of strategic political theory, it is especially important to pay sustained attention to the self-serving policy premises that such powerful actors strive to plant in public discourse and in public consciousness, affecting the basic worldview of both ordinary citizens and policymakers. In this context, major corporations clearly emerge as key culprits in many affluent democracies. That is a central reason for why my focus in the latter part of the book will lie with strategic arguments for political reform that operate—solely for the sake of discussion—within corporate-friendly premises.

1.7 Does Strategic Argumentation Go Far Enough? Let us now return to the concern which triggered our discussion of the burdens of politics: that giving sustained attention to morally flawed policy premises, even if only temporarily, is somehow objectionable. With the burdens of politics in view, however, we can now see a natural answer to this worry: Such a purist insistence on ³⁹ For a particularly vivid illustration of this point in the American South and Midwest, see Jonathan Metzl, Dying of Whiteness (New York: Basic Books, 2019).

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arguing solely from blemish-free premises dangerously ignores central—and selfreinforcing—aspects of political reality. More specifically, such a purist position threatens to make the best the enemy of the better. In fact, it seems to me that if there is a real worry here, it lies in the opposite direction. In this section, I want to anticipate this opposite worry. It holds that, in certain dire situations, our attempt to replace vicious cycles with virtuous ones should be even more pragmatic than our discussion up to this point suggests: we should be more willing to entertain even repugnant policy premises that can only be held by fundamentally indecent individuals. Of course, we should only resort to these premises for the sake of discussion. Nonetheless, we should sometimes resort to these premises with the same hope emphasized above—that the policy reforms which the relevant premises could still ground would in turn create social conditions that will make these very premises far less prevalent. Therefore, even the defeasible presumption highlighted above, against the strategic use of repugnant premises, is unwarranted. As a partial concession to this worry, we can note three demanding conditions that, taken together, can weaken this presumption. The first condition is that the strategic use of the relevant repugnant premises is endorsed in some clear way by actors who can credibly claim to speak on behalf of those segments of the population who are the primary targets of the repugnant attitudes that these premises express. Second, the premises in question must have considerable public purchase. Third, we must have a clear causal picture of how the strategic use of the relevant premises would make a significant contribution to the creation of future conditions where these premises would lose their sway in society. The history of certain anti-discriminatory movements suggests that, strictly speaking, it is not impossible for all three conditions to be realized simultaneously. In the eighteenth century, Mary Wollstonecraft for example noted that even if one adopts, arguendo, the repugnant premise that women will never be able to benefit from education to the same degree as men, policies increasing women’s educational opportunities would cost little and should therefore still be implemented.⁴⁰ Wollstonecraft had a credible claim to speak on behalf of those most harmed by the relevant premise. This premise clearly had considerable public purchase. And, equally clearly, one could chart a plausible causal picture leading from the policy that Wollstonecraft defended in a strategic manner—namely, the educational empowerment of women—to a future in which misogynist attitudes would not be nearly as prominent. However, it seems to me that cases such as these are the exception rather than the rule. In the vast majority of circumstances, it will be much harder to draw the

⁴⁰ See Mary Wollstonecraft, A Vindication of the Rights of Woman with Strictures on Political and Moral Subjects (New Haven, CT: Yale University Press, 2014 [1792], ed. Eileen Botting), chap. 12. I owe this example to Victor Tadros.

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kind of clear causal picture on which Wollstonecraft could rely, not least because it will be much harder to see how the policies in question could truly empower the victims of the relevant repugnant attitudes. So while the strategic use of repugnant premises remains a genuine possibility, the presumption against it also stands.

1.8 Strategic Theorizing and the Practical Purposes of Political Philosophy In this penultimate section, I anticipate a set of natural objections to strategic political theorizing. I reflect on these objections at length, both because I think that they are important, and because my proposed answers affect several applied details of the strategic approach, which I discuss in the final section.⁴¹ The relevant objections begin with skepticism regarding the current practical value of the picture of civic deliberation that I have been highlighting. More precisely, the skepticism that I have in mind is rooted in depressing observations regarding citizens’ current ability and willingness to engage in anything remotely resembling the intellectual exercise that is strategic political theory. Consider, for example, the following remarks from David Enoch decrying widespread ignorance, immorality, and irrationality underlying recent political events in the United States, Britain, and Israel: The evidence is in, and it’s overwhelming . . . The thing to believe about the masses—and about the elites too, of course—is that they are a mess. They have their moments, sure. But in some kinds of circumstances they are likely—even bound—to act and vote in ways that are horrendous, both morally and in terms of their own interests. Believing that they will respond well to evidence, after the success of the Brexit campaign, requires motivated blindness, not an inspirational view of humans at their best. Thinking that they are likely to believe the truth after the success of the Trump campaign and the wide indifference to the outrageous lies that played a crucial part in it requires having one’s eyes shut. And if, even after the continued success of Netanyahu’s obviously racist rhetoric you think that racism and nationalism are merely aberrations in the intellectual and motivational makeup of people who are by-and-large decent, and who merit Kant’s respect for humanity, then you are not inspired by Kant’s vision. You are blindfolded by it.⁴²

⁴¹ I therefore hope that even readers who do not feel the force of the objections on which this section focuses will benefit from its arguments. ⁴² David Enoch, “The Masses and the Elites: Political Philosophy for the Age of Brexit, Trump and Netanyahu,” Jurisprudence (2017): 1–22, at 11–12.

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These observations can support multiple reactions to strategic theorizing. On one variant, ordinary citizens’ current dispositions mean that it would be unwise to bet on strategic theorizing having immediate practical payoffs. Instead, we should focus strategic theorizing—at least partly—on political disputes that will likely remain relevant even quite a while from now. My response to this claim is simply to endorse it. As the earlier discussion of the burdens of politics should convey, I agree that, all else equal, the longer the shelf life of a given political issue, the more sense it makes as a subject of strategic theorizing. So if this was the only concern supported by sombre observations about presentday politics, there would be little more to say here. But there is a different kind of concern that lies in the vicinity, and which I want to scrutinize in more detail. According to this concern, once we shift our practical gaze to the long run, we find that strategic theorizing takes political philosophers away from the real core of their practical contribution. Strategic theorizing requires, as I emphasized above, that we delve into the commitments of a particular political camp at a given place and time. But political philosophy’s practical hopes depend precisely on its ability to look beyond such circumscribed political contexts, and to instead offer more fundamental and enduring systems of thought. Jeremy Waldron, for example, seems to endorse something like this view when registering skepticism regarding philosophers who “write as though they were constitution-framers, legislators, or policy advisers”: it is remarkable how little useful to mankind philosophical schemes have been when they have been presented in this spirit. Who now reads John Locke’s constitution for the Carolinas? Who reads Jean-Jacques Rousseau’s Considerations on the Government of Poland? Who, apart from antiquarians, spends any time at all with the detail of Jeremy Bentham’s curious legal and constitutional schemes? We know that none of these documents played an important part in the governance of any of the societies to which they were addressed. Who now derives from them anything like the insight that they get from the Two Treatises, from the Social Contract and the Discourses, from Of Laws in General or An Introduction to the Principles of Morals and Legislation?⁴³

Note that, notwithstanding the rhetorical appeal of these remarks, there are (once again) multiple and quite different ways of unpacking them. On the one hand, we might interpret Waldron here as suggesting that engaging in the building of “grand theories” or “realistic utopias” is the kind of work which political philosophers do best, and which has the most enduring legacy—so it can be seen as “the central ⁴³ Jeremey Waldron, “What Plato Would Allow,” in Ian Shapiro and J.W. DeCew (eds.), NOMOS XXXVIII: Theory and Practice (New York: New York University Press, 1995): 138–178, at 149.

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and irreplaceable work of political philosophy.”⁴⁴ If this is the concern, then my response is once again fairly modest, having to do with relative balance within the profession. The towering influence of Rawlsian political philosophy over the last fifty years has ensured the availability of a great deal of “grand theory.” So, alongside such theory, we could (still) do with more grounded theory as well—the kind of theory that seeks to grapple with concrete injustices specific to a given place and time, while intentionally bracketing grand visions of what a perfectly just society or world would look like. Indeed, the welcomed move towards “nonideal theory” in much of political philosophy over the last fifteen years or so reflects precisely this attitude.⁴⁵ But there is also another way to read Waldron’s remarks. According to this reading, the deeper we get into the messiness of actual, concrete politics in a given place and time with an eye towards targeted practical contributions, the more we leave philosophy itself behind, and the more we are in fact doing something else entirely. This is the kind of attitude expressed by Gerald Gaus, for example, when he warns that any venture beyond classic intellectual inquiries threatens to “corrupt” philosophy.⁴⁶ And that is also the attitude that Waldron himself expresses at the very end of the essay from which I just quoted: Unless our speculations appear, by ordinary standards, “cold, and strain’d and ridiculous,” we are not doing philosophy . . . I guess most of us [theorists] are from time to time asked the following question by those not cursed with philosophical pretensions: “What’s the point of your work? What difference is it going to make? How is it going to help the fight against poverty, racism, and sexism?” My bottom line is that we are not really doing political philosophy, and thus paradoxically that we are probably not really being of much use, unless we are largely at a loss as to how to answer that question.⁴⁷

This position, however, has several serious flaws. For one thing, I see no reason to accept the claim that political philosophy, at least, must be removed from ordinary life—must be regarded as “cold, strained, and ridiculous” by ordinary people—to ⁴⁴ This formulation comes from Joshua Cohen, “Philosophy, Social Science, Global Poverty,” in Alison Jaggar (ed.), Thomas Pogge and His Critics (London: Polity, 2010), 18–45, at 21. ⁴⁵ For a small sample out of a large literature see, e.g., Amartya Sen, The Idea of Justice (Cambridge, MA: Harvard University Press, 2009), particularly chap. 4; David Wiens, “Prescribing Institutions without Ideal Theory,” Journal of Political Philosophy 20 (2012): 45–70; Wiens, “Against Ideal Guidance,” Journal of Politics 77 (2015): 433–446; Michael Goodhart, Injustice (New York: Oxford University Press, 2019). ⁴⁶ See Gerald Gaus, “Should Philosophers ‘Apply Ethics’”? Think (Spring 2005): 63–67. For a sustained critique of this position, see Avner De-Shalit’s “Political Philosophy and What People Think,” Australasian Philosophical Review 4 (2020): 4–22. De-Shalit’s primary target is Michael Oakeshott’s Experience and Its Modes (Cambridge: Cambridge University Press, 1978 [1933]). ⁴⁷ Waldron, “What Plato Would Allow,” 171, referencing David Hume, A Treatise of Human Nature, ed. L. A. Selby-Bigge (Oxford: Clarendon Press, 1988), book 1, part 4, sect. 7: 269.

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really “count” as philosophy.⁴⁸ Furthermore, at a deeper level, it is not clear why or how we can make genuine progress on a substantive question—what subjects and modes of inquiry should occupy political philosophers in their professional capacity—through terminological fiat concerning the very definition of “philosophy.” Finally, to say that political philosophers are likely to be of practical value only when they are unable to explain their practical value seems like sophistry at best and, at worst, a kind of surrender—a concession that political theory has no way of justifying its practical significance to the rest of society. All this notwithstanding, I grant that there is indeed a powerful objection underlying the kinds of sentiments that Waldron is expressing. The objection is simply this: stepping beyond philosophy’s familiar quests for truths that transcend time and place means adopting a different social role—such as that of a public intellectual, or, most straightforwardly, a political activist.⁴⁹ Moreover, there is no reason to think that philosophers are especially well suited to these alternative roles, which are best left for those outside academia.⁵⁰ This objection dovetails with the thought I noted in the very beginning of the book as its prime motivation: namely, the inherent tension between the desire to contribute in the face of urgent, self-evident wrongs in public life, and the concern that it may be impossible to make such a contribution in a way that retains any distinctively philosophical character. So I naturally think that the objection captures something important. Still, as stated, it is vulnerable in at least three ways, which we can note in ascending order of significance. First, it might very well be true that the comparative advantage of most political philosophers, simply as a matter of personal disposition and talent, does not lie in direct public engagement of any sort.⁵¹ But it does not automatically follow that even these philosophers should shy away from doing work that has a clear public component. Rather, it can still be appropriate for such philosophers to give sustained attention to pressing public issues, knowing that they will likely have to rely on other individuals and institutions—from pundits and other public intellectuals,

⁴⁸ Note that one can accept this claim independently of whether one thinks that in other areas of inquiry, such as the philosophy of science, “taking distance” from ordinary people is a sign of increased rigor. See for example W. V. Quine’s “Has Philosophy Lost Contact with People?,” in Theories and Things (Cambridge, MA: Harvard University Press, 1981): 190–194. ⁴⁹ See, e.g., Van der Vossen, “In Defense of the Ivory Tower: Why Philosophers Should Stay Out of Politics,” Philosophical Psychology 28 (2015): 1045–1063. ⁵⁰ For such a view, see for example the introduction to David Estlund’s Utopohobia (Princeton, NJ: Princeton University Press, 2020). ⁵¹ Though even this claim—which I have heard repeatedly in conversations with fellow philosophers—can be overstated. While politically involved philosophers (and historians of political thought) are obviously rare in modern times, they do exist. Tomáš Masaryk is probably the most celebrated example; in more recent years, Michael Ignatieff (in Canada), Onora O’Neill, Raymond Plant, and Bhikhu Parekh (in the UK House of Lords) and Yael Tamir (in Israel) also come to mind. It is striking that even many philosophers who are well acquainted with Tamir’s influential theoretical work on liberal nationalism are unaware that she served as Israel’s Minister of Education.

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through students, to think tanks—to transmit their ideas in a manner that will maximize their public impact.⁵² Second, the objection might have been cogent if the quality of existing public discourse on political morality were reliably high. If that were true, then one might understand political philosophers who prefer to leave any kind of public role to others. But as we have already seen, philosophers themselves often complain—quite rightly—that the quality of actual public discourse on political morality leaves a great deal to be desired. So the relevant de facto distribution of societal labor has long had suboptimal effects (to put it mildly). This fact seems to give professional political philosophers an important reason to seek to make more sustained public contributions. The most fundamental problem with the objection, however, goes further. The problem is that the objection assumes a very sharp divide between the professionally recognized work of academic political philosophers on the one hand, and, on the other hand, various forms of (more or less sustained) reflection on the morality of public affairs. But this assumption is implausible, as Waldron himself recognizes. There is, he observes, “a basic continuity between political theory and civil discourse,” wherein political theory is “simply conscientious civic discussion without a deadline.”⁵³ “Our thinking and arguing in political philosophy,” Waldron also notes, must not be seen as “qualitatively different from that of a citizen-participant in politics.”⁵⁴ I recognize, however, that some philosophers may not share this judgment. So a few examples might be helpful, as a way of reinforcing the porous understanding of political philosophy’s relationship to non-academic reflections on public life. I very much doubt, for instance, that there is always a world of a difference between a highly intelligent novel which explores in depth a moral dilemma of public life, and an academic monograph by a professional political philosopher that delves into the same problem. There certainly are some differences—including jargon and many other conventions (philosophers would rightly frown upon any academic book overly preoccupied with character development, for example). Yet it is entirely possible to think of literary works that do (at least) as much justice to hard moral dilemmas in public life as do professional philosophical treatises.⁵⁵ One can make similar observations regarding the relationship between political philosophy, public intellectuals, and political activism. In 1996, Ronald Dworkin, ⁵² This is a variant of Adam Swift and Stuart White’s emphasis on how a “division of labor” is essential if political theory is to have a practical social role. See their “Political Theory, Social Science, and Real Politics,” in David Leopold and Marc Stears (eds.), Political Theory: Methods and Approaches (Oxford: Oxford University Press, 2008), 49–69. ⁵³ Waldron, “What Plato Would Allow,” 147. ⁵⁴ Waldron, “What Plato Would Allow,” 147. ⁵⁵ One example is Ian McEwan’s The Children Act (London: Jonathan Cape, 2014), revolving around a judge who has to decide whether the almost-18-year-old son of Jehovah’s Witnesses may receive lifesaving treatment for his leukemia against his will.

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Thomas Nagel, Robert Nozick, John Rawls, T.M. Scanlon, and Judith Jarvis Thomson filed a famous amicus brief to the U.S. Supreme Court in favor of allowing assisted suicide.⁵⁶ Were these philosophical luminaries engaged in political philosophy, in “public intellectualism,” or in political activism? Even if to varying degrees, the answer is plainly “all of the above.” They were deploying their distinctly philosophical skills to argue in favor of what is ultimately a normative position on a topic of clear public significance. To be sure, in its form and premises, their argument was adapted to the very specific venue in which it was presented. But it makes little sense to place that argument outside the bounds of “political philosophy” simply for that reason. Notice, moreover, that this porous view of the boundaries between political philosophy and political activism can be endorsed even by those who are quite pessimistic regarding the philosophical potential of real-world political discourse. Thus for example, having proclaimed, in the quotes given above, that both “the masses” and “the elites” are “a mess” when it comes to moral and prudential reasoning, Enoch nonetheless concludes in the same essay that political philosophy “must have something to say to good-faith political activists and agents.”⁵⁷ Elaborating on this duty elsewhere, Enoch rightly adds that “the good political philosopher and the political activist—at the very least, the activist who is fighting on the side of the right and the good—should be allies”:

Indeed, their roles are in a way continuous. True, there are differences—perhaps, for instance, there are small-scale pragmatic considerations that the political philosopher can ignore and the activist should not. Or perhaps the activist may be excused for argumentative imprecisions that cannot be tolerated from the political philosopher. And certainly, the political philosopher should (sometimes) engage matters on a level of abstraction that is unsuitable for activist texts . . . But these differences between the political philosopher and the activist notwithstanding, the activist and the political philosopher are engaged in what is largely the same project.⁵⁸

The more one adopts this mindset—the more one rejects the claim that political philosophy occupies its own universe, removed from any other public enterprise—the more natural one should find my proposed turn to strategic political theorizing.

⁵⁶ See, e.g., https://cyber.harvard.edu/bridge/Philosophy/philbrf.htm ⁵⁷ Enoch, “The Masses and the Elites,” 20. ⁵⁸ Enoch, “Against Public Reason,” 137, my italics (throughout this book, all italics are mine unless noted otherwise).

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1.9 The Actual Pursuit of Strategic Theorizing I now turn to a final set of questions. I hope to have convinced at least some readers that strategic political theorizing is both valuable and appropriate for philosophers to pursue. But I have not yet said enough about what actually follows—about the kinds of topics that strategic theorists should prioritize, as well as about their intended audiences and interlocutors. Start with topic selection. There are several obvious considerations that come to mind here. Plainly, all else equal, the greater and more immediate the harm threatened by a given indefensible policy, the more there should be a presumption in favor of taking on this policy as a topic for strategic theorizing. Similarly, the more prominent are unreasonable views about a given policy issue, the more appropriate is this issue (ceteris paribus) for strategic theorizing. And, at this point in our discussion, it may be just as obvious that the more a given indefensible policy interacts with the burdens of politics, the more it should be prioritized by strategic theorists. But here I want to highlight some less obvious desiderata. More specifically, I would like to suggest that the presumption in favor of focusing strategic theorizing on a given indefensible policy is stronger, the more it is amenable to worldviewing—that is, the more we are able to link support for this policy to a broader range of commitments that, at least initially, may seem far removed from one another. By presenting the strongest, most comprehensive interpretation of how these supposedly disparate commitments are in fact connected, and by explaining why, even when cast in their most compelling light, these commitments ultimately yield results that conflict with the relevant policy, the strategic theorist increases her prospects not only of contributing to public life, but also of making a contribution that relies on what is most distinctive to philosophy—namely, its ability to connect what seem like entirely separate things into a unified picture. The following remarks from Zsolt Kapelner, discussing what professional philosophy can “offer” to the broader society beyond the ivory tower, elegantly capture this conception of philosophy’s role as an intellectual unifier:

Understanding . . . is the holistic comprehension of something that renders the initially strange and alien object familiar and intelligible. But that is possible only against the background of a “complete” picture, a whole system of meaning and significance, or what I would like to call a “worldview” . . . Now philosophy, being the study of the fundamental principles of . . . well, everything, really does have a chance to come up with such worldviews. Unlike science or art, philosophy really does have the resources, the intellectual equipment so to speak, for going all the way down and clarify[ing] the deep connections between the seemingly different and disconnected, yet in reality profoundly intertwined fields. It is philosophy that can [for example] connect the biology of the human species

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with international law through the metaphysics of personhood and the ethics of human rights. Philosophy alone, I think, is capable of connecting the dots.⁵⁹

Now, I should stress that my claims here are more modest. For one thing, I have intentionally been using (throughout) the phrase “distinctive to philosophy” rather than unique to philosophy, or rather than speaking about what philosophy “alone” can do. This terminological choice follows from what I said in the previous section about the porous relationship between political philosophers and the rest of society. Because this relationship runs both ways, it is not my view that political philosophers have a monopoly on intellectual efforts that unify disparate subjects of social interest into one coherent worldview. At least in some specific contexts, it might very well be true that nonphilosophers too, including non-academics, can engage in such “worldviewing”—be they pundits, policy analysts, civil servants, journalists, or even simply ordinary citizens engaged in conscientious reflection on public affairs.⁶⁰ Still, if professional political philosophers have any kind of distinctive ability, it is arguably the ability to construct a more unified and wideranging moral perspective on politics than the one that we encounter in everyday public discourse. Furthermore, whereas Kapelner puts unequivocal emphasis on the philosophical study of “fundamental principles,” strategic political theorizing is more ambivalent on the question of how fundamental should we go. Insofar the strategic theorist is focused on concrete political problems, she often has good reason to refrain from plumbing certain foundations. The strategic theorist only needs to delve as deep into a given set of unreasonable premises as is necessary to show how they can yield less bad policy conclusions than is often thought to be the case. Once this practical conclusion is reached, there are—as we saw earlier in the chapter—multiple reasons not to delve further.⁶¹ Still, there is an important way in which strategic theorizing aligns with Kapelner’s emphasis on the study of fundamental principles “going all the way down.” ⁵⁹ Kapelner, “What Can We Offer?,” 339–340. ⁶⁰ Here I am partly following Jonathan Wolff, who, having defended the merits of publicly “engaged” philosophy, anticipates the concern that such philosophy “could be done by academics from many backgrounds, as well as civil servants and journalists.” His answer is straightforward: “this is just how things are. Insofar as philosophers have any competitive advantage in contributing to the direct policy process it is through the time and care they have spent informing themselves about the analysis of values and how to approach dilemmas, and how this has been done throughout the history of philosophy. We are stocked with an understanding of values, theories, and principles of inference. We are used to patterns and repertoires of arguments, making distinctions, and at least attempting to convey what we know clearly and simply. But if this is a difference to those in other specialisms or social roles, it is generally a difference of degree, not of kind.” Jonathan Wolff, “Applied Philosophy versus Engaged Philosophy,” in Annabelle Lever and Andrei Poama (eds.), The Routledge Handbook of Ethics and Public Policy (London: Routledge, 2019), 13–24, at 22. ⁶¹ On this issue, strategic political theory is a fellow traveler to Rawls’ overlapping consensus, as well as to what Cass Sunstein famously called “incompletely theorized agreement.” See, e.g., Sunstein’s “Incompletely Theorized Agreements,” Harvard Law Review 108 (1995): 1733–1772.

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And this alignment is pertinent here, because it too bears on the question of which topics strategic theorists should prioritize. All else equal, strategic theorists should prioritize topics on which they have more social space to engage in foundational argumentation. This “social space,” in turn, is a function of several variables. Most straightforwardly, one can expect more space for foundational argumentation about a given political dispute, the clearer it is—even to nonspecialists—that the dispute involves foundational questions. On another level, there is also likely to be more social space for fundamental argumentation regarding a given policy, the more the different sides to the dispute are invested in its outcome—and are therefore willing to invest more intellectual resources in the debate. The long-standing American debate on abortion illustrates both of these considerations. Abortion has been a central issue in American politics for decades, following its legalization through the Supreme Court’s landmark decision in Roe v. Wade (1973).⁶² In recent years, the political fight over abortion has intensified even further, due largely to the (successful) right-wing effort to cement a conservative majority on the court. As a result of this effort, public discourse about abortion’s moral and legal status has become even more ubiquitous, anywhere from the state school campuses in the country’s heartland⁶³ to the opinion pages of major news outlets. This was the case even before the Court’s Dobbs decision of 2022, which formally overturned Roe and placed the legal fate of abortion with the legislative process. In the aftermath of Dobbs, it is an especially safe bet that abortion will dominate American political conversation into the foreseeable future. In turn, one of the most striking features of the omnipresent public conversation about abortion is the extent to which it—explicitly—incorporates the (more or less foundational) arguments of professional philosophers. In April 2021, for instance, The New York Times had two of its columnists (Michelle Goldberg and Ross Douthat) debate one another on abortion.⁶⁴ Their conversation made explicit references to a 1971 Philosophy & Public Affairs article published by Judith Jarvis Thomson in defense of the pro-choice position.⁶⁵ The presence of this article— thought experiment included—in a popular forum clearly meant for a general audience was already noteworthy. But perhaps even more noteworthy was the (again explicit) trigger for the debate—namely, an essay by another philosopher, John Finnis, in another journal that is normally quite far from the popular press (First Things). In this essay, Finnis, relying on a highly unorthodox constitutional ⁶² Roe v. Wade, 410 U.S. 113. ⁶³ See, e.g., Josh Meredith and Violet Thomas-Cummings, “Students discuss abortion, women’s rights,” The Shield, April 29, 2021, https://usishield.com/34157/features/students-discuss-abortionwomens-rights/ ⁶⁴ See “Why the Anti-Abortion Side Will Lose, Even if It Wins,” The New York Times, April 14, 2021, at www.nytimes.com/2021/04/14/opinion/abortion-roe-douthatgoldberg. html?action=click&module=Opinion&pgtype=Homepage ⁶⁵ Judith Jarvis Thomson, “A Defense of Abortion,” Philosophy and Public Affairs 1 (1971): 47–66.

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interpretation, makes the provocative claim that abortion should be declared unconstitutional.⁶⁶ My point here, of course, is not that Finnis’s position is compelling, but rather that its incorporation into the public conversation (or at least, into The New York Times portion of that conversation) was virtually seamless— something that is clearly not true for every piece that a philosopher writes on current affairs. The two considerations noted above arguably explain what makes the abortion debate stand out in the degree to which it features philosophical involvement. First, it does not require specialists to recognize that normative disputes about abortion have foundational philosophical questions front and center. Nonspecialists too can recognize that these disputes—for example, about when personhood begins— have an undeniably philosophical character. Second, there is little doubt that the different sides to the debate are invested in its outcome. And it is natural to conjecture that the more people care about the result of a given policy debate, the more likely they are to be interested in arguments that seek to advance the debate— especially if these arguments take their premises seriously. This is, of course, a key part of the promise of strategic theorizing (which is partly why I will offer an extended discussion of abortion in chapter 3). Keeping in view the question of which topics should strategic theorists prioritize, as well as the idea of “social space” for philosophical involvement, let me now also say a few things about who precisely strategic theorists should take as their audience. Perhaps the most important point here is that the strategic theorist’s direct interlocutors or fellow disputants need not be—and often will not be—her real audience. In this sense, the strategic theorist is not unlike politicians who contest each other’s views in a legislative session or in a presidential debate. While they are (ideally) responding to each other’s arguments, the real people they are trying to persuade are third parties, such as nonaligned voters or nonaligned politicians. Much the same can often be said about the real audience of strategic theorizing. This observation has fairly immediate implications for topic selection. It means that strategic theorists should (ceteris paribus) prioritize those policy disputes where public opinion is scalar rather than binary. The more public opinion on the relevant issue allows for meaningful gradations, the more there is reason to hope that by taking certain unreasonable views seriously and seeking to systematize them, the strategic theorist might be able to sway the views of other constituencies, who may be sympathetic to some of the unreasonable premises in question but not to all, or who may be sympathetic to all of them but not in the same kind of unquestioning fashion as is the case with those who espouse the most extreme views about the relevant policy issue(s). ⁶⁶ John Finnis, “Abortion is unconstitutional,” First Things (April 2021): 1–19, at https://www. firstthings.com/article/2021/04/abortion-is-unconstitutional

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However, strategic political theory also has an extremely capacious understanding of who is included in its possible audience. Anyone whose circumstances provide meaningful space for sustained reflection on the morality of (a given issue in) public policy is a possible member of the strategic theorist’s constituency. Thus for instance, well-off employees of an extremely powerful corporation, who want to engage in earnest debate about how the corporation ought to wield its considerable social clout, can often be part of the strategic theorist’s audience. But so can people whose main asset is not affluence or social clout but simply time. Prominent political prisoners, for example, who may have little do to in prison other than to think about moral and practical issues related to the struggles that they have been waging, can be part of the strategic theorist’s audience no less than the mid-level or senior management of a globally renowned tech company. Given this inclusive conception of the possible audiences for strategic theorizing, just how much variation should there be in how strategic theorists present their arguments to different audiences? In one sense, the variation can be considerable. To combine the two examples just noted: The employees of a large multinational firm might debate how the firm should treat a foreign regime that is a lucrative client but that is also developing a notorious reputation for increasing the number of political prisoners and badly mistreating them. A strategic theorist might be able to contribute something to this debate by showing—for instance—how even unreasonable premises regarding the overriding importance of corporate profits may not support continuing “business as usual” with the regime. But, in an adjacent context, the strategic theorist might also have something distinctive to say to the prisoners themselves, and to the movements to which they belong, as they weigh the moral factors bearing on various resistance tactics. And the theorist’s strategic intervention in the latter context may very well work within premises that are not just different from, but directly conflict with, the premises that she might deploy, for the sake of discussion, in the former context. In another sense, however, strategic theorists ought not vary the way in which they present their arguments. Here I have in mind simply basic standards of competent reasoning, on which the strategic theorist must insist across the board. Assuming unreasonable premises is one thing—which the strategic theorist must of course do as an essential part of her enterprise. But making leaps in reasoning from these premises is something else altogether. This means, among other things, that the kind of rhetorical deflections that are so ubiquitous in the political arena—blatantly misrepresenting challenges to one’s view, engaging in irrelevant ad hominem attacks rather than answering the substance of intellectual challenges, drawing false equivalences between policies, statements, or forms of behavior that are clearly not equivalent—these and many other standard tactics of political mud-slinging must be consciously disavowed by the strategic theorist. We might describe this protection of philosophy from intellectual corruption as a “seminar standard”: No philosopher (and no academic more generally) should be willing to

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present something in public as a genuine argument, if she would never treat it as such an argument in a seminar room. These remarks might invite yet another objection. According to this objection, there is something immodest about the long list of desiderata that I laid out here, insofar as it seems to ascribe to academic political philosophers far more public clout—or at least potential public clout—than they can realistically aspire to have. At the end of the day, philosophy’s highly professionalized—often cloistered— books and journals simply do not have anything like the kind of public profile that would be needed for philosophical argumentation of any form—be it strategic or otherwise—to have much public sway. Cases like the aforementioned abortion debate, then, are bound to remain a very rare exception rather than anything like the rule. In response to this concern, I want to note several points. First, I do not mean to endorse here a kind of naïve picture, of a future where the leading journals of the field are integral to people’s consumption of political information.⁶⁷ Still, like many other political theorists, I obviously support efforts by the main professional outlets of our discipline to systematically publish content that is of greater interest to larger swaths of society, and to make the content itself more easily available to larger populations.⁶⁸ Second, the observation I made earlier, regarding the significance of transmission mechanisms that will increase the public impact of academic work, is salient here as well. My arguments do not necessarily mean that professional political philosophers should change the venues in which they publish their work (though these arguments do provide further support for the overdetermined case for keeping our arguments as widely comprehensible and jargon-free as they can be⁶⁹). But my arguments do suggest that we ought to care a great deal about who might help us transmit ideas to the broader public in which context (and who might do so, crucially, in a way that would not lose the “arguendo” part of strategic reasoning in the course of its translation into the most widely accessible terms). I should add that the particularities of the best form of transmission can only really be settled on a case-by-case basis. For example, if, on a given policy issue, there is reason to think that unreasonable views proliferate in a top-down fashion, then strategic political theorists have reason to be especially attentive to relevant

⁶⁷ Russell Arben Fox put it simply: “most voters do not read Philosophy & Public Affairs or Ethics (or any academic journals, for that matter).” See Fox’s “Can Theorists Make Time for Belief ?,” in Jason Frank and John Tambornino (eds.), Vocations of Political Theory (Minneapolis, MN: University of Minnesota Press, 2000): 93–117, at 100. ⁶⁸ The growth of open access to academic content online is an obvious example; an equally important example is the effort by major presses to make multiple academic essays on socially urgent topics available for free online in response to social turmoil (for instance, making essays on race relations available at a time of widespread protests against racial injustice). ⁶⁹ See, in the same spirit, Jeffrey Howard’s “The Public Role of Ethics and Public Policy,” in Lever and Poama, The Routledge Handbook of Ethics and Public Policy, 25–36, at 29.

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elite circles where these views might be propagated—whether that means contacting (or presenting work in) government or policy institutes, elite media, certain large firms or business associations, or even, for that matter, parts of the academe with which we do not normally interact. Conversely, if, on another topic, the growth of unreasonable views is best understood as a bottom-up process, then strategic theorists and their academic employers would do better to focus dissemination efforts on networks that will eventually allow strategic arguments, however indirectly and in piecemeal fashion, to reach local communities where unreasonable views are most dominant. I openly admit that I have no exhaustive or precise manual to offer, as to how professional political theorists, or their academic homes, should pursue these finetuned efforts. And I also recognize that, especially once this level of specificity is entertained, there once again arise concerns about strategic theorizing being hubristic in the kind of public impact it envisions for political theory. Perhaps these concerns cannot be quelled entirely. But I do think that they subside to a significant degree once we bear in mind the opposite danger. If we adopt a resigned view, according to which the writings of professional political philosophers are necessarily destined to be confined to the ivory tower, with no tangible impact beyond the walls of academia, we betray our social responsibilities not once but twice. The first time, by giving up ab initio on the hope of contributing to societal reflection on urgent moral concerns. The second time, by having no tools with which to anticipate or even perhaps comprehend the destructive effect that certain ideas, born and raised or at least most carefully cultivated in our midst, have had on actual societies. This last point bears special emphasis. I do not think it takes an overly developed imagination to conjure the image of a prominent philosopher, whose most famous academic work is widely read as a manifesto for the most extreme view of how social institutions ought to be shaped. Nor is it hard to see why such a philosopher cannot entirely dodge responsibility when actual society clearly starts to approximate his theoretical vision. Such a philosopher might, for example, protest that he explicitly presented his work as an intellectual exploration of certain ideals, rather than as a set of action items for direct implementation. He might also add that he never wielded or sought to wield the direct power to make laws. He may even complain that there is no proof that legislators read his most polemical texts before passing the most draconian laws that brought society closer to his vision, and that he himself had significantly moderated his view later on. But even if all this is true, there is surely some point at which the claim “I am not guilty of the actual politics, I only wrote political philosophy” starts to ring hollow.⁷⁰ If it does, that is because

⁷⁰ I find Robert Nozick to be a prime example of these points, very much along the lines of Brian Barry’s famous review of Nozick’s Anarchy, State and Utopia (in Political Theory 3 [1975], 331–32): “[F]rom the lofty heights of a professorial chair, [Nozick] is proposing to starve or humiliate ten percent

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professional political philosophy simply does not have the luxury of assuming that its ideas can never have any impact on the outside world. To assume that the practical stakes of our professional writing can be high is not hubristic. Rather, such attitude reflects due caution, and due appreciation for the potential social impact of words, however intellectual. Such appreciation should compel all professional political philosophers to think and write in certain ways. One corollary is the method of strategic political theory, which the next chapters shall illustrate in detail.

or so of his fellow citizens (if he recognizes the word) by eliminating all transfer payments through the state, leaving the sick, the old, the disabled, the mothers with young children and no breadwinner, and so on, to the tender mercies of private charity, given at the whim and pleasure of the donors and on any terms they choose to impose.” In response to Barry, Waldron (“What Plato Would Allow,” 141–142) contends that Nozick “was not in fact proposing anything,” and that “the aim of Anarchy, State, and Utopia was to alter the perspective brought to bear in our thinking and reflection on issues of justice, not to argue for or against any particular scheme of policy.” Even if Waldron’s claim is true, its force is ultimately limited, because it is simply not true that political philosophy can ever be “just philosophy.” It is always political as well.

2 Who’s the Republic’s Enemy? Netanyahu, Arab Political Parties, and Israel’s Political Crisis

In April 2017, Marine Le Pen, leader of the far-right National Front party, qualified for the runoff stage of the French presidential elections. All of the losing candidates immediately called on their supporters to unite behind Le Pen’s opponent in the runoffs, the young centrist Emmanuel Macron. Referencing the venerable idea of a unified “republican front” against the far right, one of these losing candidates, a fierce Macron critic up to that point, justified a runoff vote for Macron with elegant concision: “There’s a clear distinction to be made between a political adversary and an enemy of the republic.”¹ In June 2019, a similar distinction was at play in the opening televised debates of the Democratic Party primaries in the United States. Predictably, the candidates all did their best to distinguish themselves from their rivals. Yet, equally predictably, all of them also vowed to unite behind whoever won their party’s nomination in order to defeat President Donald Trump, who, all candidates agreed, endangers the American republic.² In December 2020, Hungary became the site of yet another “republican front.” Six Hungarian opposition parties announced that they would put their considerable differences aside and run as a single slate in the country’s next parliamentary elections, saying that uniting is their “only chance” of ousting the country’s ever-more authoritarian prime minister, Viktor Orbán.³ In all three cases that I just sketched, there has been a decisive and obvious moral case in favor of forming a team of rivals. In each such case, the very existence of

¹ Quoted in Adam Nossiter, “This is deadly serious: French parties set sights on Marine La Pen,” The New York Times, April 23, 2017. Five years later, the same Republican front staved off Le Pen yet again, despite her increasing popularity, and the widespread antipathy toward Macron. See, e.g., Bill Schneider, “Macron beats Le Pen: Is there a lesson for Biden and Trump in 2024?” The Hill, April 25, 2022, at https://thehill.com/opinion/campaign/3462045-macron-beats-le-pen-is-there-a-lessonfor-biden-and-trump-in–2024/ (“The French have just re-elected Emmanuel Macron, the most hated politician in France, for a second term as president.” ) ² See the New York Times transcript of the debates, e.g. at www.nytimes.com/2019/06/26/us/ politics/democratic-debate-transcript.html. In the 2016 election, it should be noted, this intra-party unity was far harder to attain. See, e.g., Patrick Healy and Jonathan Martin, “Democrats struggle for unity on first day of convention,” The New York Times, July 25, 2016. ³ See Lili Bayer, “Hungarian opposition unites in bid to unseat Viktor Orbán,” Politico, Dec. 20, 2020, at https://www.politico.eu/article/hungary-opposition-unites-in-bid-to-unseat-Orbán/

Philosophizing the Indefensible. Shmuel Nili, Oxford University Press. © Shmuel Nili (2023). DOI: 10.1093/oso/9780198872160.003.0003

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the country’s liberal democracy is at stake. Accordingly, all those who value liberal democracy clearly ought to put aside their internal differences, and join forces with the understanding that the threat to the very foundations of the country’s political order must take precedence.⁴ This chapter, the first extended illustration of strategic political theorizing, explores an important problem which can hinder efforts to form such a “republican front.” This problem concerns key prospective members of the heterogeneous alliance in defense of liberal democracy, who unreasonably refuse to actually join this alliance. More precisely, I am going to delve into a specific case featuring politicians who recognize the gravity of the danger that the alliance is meant to combat, but who still refuse to lend crucial support to the alliance, arguing— unreasonably—that some of the people with whom they are being asked to join forces also pose an unacceptable threat to the country’s foundational political order. These are, in other words, politicians who insist on boycotting prospective partners without whom liberal democracy cannot be saved. The case that I have in mind comes from Israel. Much like the aforementioned Trump and Orbán, Israel’s longest-serving prime minister, Binyamin Netanyahu, has sought for many years to hollow out core institutions of his country’s democracy, while preserving their façade. Among the transgressions that Netanyahu has shared with Trump and Orbán: striving to emaciate the free press; undermining the formal and informal resources available to the opposition; engaging in unprecedented vote suppression; seeking to turn the apolitical civil service into a personal fiefdom; attempting to neuter a hitherto-independent legal system; and stoking hatred and division whenever doing so cements his power base.⁵ Throughout this chapter, I assume that in Israel as in the other cases noted above, there is an obvious moral imperative for pro-democratic forces to unite in the face of these grave threats to liberal democracy. Yet while all of Netanyahu’s political opponents have recognized the gravity of the threat that he has posed to rudimentary liberal-democratic values, some of these opponents have unreasonably refused to bracket their internal differences for the sake of the shared effort to end Netanyahu’s dominance of Israeli politics. As I shall go on to show, this refusal has already carried dramatic costs for Israeli society, and these costs are only likely to increase in the coming years. One way to respond to these recalcitrant politicians, and to the ordinary citizens whose views the relevant politicians claim to be channelling, is of course to argue with them about first principles. But, in line with the strategic method defended in the opening chapter, I want to adopt a different approach here. I want to show that even if several problematic premises espoused by the relevant politicians are ⁴ For a particularly explicit formulation of this point, see Steve Peoples, “Kinzinger pushes ‘uneasy alliance’ to thwart Trump’s allies,” AP, Feb. 1, 2022, at https://apnews.com/article/elections-donaldtrump-campaigns-election-2020-political-organizations-759871ec8c60a284704ea6c66590a9c3 ⁵ For background, see my Integrity, Personal and Political, ch. 4.

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granted, arguendo, their boycott of other crucial anti-Netanyahu forces cannot be defended. I proceed as follows. In the chapter’s opening part (2.1–2.2), I survey the prolonged crisis of the Israeli political system, induced by Netanyahu’s refusal to cease his pursuit of power despite facing multiple criminal indictments. I focus this survey on anti-Netanyahu secular hawks who, holding the decisive votes in parliament, effectively vetoed cooperation between Zionist anti-Netanyahu parties and potential anti-Zionist partners, thus preventing the establishment of a stable anti-Netanyahu government, prolonging the extremely harmful cycle of recurrent elections, and eventually enabling a decisive Netanyahu victory at the polls. In the chapter’s latter part, I use this background to examine justifications that the relevant secular hawks might offer for their trenchant refusal to cooperate with (largely Arab) anti-Zionist parties as a means of thwarting Netanyahu. In 2.3, I suggest that these justifications are inadequate in the face of a simple cost–benefit analysis: Even if one grants several of their problematic premises, the costs that the relevant secular hawks themselves have associated with Netanyahu’s rule heavily outweigh the (supposed) costs that follow from cooperation with anti-Zionist parties. In 2.4, I develop an additional, more complex argument, pertaining to the way in which secular hawks’ long-standing boycott of anti-Zionist parties infringes upon the rights of Israel’s Arab Palestinian citizens, who overwhelmingly vote for such parties.⁶ In 2.5, I consider a possible rejoinder from the secular hawks, suggesting that while they refuse to recognize anti-Zionist parties as legitimate partners, they do recognize such parties as legitimate political rivals. I show why this rejoinder does not save the hawkish position. I close (in 2.6) by reflecting on the formation—and prompt collapse—of Israel’s first ever Jewish–Arab governing coalition (2021–2022). I explain how both the birth and the almost immediate demise of this coalition illustrate the structural significance of the hawkish boycott of anti-Zionist parties.

2.1 Israel’s Political Crisis Between April of 2019 and November of 2022, Israel held an unprecedented five national elections. Unlike virtually all Israeli elections of the preceding decades, none of these contests revolved around a choice between the political right and the political left. Rather, each of these elections has pitted Binyamin Netanyahu and his numerous loyalists against an extremely heterogeneous anti-Netanyahu bloc—Israel’s version of a “republican front.” This bloc combines the Israeli left ⁶ Jewish Israelis usually refer to Palestinian citizens of Israel as “Arab Israelis.” For the most part, I will use these terms interchangeably, though the question of these citizens’ Palestinian identity is obviously at the very heart of the political disputes that I examine here.

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and center with multiple right-wingers who were all previously Netanyahu associates and confidantes. The only thing that unites this bloc is the conviction that Netanyahu’s aforementioned authoritarian methods pose an intolerable risk to Israel’s basic character, a risk whose significance transcends the country’s familiar political disputes. This risk became particularly manifest in February 2019, when Israel’s Attorney General formally announced his decision (at that point, pending a hearing) to criminally indict Netanyahu in three corruption cases involving bribery, fraud, and breach of trust. Rather than resign in accordance with long-established political norms, Netanyahu stepped up his attacks on his own law-enforcement appointees as pursuing a “witch hunt” and a “coup” against him. Moreover, starting with the April 2019 election, Netanyahu systematically sought a parliamentary majority that would provide him with Berlusconi-style retroactive-immunity laws, shielding an incumbent prime minister from criminal prosecution, combined with laws which would effectively erase Israel’s Supreme Court, in order to prevent the Court from nullifying any such retroactive immunity.⁷ These blatantly self-serving efforts provided the crucial glue that held together the anti-Netanyahu bloc through multiple elections, despite the myriad differences among its members. But while this bloc has retained an important structural advantage throughout the country’s political crisis, it has been hampered by an even deeper structural problem, which has sustained Netanyahu’s never-ending hopes of consolidating power. The central advantage of the anti-Netanyahu bloc has been the simple fact that, since late 2019, a small but stable majority of Israel’s citizens has been opposed to Netanyahu serving as prime minister—an opposition reflected both in opinion polls and (until the last, November 2022 elections) in actual electoral results. Yet the central liability of the anti-Netanyahu bloc has been even more decisive. Throughout this tumultuous period, it has been clear that this bloc would not be able to create or sustain a stable parliamentary coalition, without unprecedented cooperation between Jewish Zionist parties and predominantly Arab anti-Zionist parties. Key secular Jewish hawks, however, have repeatedly vetoed such cooperation. This veto has had three crucial ramifications, the first of which was the repeated triggering of new elections. Israeli law sets an explicit limit on the number of days that can elapse between any national election and the formation of a new government through a majority vote in the new parliament. If that limit is reached, parliament is automatically dissolved, and yet another election is called, while the incumbent government remains in office in “interim” capacity. Between 2019 and 2022, the anti-Netanyahu bloc repeatedly proved large enough to prevent Netanyahu from forming an “immunity government,” but—due to the hawkish ⁷ For background, see, again, my Integrity, Personal and Political, ch. 4.

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veto—never cohesive enough to sustain a stable alternative government. That is why new elections recurred in such quick succession, with all the attendant uncertainty and government paralysis.⁸ A second result of secular hawks’ refusal to include anti-Zionist parties in a governing coalition has been the intensifying alienation of Israel’s sizable Arab Palestinian electorate from the country’s political process. A deepening sense of the futility of their political participation, given a de facto boycott by key parliamentary representatives of the Jewish majority, has been depressing turnout among this crucial segment of the electorate.⁹ Yet given the ever-accelerating, demographically fueled decline of Israel’s Jewish left,¹⁰ and given that Arab Israelis account for 20 percent of the country’s population, the anti-Netanyahu bloc simply never had—and never will have—hopes of anything like a stable victory without significant Arab turnout. Finally, the repeated triggering of new elections, combined with the increasing alienation and fragmentation of Israel’s Arab electorate, eventually paved the way to Netanyahu’s decisive victory in the November 2022 elections, despite his enduring inability to actually sway a majority of the electorate to support his bloc.¹¹ At the time of writing, there is every reason to think that Netanyahu will ⁸ Netanyahu himself, it should be added, directly compounded this paralysis. To give one example, at the height of the political crisis, Netanyahu systematically refused to fill vacant senior ministries and public service positions with any kind of bearing on his criminal proceedings (such as a Minister of Justice, a Chief of Police, or State Prosecutor) unless he can unilaterally decide who would fill these positions. To give another key example, following the March 2020 elections, with the COVID pandemic raging, Netanyahu successfully coaxed his main rival at the time (former military chief and political novice Benny Gantz), into an “emergency unity government.” Mere months later, however, Netanyahu chose to prevent the passage of a desperately needed state budget, in order to automatically trigger another election and thus avoid having to relinquish the prime minister’s office to Gantz in accordance with their legally inscribed rotation agreement. In the absence of a normal budget, numerous government services, plans, and reforms had to be put on hold, in the midst of an acute public health crisis. ⁹ See, e.g., Dahlia Scheindlin, “Israel’s Arab voters hold Netanyahu’s fate in their hands. But there’s a big catch,” Haaretz.com, Oct. 3, 2022, at www.haaretz.com/israel-news/elections/2022-10-03/tyarticle-opinion/.premium/israels-arab-voters-hold-netanyahus-fate-in-their-hands-but-theres-a-bigcatch/00000183-989b-de77-a5d3-dddf7bda0000. ¹⁰ See, e.g, Haviv Rettig Gur, “The Israeli left has lost more than an election,” The Times of Israel, Nov. 7, 2022, at https://www.timesofisrael.com/the-israeli-left-has-lost-more-than-an-election/ ¹¹ Israeli electoral law currently requires parties to win at least 3.25 percent of the total votes cast in an election (the equivalent of four parliamentary seats) to enter parliament. If they fail to reach this threshold, all of their votes are tossed away, as if not cast at all. One Arab splinter party (Balad), split off from the Joint List, thus tossed away more than 3 percent of the vote in the November 2022 elections, effectively “transferring” two parliamentary seats to Netanyahu’s bloc and ensuring its victory (compounded by an analogous failure of a fast-diminishing leftist Jewish party). Thus, “Netanyahu’s right-wing bloc had clinched sixty-four seats out of the Knesset’s hundred and twenty. This is its strongest showing out of all previous election cycles since 2019. Yet—tellingly—this does not translate to a majority of the popular vote. After all votes were counted, the parties in Netanyahu’s bloc taken together had won 49.55 per cent of the vote: a coin flip. That the right and the far-right parties in Israel are headed toward a coalition, while the center-left bloc is in tatters, seems to say more about Netanyahu’s strategic maneuvering—and his bloc members’ discipline—than about where Israeli public sentiment lies.” Ruth Margalit, “The aftermath of Israel’s gevalt election,” The New Yorker, Nov. 4, 2022.

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indeed utilize this victory—together with Jewish-supremacist allies to his right— to execute his Berlusconi-style schemes, giving him, in effect, full control over all three branches of government. Accordingly, the suspension of criminal proceedings against Netanyahu is not only likely, but will be merely the beginning of the effective dissolution of whatever has remained of the country’s liberal democracy.¹² With no term limits stipulated in Israeli law, Netanyahu merely 73 years old, is currently poised to add many more years to his already-unprecedented fifteen years as the country’s prime minister. Given all this, it would be an understatement to say that the refusal of Netanyahu’s secular hawkish opponents to collaborate with his anti-Zionist rivals has carried sizable costs for the country.

2.2 The Hawkish Duo: Hauser, Hendel, and the Joint List Yoaz Hendel is finishing a politically stormy year in which he and his friend Zvi Hauser managed to prove the power of two seats, becoming parliament’s deciders. In the spring of 2020 the pair prevented a leftwing government backed by the Joint List, opting instead for a national unity government. Last summer, Hendel and Hauser extended that government’s life. This fall, they helped trigger its collapse. Elyashiv Rychner, Makor Rishon¹³ The state of Israel is the captive of one man. If he so wishes, a government will be established, if he so wishes, we shall [instead] head to the polls for the fifth time. And this is not the first time that this man is about to drag us into another exhausting political battle, at the height of one of the greatest public health and economic crises in the country’s history. No, this is not Binyamin Netanyahu . . . the man who holds the entire country at his mercy is actually named Yoaz Hendel . . . this is the man who, time and again, prevents Israel from resuming a sane course . . . once more, one of the greatest obstacles facing the “change government” is Hendel’s refusal to set up a government coalition with the support of the legitimate representatives of Israel’s Arab ¹² See, e.g., Thomas Friedman, “The Israel we knew is gone,” The New York Times, Nov. 4, 2022. ¹³ “Yoaz Hendel: the politician who proved the power of the deciding factor,” included in “Religious Zionism’s fifty most influential figures of the year,” Makor Rishon, at https://hamashpyim.makorrishon. co.il/articles/hendel (Hebrew); Hendel had a religious upbringing, but has repeatedly stressed that his hawkish views are independent of any theological premises, saying for example: “I look at Judea and Samaria [the right-wing term for the West Bank] not as a matter of a need to maintain land and settlement because of divine promise, but rather because of pragmatic security considerations.” Quoted in Eyal Levy, “I’m not Bibi, I have an ideology: Yoaz Hendel opens up,” Maariv, Jan. 30, 2021, at https:// www.maariv.co.il/news/politics/Article-818266 (Hebrew)

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Many readers might be excused for thinking that the secular hawkish choice I just described can only be grounded in repugnant assumptions regarding Israel’s Palestinian citizens. If this is true, then—per my arguments in chapter 1—it would follow that even strategic theorists should have a strong presumption against engaging the unreasonable here. However, Israel’s secular hawks—or at least, the secular hawks in whom I am interested here, and who have been key to the electoral and parliamentary saga I have been describing—accept that the state ought to treat all Arab citizens, qua individuals, as the “civic” equals of their Jewish counterparts. This means (for example) that on the standard secular-hawkish view, Arab citizens ought to receive the same protection of their life, liberty, and property as that accorded by the state to Jewish citizens; that they ought to enjoy the same level of socioeconomic opportunity as their Jewish counterparts; and the same level of public investment in infrastructure, education, and healthcare. What secular hawks vehemently reject is any aspiration on the part of Arab citizens to enjoy a right to collective selfdetermination, as a distinct nation within the state. Jews alone, according to secular hawks, enjoy this right within Israel’s territory. Some numbers will help to give a sense of the prevalence of these views. As of 2018, a clear majority of Jewish Israelis—60 percent—defined themselves as belonging to the Israel’s political right, understood first and foremost in terms of hawkish views regarding the Israeli–Palestinian conflict.¹⁵ Public opinion data further suggests that, at least as of 2015, 80 percent of all Jewish Israelis agreed that “Arab citizens have a right to live in the state as a minority with full citizenship rights.”¹⁶ Similarly, 74 percent of Jewish Israelis agreed that “For both Arab and Jewish citizens, there should be equality of individual rights, government budgets, and opportunities for education and employment.”¹⁷ 70 percent of Jews personally accepted Arabs as “full members of Israeli society,” with only 21 percent opposing ¹⁴ Noa Landau, “Israel is held captive by one man, and it isn’t Netanyahu,” Haaretz, March 30, 2021, at https://www.haaretz.co.il/opinions/.premium-1.9663676 (Hebrew). ¹⁵ See Tamar Hermann, “Public Opinion in Israel: The Sociodemographic Nexus,” in Reuven Hazan, Alan Dowty, Menachem Hofnung, and Gideon Rahat (eds.), The Oxford Handbook of Israeli Politics and Society (Oxford: Oxford University Press, 2021), at 250. According to the data cited by Hermann here, 20 percent of Jewish Israelis defined themselves as “centrists” in 2018. ¹⁶ See Theodore Sasson, “Review Essay: Israeli Attitudes on Civil Rights, Democracy and ArabJewish Relations,” Israel Studies 23 (2018): 217–225, at 219. Sasson is referencing here data collected by prominent Israeli sociologist Sami Smooha. ¹⁷ Sasson, “Review essay,” 219.

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Arab citizens’ right to vote in parliamentary elections.¹⁸ Even more strikingly, in 2017, a plurality of Jewish Israelis held that the balance between Israel’s Jewish and democratic components is overly skewed in favor of the Jewish component—even though consistent Jewish majorities have repeatedly reaffirmed the significance of retaining the state’s Jewish character in both symbolic and practical terms.¹⁹ These prevalent views have been crystalized in especially sharp—and consequential—ways in the personae of two specific lawmakers who have belonged to the anti-Netanyahu bloc, Zvi Hauser and Yoaz Hendel. Hauser and Hendel warrant sustained engagement here, for multiple reasons. For one thing, this duo has held the decisive votes in parliament throughout much of Israel’s political crisis. Moreover, although, at the time of writing, neither is no longer in parliament, the political hold of the secular-hawkish views that Hauser and Hendel have embodied is certain to persist, and therefore to haunt the prospects of the anti-Netanyahu opposition anytime in the foreseeable future—both in future elections, and in resulting parliamentary negotiations. Furthermore, Hendel and Hauser are particularly worth engaging given their carefully cultivated reputation as principled politicians, closely related to their “public image of nerdy intellectualism.”²⁰ Unlike politicians who almost take pride in their pragmatism and flexible views,²¹ Hauser and Hendel have repeatedly claimed to act in accordance with unwavering beliefs, even when adherence to these beliefs entails personal costs.²² Hauser and Hendel have never been Israeli ¹⁸ Sasson, “Review essay,” 219. ¹⁹ For a historical overview, see Tamar Hermann, “Zionism and Palestinian Nationalism: Possibilities of Recognition,” Israel Studies 18 (2013): 133–147. As of July 2021, only 14 percent of Jewish Israelis support a binational state. See the Israeli Democracy Institute’s “Israeli voice barometer” data, at https://www.idi.org.il/articles/36112 (Hebrew). I should add that, notwithstanding the public opinion patterns noted in the body of the text, Jewish Israelis’ view of Palestinians who live in the occupied territories has only become more hawkish with the passage of time (along the lines discussed in the previous chapter). It remains to be seen to what extent Jewish Israelis will retain different attitudes towards Palestinian citizens of Israel, especially as the messianic, Jewish supremacist right keeps increasing its political clout. See, e.g., Yossi Verter, “Netanyahu, prime minister of Ben-Gvir’s government,” Haaretz, Nov. 2, 2022, at www.haaretz.co.il/news/elections/2022-11-02/ty-article/.highlight/00000184-3579d374-afa4-7dff60620000 (Hebrew) ²⁰ “Hauser and Hendel are united . . . by their shared conservative views, and by a public image of nerdy intellectualism. Hendel holds a doctorate in classical Greek military strategy. Both men have played prominent roles in the burgeoning world of Israeli right-wing think tanks in recent years.” Haviv Retig Gur, “Finding new home in New Hope, ex-Netanyahu top aide seeks to show Likud the door,” Times of Israel, Jan. 27, 2021, at https://www.timesofisrael.com/finding-new-home-in-new-hope-exnetanyahu-top-aide-seeks-to-show-likud-the-door/. ²¹ Perhaps justifiably (at least in some cases). See, e.g., Eric Beerbohm, “The problem of clean hands: negotiated compromise in lawmaking,” in Jack Knight (ed.,) NOMOS 59 (New York: New York University Press, 2018), ch. 1. ²² For appreciative remarks along these lines from an otherwise-fierce critic of the duo, see Uri Misgav, “Hauser and Hendel should resign,” Haaretz, March 9, 2020, at https://www.haaretz.co.il/ opinions/.premium.HIGHLIGHT-1.8642110 (Hebrew). See also Lilach Sigan, “Despite the social media invective: Hauser and Handel are satisfied,” Maariv, April 25, 2020, at https://www.maariv. co.il/journalists/Article-761813 (Hebrew). Ironically, the case that first thrust both Hauser and Hendel into the forefront of Israeli media discourse illustrated their principled character. The Jerusalem Post summarized the case as follows: “in 2012 they both had senior and comfortable positions inside

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versions of Mitch McConnell: If they bring their country’s legislature to a standstill, there is real reason to think that they might be doing so not because of what they want to be, but rather because of their genuine convictions as to what the country should be.²³ Finally, Hauser and Hendel’s views very strongly mirror the secular-hawkish sentiments that I just described. On the one hand, unlike the religious hawks discussed in chapter 1, who often claim supposed theological justifications for discriminatory treatment of non-Jews, Hauser and Hendel repeatedly present themselves as firm adherents of liberal democracy, and therefore as firmly opposed to any discrimination against Arab citizens qua individuals. Yet at the same time, Hauser and Hendel have gone out of their way to push back against any perceived effort on the part of Arab citizens to claim separate rights as a distinct nation within the state. It is therefore no coincidence that Hauser was one of the main promoters of the highly controversial “Nation State Law” of 2018, which proclaims that “the actualization of the right of national self-determination in the state of Israel is unique to the Jewish people.”²⁴ According to Hauser and Hendel, their rejection of collective “national” rights for Israel’s Arab citizens is what has driven their refusal to back a comprehensive Arab–Jewish parliamentary alliance against Netanyahu. In essence, Hauser and Hendel’s claim is simple: what they oppose is not cooperation (parliamentary or otherwise) between Jews and Arabs per se. Rather, they oppose the formation of a government dependent on the votes of Arab politicians who refuse to recognize Israel as a Jewish state.²⁵ In other words, the problem is not that the anti-Netanyahu bloc has needed the support of Arab politicians to establish and sustain a government. The problem is that this bloc has needed the support of manifestly anti-Zionist Arab politicians.

the prime minister’s office: Hauser as cabinet-secretary, and Hendel as Netanyahu’s media adviser. Then a female employee in the office came to them with a sexual harassment complaint against Natan Eshel, who was then the prime minister’s chief of staff and the most powerful man in the office. They didn’t sit on the complaint, but took it to the attorney-general, and the Civil Service Commission, who forced Eshel out. Netanyahu was furious that they did not come to him first. Hendel left his job when Netanyahu said he lost confidence in him, and Hauser’s tenure as cabinet-secretary ended shortly thereafter.” Herb Keinon, “Hendel and Hauser: Between a rock and a hard place,” Jerusalem Post, March 10, 2020, at https://www.jpost.com/israel-news/politics-and-diplomacy/hendel-and-hauser-betweena-rock-and-a-hard-place–620467. ²³ A fellow Kentuckian, Democratic Congressman John Yarmuth, described McConnell thus: “He never had any core principles. He just wants to be something. He doesn’t want to do anything.” Quoted in Jane Mayer, “How Mitch McConnell became Trump’s enabler-in-chief,” The New Yorker, April 20, 2020, at https://www.newyorker.com/magazine/2020/04/20/how-mitch-mcconnell-became-trumpsenabler-in-chief ²⁴ ”Full text of Basic Law: Israel as the nation state of the Jewish people,” Knesset Press Release, July 19, 2018, at https://main.knesset.gov.il/en/News/PressReleases/Pages/Pr13978_pg.aspx. ²⁵ E.g., Hauser: “Arab citizens are equal citizens, period. Every citizen in the state of Israel is an equal citizen, regardless of religion, race, and gender. [Yet] political parties whose raison d’être . . . does not accept the basic principle that Israel is a Jewish and democratic state [are] not relevant to a government coalition.” Quoted in Nati Yefet, “There are things that one cannot stomach,” Davar, Feb. 26, 2019, at https://www.davar1.co.il/175733/ (Hebrew).

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More specifically, following the second and (especially) the third in the string of national elections, it was widely believed that a (reasonably) stable Netanyahu-less government could have been established, had Hauser and Hendel been willing to support such a government despite its reliance on the votes of the Joint List—a parliamentary union of largely Arab anti-Zionist parties. Yet, on both occasions, facing sustained media and public attention and the considerable ire of numerous Netanyahu detractors, Hauser and Hendel vetoed any form of parliamentary cooperation that would give the Joint List such clout. Yet, as outlined above, vetoes of precisely this sort are fatal to the prospects of the anti-Netanyahu bloc, not just in specific electoral cycles with their particular dynamics, but in any national election that might occur in Israel anytime in the foreseeable future.

2.3 Cost–Benefit Analysis To be fair to Hauser and Hendel, the Joint List’s policy positions are the diametric opposite of the positions held by Israel’s Jewish hawks. Alongside its demand for a two-state solution to the Israeli–Palestinian conflict, and its repeated emphasis on the solidarity of Israel’s Palestinian citizens with the Palestinians in the occupied territories, the Joint List openly seeks to transform Israel from a Jewish state into a binational state, in the mold of countries such as Canada and Belgium. Accordingly, in strong contrast to the status quo, the Joint List explicitly envisions a future state that would not give (neither formally nor in practice) any unique status to Jewish symbols, to prospective Jewish immigrants, or to the Hebrew language. In the more immediate term, the Joint List opposes any form of national service for Arab citizens of Israel (including civilian service)—a stance which frequently generates hawkish accusations of “separatist” tendencies and a refusal to integrate into Israeli society. So it is unsurprising that Hauser and Hendel, as ardent hawks, did not exactly rejoice at the prospect of collaborating with the Joint List. Yet, all this notwithstanding, it is easy to see the basic case in favor of bracketing these intense disagreements in order to thwart Netanyahu. After all, Hauser and Hendel themselves have explicitly recognized the damage wrought by Netanyahu. In a lengthy January 2021 interview, for example, Hauser did not mince words about the repercussions of Netanyahu’s insistence on clinging to power at all costs: You can’t run a country in such a deep crisis of trust between the people and the political system, and between the different branches of government. In the end, there are institutions that keep Israel standing: the judicial system, the economy, academia, the defense establishment. The tragedy of this moment isn’t just the crisis of trust between the public and the political system, but the lack of trust among all those systems.²⁶ ²⁶ Quoted in Retig Gur, “Finding new home in New Hope.”

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Hauser was equally clear-eyed about other grave consequences of the enduring governmental paralysis that Netanyahu instigated in his quest for immunity from the law. More specifically, Hauser reserved special ire for the failure to pass a state budget, orchestrated by Netanyahu at the height of the COVID pandemic, with the sole purpose of triggering yet another election, in the hope of securing an “immunity government”: [I]n the midst of an unprecedented pandemic, the Prime Minister has decided to hold state interests hostage in the service of his personal interests . . . The fact that a budget was not approved has no other rational explanation . . . For almost three years no budget has been passed in this country, no reform. I was Cabinet secretary, I know how things work, I know how vital the budget is. You cannot run a defense establishment with a budget that was passed three years ago . . . The administrative ranks are [also] paralyzed. Four elections in two years - do you understand what that means in terms of managerial uncertainty, an uncertain vision, an uncertain budget? It is a major blow to the entire country . . . What is happening now . . . this statement that you can toss the country aside because you’re fighting your [personal] wars and nothing else matters . . . Israel cannot afford the abuse that Netanyahu is putting it through.²⁷

My opening argument against Hauser and Hendel, then, is simple one: given their own dire warnings regarding the grave threats posed by Netanyahu’s continued rule, their vetoing of an anti-Netanyahu government reliant on the Joint List has been tenable. No implausible understanding of the (supposed) risks posed by such reliance could yield the conclusion that these risks outweigh the costs associated with keeping Netanyahu in power. Insofar as Hauser, Hendel, and like-minded hawks have any hope of justifying their obstructionism, this hope lies with the following claim. When setting out to preserve Israel’s basic character, one must adopt a holistic perspective. It is not enough to seek to protect Israel’s character as a liberal democracy from the threat of a de facto “monarchy,”²⁸ whose all-powerful leader is not subject to the law. It is also necessary to preserve Israel’s basic character as a Jewish state. Losing the latter in the process of securing the former would amount to a pyrrhic victory. But that is the risk that is inherent—according to Hauser and Hendel—in placing Arab politicians who resist Israel’s Jewish character at the forefront of the struggle to preserve liberal democracy. ²⁷ Quoted in Retig Gur, “Finding new home in New Hope.” ²⁸ See, e.g., Bel Trew, “Israel’s former army chief Benny Gantz says Netanyahu is “no king” as he launches election campaign,” The Independent, Jan. 30, 2019, at https://www.independent.co. uk/news/world/middle-east/israel-election-netanyahu-benny-gantz-attorney-general-corruptioncharge-a8754186.html

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The two secular hawks have insisted on this point from the onset of Israel’s political crisis. Thus for example, shortly after the April 2019 elections, when it initially appeared as if Netanyahu had won and was on his way to stopping the criminal proceedings against him, the anti-Netanyahu bloc organized a high-profile opposition rally in Tel Aviv’s central square. Hauser and Hendel, however, made headlines through their conspicuous absence, motivated as it was by the fact that the Joint List’s leader (Aymen Odeh) was among the rally’s key speakers. Immediately thereafter, having to contend with accusations of anti-Arab prejudice, Hauser and Hendel gave a series of interviews in which they repeated their claim that while Arab political participation is entirely legitimate, the Joint List’s “separatist” agenda is not. In one of these interviews, Hauser said the following: I saw the demonstration as an important act of protest which begins a long journey in the battle for Israel’s character. Precisely for that reason, I thought it important that representatives of the Arab sector would be on the stage as part of the protest’s leadership. Representatives who embody Arab-Jewish partnership and mutual respect. But we could not reconcile ourselves [to the idea that] among the leaders of this battle . . . will be some who do not adopt the formula of a Jewish and democratic state. There are some for whom this is unimportant. In my view, this is the heart of our party’s ethos and of what Yoaz and I bring to the table. Ofer Kasif [a Jewish member of the Joint List] or Aymen Odeh are part of the political system. We respect them. But they cannot lead the struggle over the character of the State of Israel. Unfortunately, we were interpreted in an ugly, manipulative manner, as if we have any kind of prejudice against Arabs.²⁹

In January 2021, reflecting on their dramatic political choices since the political crisis started, Hendel reiterated the same message. “The end,” Hendel observed regarding Netanyahu’s ouster, “does not sanctify every means.”³⁰ Moreover, “The question of legitimate partners is something we committed to”: There is a clear ideological line according to which you refuse to cooperate with the Joint List and with other groups that do not accept Israel’s founding arrangement as a Jewish and democratic state . . . I am not willing to accept those who choose separatism, even if they have forty seats [in parliament]. I am hopeful about the already-ongoing dynamic which would lead [more] Arab Israelis to integrate into Zionist parties. Integration, not separatism . . . Part of my Zionism is incorporating minorities into society, with full rights and duties. I will never compromise over national rights, I say that loud and clear ²⁹ Quoted in Yifat Erlich, “Hauser: we were interpreted in an ugly, manipulative manner,” Yediot Ahronot, May 30, 2019, at https://www.yediot.co.il/articles/0,7340,L-5517972,00.html (Hebrew) ³⁰ Quoted in Levy, “I’m not Bibi, I have an ideology.”

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This rationale obviously invites further criticism. For one thing, it asserts rather than grounds the rejection of the Joint List’s pursuit of a binational state. Furthermore, this rationale does little to explain how the (supposedly unthinkable) specter of a binational state would come any closer to being realized simply because of the inclusion of parties such as the Joint List in a government coalition (an issue to which I shall return below). But at this point I want to highlight a more internal concern. The concern is that in their devotion to the “formula” of a dual identity for the state, as both Jewish and democratic, Hauser and Hendel get carried away by their own rhetoric into a manifestly false equivalence between those who reject the Jewish component of Israel’s identity, and those who reject its democratic component. Let me elaborate. On numerous occasions, Hauser and Hendel have equated their refusal to support a government reliant on the votes of anti-Zionists with their refusal to support a government that would rely on the votes of Jewish supremacists. Just as Jewish supremacists represent an intolerable threat to Israeli (liberal) democracy that ought not be legitimated, so—say Hauser and Hendel— do anti-Zionists represent an intolerable threat to Israel’s Jewish character.³² But, at least insofar as it is meant to serve a normative argument, this analogy is patently unconvincing. To start with, there is no normative basis whatsoever for equating anyone who supports supremacist views—Jewish or otherwise—with someone who supports a state in which all citizens are equal in both individual and collective rights. Even if one genuinely believes—as Israeli hawks all do—that the latter view is extremely problematic, treating it as the moral equivalent of a supremacist position makes no sense. This point is further bolstered once one considers the means that Jewish supremacists in Israel have repeatedly been deploying to advance their (usually messianic) ends. Hauser and Hendel have recognized that Arab politicians such as the aforementioned Odeh have repeatedly rejected the use of violence as a ³¹ Quoted in Levy, “I’m not Bibi, I have an ideology.” ³² E.g., Hauser: “There are no compromises when it comes to the extremes, no compromises with [Jewish Supremacist Itamar] Ben-Gvir, and no compromises with [senior Joint List figure Ahmed] Tibi”; Hendel: “I will not embark on a struggle alongside Odeh, just as I won’t embark on a struggle alongside Ben-Gvir.” Quoted, respectively, in Yefet, “There are things that one cannot stomach”; Erlich, “Hauser.”

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means of advancing political ends. This fact distinguishes Odeh and like-minded Arab public figures from the central figures among Israel’s Jewish supremacists. A prime case in point is Jewish supremacists’ main parliamentary representative, Itamar Ben-Gvir (slated to become a senior minister in Netanyahu’s latest government³³), who proudly carries multiple criminal convictions for violent assault of innocent Arabs, and who has long celebrated a Jewish mass murderer of innocent Palestinians.³⁴ In turn, it should be noted that this distinction is important not just from the perspective of morality writ large. It is also important, more specifically, from the standpoint of democratic political morality. After all, from a democratic point of view in particular, even political rivals with whom one disagrees intensely about ends will normally qualify as fully legitimate political actors, so long as they share an acceptance of peaceful democratic procedures as the sole means for achieving any political outcome.³⁵ In other words, Hauser and Hendel’s attempt to suggest a symmetry between their rejection of the Joint List and their rejection of Jewish supremacy is implausible not just on its face, but also in light of their own professed democratic commitments. Yet once this symmetry gives way, there is even more reason to ³³ See, e.g., Shalom Yerushalmi, “Netanyahu may have no choice but to give Ben Gvir the Public Security Ministry,” Times of Israel, Nov. 7, 2022, at www.timesofisrael.com/netanyahu-may-have-nochoice-but-to-give-ben-gvir-the-public-security-ministry/ ³⁴ Only one dramatic example of Ben-Gvir’s explosive conduct came in May 2021. Freshly re-elected into parliament on the back of Netanyahu’s intensifying efforts to whitewash his image, Ben-Gvir set up his “office” in an extremely volatile East Jerusalem neighborhood, where he routinely confronted Palestinian residents. Rather than use his formal and informal powers to evacuate Ben-Gvir and restore at least a modicum of calm to the most sensitive place in the Middle East, Netanyahu plainly saw an opportunity to deepen the divide between the Jewish and Arab members of the bloc opposing him. He accordingly allowed Ben-Gvir to march through East Jerusalem with thousands of Israeli-flagcarrying messianic right-wingers, lighting a fuse that predictably escalated into all-out violence, as Palestinian protests generated a heavy-handed response from the Israeli police. Hamas, casting itself as the defender of the Al-Aqsa Mosque in Jerusalem’s Temple Mount, responded to perceived transgressions by the Israeli police with massive rocket fire into Israel. While any Israeli government would have had no real choice but to respond with force to such fire, Israeli pundits widely perceived the resulting eleven-day battle as yet another manifestation of Netanyahu’s determination to hold on to power at all costs. As the anti-Netanyahu bloc announced the suspension of government-forming negotiations so long as the violence raged, Netanyahu’s numerous critics fumed that if it were up to the prime minister, there would be no ceasefire between Israel and Hamas until the exact second when the opposition’s allotted time to form a government has expired (see, e.g., Uri Misgav, “A public announcement: Operation ‘mandate guard’ has achieved its goal,” Haaretz, May 13, 2021, at https://www.haaretz.co.il/blogs/ misgav/.premium.HIGHLIGHT-1.9807209 [Hebrew]). ³⁵ New York progressive Congresswoman Alexandra Ocasio-Cortez and Texas conservative Senator Ted Cruz provide a striking American example of this contrast. In 2019, the unlikely duo publicly agreed to co-sponsor a bill banning former lawmakers from lobbying in Congress. But after the January 2021 Capitol insurrection, which Democrats accused Cruz of helping to instigate, Ocasio-Cortez publicly refused Cruz’s offer of similar bipartisan cooperation: “I am happy to work with Republicans . . . where there’s common ground, but you almost had me murdered 3 weeks ago so you can sit this one out. Happy to work [with] almost any other GOP that aren’t trying to get me killed. In the meantime if you want to help, you can resign.” Dareh Gregorian, “AOC demands Ted Cruz resign over Capitol riot: ‘You almost had me murdered,’ ” NBC, Jan. 28, 2021, at www.nbcnews.com/politics/congress/aocdemands-ted-cruz-resign-over-capitol-riot-you-almost-n1256052

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doubt Hauser and Hendel’s attempt to portray their veto of a Joint List–backed government as the natural corollary of a systematic worldview.

2.4 The Prerogative of Israel’s Palestinian Citizens My argument in the last section was fairly straightforward. I focused on the unreasonable cost–benefit analysis that has driven Hauser and Hendel’s hawkish approach to a Joint List–based government as a means of ousting Netanyahu. I also cast doubt on the analogy that the two secular hawks have sought to draw, between their rejection of the Joint List and their rejection of Jewish supremacists. In this section, I present a further, slightly more complex argument. Though this argument aims at the same conclusion, it is less focused on Hauser and Hendel’s stated positions throughout Israel’s political crisis. Instead, it highlights the broader secular-hawkish outlook that the duo’s parliamentary conduct has reflected. It might be best to first introduce this additional argument in compressed form. It can be summarized as follows: 1. Rights infringements are always presumptively wrong and, as such, stand in need of justification. 2. Rights infringements cannot normally be justified by appealing to actions that the right-bearers are morally entitled to pursue. 3. Secular hawks’ boycott of anti-Zionist Arab parties infringes upon the rights of Israel’s Palestinian citizens, who act in Israeli politics first and foremost through these parties. 4. The reason why secular hawks boycott anti-Zionist parties is that these parties seek to abolish Israel’s Jewish character. 5. Even if one grants multiple hawkish premises, it still remains the case that Israel’s Palestinian citizens have the moral prerogative of trying to abolish Israel’s Jewish character. 6. (From, 3, 4, and 5): Secular hawks’ boycott of anti-Zionist Arab parties is rooted in actions that (secular hawks should themselves recognize) Palestinian citizens have the moral prerogative of pursuing. 7. (From 3 and 6) Secular hawks are trying to justify infringing upon the rights of Palestinian citizens by appealing to actions that these citizens are morally entitled to pursue. 8. (From 2, 3, and 7): Secular hawks cannot justify their boycott of anti-Zionist Arab parties. The core of this argument lies with the claim that Israel’s Palestinian citizens are morally entitled to try to abolish Israel’s Jewish character (step 5). But before I

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get to this claim, I want to offer some brief comments on the four premises that precede it. Premise 1, that rights infringements are always presumptively wrong and therefore have to be justified, is a widely accepted point in moral philosophy, and arguably even in everyday moral discourse. It is perhaps less obvious that rights infringements cannot normally be justified by appealing to actions that the rightbearers are morally entitled to pursue (premise 2). But this premise as well should be uncontroversial, once we consider some simple examples. For instance, there are various circumstances in which you could furnish a compelling justification for doing something with or to your neighbor’s car, even without his consent. But you cannot justify repainting the car without the owner’s consent on the grounds that the entire neighborhood loathes the current color. The car’s owner, after all, has the prerogative of deciding on the car’s color—even if his choice is aesthetically displeasing. Or, to take another toy example, the fact that you are seriously allergic to cigarette smoke might (depending on the details) justify your snatching an about-to-be-lit cigarette from a smoker who is sitting close to you, even in a space where smoking is generally allowed. In contrast, the fact that smoking is bad for the smoker’s own health plainly does not furnish a compelling justification for your taking her cigarette away from her. At least absent some special story, it is surely her prerogative to risk her health in this way. These examples illustrate the fact that we cannot normally justify infringing upon others’ rights, by pointing to actions that they are morally entitled to undertake. So much for premise 2. Premises 3 and 4 follow from secular hawks’ core views. Given their professed commitment to “civic” equality for the country’s non-Jewish citizens, principled secular hawks cannot deny that Israel’s Palestinian citizens ought to enjoy an equal individual right to participate in the country’s political process. This means, among other things, that their vote in national elections should count just as much as the vote of Jewish citizens. But since a very large portion of Israel’s Palestinian citizens vote for anti-Zionist political parties, it is hard to deny that the boycott of these parties diminishes the de facto voting power of Palestinian citizens. So it is clear that this boycott infringes upon Palestinian citizens’ rights. To the extent that secular hawks acknowledge this infringement, they simply believe that its presumptive wrongness is outweighed by the intrinsic wrongness of anti-Zionism. This hawkish approach is unreasonable, in at least two ways. First, as we have already noted, it is unreasonable in its insistence on equating anti-Zionist Arab political parties with Jewish supremacists. Second, related, the prerogative of pursuing anti-Zionist political structures, which secular hawks so vehemently contest, is in fact quite modest. After all, one can insist that Israel’s Palestinian citizens have the prerogative of seeking to change the Jewish character of the state

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(including through their elected representatives), independently of whether one also thinks that such a change ought to happen.³⁶ At this point, however, I want to focus on a slightly different argument. This argument relies on background commitments that must be particularly significant in the secular hawks’ own thinking, especially insofar as they perceive themselves to be the inheritors of an intellectual tradition stretching back to the very origins of the Zionist movement. A root intellectual impulse driving the growth of Zionism in late nineteenthcentury Europe was the thought that both the basic interests and the equal citizenship of individual Jews will never be secure unless and until they enjoy a state of their own. In the absence of such a state—went the Zionist warnings—Jews will perennially be subject to the arbitrary rule of alien and (at least episodically) hostile powers, meaning that any promise of equality they might receive will inevitably be hollow. The Zionist pursuit of collective self-determination for Jews, then, was fundamentally a response to the failure of the Enlightenment promise of equal citizenship.³⁷ Even those Jews who sought (more or less) complete assimilation into the majority culture overwhelmingly found that they were not truly accepted as equal members of Gentile society. Jews’ pervasive experience of discrimination, degrading treatment, and recurrent threats to their basic safety, represented, in the eyes of Zionist thinkers, an overwhelming case for the necessity of a Jewish state. Now, secular hawks assume that this pervasive Jewish experience—culminating in the Holocaust—easily explains why any policy which might jeopardize Israel’s Jewish identity is fundamentally illegitimate. But things are more complicated than that. For one thing, insofar as secular hawks are explicitly committed to the equal “civic” rights of Israel’s Palestinian citizens, they must also recognize that the aspirations of these citizens for a new form of political organization strongly mirror the aspirations that have long driven the Zionist movement. Moreover, in order to recognize this point, one need not delve into vexed debates as to the existence, character, or robustness of any of the “nations” involved— be it a Palestinian, Jewish, or Israeli nation. Instead, one can make a simple individualist point: Individual Jews living as a distinct minority in European ³⁶ This point readily follows from familiar observations regarding legitimate democratic disagreement. So long as citizens’ policy views do not fundamentally contradict the basic equality of all persons, they clearly have the moral prerogative of advocating these views, independently of whether it is appropriate for their views to actually be adopted by the political community. I return to this issue below. ³⁷ For one forward-looking proposal account which emphasizes this basic fact about the origins of Zionism, see Chaim Gans, A Political Theory for the Jewish People (Oxford: Oxford University Press, 2016). The key thinkers of early Zionism, one might add, often held an extremely dire view, not just of the profound practical obstacles generated by unequal citizenship, but also of the psychological ailments associated with such citizenship. For an overview, see my “Dangerous Health? Nietzsche’s Physiological Discourse between Nuremberg and Jerusalem,” History of Political Thought 37 (2016): 728–760.

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society had the moral prerogative of seeking a new form of political organization in order to safeguard the equality and basic interests of members of their community who were identified as such by others. And Israel’s Palestinian citizens have just the same moral prerogative with regard to members of their own community. This claim, to reiterate what was said a moment ago, is a modest one. It is compatible with holding that Israel’s Jewish majority may insist on retaining Israel’s Jewish character, just as a democratic majority may oppose minority efforts on a variety of other policy fronts. What Israel’s Jewish majority ought not do, however, is dismiss as fundamentally illegitimate the Palestinian minority’s calls for structural reform of the state’s character. Or, at the very least, the Jewish majority cannot adopt this kind of attitude without also ignoring Zionism’s own intellectual history. If the last few paragraphs are cogent, then they provide us with an initial case for why secular hawks cannot coherently deny the Palestinian minority’s prerogative of trying to reform Israel’s Jewish character. Recall that we are considering this case in the context of a broader claim—namely, that rights infringements (such as the infringement on Palestinian citizens’ rights of political participation inherent in the boycott of their elected representatives) cannot normally be justified by appealing to actions that the right-bearers have the moral prerogative of pursuing. I now want to further bolster this case by considering a companion principle, which highlights not just the general difficulty with such appeals, but also a more specific difficulty, which once again puts history center stage. The principle in question can be stated as follows. While it is problematic to attempt to justify infringing on others’ rights by appealing to actions that they have the prerogative of pursuing, such an attempt is especially problematic whenever the relevant actions are clearly a morally permissible response to our own wrong ful conduct. Another example will help to make this principle more concrete. Imagine that multiple students rent a large house from a landlord who turns out to be unethical. The lease contract stipulates that (alongside their rent payments) the students will reimburse the landlord for the cost of utilities. But, after the contract is signed and the students move in, the landlord repeatedly refuses to share any actual utility bills. Instead, he demands that the students simply take his word that the hefty sums he charges them on top of their monthly rent correspond to utilities payments that he is actually making (as opposed to making up). This demand sows distrust, which in turn leads the students to insist on bargaining with the landlord collectively rather than separately, so as to best protect their shared interests. Arguably, the students have a general moral prerogative to pursue such collective bargaining (at least unless it is explicitly prohibited in the lease they signed). But that they have such a moral prerogative is especially clear insofar as their collective action is simply a (sensible) response to the landlord’s wrongful conduct.

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Now, suppose that the students’ coordinated approach enrages the landlord, leading him to pursue retaliatory measures which infringe upon the tenants’ (moral and legal) rights. He starts showing up at the house unannounced, in clear contravention of explicit provisions in the lease; he shuts off utilities intermittently, with vague and inconsistent excuses; and when the students ask for basic maintenance work that has to be done in order for the house to be habitable, he responds at a snail’s pace. The students predictably complain that all of these actions contradict both the letter and the spirit of their agreement. Will it do for the landlord to justify his infringements on his tenants’ rights by pointing to their attempt to force him to bargain with them as a collective? Plainly, no. Not only do the students (arguably) have the general moral prerogative of seeking such collective negotiations. The existence of this moral prerogative is particularly clear in light of the landlord’s own transgressions, to which the students are simply responding. I believe that a similar reasoning applies to the prerogative of Israel’s Palestinian citizens. To reiterate, Jewish politicians who boycott Palestinian citizens’ elected representatives infringe upon these citizens’ rights of political participation. This infringement is especially problematic, in light of the fact that Palestinian citizens’ opposition to Israel’s Jewish character is a natural response to long-standing wrongs perpetrated by the Jewish majority itself. More specifically, the secular hawks’ professed commitment to the equal “civic” rights of Israel’s Palestinian citizens should lead them to concede that, since Israel’s inception in 1948, state institutions have abysmally failed to uphold these rights in a manner that accords with even the most rudimentary standards of justice. For more than seventy years now, discrimination against Palestinian citizens has been rampant in anything from spending on public infrastructure and education, through the provision of socioeconomic opportunities, to basic law enforcement that would protect innocent Palestinian citizens from criminal violence. Furthermore, over the last decade in particular, state institutions’ indifference to the basic rights of Palestinian citizens has become even more marked, with ever more dangerous results: the proliferation of illicit weapons within the Palestinian-Israeli community has generated no meaningful response from the Israeli police (or from Jewish politicians), widely seen as uninterested in curbing violence internal to the community.³⁸ Given these facts, it strains credulity to delegitimate even the mere attempt by Israel’s Palestinian community to question the axiomatic status of the country’s Jewish identity.³⁹ But once this attempt is recognized as legitimate, it cannot be used as ³⁸ See, e.g., Oliver Holmes and Quique Kierszenbaum, “The Arab politician asking Israeli police to enter his communities,” The Guardian, Nov. 19, 2019, at https://www.theguardian.com/world/2019/ nov/19/the-arab-politician-asking-israeli-police-to-enter-his-communities ³⁹ Israel’s first Muslim government minister, Raleb Majadleh, put it thus: “every morning I’m told ‘you must proclaim allegiance to the state.’ When will the state proclaim its allegiance to me? Isn’t it supposed to be mutual? When a Jew was murdered in [Arab town] Kfar-Kassem, the murderers

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a justification for boycotting the community’s elected representatives. Far from spearheading this boycott, then, secular hawks who profess a commitment to the “civic” equality of Israel’s Palestinian citizens should be leading the charge to consign this boycott to history’s dustbin.

2.5 Boycott and Cooperation as Scalar Notions At this point in the argument, secular hawks might raise an important objection. The hawks might deny that they are actually boycotting anti-Zionist parties. Rather—the objection goes—they generally view such parties as legitimate political opponents, even if they do not view them as legitimate political partners. This distinction is a tempting one for secular hawks to draw, in at least two ways. First, it seems to align with their professed liberal-democratic commitments. As reflected in Hauser and Hendel’s aforementioned remarks regarding the Joint List’s lawmakers (“they are part of the political system”; “we respect them”) secular hawks (or at least, the secular hawks in which I am interested here) do not call for the expulsion of anti-Zionist Arab political parties from parliament, do not leave the plenum when members of these parties address parliament, and do not proclaim that a “Jewish majority” is necessary for any parliamentary decision to have genuine democratic legitimacy.⁴⁰ In all of these ways, the (relevant) secular hawks do recognize anti-Zionist Arab parties as the legitimate representatives of Arab citizens (whose equal rights of political participation they do affirm). Yet this recognition may seem quite different from an all-out boycott. Second, at a deeper philosophical level, the distinction between legitimate opponents and legitimate partners has general intuitive appeal. We can see this appeal by reflecting on other competitive contexts. Consider, for example, a company which takes pride in its ethical conduct, and which faces significant competition from far less scrupulous firms. So long as these firms’ ethical transgressions fall within certain bounds—for instance, violating the spirit but not the letter of the law—it seems entirely coherent for the ethical company to treat them as legitimate rivals, even while designating them as illegitimate partners. The ethical company may grant, for example, that its rivals have the legal right to act as they were caught the same day. But tens of Arabs have been murdered there and the criminals haven’t been identified yet. Put yourself for a moment in the shoes of a Kfar-Kassem resident. This is where the entire story begins. So long as an Arab kills an Arab, it’s not a problem, it only becomes a problem when he starts to kill Jews. Is that how you run a state?” Quoted in Noam Gil, “The man who was already there: Ra’am’s integration will work because Bennet and Lapid simply have no choice,” Ynet, July 10, 2021, at https://www.ynet.co.il/news/article/SJKfiGkTO (Hebrew) ⁴⁰ Lawmakers belonging to Israel’s messianic right often resort to one or more of these tactics, and even go so far as refusing to accept the procedural authority of Arab members of parliament when these preside over the plenum. See, e.g., Raoul Wootliff, “Itamar Ben Gvir dragged off Knesset podium for calling Arab chair ‘terrorist,’ ” Times of Israel, July 27, 2021, at https://www.timesofisrael.com/itamarben-gvir-dragged-off-knesset-podium-for-calling-arab-chair-terrorist/

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do, and accordingly refuse to take legal steps to curtail their activities, even while refusing to collaborate with these rivals in any context (such as lobbying government for regulations favorable to all of the sector’s companies). This attitude makes at least some sense, insofar as it makes sense to set a higher bar when considering with whom we are willing to associate, as compared to the bar that we set when asking against whom we are willing to compete. Yet, despite its attractions, the distinction between legitimate political opponents and legitimate political partners cannot ultimately save the secular hawks. This is so for at least two reasons. First, it is implausible to suggest that any political partnership with certain opponents necessarily implies or requires endorsement of these opponents. To be sure, when two political entities or camps decide to cooperate despite a history of bitter conflict, some form of endorsement can often occur—usually in the shape of explicit disavowal of previous critiques of the other side, or of proclamations that these critiques no longer apply. But such endorsement need not always be on the table, and indeed, the refusal to endorse the other side may be quite explicit as well. To illustrate, consider a pair of cases involving the Soviet Union. As the Cold War was coming to an end, U.S. President Ronald Reagan proclaimed that his long-standing reference to the Soviet Union as “an evil empire” had become obsolete: with Gorbachev’s perestroika and glasnost underway, Reagan argued, it was possible to envision a meaningful “friendship” between the West and the Soviet Union.⁴¹ But when, roughly half a century earlier, another conservative icon and trenchant critic of communism—Winston Churchill—found that changing political circumstances necessitated cooperation with the Soviet Union, he was just as explicit in refusing to endorse the communists: “No one,” Churchill said in a famous radio address immediately following the German invasion of the Soviet Union, “has been a more consistent opponent of Communism than I have for the last twenty-five years. I will unsay no words that I’ve spoken about it. But all this fades away before the spectacle which is now unfolding.”⁴² To be sure, no one would argue that our secular hawks have to grapple with political decisions of Churchillian magnitude, or that any of those they perceive as antagonists herald the kind of cataclysmic danger associated with totalitarianism. Still, Churchill’s core insight here applies to them as well: it is entirely possible to cooperate with a political rival—no matter how fierce—even while vehemently refusing to endorse this rival. With all this in mind, consider a second reason for why the distinction between legitimate political opponents and legitimate political partners cannot sustain the

⁴¹ See, e.g., John Thor Dahlburg, “Reagan greeted with hearty bearhug by Gorbachev,” Los Angeles Times, Sep. 18, 1990, at https://www.latimes.com/archives/la-xpm-1990-09-18-mn-595-story.html. ⁴² See, e.g., in “Winston Churchill: Broadcast on the Soviet-German War,” Jewish Virtual Library, at http://jewishvirtuallibrary.org/churchill-broadcast-on-the-soviet-german-war-june-1941.

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secular hawks’ position. In and of itself, the distinction offers no real explanation for why it is so dangerous to regard anti-Zionist political parties as legitimate partners. More specifically, a key problem here is that it is implausible to suggest that the phenomenology of the relevant forms of partnership is somehow intrinsically incompatible with the hawks’ core commitments—as if asking secular hawks to establish a government reliant on anti-Zionist votes is somehow akin to (say) asking them to take down the plethora of Jewish symbols adorning the parliament building. Furthermore, secular hawks can clearly pursue a narrowly circumscribed form of cooperation with anti-Zionist Arab parties, while still being explicit about their refusal to endorse these parties’ “national” political causes. There are multiple reasons, then, to reject the idea that parliamentary cooperation with anti-Zionist Arab parties is necessarily intrinsically problematic, even if one takes secular hawks’ commitments extremely seriously. These points bring us to the last argument which secular hawks might make here. This argument points to an instrumental rather than intrinsic concern about a “non-endorsing” partnership with anti-Zionist parties. Even a partnership of this sort, the thought might go, is likely to lead to a gradual growth in the social legitimacy and actual political clout of anti-Zionist parties. This argument, however, does no better than its predecessors, again even when examined in the light of secular hawks’ own commitments. After all, by far the most likely result of the formation of a government reliant on anti-Zionist votes is that anti-Zionist agenda will simply get more airtime in parliamentary and public discourse. But given secular hawks’ own commitments, this result cannot plausibly be considered fatal to any partnership with anti-Zionist Arab parties. For one thing, Israel’s demographic reality—constantly augmented by the hawks’ own policies— means that the country’s Jewish majority is in no danger of disappearing. In fact, this—overwhelmingly Zionist—majority is only increasing.⁴³ This fact places an obvious ceiling on the clout to which any anti-Zionist party can realistically aspire. Furthermore, considering their professed attachment to basic liberaldemocratic values, it is extremely unclear how secular hawks can coherently refuse to let anti-Zionist views receive serious airing in parliament (and in the public sphere more generally), given the conventional democratic commitment to the force of the better argument. Given that secular hawks plainly believe that their Zionist arguments are better than the anti-Zionist alternatives, why should they consider it dangerous (let alone illegitimate) to face anti-Zionist arguments, even on a regular basis, as part of ongoing public and parliamentary discourse?⁴⁴ ⁴³ See, e.g., Ram Fruman, “Too many kids are born here,” Haaretz, July 26, 2021, at https://www. haaretz.co.il/opinions/.premium-1.10034218 (Hebrew). ⁴⁴ This point arguably goes all the way back to John Stuart Mill, who called for a parliament in which representatives would debate each other in such a way that “every person in the country may count upon finding somebody who speaks his mind, as well or better than he could speak it himself—not to friends and partisans exclusively, but in the face of opponents, to be tested by adverse controversy;

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2.6 A Jewish–Arab Government? Let us take stock. In the course of this chapter, I have developed two main arguments against the secular hawkish view. The first argument is that these a de facto boycott of anti-Zionist political parties does not align with recognition of the dangers associated with Netanyahu’s political power, which is bound to last so long as this boycott persists. The second, more complex argument, used secular hawks’ own commitments to show that this boycott unjustifiably infringes upon the rights of Israel’s Palestinian citizens who vote for anti-Zionist parties. With these arguments in mind, I now want to consider a final issue. Readers who follow Israeli politics might suspect that much of what I have said in previous sections has already been made obsolete. After all, in the summer of 2021, an anti-Netanyahu coalition actually established a government, which formally included—for the first time in Israeli history—an Arab, anti-Zionist political party (which had split from the Joint List). In apparent contrast to their obstructionism at earlier critical junctures, this time Hauser and Hendel—just like all other antiNetanyahu secular hawks—were clearly willing to support a government reliant on such a party. Do these developments not render my arguments moot? The answer is “no,” for multiple reasons. To begin, it is impossible to understand the formation of that anti-Netanyahu government, with its precedent of formal inclusion of an Arab political party, without putting center stage the aforementioned distinction between the “civic” individual rights of the country’s Arab citizens and (far more controversial) “national” collective rights. The only reason why the relevant party—the United Arab List—could be palatable to any Jewish hawks in Israel is precisely its bracketing of “national” issues: In order to diffuse enduring hawkish concerns, the party’s leadership has explicitly committed itself to attend solely to the “civic” demands of Israel’s Arab citizens in areas such as budgeting, police activity against rampant criminal gangs, public infrastructure, and the like. Any “national” issue related to the Israeli–Palestinian conflict has been explicitly tabled. Israel’s hawks—from Hauser and Hendel, to their fellow traveler and Netanyahu’s immediate successor as prime minister, Naftali Bennet—have repeatedly seized on this choice by the United Arab List as a reason to classify it as a (newly) legitimate government partner.⁴⁵

where those whose opinion is overruled, feel satisfied that it is heard, and set aside not by mere act of will, but for what are thought superior reasons.” (John Stuart Mill, “Considerations on Representative Government,” in John Gray [ed.] On Liberty and Other Essays [New York: Oxford University Press, 2008], at 282). This is not to say, of course, that Mill’s view is free of difficulties. For a detailed critique, see Alexander Kirshner, Legitimate Opposition (New Haven, CT: Yale University Press, 2022). ⁴⁵ See, e.g., Hauser’s remarks quoted in Alexandera Lukash and Nir Cohen, “Government minister: The Joint List isn’t blackmailing us,” Ynet, July 12, 2021, at https://www.ynet.co.il/news/article/ bjjxmwtto (Hebrew)

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This point, in turn, has far-reaching implications. For one thing, so long as only Arab political parties that omit any reference to “national” issues can qualify— in the eyes of an ever more dominant Jewish-hawkish majority—as legitimate members of a government coalition, a substantial portion of Palestinian citizens’ parliamentary representation will remain effectively boycotted. And the arguments presented above make clear precisely why this boycott will remain indefensible by secular hawks’ own lights. Moreover, so long as the boycott of “nationalist” Arab parties endures, no government based primarily on the votes of Israel’s center-left can command a solid majority. And, very much related, so long as this boycott persists, no heterogeneous government coalition can survive beyond the briefest period, given that its right-wing members are bound to be barraged with (Netanyahu-orchestrated) propaganda against any government reliant on Jewish–Arab collaboration. These, indeed, are precisely the reasons why Israel’s first Netanyahu-less government in more than twelve years collapsed in just twelve months, paving the way to a fifth election. Finally, to recall my earlier observations, the very same Hauser-Hendel-style boycott of anti-Zionist parties clearly played a key role in that fifth election.⁴⁶ Insofar as it was central to the disillusionment of Arab Israelis with the electoral process, this boycott (alongside the resulting deepening fragmentation of Arab political parties) was central to Netanyahu’s ensuing electoral victory, and thus to his recent return to the prime minister’s office, in some ways more powerful— and in every way more dangerous—than he has ever been.⁴⁷ The same boycott, as I already stressed above, will continue to cast a long shadow over the opposition’s prospects of ever ending Netanyahu’s iron grip on the country’s politics. Our discussion in this chapter, then, is bound to remain relevant for the core dynamics of Israeli politics, anytime into the foreseeable future. More specifically, the question of whether any Jewish hawks can stomach a government reliant on anti-Zionist votes as a means of keeping Netanyahu from office will remain central to the shape of Israeli politics and society, quite possibly for years to come. Unfortunately, the deep fault lines dividing Israel’s “republican front” are unlikely to become moot anytime soon.

⁴⁶ See, e.g., Jack Khoury, “Arab parties face a reckoning at home, and a blunt message from Israeli Jews,” Haaretz.com, Nov. 2, 2022, at www.haaretz.com/israel-news/elections/2022-11-02/ty-article/ .premium/the-message-from-israeli-jews-is-clear-no-arabs-in-government/00000184-36da-d51eaf84-bedb38f70000 ⁴⁷ Sefi Rachlevsky, “As Netanyahu seeks to skirt justice, his messianic partners get busy,” Haaretz.com, Nov. 14, 2022, at https://www.haaretz.com/opinion/2022-11-14/ty-article-opinion/ .premium/as-netanyahu-seeks-to-skirt-justice-his-messianic-partners-get-busy/00000184-75d0d201-a1d7-7dfe3ed50000

3 The Christian Right, Abortion, and Trump

The only thing [through which] I came to grips with voting that way [for Trump], versus the other [for Clinton] . . . it’s around Supreme Court justice seats. That’s what it came down to, for me.” His choice was almost entirely about Roe v. Wade. “That court has, in our world today, some of the biggest power . . . things ongoing for generations to come. Roe v. Wade was a big one, because I think that’s going to be . . . our generation’s slavery. We’re just sitting here, and thousands and thousands of lives are being lost. (Andrew Whitehead and Samuel Perry, Taking America Back for God, 2020¹) The worst line I ever wrote as a pundit—yes, I know, it’s a crowded field—was the first line I ever wrote about the man who became the 45th president: “If by now you don’t find Donald Trump appalling, you’re appalling.” [. . .] I regret almost nothing of what I said about the man and his close minions. But the broad swipe at his voters caricatured them and blinkered me . . . would I be wrong to lambaste Trump’s current supporters, the ones who want him back in the White House despite his refusal to accept his electoral defeat and the historic outrage of Jan. 6? Morally speaking, no . . . But I would also approach these voters in a much different spirit than I did the last time. “A drop of honey catches more flies than a gallon of gall,” noted Abraham Lincoln early in his political career. “If you want to win a man to your cause, first convince him that you’re his sincere friend.” Words to live by, particularly for those of us in the business of persuasion. (Bret Stephens, “I was wrong about Trump voters,” 2022²)

This chapter offers a second extended illustration of strategic political theorizing, focused on a particular group of American citizens. This group consists of single ¹ Whitehead and Perry are quoting here an interviewee (identified only by his first name). See Andrew Whitehead and Samuel Perry, Taking America Back for God: Christian Nationalism in the United States (New York: Oxford University Press, 2020), 74. ² Bret Stephens, “I was wrong about Trump voters,” The New York Times, July 21, 2022.

Philosophizing the Indefensible. Shmuel Nili, Oxford University Press. © Shmuel Nili (2023). DOI: 10.1093/oso/9780198872160.003.0004

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issue anti-abortion Trump voters: citizens who (I shall assume) have been cleareyed about Donald Trump’s numerous failings, but who have nonetheless voted for him in past presidential elections, and may very well do so again in the future, with the overriding aim of outlawing abortion through the Supreme Court, whose justices are nominated by the president. For many progressives (myself included), the most natural thing to say about this group of Americans is that they have been doubly unreasonable. First, they have been unreasonable to the extent that they genuinely believe that (any and all) abortion is tantamount to murder.³ Second, these Americans have been unreasonable insofar as they have either ignored overwhelming evidence that Trump is manifestly unfit for office, or have treated such evidence as simply less important than their goal of outlawing abortion.⁴ However, in line with the strategic method, this chapter offers a more internal critique of the anti-abortion vote for Trump. Several considerations, highlighted in chapter 1, render the anti-abortion vote for Trump an especially fitting subject for strategic theorizing. One consideration has to do with public opinion. I said in chapter 1 that policy issues on which public opinion features gradations are especially fitting for strategic theorizing, since they are more likely to feature constituencies which are sympathetic to certain unreasonable premises, but are also still persuadable. Abortion is clearly one such issue. According to 2021 data from the Pew Research Center, for example, 23 percent of Americans want abortion to be legal under all circumstances, while 15 percent support a categorical ban on abortions under any circumstances.⁵ A clear majority of Americans, however, fall somewhere in the middle of the abortion policy spectrum, supporting neither a categorical legal ban nor universal legal permissibility.⁶ These public opinion patterns, which have been steady for several years,⁷ mean that while the small group of ardent “pro-lifers” may very well be unpersuadable, there is a much larger group that is persuadable, despite being somewhat amenable to certain “pro-life” arguments, and also, ³ For a concise account of the numerous problems with the equation between abortion and murder, offered by a scholar sympathetic to the pro-life position, see the brief essay by Eduardo Peñalver (then-dean of the Cornell Law School): “Abortion and murder,” Commonweal, Oct. 24, 2008, at https://www.commonwealmagazine.org/abortion-and-murder. See also Peñalver’s “Democracy and abortion,” Commonweal, Feb. 13, 2009, at https://www.commonwealmagazine.org/democracy-andabortion; Jeremy Williams, “On Anti-Abortion Violence,” Philosophy & Phenomenological Research 104 (2022): 273–296. ⁴ Elsewhere, I discuss this evidence in detail, and highlight some of its understudied normative implications. See my Integrity, Personal and Political, chap. 4; Democracy’s Clock (unpublished manuscript), chap. 1. ⁵ As many social scientists and historians have documented, the latter group is especially vocal, politically mobilized, and politically effective—all reasons to engage its positions in some detail. ⁶ More precisely, the 2021 Pew data showed 56 percent of Americans holding this view, with 6 percent not knowing or refusing to answer the question regarding whether abortion should be legal. See Pew Research Center, Public Opinion on Abortion: Views on Abortion, 1995–2021, at https://www. pewforum.org/fact-sheet/public-opinion-on-abortion/ ⁷ See again Pew data in Public Opinion on Abortion.

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presumably, to “pro-life” electoral choices. We can do worse than to approach this larger group with arguments that take (at least some) pro-life premises seriously. Another important consideration has to do with time horizons. In chapter 1, I observed that topics which combine practical urgency with a long shelf life are especially promising targets for strategic theorizing. And this too is a feature which applies to our subject here, for at least three reasons. First, as chapter 1 also observed, the Supreme Court’s 2022 Dobbs decision, overturning Roe v. Wade, means that abortion is bound to dominate American political discourse for years to come.⁸ This is true whether thinking about heated debates regarding state laws protecting or prohibiting abortion access,⁹ about federal executive action¹⁰ and legislation,¹¹ or about any other Supreme Court decisions on the subject—whether coming from an extra-emboldened conservative majority that might even declare abortion unconstitutional,¹² or from a future, more liberal Court that might very well reinstate Roe-era regulations.¹³ Second, the electoral urgency of the subject—evident in the 2022 mid-terms— is obvious, seeing as Trump—who repeated in 2020 his 2016 success among Christian-right voters—is seeking re-election in 2024, relying in part on the same support from the same Christian voting bloc.¹⁴ However, third, even though my argument here will focus on Trump, there is very little reason to think that the argument will become obsolete once his political career comes to a definitive end. If nothing else, this is primarily because Trump’s meteoric political rise cannot be understood apart from much deeper trends that both preceded him and are likely to continue (long) after him. This is particularly true for the conservative rage at numerous progressive ideas—a rage without

⁸ See, e.g., “The ruling overturning Roe is an insult to women and the judicial system,” The New York Times, June 24, 2022, at https://www.nytimes.com/2022/06/24/opinion/dobbs-ruling-roev-wade.html ⁹ See, e.g., Megan Messerly and Alice Miranda Ollstein, “Republicans turn on each other amid postRoe chaos,” Politico, August 9, 2022. ¹⁰ “White House says ‘fight is not over’ after Texas judge blocks emergency abortion guidance,” Reuters, Aug. 24, 2022, at https://www.reuters.com/legal/white-house-says-fight-is-not-overafter-texas-judge-blocks-emergency-abortion-2022-08-24/ ¹¹ See for example Michael D. Shear and Jim Tankersley, “Biden, chiding court, endorses ending filibuster to codify abortion rights,” The New York Times, June 30, 2022. ¹² See once again John Finnis’s essay mentioned in chapter 1—John Finnis, “Abortion Is Unconstitutional,” First Things (April 2021): 1–19, at https://www.firstthings.com/article/2021/04/abortion-isunconstitutional. ¹³ See for example Jonathan Chait, “Democrats must reform the Supreme Court to save it,” New York Magazine, June 30, 2022, at https://nymag.com/intelligencer/article/democrats-reform-the-supremecourt-pack-roe-epa.html ¹⁴ See, e.g., Rick Jervis, Marc Ramirez, and Romina Ruiz-Goirlena, “‘No regrets’: Evangelicals and other faith leaders still support Trump after deadly US Capitol attack,” USA Today, Jan. 12, 2021; Natalie Allison and Meridith Mcgraw, “How evangelical Christians are sizing up the 2024 GOP race for president,” Politico, June 18, 2022, at https://www.politico.com/news/2022/06/18/evangelical-christians2024-gop-president-race-00040692

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which the entire Trump political phenomenon clearly becomes inexplicable.¹⁵ At the time of writing, for example, it is virtually certain that even if Trump himself will not be the Republican presidential nominee in 2024, the nominee will be someone whom Trump loyalists regard as sufficiently willing and able to express— including in their very persona—the same sort of fury at virtually anything that “liberals” claim to stand for.¹⁶ My emphasis on the message that a candidate’s political persona expresses is not incidental. This expressive dimension is the core of my strategic argument against anti-abortion Trump voters (and, by extension, against anti-abortion voters who might support Trump-like future presidential candidates). This argument is simple in form. Once we bear in mind that a legal ban on abortions will not actually stop abortions, the only possible remaining rationale for antiabortion laws is an expressive one: It has to do with the expressive value of laws condemning abortion and thereby affirming foetuses’ (supposed) equal human dignity. However, such an expressive stance does not cohere with the very act of voting for Trump, given the expressive content that is inherent in elevating to the highest office in the land a man whose public conduct has been a consistent affront to the equal dignity of numerous human beings, especially the most vulnerable. I develop this argument as follows. In 3.1, I offer some basic background regarding the group of anti-abortion Trump voters whose view I wish to target. Since the members of this group overwhelmingly belong to the “evangelical” or “Christian” right, I distinguish, in 3.2., between the internal incoherence that I wish to highlight in their position, and the charge of straightforward hypocrisy, which has often been leveled at Trump’s evangelical supporters, in light of their pre-Trump calls for personal virtue in politics. I explain why these supporters can offer a strong response to this charge, albeit one that is different from the response that they have actually been offering.

¹⁵ See, e.g., Jonathan Metzl, Dying of Whiteness: How the Politics of Racial Resentment Is Killing America’s Heartland (New York: Basic Books, 2019); Stephen Mansfield, Choosing Donald Trump: God, Anger, Hope, and Why Christian Conservatives Supported Him (Ada, MI: Baker Books, 2017). ¹⁶ This point has been reiterated in virtually every piece of news coverage and punditry about the Republican Party since at least the summer of 2020, with the January 6 insurrection having little discernible effect. For only a tiny sample, see Eli Yokley, “Trump emerges from impeachment trial with sturdy backing from GOP voters,” Morning Consult, Feb. 16, 2021, at morningconsult.com/2021/ 02/16/trump-gop-support-impeachment-poll/; Ronald Brownstein, “Why Republicans still can’t quit Trump,” The Atlantic, June 11, 2021, at www.theatlantic.com/politics/archive/2020/06/republicans2024-nominee-will-be-trump-acolyte/612925/. See also “FBI search cements Trump’s hold on GOP,” The Hill, Aug. 17, 2022, at https://thehill.com/homenews/campaign/3604246-fbi-search-cementstrumps-hold-on-gop/; Eli Yokley, “Trump’s 2024 primary support reaches new heights after FBI raid,” Morning Consult, Aug. 11, 2022, at https://morningconsult.com/2022/08/11/fbi-raid-increasestrumps-2024-primary-support; Joshua Chaffin, “Donald Trump with brains and without the drama,” Oct. 19, 2022; Mark Leibovich, Thank You for Your Servitude: Donald Trump and the Price of Submission (New York: Random House, 2022).

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Having thus improved the position of anti-abortion Trump voters, I start to undermine it in 3.3. Here I survey the empirical evidence showing that a legal ban on abortions will not actually lead to a significant decrease in abortion rates. In 3.4, I turn to the expressive rationale for such a ban, and explain why it does not cohere with a vote for Trump, anticipating several objections along the way.

3.1 The Anti-Abortion Trump Vote The anti-abortion movement in the United States is dominated by—an overwhelmingly white—Christian or “evangelical” right.¹⁷ This is the same segment of the American electorate that was also identified, already prior to the 2016 election, as the key to Trump’s presidential hopes. Tim Alberta, in an illuminating chronicle of Trump’s political rise, put it simply: “If white Christians turned out to vote en masse, he had a chance to upset Clinton; if they didn’t, he would be roadkill.”¹⁸ White Christians did in fact turn out to vote en masse, and 81 percent of them backed Trump.¹⁹ Why did they do so? By far the most important answer was the Supreme Court. In fact, 26 percent of all Trump voters said that Supreme Court nominees were the most important factor in their decision. And while similar views were held on the other side of the political divide (21 percent of all 2016 voters defined Supreme Court nominations as “the most important factor” in their vote) Trump voters comprised a clear majority of this group (56 percent, compared to only 41 percent who voted for Hillary Clinton).²⁰ This focus on the Court, moreover, was at least as evident among the political elites of the Christian right. Alberta again: In case after case, over the final five weeks of the election, prominent Christian leaders rallied around the Republican nominee . . . Their principal rationale in standing by Trump: the Supreme Court . . . The death of conservative legal giant ¹⁷ In line with conventional terminology in American political discourse, I use “evangelical” and “Christian right” interchangeably here, even though, strictly speaking, American Catholics have been much more politically divided than their evangelical counterparts. See, e.g., “AP VoteCast: Trump wins white evangelicals, Catholics split,” AP News, Nov. 6, 2020, at https://apnews.com/article/ votecast-trump-wins-white-evangelicals-d0cb249ea7eae29187a21a702dc84706;; “Party divide a bigger threat to Catholic unity than theological differences,” UPI, Aug. 1, 2019, at https://www.upi.com/ Top_News/Voices/2019/08/01/Party-divide-a-bigger-threat-to-Catholic-unity-than-theologicaldifferences/4101564662866/ ¹⁸ Tim Alberta, American Carnage: Inside the Republican Civil War (New York: Harper Collins, 2019), 382. ¹⁹ See, e.g., Katherine Stewart, “Eighty-one percent of white evangelicals voted for Donald Trump. Why? The role abortion played in this election might be bigger than many think,” TheNation.com, Nov. 17, 2016, at https://www.thenation.com/article/archive/eighty-one-percent-of-whiteevangelicals-voted-for-donald-trump-why/ ²⁰ Alberta, American Carnage, 395.

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Antonin Scalia, and the subsequent decision by Mitch McConnell to block hearings on President Obama’s nominee, had placed the issue of Supreme Court appointments front and center unlike during any election in modern history. With an automatic appointment waiting to be filled, Justice Anthony Kennedy hinting at his pending departure, and a pair of other justices past the age of mandatory corporate retirement, conservatives believed the end of a sympathetic high court justified the means of supporting Trump. As Hugh Hewitt, the radio host and constitutional law professor who’d butted heads with Trump, had written in the Washington Examiner that summer, “It’s the Supreme Court, stupid!”²¹

In turn, there can be little doubt that the dream of legally banning abortion dominated the Christian right’s thinking about the Court. As Whitehead and Perry put it, “from the late 1970s until today, perhaps no other issue has activated religious conservatives as powerfully and consistently as the 1973 Roe v. Wade decision legalizing abortion across the United States.”²² It is therefore unsurprising that Trump vowed multiple times—including in his final 2016 debate with Clinton—to appoint Supreme Court justices who will overturn Roe. Equally unsurprisingly, the main purpose of Trump’s three eventual Supreme Court picks was understood in anti-abortion terms.²³ And Trump’s leading anti-abortion backers celebrated these picks accordingly. Trump’s nomination of Neil Gorsuch to the Court, less than two weeks after he assumed the presidency, was a clear case in point: On Jan. 31 [2017], Trump nominated the archconservative federal appellate judge to replace the late Antonin Scalia . . . thrilling the full spectrum of the Republican Party and validating the decision made by so many conservatives the previous November to hold their noses and punch the GOP ticket. “It was a leap of faith. Trump was untested,” Marjorie Dannenfelser, the antiabortion leader, said after the Gorsuch pick. “It became very hard to stand [by him]. But all that disruption, all that anxiety, all that tension—it was worth it. Because he has turned out to be a man of his word.”²⁴ ²¹ Alberta, American Carnage, 382. ²² Whitefield and Perry, Taking America Back for God, 73. For further historical background, see Daniel K. Williams, Defenders of the Unborn: The Pro-life Movement before Roe v. Wade (New York: Oxford University Press, 2016). ²³ When introducing the New York Times debate, noted in chapter 1 (on which more below), Jane Cranston, for example, put it simply: “Former President Donald Trump vowed to overturn Roe. And every justice he appointed to the Supreme Court was vetted to do just that. Neil Gorsuch was put on the court to do this. Brett Kavanaugh was put on the court to do this. Amy Coney Barrett was put on the court to do this.” “Why the anti-abortion side will lose, even if it wins,” The New York Times, April 14, 2021, at https://www.nytimes.com/2021/04/14/opinion/abortion-roe-douthatgoldberg.html?action=click&module=Opinion&pgtype=Homepage ²⁴ Alberta, American Carnage, 432. See also Kerry Howley, “The Woman Who Killed Roe: Marjorie Dannenfelser’s single-minded pursuit of an end to abortion.” The Cut, May 9, 2022 at www.thecut.com/ article/marjorie-dannenfelser-abortion-roe-v-wade.html

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Note, finally, that while the Christian Right clearly had other aims in mind, beyond abortion, when seeking to secure a conservative majority on the court, none of these could come close to abortion’s level of significance. After all, the more one believes that abortion is a grave injustice that at least approximates the wrongness of murder, the more one is compelled to prioritize the particular issue of abortion over other issues that a court may decide. Issues such as the status of prayer in state schools, for example, or the effort by various religious entities to secure exemptions from a duty to supply contraceptives, however significant they might be to some with relevant religious convictions, cannot really match the level of importance assigned to outlawing abortion.²⁵

3.2 Christian Support for Trump: The Familiar Critique and Its Limitations With this background in hand, I want to remark briefly on a familiar hypocrisy charge that has been leveled against Trump’s evangelical supporters, and which, if cogent, would seem to obviate the need for my more complex internal-incoherence argument. The charge is that evangelicals’ continued allegiance to Trump has flatly contradicted their own long-professed commitments. How could right-wing Christians, having spent so many years extolling the significance of personal virtues and excoriating various progressive politicians for their personal vices, turn a blind eye to Trump’s endless list of vices? The following remarks from former Republican Party chairman Michael Steele convey this charge in no uncertain terms: These evangelical [leaders] are the biggest phonies of all . . . These are the people who spent the last forty years telling everyone how to live, who to love, what to think about morality. And then this [expletive omitted] comes along, defiling the White House and disrespecting God’s children at every turn, but it’s cool, because he gave them two Supreme Court justices. They got their thirty pieces of silver.²⁶

Curiously, Trump’s evangelical supporters have often responded to such complaints by proclaiming their earlier ideals obsolete: The most frequent rebuttal from faith leaders supportive of Trump amounted to a fascinating concession: their idyllic visions of virtuous leadership in government had been a mirage. They had railed against Bill Clinton’s philandering, but ²⁵ For a particularly explicit emphasis on this point, see Douthat’s “The bishops, Biden and the brave new world,” The New York Times, June 22, 2021, at https://www.nytimes.com/2021/06/22/opinion/ biden-catholic-bishops-abortion.html ²⁶ Quoted in Alberta, American Carnage, 581.

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came to realize afterward that America was past the point of prioritizing morality in its leaders. The country was changing too much, too quickly, for their old expectations to be realistic.²⁷

This argumentative strategy is curious, because Trump’s evangelical supporters have actually had a much more cogent argument at their disposal. The argument is simply this: There is nothing odd in holding that the enactment of what one believes to be the right policies very often matters more than the personal virtues of the politicians who put the relevant policies into place. Moreover, to reprise an earlier point, this priority holds especially firm when the relevant policies concern—as at least the most ardent anti-abortionists believe—large-scale indefensible killings. If a given electoral candidate is more likely to stop such killings than the competition, why should it be surprising that his personal failings are given only secondary weight? A similar retort applies to the equally familiar charge, that the pious rhetoric long trumpeted by Trump’s evangelical backers has been merely a thinly veiled lever with which to obtain political power.²⁸ To be sure, it is one thing if, after obtaining power, an individual (or group) renege on their policy commitments and merely seek to use their new position to advance their own narrow interests. Yet the mere fact that one is willing to partner with allies whom one regards as unsavoury in order to secure political power does not necessarily mean that one’s professed political convictions are in any way insincere.²⁹ On the contrary: one may simply be prioritizing the ability to realize these convictions in actual policy, through having (literally and metaphorically), a seat at the table where policy decisions are made. Some leaders of the Christian right, when pressed on their alleged hypocrisy in steadfastly supporting Trump, were wise enough to say this much. The fact that Trump “was not one of them,” as Alberta notes, “was beside the point”:

“I’ve been at the White House for meetings more in the first four months of the Trump administration than I was during the entire Bush presidency,” Tony Perkins, the Family Research Council president, said that spring. Ralph Reed, the Faith and Freedom Coalition’s chairman, put it thusly: “Jimmy Carter sat in the pew with us. But he never fought for us. Donald Trump fights. And he fights for us.”³⁰

²⁷ Alberta, American Carnage, 458. ²⁸ A charge made even by fellow travellers. See, e.g., Alberta, American Carnage, 457. ²⁹ For a particularly explicit statement of this view, see Adrian Vermuele, “A Christian strategy,” First Things, Nov. 2017, at https://www.firstthings.com/article/2017/11/a-christian-strategy. ³⁰ Alberta, American Carnage, 455.

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These points lead me to think that the standard hypocrisy critique against the Christian right’s embrace of Trump has only limited purchase. Yet I believe that there is a more powerful, albeit less obvious critique that lies in the vicinity. Unlike the standard hypocrisy charge, this critique is not centered on the gulf between Trump’s private conduct and the private virtues that the Christian right has long preached. Rather, this critique accepts (at least arguendo) that, in general, politicians’ personal characteristics are less important than the policies they put in place. However, the critique that I have in mind holds that the case of Trump and the anti-abortion agenda represents an exception to this general rule. This exception, in turn, stems from a distinctive feature of the particular case of anti-abortion laws. As will become clear shortly, once we account for the relevant empirical evidence, we find that the only possible justification for such laws is an expressive one. But this finding means that proponents of these laws who have backed Trump with an overriding concern for abortion must also give sustained attention to the expressive impact inherent in making Trump president. Put otherwise, Trump’s distinctly problematic character—and, more precisely, his distinctly problematic public conduct, both as a candidate for office and while in office—generates a profound mismatch between the expressive rationale which must underlie the Christian right’s devotion to anti-abortion laws, and the message that is inevitably expressed through the act of placing Trump in the White House. I now turn to develop this argument.

3.3 A Consequentialist Justification for Anti-abortion Laws? The most obvious way for Trump’s anti-abortion voters to try to justify their backing of him is to contend that anti-abortion laws (greatly facilitated by Trump-appointed judges) will significantly decrease the number of abortions. This contention is ubiquitous. Yet it does not square with the facts. There is an abundance of evidence suggesting that anti-abortion laws do not meaningfully reduce the actual number of abortions. Instead, their only robust effect is to increase the health risks to women who predictably seek underground abortions. Among others, researchers with the influential Guttamacher Institute have repeatedly established these points. In 2007, for instance, a group of Guttamacher researchers, in collaboration with the World Health Organization, published a global survey of induced abortions that occurred between 1995 and 2003. The survey, which appeared in The Lancet, found that “unrestrictive abortion laws do not predict a high incidence of abortion, and by the same token, highly restrictive abortion laws are not associated with law abortion incidence”: Indeed, both the highest and lowest abortion rates were seen in regions where abortion is almost uniformly legal under a wide range of circumstances . . . some

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abortions in [legally] restricted settings are done by trained providers, but most abortions in these settings have high risks to a woman’s life and health. In Africa, where abortion is highly restricted by law in nearly all countries, there are 60 deaths for every 100,000 procedures, compared with fewer than 10 per 100,000 procedures in developed regions. Worldwide, an estimated 5 million women are hospitalised every year for treatment of complications related to unsafe abortion . . . legalization of abortion can have a substantial effect on the safety of the procedure: in South Africa [for example], the incidence of infection from abortion decreased by 52 percent after a more liberal abortion law went into effect in 1997.³¹

A 2018 Guttamacher study, covering the period between 1990 and 2014, featured very similar findings, concluding that the key to reducing abortion rates lies with access to contraceptives rather than with criminalizing abortion: Abortions occur as frequently in the two most-restrictive categories of countries (banned outright or allowed only to save the woman’s life) as in the leastrestrictive category (allowed without restriction as to reason)—37 and 34 per 1,000 women, respectively . . . By far, the steepest decline in abortion rates occurred in Eastern Europe, where use of effective contraceptives increased dramatically; the abortion rate also declined significantly in the developing subregion of Central Asia. Both subregions are made up of former Soviet Bloc states where the availability of modern contraceptives increased sharply after political independence—exemplifying how abortion goes down when use of effective contraceptives goes up.³²

A 2020 study, published in Lancet Global Health and covering the 1990–2019 period, similarly found “no evidence that abortion rates were lower in settings where abortion was restricted”: The gradation in type of restrictions also made little difference on the abortion rate due to unintended pregnancy rates being substantially higher in countries where abortion was restricted. This finding means that some women in these restrictive settings must take legal and physical risks to seek abortion care, corroborating findings in earlier studies that show that women with unintended pregnancies rely on abortion even in settings where abortion is restricted . . . Moreover, we found that China and India, which comprised 62 percent of women who ³¹ Gilda Sedgh, Stanley Henshaw, Susheela Singh, Elisabeth Ahman, and Iqbal Shah, “Induced Abortion: Estimated Rates and Trends Worldwide,” The Lancet 370 (October 2007): 1338–1345, at 1339. ³² Susheela Singh, Lisa Remez, Gilda Sedgh, Lorraine Kwok, and Tsuyoshi Onda, “Abortion Worldwide 2017: Uneven Progress and Unequal Access,” at https://www.guttmacher.org/report/abortionworldwide–2017

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While such facts have been repeatedly emphasized by the “pro-choice” camp in the abortion debate, the “pro-life” response has been conspicuously absent. Opponents of permissive abortion laws have had strikingly little to say about these findings. For the most part, they have either said nothing at all, or have—without basis—sought to portray the data as open to conflicting interpretations, or as derived from questionable methodologies.³⁴ Serious pro-life engagement with the empirical evidence, in other words, has been extremely scarce. Against this background, it is especially useful to discuss the few direct commentaries, however limited and brief, that “pro-lifers” have offered on this crucial aspect of the abortion controversy. One example is the New York Times debate on abortion law, mentioned in chapter 1, between Ross Douthat and Michelle Goldberg. Using the example of Latin America (which has seen extremely high abortion rates even with restrictive abortion laws) Goldberg argued, in line with the empirical findings noted above, that legally banning abortion in the United States will not actually stop abortions from happening. Douthat replied as follows: I think the relevant case studies for the effect of abortion laws on abortion rights for a country like the US are, in fact, the several states of the American union and maybe arguably countries in Western and Central Europe that are somewhat our peers in terms of development, women’s educational opportunities, healthcare and so on. And if you look across those states and societies, there’s a[n] imperfect but pretty clear correlation between higher abortion rates and laxer abortion laws and lower abortion rates and more restrictive abortion laws. The states in the U.S. that have, to the extent it’s possible under Roe, tighter abortion laws and regulations that mean that there are fewer abortion clinics in the states, have lower abortion rates. In Europe, the highest abortion rates are in countries that have liberal abortion laws. Places like more Catholic regions, but also places in Germany that have either second trimester restrictions, waiting periods, counselling, various impediments, have lower abortion rates. So the idea that if you ³³ Jonathan Bearak, Anna Popinchalk, Bela Ganatra, Ann-Beth Moller, Özge Tunçalp, Cynthia Beavin, Lorraine Kwok, and Leontine Alkema, “Unintended Pregnancy and Abortion by Income, Region, and the Legal Status of Abortion: Estimates from a Comprehensive Model for 1990–2019,” Lancet Global Health 8 (2020): e1152–e1161, at e1159. ³⁴ For a pertinent example, on which more in a moment, see Ryan Anderson, “Parsing abortion statistics and the law,” First Things, Oct. 17, 2007, at https://www.firstthings.com/web-exclusives/2007/ 10/parsing-abortion-statistics-an. For related examples regarding predictable complications (often involving appalling consequences) for pregnant women seeking urgent medical care, see Michelle Goldberg, “The anti-abortion movement is in denial,” The New York Times, July 29, 2022.

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have anti-abortion laws, it doesn’t affect abortion rates, is, I think, fundamentally wrong.³⁵

Douthat cites no sources for these claims.³⁶ They are also vulnerable in multiple ways. For one thing, Douthat’s proposed focus on comparing the United States specifically to other developed countries (rather than to the world as a whole) does not align with the empirical data. The 2020 Lancet Global Health study just noted, for example, concluded that “the abortion rate in high-income countries with restrictive laws . . . was higher than that of high-income countries where abortion is broadly legal.”³⁷ Furthermore, Douthat’s rationale ignores the ubiquitous phenomenon of travel for abortion purposes. Just because an abortion-restricting region sees a drop in abortion rates, it does not necessarily follow that any given woman has actually been deterred from getting an abortion. Rather, she may well have traveled to get an abortion elsewhere. A woman who, for example, travels domestically from a more conservative part of Germany or the United States, to a part of the country where she can more easily obtain an abortion, is unlikely to appear in the official abortion statistics of her region/state of residence, but that of course does not mean that fewer abortions have actually taken place. The same is true for international travel, which (at least in nonpandemic times), is largely seamless within the European Union’s Schengen area. A woman who travels from ultra-restrictionist Poland to obtain an abortion in Berlin, for example, might add to Germany’s official abortion tally, but she certainly does not add to Poland’s official tally (part of the reason for the remarkable gap between the thousand abortions formally occurring in Poland annually, and the estimated hundred and fifty thousand abortions that Polish women actually undergo every year³⁸). ³⁵ Cranston, “Why the anti-abortion side will lose.” ³⁶ Elsewhere, Douthat similarly fails to cite evidence for his claim that recent Texas abortion restrictions cut in half the number of actual abortions pursued by Texas residents (including residents who traveled to other states). See Douthat’s “The case against abortion,” The New York Times, Nov. 30, 2021. ³⁷ Bearak et al., “Unintended Pregnancy and Abortion,” e1159. ³⁸ See, e.g., Jessica Bateman and Marta Kasztelan, “In Poland, abortion access worsens amid pandemic,” Foreign Policy, May 2020, at foreignpolicy.com/2020/05/01/poland-abortion-access-worsenscoronavirus-pandemic/. For more on the case of Poland, and on abortion travel more generally, see Christabelle Sethna and Gayle Davis (eds.), Abortion across Borders: Transnational Travel and Access to Abortion Services (Baltimore, MD: Johns Hopkins University Press, 2019). Note that it will not do to reply that poor women would be effectively deterred from pursuing abortions in light of the costs associated with the relevant travel. For one thing, such a reply ignores the widespread efforts by private organizations and women’s rights groups to fund the necessary travel for those who cannot afford it (efforts joined, in the aftermath of Dobbs, by travel funds allocated by liberal states [see, e.g., Sharon Bernstein, “Fearing end of Roe v. Wade, liberal U.S. states rush to protect abortion rights,” Reuters, May 11, 2022]). Normatively speaking, such a reply would also be extremely suspect (using a women’s poverty as a way of trying to ensure that she will refrain from having an abortion). Moreover, this reply sits extremely uneasily with Douthat’s stated view (e.g., in “The case against abortion”), that “pro-lifers” should do more to increase support for child-rearing, so as to reduce the economic incentives for getting an abortion in the first place. Finally, this kind of reply would undermine Douthat’s own claim that Western and Central Europe, rather than the world as a whole, are the relevant units of comparison

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Finally, in order to infer a causal relationship between legal restrictions on abortion and its actual incidence, it is not enough to point out a correlation between such restrictions and lower abortion rates in any given place. Most obviously, this is because the relevant causal arrows might have to do with a social ethos that is independent of, and more fundamental than, the formal letter of the law. In an ultra-conservative region where the vast majority of the population genuinely believes that any abortion is murder, one can expect the formal letter of the (local) law to reflect this view, and one can also expect abortion rates to be very low. But there is no reason to think that changing the letter of the law would make any independent causal difference, because it is clearly not the letter of the law that is doing the causal work. Now consider another, earlier “pro-life” attempt to engage with the recurrent empirical finding regarding the difference between banning and stopping abortions. In a brief 2007 essay for First Things, conservative writer Ryan Anderson made the following remarks regarding that year’s aforementioned Guttamacher study: What if the record showed that criminal sanctions do not reduce the number of abortions? To answer this, a parallel might help: What if during the early days of abolition people claimed that the results of outlawing the slave trade wouldn’t reduce the number of slaves but would only have deleterious effects on those slaves who now would be transported on the black market? I doubt that any of us would consider this a reason not to start down the road of criminalizing slavery and emancipating slaves.³⁹

These claims do no better than Douthat’s. For one thing, we can dispute Anderson’s assumption that there is an obvious all-things-considered duty to undertake legal reform in the very particular context he envisions. Anderson takes it for granted that the slave trade ought to have been outlawed even under conditions where outlawing would have harmed the slaves themselves. But surely our overriding moral interest when considering any aspect of slavery lies with the enslaved. If there really are circumstances where abolition would unequivocally harm rather than help them, why is it so obvious that abolition is the right way to go?⁴⁰ when thinking about the likely effects of more restrictive abortion laws in the United States. If the real focus is on deterring poor women from getting abortions, why not examine the evidence of how poor women worldwide are affected by abortion restrictions? ³⁹ Ryan Anderson, “Parsing abortion statistics and the law,” First Things, Oct. 17, 2007, at https:// www.firstthings.com/web-exclusives/2007/10/parsing-abortion-statistics-an. ⁴⁰ Consider, for instance, the following remarks from Rawls in an adjacent context: “slavery and serfdom, in their familiar forms anyway, are tolerable only when they relieve even worse injustices. There may be transition cases where enslavement is better than current practice. For example, suppose that city-states that previously have not taken prisoners of war but have always put captives to death agree by treaty to hold prisoners as slaves instead. Although we cannot allow the institution of slavery on the grounds that the greater gains of some outweigh the losses to others, it may be that under these

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However, even putting this basic concern aside, Anderson’s remarks are misleading in at least three ways. First, Anderson is relying on the fact that we now know that the criminalization of the slave trade did in fact succeed in ending this trade, to tempt us into thinking that success in abolishing abortion is on the cards as well, if “pro-lifers” simply try hard enough to criminalize it. But the question that Anderson is pretending to answer depends precisely on the denial of this premise. The real issue at hand is not what “pro-lifers” should do when presented with “people who claim” that banning abortions will not stop abortions. The issue is rather what “pro-lifers” should do given that the record shows that banning abortions will not stop abortions. Second, very much related, Anderson’s real position seems to be that we should simply set the record aside, because with enough determination and creativity deployed over a sufficiently long timespan, “pro-lifers” should be able to convince a critical mass of the population of the profound wrongness of abortion, in much the same way that slavery today is universally condemned as a heinous wrong. But there is no reason whatsoever to accept this parallel. It is utterly implausible to think that the overwhelming majority of women could be convinced to see the termination of an unwanted pregnancy as a wrong that is on a par with owning slaves.⁴¹ To tell any woman who is considering terminating a pregnancy—let alone women whose pregnancies result from rape, for example—that actually pursuing an abortion would make them the moral equivalent of a slave holder (as opposed to the victims of forced servitude) is, to put it mildly, unlikely to be persuasive in any world that a practical philosophy should entertain.⁴² Nor, of course, should such a claim be persuasive. Third, again related, slavery was intimately tied to the law in a way that abortion is not. Once the legal institution of slavery was abolished, the practice of slavery itself took a major blow. Plainly, this is not the case for abortion, which is precisely why the issue with which Anderson is pretending to grapple arises in the first place. To say it yet again: Millions of women in the United States, and many more worldwide, will continue to seek and obtain abortions irrespective of what any law says.

conditions, since all run the risk of capture in war, this form of slavery is less unjust than present custom.” Rawls, TJ, 218. ⁴¹ See, e.g., Sam Zaleski, “More Republican women than you think have had abortions. here’s how I know.” Politico, July 31, 2022. Consider also the lopsided (and much-discussed) victory for the pro-choice camp in an abortion referendum in Republican Kansas. See, e.g., John Cassidy, “The Kansas abortion referendum has a message for Democrats,” New Yorker, Aug. 5, 2022, at https://www.newyorker.com/news/our-columnists/the-kansas-abortion-referendum-has-amessage-for-democrats ⁴² For a particularly chilling and high-profile example, revolving around the rape of a 10-year-old child, see David Folkenflik and Sarah McCammon, “A rape, an abortion, and a one-source story: A child’s ordeal becomes national news,” NPR, July 13, 2022, at https://www.npr.org/2022/07/13/ 1111285143/abortion-10-year-old-raped-ohio

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3.4 The Expressive Justification I hope to have shown that “pro-lifers” are poorly served by any argument which asserts that a legal ban on abortion would have the consequence of stopping abortions. In this section I therefore want to examine a very different argument which opponents of abortion might invoke. This argument does not depend on the unrealistic assumption that the state is able to eliminate (or even significantly reduce) abortions through the law. Instead, the argument in which I am interested is expressive in character. It holds that by enacting laws which formally classify abortion as murder, the political community expresses an intrinsically valuable collective attitude. That is, independently of any behavior that the relevant laws might incentivize, such laws are important insofar as they officially recognize the equal “human dignity”⁴³ of the victims of abortion.⁴⁴ Three preparatory remarks are important before delving into this argument. First, I should make clear that (to the best of my knowledge) the pro-life camp has not offered any sustained arguments along expressivist lines. But for the purposes of “worldviewing,” as I called it in chapter 1, what matters more is that the expressivist position represents pro-lifers’ best hope.⁴⁵ The second point has to do with a general motivation for discussing the expressivist view—namely, its alignment with core deontic positions regarding political morality in general, and with the morality of criminal justice institutions in particular. Unlike consequentialist moral theories, deontological theories often pay attention to how policies in areas such as criminal justice treat their subjects, independently of how subjects are affected by the relevant policies. Two policies—the deontic thought goes—can differ morally, even if their on-the-ground effects are virtually identical, because and insofar as they treat their subjects differently. The

⁴³ Invocations of human dignity are ubiquitous in anti-abortion rhetoric. See, e.g., “The Right to Life and the Dignity of the Human Person,” California Catholic Conference, at https://cacatholic. org/article/right-life-and-dignity-human-person; Casey Hough and Chelsea Petterson Sobolik, “How abortions restrictions protect human dignity: The importance of legislation for the pro-life cause,” Ethics and Religious Liberty Commission, June 24, 2019, at https://erlc.com/resource-library/articles/ how-abortions-restrictions-protect-human-dignity/. For an overview, see Reva Siegel, “Dignity and Sexuality: Claims on Dignity in Transnational Debates over Abortion and Same-Sex Marriage,” International Journal of Constitutional Law 10 (2012): 355–379. ⁴⁴ Some important contributions to the literature emphasize that an expressivist approach to the law can still be attentive to the incentives that the law generates (see, e.g., Elizabeth Anderson and Richard Pildes, “Expressive Theories of Law: A General Restatement,” University of Pennsylvania Law Review 148 [2000]: 1503–1575). I do not mean to deny this general point. My formulation here is simply meant to render more precise what is the specific expressive position that I wish to tackle in the particular context at hand. ⁴⁵ This might very well be especially true for the “Mexico City policy” that pro-lifers have been pushing in the international arena. This policy ([re]enacted by every Republican president since Reagan only to be revoked under democratic administrations) eliminates U.S. funding for international nongovernmental organizations that perform or promote abortions. Here it is especially clear that an expressive rationale must underlie the pro-life position, since the U.S. government is (plainly) even less capable of stopping abortions beyond its borders than within its own jurisdiction.

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reason for the difference, in turn, is that by adopting certain policies, the political community—or at least, the leaders who are acting in the community’s name— express a particular attitude towards the relevant subjects. Yet the moral weight of this attitude is not entirely reducible to its on-the-ground effects. To make this thought more concrete, consider for example Philippines President Rodrigo Duterte, who “joked” to soldiers that if they rape three women under the martial law imposed in the south of the country, he promises them his protection.⁴⁶ Now compare this statement to a hypothetical scenario, where the president of another country orders a reorganization of law enforcement agencies in pursuit of greater efficiency, leading to enforcement difficulties which in turn yield a marked increase in the incidence of rape. Even if this hypothetical policy shift has the same practical implications as Duterte’s statement with regard to the actual number of rape incidents, the expressivist position immediately captures the powerful conviction that Duterte’s statement is qualitatively worse. The reason is that this statement expresses official approval of the most blatant subordination of women: It means that the government endorses the most egregious way in which men can use women as mere means. To the extent that an expressivist justification for anti-abortion laws can trade on such compelling intuitions, it is worth taking seriously. To be clear, in saying all this, I do not mean to say that the expressivist rationale for a legal ban on abortion is actually compelling. In particular, it is not hard to see why this rationale would be vulnerable to powerful consequentialist critiques, pointing to the steep cost of the symbolic message of anti-abortion laws: there is surely some number of avoidable deaths and injuries associated with backalley abortions that would outweigh the expressive value of laws pushing abortion into the shadows. This is true even if one grants, solely for the sake of discussion, both that abortion is murder and that “expressive” laws condemning the murder of foetuses have intrinsic moral value. In what follows, however, I want to develop a more internal critique of the expressivist position. This critique puts center stage the person on whom, as we have already seen, the most ardent “pro-lifers” have pegged their hoped-for anti-abortion laws: Donald Trump. The anti-abortion Trump voter that we are considering here holds that there is decisive expressive value in the state explicitly proclaiming abortion illegal, even if it is powerless to actually prevent abortions from happening, and even if a formal prohibition on abortion is more likely to increase than to decrease the overall number of deaths (by risking the lives of women who are pushed to have abortions in the shadows). According to this

⁴⁶ Joe Sterling and Buena Bernal, “Duterte jokes about rape while rallying troops to fight militants,” CNN, May 28, 2017, at http://edition.cnn.com/2017/05/26/asia/philippines-duterte-speech/ index.html

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voter, by outlawing abortion, even in the face of all of these countervailing considerations, the state is expressing symbolic but morally crucial respect for the most vulnerable—foetuses—whose dignity would otherwise go unrecognized by the political community. However, even if we work within the highly questionable premises of this kind of argument, it is unclear how it can be reconciled with the expressive offense inherent in making Trump president. The main problem is simply this. It is hard to see why the political community’s (supposed) expressive disregard for the equal moral status of foetuses is more disturbing than the community’s disregard for the equal status of all of those who have been blatantly disrespected by Trump and his administration.⁴⁷ Think of Mexicans whom Trump labeled “rapists.”⁴⁸ Or of people with disabilities mimicked and mocked by Trump during campaign rallies.⁴⁹ Or of citizens of developing nations that Trump infamously labeled “shithole countries.”⁵⁰ Or of Muslim Americans whose equal status as citizens Trump dismissed even when their loved ones gave up their lives while serving in the U.S. military.⁵¹ Or of protesters against police brutality who Trump argued ought to be shot.⁵² Or of numerous women subjected to Trump’s misogyny.⁵³ Or of migrant children torn from their parents’ arms under Trump’s “zero tolerance” border policy.⁵⁴ If it is intrinsically important for the political community to express, through the law, its disapproval of violations of the rights of the most vulnerable, how can the political community coherently confer its ultimate seal of official approval— the highest office in the land—on someone who has repeatedly, in both word and deed, dismissed the equal standing of so many human beings? Surely, if it matters so much that the political community treats the most vulnerable in certain ways, independently of how the vulnerable are affected by the community’s policies, then

⁴⁷ For a useful contrast between Trump and his predecessors on this score, see Mary Stuckey, “The Power of the Presidency to Hurt”: The Indecorous Rhetoric of Donald J. Trump and the Rhetorical Norms of Democracy,” Presidential Studies Quarterly 50 (2020): 366–391. ⁴⁸ “Drug dealers, criminals, rapists”: What Trump thinks of Mexicans,” BBC News, Aug. 31, 2016, at https://www.bbc.com/news/av/world-us-canada-37230916 ⁴⁹ “Donald Trump under fire for mocking disabled reporter,” BBC News, 26 November, 2015, at https://www.bbc.com/news/world-us-canada-34930042 ⁵⁰ Ali Vitali, Kasie Hunt and Frank Thorp, “Trump referred to Haiti and African nations as ‘shithole’ countries,” NBC News, Jan. 11, 2018, at https://www.nbcnews.com/politics/white-house/trumpreferred-haiti-african-countries-shithole-nations-n836946 ⁵¹ Brian Klass, “A short history of President Trump’s anti-Muslim bigotry,” The Washington Post, March 15, 2019, at https://www.washingtonpost.com/opinions/2019/03/15/short-history-presidenttrumps-anti-muslim-bigotry/ ⁵² Martin Pengelly, “Trump told top US general to ‘just shoot’ racism protesters, book claims,” The Guardian, 25 June, 2021, at https://www.theguardian.com/us-news/2021/jun/25/donald-trumpgeneral-mark-milley-crack-skulls ⁵³ Jill Filipovic, “Our President has always degraded women—and we’ve always let him,” Time, Dec. 5, 2017, at https://time.com/5047771/donald-trump-comments-billy-bush/ ⁵⁴ “Family separation under the Trump administration—a timeline,” Southern Poverty Law Center, June 17, 2020, at https://www.splcenter.org/news/2020/06/17/family-separation-under-trumpadministration-timeline

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it must also matter how the community’s elected leader treats those subjected to the government’s power—especially the most vulnerable. Since the core complaint here is fairly clear, the best way to develop it is to anticipate objections in some detail. I want to start with a straightforward objection, according to which the incoherence complaint is misleading, because Trump has not actively endorsed murder, even if he has often failed to condemn violence as forcefully as he ought to. Several responses can be made here. For one thing, to state an obvious but important point, no U.S. jurisdiction “actively endorses” abortion, in the sense of actively calling on any pregnant woman to pursue one. Furthermore, Trump has actively endorsed violence, both as a candidate and as president. As a candidate, Trump infamously vowed to torture terrorist suspects.⁵⁵ And, to make things even worse, as president, Trump insisted on pardoning multiple private contractors working with the U.S. military, who went on murderous rampages against fourteen innocent Iraqi civilians outside of any combat situation—as straightforward an example of “official endorsement of murder” as one could imagine.⁵⁶ This example, moreover, was far from an isolated incident. Anyone who has paid even the slightest attention to Trump’s political ascent would have been aware of his repeated sympathy for political violence. Here are only a few examples out of many.⁵⁷ In a February 2016 campaign rally, Trump assured a crowd of virulent supporters that he will pay their legal fees if they “knock the hell out” of any potential heckler. Following the violent clashes in Charlottesville, Trump infamously refused to single out neo-Nazis for blame, even though they literally wore their violent agenda on their sleeves, alongside their Hitler-youth-style torches. In the run-up to the 2020 election, Trump lavished praise on supporters who pushed a Biden campaign bus off the road in Texas.⁵⁸ It is no surprise, then, that in the immediate aftermath of the horrific events of January 6, Trump spoke in affectionate terms about the violence unleashed by the insurrections in the U.S. Capitol, notwithstanding their publicly documented desire to execute senior members of government, including a gallows set up on the Capitol for his own vice president.⁵⁹

⁵⁵ See, e.g., Adam Serwer, “Can Trump bring back torture?” The Atlantic, Jan. 26, 2017, at https:// www.theatlantic.com/politics/archive/2017/01/trump-torture/514463/ ⁵⁶ See, e.g., Rachel VanLandingham and Geoffrey Corn, “Trump’s Blackwater pardons erase the line between slaughter and justified wartime violence,” USA Today, Dec. 23, 2020, at https://www. usatoday.com/story/opinion/2020/12/23/trump-pardons-american-war-criminals-undermines-rulelaw-column/4026014001/ ⁵⁷ For all of these (and multiple other) events, see Fabiola Cineas, “Donald Trump is the accelerant: A comprehensive timeline of Trump encouraging hate groups and political violence,” Vox, Jan. 9, 2021, at vox.com/21506029/trump-violence-tweets-racist-hate-speech. ⁵⁸ See Ella Lee, “‘Trump Train’ drivers who tried to run Biden bus off road sued under KKK Act,” USA Today, June 25, 2021, at www.usatoday.com/story/news/politics/2021/06/25/trump-traindrivers-almost-ran-biden-bus-off-road-sued/5348859001/ ⁵⁹ None of these events, it should be added, meaningfully hurt Trump’s approval rates among evangelicals.

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Beyond all of these examples, there is also a deeper point. No one seriously argues that, in order to uphold persons’ equal dignity, it is sufficient simply to ensure that they not be murdered. Torture, for example, clearly deprives its victims of their dignity even if they live on. The same is arguably true, even if less obviously, for myriad other forms of humiliation and egregious mistreatment. When Trump became the first presidential candidate in history to mimic and mock a person with severe disabilities at a campaign rally, it was hardly a comfort to anyone concerned with the dignity of the disabled that this “comedy routine” did not translate into direct violence against his target (a New York Times reporter who was in the audience⁶⁰). Similarly, following the October 2016 release of the Access Hollywood recordings of Trump’s boasting about unsolicited grabbing of women’s genitalia, anyone concerned with the dignity of women would have derived little solace from Trump’s muted apology, and even less solace from his subsequent insistence that the recordings were fake.⁶¹ Now consider another objection. According to this objection, there is a difference between the symbolic message inherent in passing (supposedly) repugnant laws, and the message that is inherent in the act of electing a repugnant person as a leader. The former is worse than the latter. But it is unclear why we should think this. Perhaps this objection would make sense in the context of a plebiscite, where ordinary citizens are asked to make direct decisions about abortion’s legal status. Under such circumstances, someone who truly believes that abortion is murder could argue that by proclaiming abortion legal, the political community expresses a particularly disturbing message about the value of the lives of the unborn, simply because it endorses this message through voters’ direct choice. The circumstances at hand, however, are quite different, since most significant pieces of legislation bearing on abortion are enacted by specific representatives. And there is no obvious reason to think that the political community is more directly implicated in the decisions of its representatives in the legislative branch, as compared to the decisions or conduct of the person it places at the office of chief executive. So there is no reason to draw a strong distinction between the expressive weight of laws passed by elected representatives, and the expressive weight of the conduct of the country’s elected chief executive. It follows that if there is any morally relevant difference here, it has to lie elsewhere. More specifically, I believe that it has to do with the passage of time. Changes in the status of the law can, at least in principle, outlive individual politicians who bring them about. So our anti-abortion Trump voter might argue that, as time passes, the symbolic taint associated with Trump’s elevation to the presidency ⁶⁰ See, again, “Donald Trump under fire for mocking disabled reporter,” BBC News. ⁶¹ Emily Stweart, “Trump has started suggesting the Access Hollywood tape is fake. It’s not.” Vox, Nov. 28, 2017, at https://www.vox.com/policy-and-politics/2017/11/28/16710130/trump-says-accesshollywood-tape-fake

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will be effectively washed away by the much more enduring change in abortion law that Trump’s (life-long-appointed) Supreme Court picks were chosen to deliver. This temporal argument, however, turns the position of the anti-abortion Trump voter into an unsteady hybrid of consequentialist and nonconsequentialist commitments. For one thing, there is something fundamentally odd about casting the anti-abortion position here as concerned with intertemporal tradeoffs—with long-term gains in symbolic content in the law outweighing short-term symbolic costs due to a Trump presidency. These kinds of trade-offs, after all, are the hallmark of consequentialist arithmetic, and (more specifically) of the consequentialist’s unwavering commitment to the maximization of value. Yet we are already in a position to see why the view of the anti-abortion Trump voter must be fundamentally nonconsequentialist. After all, if we are in the business of maximizing value, then our commitment to the value of life should push “pro-lifers” to adopt the policy course which would save the most lives. And, as we have already seen, that priority strongly supports continued (and extended) legalization rather than criminalization of abortion. So the anti-abortionist’s stance only begins to make sense once we adopt a fundamentally nonconsequentialist outlook, according to which the central moral value of human dignity is understood as a constraint to be honored, rather than as a function to be maximized. Intertemporal trade-offs fit poorly within this picture. Furthermore, problems remain even if we bracket this difficulty. This is because, in order for the intertemporal trade-off to make sense, those advocating it must be reasonably confident that changes in abortion law brought about by Trumpappointed justices would actually endure over time (otherwise, these changes clearly cannot outweigh the symbolic shorter-term offense inherent in a Trump presidency). Yet there is no empirical basis for such confidence.⁶² This is especially true in light of the progressive backlash that Trump’s personality and policies (and, more generally, Republican intransigence) have generated. This backlash has already featured progressive efforts to enact laws codifying Roe v. Wade.⁶³ But, just as pertinently, the same backlash has also rendered previously radical ideas regarding court-packing—as well as term limits and mandatory retirements for justices—far more mainstream within the Democratic Party.⁶⁴ None of these facts lend credence to a “long-term” anti-abortion rationale for supporting Trump.

⁶² See, e.g., John Harris, “How Ruth Bader Ginsburg will have the last laugh on Samuel Alito,” Politico, Aug. 4, 2022. ⁶³ See, e.g., Linda McClain, “What would it mean to codify Roe into law—and is there any chance of that happening?,” The Conversation, May 5, 2022. ⁶⁴ See, e.g., Ian Millhiser, “The most radical Democratic plan to fix the Supreme Court yet,” Vox, January 31, 2020, at https://www.vox.com/2020/1/31/21115114/court-packing-supreme-court-tomsteyer-mitch-mcconnell

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With all this in view, we can turn to the final objection. This objection holds that it is misleading to say—as I do—that the only attainable goal of the criminalization of abortion would be honoring the value of life rather than saving lives. Surely the number of women who will complete their pregnancy because of strict criminalization of abortion is not zero. So criminalization will save at least some innocent lives, even if at the expense of culpable lives—that is, the lives of women who are trying to commit or commission murder. Note, however, that positions of this sort are avoided even by all but the most extreme anti-abortionists in actual public discourse. In much the same way that they overwhelmingly oppose calls to bomb abortion clinics as “moral madness,”⁶⁵ the vast majority of opponents of abortion have strenuously sought to portray their views as empathetic to women who are considering an abortion, instead directing the bulk of their moral blame—and legal proposals—to deterring and condemning medical professionals who perform abortions.⁶⁶ This self-portrayal, in turn, is likely to be driven (at least in part) by the fact that the extreme view I just outlined is implausible on its face. Even if one genuinely believes that abortion is murder, the unparalleled physical burdens that pregnancy involves for women, not to mention the financial and emotional pressures that accompany abortion decisions for many women, doom from the outset any attempt to equate their moral position to that of people who culpably and inexcusably commit or commission murder.

3.5 Conclusion If my claims here have been cogent, then the anti-abortion movement, so crucial to Republicans’ electoral prospects in the twenty-first century, has reasons to rethink the voting choices that follow directly from its own commitments—even irrespective of more familiar external criticism of these commitments. This is especially true so long as Donald Trump and his acolytes remain a central force in Republican politics. But, if what I said in the chapter’s introduction is correct, the same might very well be true even after Trump disappears from the political stage. Taking a broader perspective, it is worth noting an important sense in which this chapter’s argument deviates from what is arguably the standard way of thinking about responsible voting. On the standard view, a responsible voter forms an educated opinion about the public issues of the day, learns what candidates for the relevant office promise to do regarding these issues, assesses how likely it is that the ⁶⁵ Robert George, “Infanticide and Madness,” Journal of Medical Ethics 39: 299–301. https://doi. org/10.1136/medethics-2012-101203 ⁶⁶ Put simply, “criminal penalties for pregnant people are a third rail most Republican lawmakers still aren’t willing to touch.” Messerly and Ollstein, “Republicans turn on each other.” See also Douthat, “The new politics of abortion,” The New York Times, Aug. 6, 2022.

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relevant candidates will live up to their promises, and casts a ballot accordingly. To the extent that any judgments about the candidate’s personal virtues or vices feature in a voter’s reflections, these judgments appear, as it were, in a separate ledger: These judgments have no substantive connection to the voter’s assessment of the relevant policy issues. As a result, there is no reason why the particular justification that leads voters to support a particular policy should affect their willingness to back any particular candidate. This chapter’s argument, however, suggests that such an effect can exist, and can even be decisive in shaping voting choices—at least for those who are single-issue voters, and/or are sympathetic to the views of such voters. Taking a broader perspective still, one could of course argue that being a single issue voter is never a good idea, regardless of which is the chosen issue. I think that this complaint has considerable force. But of course, it is partly because singleissue voting is problematic—and is, indeed, often unreasonable—that it represents a natural target for the strategic method. There is, however, an important—if limited—silver lining in debating singleissue voters. To be sure, such voters (just like the politicians examined in the previous chapter) may very well be intellectual fanatics, and their fanaticism may generate a tunnel vision view of politics that is at best frustrating and at worst dangerous. But such voters are often still engaged—in their own way—in good-faith normative conversation. In contrast, the following chapters take up unreasonable political actors of a very different sort. These actors too are unreasonable. But this is not because they have a tunnel vision conception of a narrow set of (supposed or genuine) moral considerations, which renders them blind to any other part of the moral landscape. Rather, these actors are unreasonable in their effective indifference to any moral argumentation—that is, in their amoralism. These actors are invested in debating the morality of public policy only insofar as winning the debate allows them to advance their amoral interests. Unfortunately, these actors also tend to be much more powerful than the overwhelming majority of voters. That is true, at the very least, when thinking about amoral corporations—the main targets of the following chapters.

4 Too Big to Fail and Too Big to Jail? A Strategic Response to Corporate Crime

The remainder of this book revolves around corporate policy arguments. The most immediate reason for this focus is the sheer political clout of major corporations. The more indirect reason has to do, once more, with the concept of the “burdens of politics” introduced in chapter 1. In that chapter, I argued that bad policy premises can often generate vicious cycles: The policies to which these premises lead reinforce conditions that continually impede decent people’s reasoning about certain moral issues, thus perpetuating the hold that the relevant premises—notwithstanding their obvious flaws—exert on the policy conversation. In the opening chapter, I noted that these vicious cycles can take multiple forms, depending on the relevant political context. I also noted, more specifically, that the burdens of politics are especially salient in the context of extensive economic inequality, since such inequality means that the least advantaged are very likely to lack the time, leisure and analytical tools with which to reflect on the finer details of moral arguments regarding public policy. This fact clearly benefits actors who have a disproportionate stake in perpetuating socioeconomic inequalities. This is where corporations’ policy arguments—and the self-serving policy premises they strive to sustain in public discourse and in public consciousness—come in. Accordingly, my focus in the following chapters will lie with strategic arguments for political reform that operate—solely for the sake of discussion—within corporate-friendly premises. As a way of motivating and setting the stage for these arguments, the chapter’s opening section briefly surveys corporate efforts to shape policy discourse, especially in the United States, including some of the less discussed ways in which the dangerous success of these efforts, much like the other burdens of politics sketched in chapter 1, is self-reinforcing. The chapter’s subsequent sections zoom in on wrongdoing by major banks during the financial crisis, providing the first illustration of strategic argumentation within corporate premises.

Philosophizing the Indefensible. Shmuel Nili, Oxford University Press. © Shmuel Nili (2023). DOI: 10.1093/oso/9780198872160.003.0005

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4.1 Self-Reinforcing Corporate Clout, and Corporate Policy Premises The self-reinforcing character of corporate dominance in American politics has often been captured by egalitarian philosophers through reference to the corrosive impact of corporate money on the most direct mechanisms of the political process, from expensive lobbying for specific bills to financing of electoral campaigns.¹ Few philosophers, then, would be surprised by the decades-long trends reported by former Senate Staffer Lee Drutman:

In 2012, politically active organizations reported $3.31 billion in direct lobbying expenses, down slightly from $3.55 billion in 2010 but up significantly from $1.82 billion just 10 years earlier and, controlling for inflation, almost seven times the estimated $200 million in lobbying expenses in 1983. More than three-quarters of that money has consistently gone towards representing corporate America.

Corporations are highly visible and pervasive political actors in modern Washington. In 2012, 372 companies reported spending at least $1 million on lobbying. The most active, General Electric, reported $21.4 million in lobbying expenditures, followed by Google at $18.2 million. A total of 3,587 individual corporations reported a combined $1.84 billion in lobbying expenditures, roughly 56 percent of all the disclosed money spent on lobbying in 2012. Add in another $553 million in spending by trade associations and $175 million in spending by business-wide associations, and that’s $2.57 billion in combined spending—78 percent of all the money spent on lobbying in 2012. While these are big numbers, there is good reason to believe that they significantly undercount the true corporate investments in

¹ Just as Dworkin, for example, expressed the standard egalitarian sentiment when describing campaign finance as the “curse of American politics,” Rawls derided corporate lobbying, and especially lobbyists’ direct involvement in drafting legislation, as “selling the public trust.” See, respectively, Dworkin’s “The Curse of American Politics,” New York Review of Books, Oct. 17, 1996; Samuel Freeman, Justice and the Social Contract: Essays in Rawlsian Political Philosophy (Oxford: Oxford University Press, 2006), 326. For particularly direct examples of how campaign financing considerations neutered reform of the financial sector in the aftermath of the financial crisis, see Michael Hirsh, Capital Offense: How Washington’s Wise Men Turned America’s Future Over to Wall Street (Hoboken, NJ: Wiley, 2010), passim, e.g., at 295–297. For the latest examples of American politicians’ continued dependence on corporate support, even in an era in which both Republicans and Democrats go out of their way to present themselves as populists suspicious of corporate power, see, e.g., Greg Sargent, “Opinion: The GOP threats against ‘woke’ corporations are toothless—exactly as intended,” The Washington Post, April 6, 2021, at www.washingtonpost.com/opinions/2021/04/06/gop-threats-against-woke-corporationsare-toothless-exactly-intended/; Alex Kotch, “The Democrat blocking progressive change is beholden to big oil. Surprised?,” The Guardian, July 20, 2021, at www.theguardian.com/commentisfree/2021/ jul/20/joe-manchin-big-oil-democratic-senator; Alex Isenstadt, “GOP megadonors flock to Tim Scott, building 2024 buzz,” Politico, Aug. 9, 2021, at https://www.politico.com/news/2021/08/09/tim-scottmega-millions-fundraising-502764.

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politics, given that so much political influence activity is not covered by lobbying disclosures.²

Yet while many philosophers would regard such figures as sadly predictable, rarely do philosophers discuss the self-reinforcing way in which these figures ultimately shape the basic premises underlying policy debates. Given the constant increase in the complexity of legislation, and the parallel increase in lobbying competition, legislators and their staffers are bombarded with ever-growing amounts of information. The most common way to cope with this information avalanche is to make fast judgments on the basis of familiar assumptions and narratives—those assumptions and narratives that are readily accessible, given their prominence in the intellectual conversation to which legislators and staffers are exposed. And their abundant resources mean that corporate lobbyists are uniquely well positioned to shape that conversation—both among policymakers and ultimately in the general public. Here is Drutman again: Companies and industries are investing more and more into shaping the “intellectual environment” of Washington . . . the endless array of articles and op-eds, white papers and speeches, think tank reports and panel discussions, academic studies, Metro ads, and other topics of the “Washington conversation.” [Companies and corporations are] overloading the minds of policymakers and their staff so that when the time comes to make a decision, certain arguments and frames will come to mind quicker than others, and certain ideas and solutions will have been prelegitimated by a wide range of trusted experts. [. . .] Each individual policy paper, memo, invited panel, or op-ed may by itself be meaningless and forgettable. But if staffers and decision-makers are asked to respond to them, they must engage with them, even if just momentarily. They may listen to the same arguments over and over again. Over time, these arguments begin to sound familiar and, through constant repetition, they achieve a top-of-mind status. They can also come to gradually shape the “causal stories” that underlie policymaking.³

Many examples can be offered of successful policy framing efforts on the part of major corporations. But given the global themes running through the remainder of this book, it might be helpful to note specifically just how successful corporations have been in framing discussions of various global reform proposals in binary ways, contrasting the status quo only with its complete reversal. Thus for instance, ² Lee Drutman, The Business of America Is Lobbying (New York: Oxford University Press, 2015), 8– 9. There is little reason to think that the role of money in shaping U.S. political outcomes has decreased since 2012. Alongside the examples cited in the previous note, see, e.g., Benjamin Page and Martin Gilens, Democracy in America? (Chicago, IL: University of Chicago Press, 2018); Benjamin Page, Jason Seawright, and Matthew Lacombe, Billionaires and Stealth Politics (Chicago, IL: University of Chicago Press, 2019). ³ Drutman, The Business of America Is Lobbying, 36.

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pharmaceutical companies often defend the current patent system for pharmaceutical innovation by contrasting the status quo with scenarios where there the removal of patent rights completely takes away the incentives for innovation.⁴ Corporations opposing large-scale green reforms often try to argue that an essentially binary choice must be made between economic and environmental goals.⁵ Many firms justify their purchases of sweatshop goods by appealing to the interests and choices of sweatshop workers, who “would prefer to be employed in sweatshops over not having any employment at all.”⁶ The main reason why we are so familiar with these binary understandings of global reform proposals is that corporations have been extremely effective in shaping policy discourse about these proposals. That is arguably why policy alternatives that go beyond simple binary choices are frequently overlooked. Thus for instance, rather than thinking about pharmaceutical innovation in binary terms, as a goal that can only be achieved under the present patent system or not at all, we can think more creatively. Among other things, we can consider incentive structures that reward pharmaceutical innovation on the basis of its contribution to the health of the greatest number of people around the world, rather than strongly pushing innovation (as the current patent system does) to cater to the needs of those who are able to pay the highest rates, leading to a vastly disproportionate focus of the pharmaceutical industry on first-world luxuries.⁷ Similarly, instead of thinking about policy options with regard to sweatshops in binary terms—as if the only choices are to boycott sweatshops entirely or to treat them as perfectly legitimate business—we can think of more nuanced alternatives, including both “sticks” (such as the imposition of punitive taxation on corporations known to systematically use sweatshop goods in their supply chains) and “carrots” (such as special tax breaks for corporations that pursue meaningful improvements in the safety, health, and educational opportunities of sweatshop workers). The ubiquitous tendency to view such policy issues as binary ones obscures the relevance—and even the very existence—of these more varied policy options. And this fact is entirely to the benefit of corporations, which is why corporations ⁴ See for instance Henry Grabowski, “Patents, Innovation, and Access to New Pharmaceuticals,” Journal of International Economic Law (2002): 849–460; Brian Schwartz, “Big Pharma lobbyists launch campaign against Biden over Covid vaccine patent waiver,” CNBC, June 1, 2021, at https://www.cnbc.com/2021/06/01/big-pharma-launches-campaign-against-biden-overcovid-vaccine-patent-waiver.html ⁵ See, e.g., Bjorn Lomborg, The Skeptical Environmentalist (Cambridge: Cambridge University Press, 2001), 322; Lisa Friedman and Coral Davenport, “Amid extreme weather, a shift among Republicans on climate change,” The New York Times, Aug. 13, 2021. ⁶ See, e.g., Michael Kates, “The Ethics of Sweatshops and the Limits of Choice,” Business Ethics Quarterly 25 (2015): 191–212; Chelsea Follett, “Why You Shouldn’t Knock ‘Sweatshops’ If You Care about Women’s Empowerment,” Cato Institute, July 19, 2017, at https://www.cato.org/commentary/why-youshouldnt-knock-sweatshops-you-care-about-womens-empowerment ⁷ This is the idea driving, for example, the proposal for a global Health Impact Fund. See, e.g., Amitava Banerjee, Adrian Hollis, and Thomas Pogge, “The Health Impact Fund: Incentives for Improving Access to Medicines,” Lancet 375 (2010): 166–169.

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strive to make binary perspectives entrenched in policy discourse. This dynamic too is self-reinforcing, if nothing else because the longer the status quo endures, and corporate affluence increases while government resources decrease, the less government is able to provide robust funding supporting impartial assessments of various global reform proposals. Thus more policy terrain is left to think tanks, often funded by major corporations to produce policy assessments favorable to corporate interests.⁸ Now, if the vicious cycles of corporate influence on the shape of policy discussions are to be broken, what would be the most likely cause? Realistically, the answer is that these cycles are most likely to be disrupted by external shocks, which will carry their own considerable practical and moral risks. This, at least, is what past experience suggests regarding policies that fundamentally conflict with corporate interests. The landmark Foreign Corrupt Practices Act of the 1970s, for example, which prohibited corporate bribery of foreign officials, would have probably not come into being without the external shock produced by the Watergate scandal.⁹ To take a more recent example, any plausible account of legal reforms concerning the regulation of the U.S. financial system has to start from the enormous external shock of the U.S. financial crisis, and the tremendous risks that this crisis posed to the American and global economy.¹⁰ If these examples are anything to go by—and there is every reason to think so—then we should expect future challenges to corporations’ political clout to similarly arise through external shocks, with all of the serious dangers they involve.¹¹ This stark prediction, in turn, has important implications for the kinds of inquiries that normative political theorists should pursue insofar as they are concerned with the real world. For if corporate political clout can only be expected to deepen in the foreseeable future, and if the likely paths to fundamental change involve external shocks that are both unknown and dangerous, then it makes pragmatic sense for political theorists to try to design arguments that take this corporate clout as a given. In particular, it makes pragmatic sense for political theorists to design arguments in favor of realworld reforms that begin—arguendo—from normative and empirical premises often advanced by corporations and their political allies. One way to understand such arguments is to see them as offering a basis for hope—for showing how even within a democratic policy discourse dominated by ⁸ See Thomas Medvetz, Think Tanks in America (Chicago, IL: University of Chicago Press, 2012). See also John Roemer, “Why Does the Republican Party Win Half the Votes?” In Ian Shapiro, Susan Stokes, Elisabeth Jean Wood, and Alex Kirshner (eds.), Political Representation (Cambridge: Cambridge University Press, 2010), 304–323; Page and Gilens, Democracy in America? 124, 148. ⁹ An American businessman who “keeps paying foreign officials,” as The New York Times put it in the mid-1970s, “runs afoul of the post-Watergate morality in all its fury” (see Milton Gwirtzman, “Is bribery defensible,” New York Times Magazine, Oct. 5, 1975, p. 19. Quoted in Mike Koehler, “The Story of the Foreign Corrupt Practices Act,” Ohio State Law Journal 73 [2012]: 929–1013, at 977). ¹⁰ See discussion below. ¹¹ The ongoing COVID-19 pandemic is quite obviously a case in point. It remains to be seen whether the net enduring effect of the pandemic will be to amplify or tame corporations’ political power.

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corporations, at least some positive political changes can be given a coherent justification even while taking seriously the assumptions favored by corporations. Part of the relevant hope (in line with what I said earlier) is that the policy reforms supported by such strategic arguments will, in checking corporate power, also generate a public environment that is more amenable to better policy premises and to deeper societal changes. And one can at least dream that such an environment, in turn, would contribute to the educational and socioeconomic empowerment of those who are less well off, putting them in a much better position to reason in more sustained and rigorous fashion about the morality of public policy, using something closer to the best first principles. In this fashion, the better (strategic) policy arguments may turn out after all to be the allies (in due course) of the best arguments, in the manner highlighted in the opening chapter. I now turn to the first example of how such hopeful argumentation can proceed, by taking on a subject where corporate policy dominance has been felt in especially acute ways: financial crime. More specifically, I deploy strategic theorizing to examine legal punishment of criminal wrongdoing by major banks.

4.2 Financial Crime: Setting the Stage Demands for stern punishment of corporate wrongdoing are a familiar feature of contemporary politics in general, and contemporary American politics in particular. The prevalence of such demands is not surprising. Whether one is thinking about deadly engineering mistakes by General Motors,¹² about environmental disasters such as BP’s oil spill,¹³ or about coal companies that willfully ignore safety regulations in a manner that leads to dozens of deaths,¹⁴ a stern legal response to corporate failures clearly seems warranted. However, at least in recent years, the U.S. Department of Justice has been extremely cautious in its response to corporate wrongdoing. Its response to the financial crisis of 2008-2009 is a prominent example. Despite numerous claims that outright fraud—a criminal offense—has been central to the crisis, none of the major banks involved, nor any of their executives, was ultimately confronted with criminal charges. Instead, the banks have benefited from what one prominent scholar calls the “de facto regime of corporate criminal liability,” revolving around ¹² See Chris Isidore, “Death toll for GM ignition switch: 124,” CNN MONEY, Dec. 10, 2015, at https://money.cnn.com/2015/12/10/news/companies/gm-recall-ignition-switch-death-toll/index. html ¹³ See, e.g., Daniel Gilbert and Sarah Kent, “BP agrees to pay $18.7 billion to settle Deepwater Horizon oil spill claims,” Wall Street Journal, July 2, 2015. ¹⁴ See e.g., Howard Berkes, “Union: W.Va. mine disaster was ‘industrial homicide,’ ” NPR, Oct. 25, 2011, at www.npr.org/sections/thetwo-way/2011/10/25/141681614/union-w-va-mine-disaster-wasindustrial-homicide; Howard Berkes, “Coal mines keep operating despite injuries, violations and millions in fines,” NPR, Nov. 12, 2014, at https://www.npr.org/2014/11/12/363058646/coal-mines-keepoperating-despite-injuries-violations-and-millions-in-fines

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deferred prosecution agreements and nonprosecution agreements.¹⁵ Under these agreements, hundreds of which have been signed in recent years,¹⁶ corporations avoid criminal prosecution by paying fines and committing to reform their practices. Many of these agreements have been the subject of intense criticism. One reason is that the fines they involve are usually miniscule compared to corporate revenues and assets, and accordingly have become “just another cost of doing business.”¹⁷ Another reason is that corporations commit themselves to pursue internal reforms primarily—if not only—as a public relations exercise.¹⁸ Complaints of this sort fuel the worry that the Department of Justice has generally been too lenient in its response to corporate wrongdoing.¹⁹ I share this worry. Moreover, I believe it applies with special force to wrongdoing by major banks and their top executives.²⁰ Accordingly, I wish to consider here the most plausible justification that a corporate defender might offer for avoiding criminal prosecution of major banks and their executives for serious wrongdoing. I want to show that even if we entertain this justification, arguendo, we can still defend significant policy reforms going against major banks’ interests. The justification in which I am interested begins with two main claims. The first claim is “too big to jail.” This claim holds that the urge to criminally sanction large corporations for severe wrongdoing must be restrained by the considerable collateral damage that such punishment might very well generate for the U.S. and even the global economy. The second claim is “too innocent to jail”: it holds that the urge to criminally sanction senior executives leading these corporations must be restrained by the requirements of criminal procedure. Under existing criminal law, individual corporate executives should only be prosecuted and convicted if the available evidence admissible in court suffices to prove beyond reasonable doubt their criminal liability for corporate wrongdoing. But the organizational complexity of large corporations very often hinders efforts to satisfy this demanding standard of proof. I take “too big to jail” and “too innocent to jail” as my point of departure not because I wish to suggest that these two claims are necessarily true. I proceed in ¹⁵ See Jennifer Arlen, “Corporate Criminal Liability: Theory and Evidence,” in Alon Harel and Keith Hylton (eds.), Research Handbook on Criminal Law (Cheltenham, UK: Edward Elgar, 2012). ¹⁶ See Jed Rakoff, “The Financial Crisis: Why Have No High-Level Executives Been Prosecuted?” New York Review of Books, Jan. 9, 2014, http://www.nybooks.com/articles/2014/01/09/financial-crisiswhy-no-executive-prosecutions/ ¹⁷ See, e.g., Peter Henning, “In bank settlements, fines but no accountability,” The New York Times, Dec. 12, 2012. https://dealbook.nytimes.com/2012/12/12/in-bank-settlements-big-fines-butno-accountability/?mcubz=0 ¹⁸ See Rakoff, The financial crisis. ¹⁹ See for example Jonathan Sack, “deferred prosecution agreements—the going gets tougher,” Forbes, May 28, 2015, at https://www.forbes.com/sites/insider/2015/05/28/deferred-prosecutionagreements-the-going-gets-tougher/#5be0405b5b94 ²⁰ Although I will at different points draw on examples from other sectors, and at least some of my claims should generalize beyond the banking industry.

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this way because I think that these claims have at least prima facie plausibility, and because they represent the corporate defender’s best hope—especially with regard to wrongdoing by major banks. Moreover, as I argue in 4.3, both of these claims have been prominent in actual policy discourse. Accordingly, I wish to examine in detail what is the best way to defend both of these claims at the same time. Is it really possible to simultaneously reject both criminal sanctions against large banks and (at least in many cases) criminal sanctions against their senior executives? At first, this combination may seem quite unlikely, for the following reason. Suggesting that the risks are too acute when considering criminal prosecution of large banks can only make sense if one is willing to prioritize consequences over desert: one has to be willing to let large banks escape criminal procedures, even in cases where they clearly deserve criminal punishment. But if this is so, it is not obvious how one can avoid prioritizing consequences over desert with regard to individual bank executives. If sending such executives to prison would have the significant positive consequence of deterring crime, then it seems that the prioritization of consequences over desert should lead us to (at least) consider jailing even those executives who may very well be innocent. Conversely, if one insists that innocent individuals ought not be prosecuted, even if prosecuting them would yield better overall consequences, then why not adopt the same priority with regard to corporations? Why not insist that corporations deserving of criminal punishment ought to receive such punishment,²¹ notwithstanding the risk of negative consequences? In 4.4, I consider several possible answers that a corporate defender of the status quo might offer to this challenge. The best answer, I suggest, is that it is much worse for public authorities to seriously wrong innocent corporate executives through criminal prosecution, than it is for public authorities to allow corporations as private actors to seriously wrong other private actors in their pursuit of profits. However, in 4.5 and 4.6, I argue that even if we grant the force of this answer for the sake of discussion, it ultimately cannot justify public authorities’ current treatment of the banking industry. The reason is that this answer does not square with the myriad forms of public support currently accorded to the major banks. Enormous government loans and bailouts of struggling giant banks, as well as the various tax subsidies routinely enjoyed by the banks, belie any attempt to draw a qualitative distinction between public authorities engaging in seriously wrongful conduct themselves, and authorities allowing the largest banks to engage in such conduct. Therefore, if the public/private distinction is indeed the corporate defender’s best bet, an important conclusion follows: The largest banks have to relinquish multiple significant forms of public support on which they currently rely, in order to have any hope of justifying the legal system’s current lenience towards them and their executives. ²¹ On the assumption, of course, that it makes sense to hold corporate agents morally responsible. See, e.g., Philip Pettit, “Responsibility Incorporated,” Ethics 117 (2007): 171–201.

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4.3 Collateral Damage and Individual Innocence I now turn to further motivate my focus on the collateral damage and individual innocence claims. Taking each claim in turn, I illustrate its central role in actual policy discourse, and note intuitive reasons for treating it as having at least some moral plausibility.

4.3.1 “Too Big to Jail”? In December 2012, one of the most dramatic stories of corporate misconduct in recent decades came to a close, as HSBC, Europe’s largest bank, signed a deferred prosecution agreement with the U.S. Department of Justice. One subject of this agreement was the bank’s violations of U.S. sanctions against nations such as Iran. But the other and more central subject was the bank’s laundering of enormous sums for Mexican drug cartels, in direct violation of U.S. banking regulations. More specifically, the “statement of facts” attached to the deferred prosecution agreement, and accepted by HSBC, detailed multiple money-laundering failures.²² According to this statement, HSBC USA failed to obtain or maintain “due diligence information” on HSBC Group Affiliates, including HSBC Mexico. It also failed “to adequately monitor over $670 billion in wire transfers from HSBC Mexico.” In fact, for years, HSBC USA avoided treating Mexico as a “high-risk” location with regard to money laundering, despite its awareness “of numerous publicly available and industry-wide advisories about the money laundering risks inherent to Mexican financial institutions.” Additionally, the bank failed to “adequately monitor billions of dollars in purchases of physical U.S. dollars, including over $9.4 billion from HSBC Mexico”; and it failed “to provide adequate staffing and other resources” to maintain an effective anti-money-laundering program. The Department of Justice further asserted, and HSBC conceded, that “drug traffickers were depositing hundreds of thousands of dollars in bulk U.S. currency each day into HSBC Mexico accounts”: In order to efficiently move this volume of cash through the teller windows at HSBC Mexico branches, drug traffickers designed specially shaped boxes that fit the precise dimensions of the teller windows. The drug traffickers would send numerous boxes filled with cash through the teller windows for deposit into HSBC Mexico accounts . . . because of its lax [anti money-laundering] controls,

²² See Department of Justice, “Statement of Facts” (HSBC), Dec. 11, 2012, at https://www.justice. gov/sites/default/files/opa/legacy/2012/12/11/dpa-attachment-a.pdf. All quotes in this paragraph refer to this document.

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HSBC Mexico was the preferred financial institution for drug cartels and money launderers.²³

The Department of Justice officially condemned the bank for “stunning failures of oversight,” declaring that “The record of dysfunction that prevailed at HSBC for many years was astonishing.”²⁴ Yet had the Department pursued HSBC’s case to the fullest extent of the law, instead of signing a deferred prosecution agreement, the result would have been a criminal indictment, which, as officials put it, “would essentially be a death sentence for the bank. Such actions could cut off the bank from certain investors like pension funds and ultimately cost it its charter to operate in the United States.”²⁵ Accordingly, HSBC’s case was settled with a $1.9 billion fine—the equivalent of five weeks’ earnings for the bank, which, at the time, held more than two and a half trillion dollar in assets.²⁶ By far the most important reason for this generous settlement was the Justice Department’s fear that strict treatment of HSBC would generate considerable collateral damage. In early 2013, Attorney General Eric Holder made this concern explicit in a testimony before the U.S. Senate: I am concerned that the size of some of these [financial] institutions becomes so large that it does become difficult for us to prosecute them when we are hit with indications that if you do prosecute, if you do bring a criminal charge, it will have a negative impact on the national economy, perhaps even the world economy. And I think that is a function of the fact that some of these institutions have become too large . . . I think it has an inhibiting influence—[an] impact on our ability to bring resolutions that I think would be more appropriate.²⁷ ²³ HSBC Statement of Facts, p. 17. ²⁴ See the Department’s official press release, Dec. 11, 2012, at https://www.justice.gov/opa/pr/ hsbc-holdings-plc-and-hsbc-bank-usa-na-admit-anti-money-laundering-and-sanctions-violations. The U.S. Treasury similarly noted in its official press release: “HSBC absolutely knew the risks of the business it pursued, yet it ignored specific, obvious warnings.” Treasury Press Release, “Treasury Department Reaches Landmark Settlement with HSBC,” Dec. 11, 2012, at https://www.treasury.gov/ press-center/pressreleases/Pages/tg1799.aspx ²⁵ Anonymous officials quoted in Ben Protess and Jessica Silver Greenberg, “HSBC to pay $1.92 billion to settle charges of money laundering,” The New York Times, Dec. 10, 2012, at http://dealbook. nytimes.com/2012/12/10/hsbc-said-to-near-1-9-billion-settlement-over-money-laundering/?_ php=true&_type=blogs&_php=true&_type=blogs&_r=1 ²⁶ See for example “Outrageous HSBC settlement proves the drug war is a joke,” Rolling Stone, Dec. 13, 2012. ²⁷ Hearing Before the S. Comm. on the Judiciary, 113th Cong. (Mar. 6, 2013), at http://www.judiciary. senate.gov/meetings/oversight-of-the-us-department-of-justice-2013-03-06. A day after the Attorney General’s testimony, the Treasury Under-Secretary for Terrorism and Financial Intelligence confirmed to the Senate that “the Justice Department contacted us, [and] asked whether we could provide guidance on what the impact to the financial system may be of a criminal disposition in the HSBC case.” See Patterns of Abuse: Assessing Bank Secrecy Act Compliance and Enforcement: Hearing Before the Senate Committee on Banking, Housing, and Urban Affairs (March 7, 2013), at https://www.gpo.gov/fdsys/ pkg/CHRG-113shrg80662/pdf/CHRG-113shrg80662.pdf

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The dominant role that collateral damage considerations played in the Justice Department’s decision not to prosecute is especially striking in the HSBC scandal, given the sheer scope and severity of the bank’s transgressions. But there is no reason to think that this case was unique. Thus for example, Lanny Breuer, the Assistant Attorney General who led the Department of Justice’s Criminal Division between 2009 and 2013, confirmed on several occasions that fears about the collateral effects of criminal proceedings against huge corporations were a constant factor in prosecutorial decisions. As Breuer put it in one interview, “in any given case,” I think I and prosecutors around the country, being responsible, should speak to regulators, should speak to experts, because if I bring a case against institution A, and as a result of bringing that case there’s some huge economic effect . . . If it creates a ripple effect so that suddenly counterparties and other financial institutions or other companies that had nothing to do with this are affected badly, it’s a factor we need to know and understand.²⁸

In another interview, given shortly before his return to private practice, Breuer similarly pointed out that when it comes to large multi-national companies, the jobs of tens of thousands of employees can be at stake. And, in some cases, the health of an industry or the markets is a real factor. Those are the kinds of considerations in white collar crime cases that literally keep me up at night, and which must play a role in responsible enforcement.²⁹

Even if there are various reasons for skepticism about this argument, we can still acknowledge the force of Breuer’s claim that public officials must make their decisions “responsibly,” and accordingly take very seriously the macro-level risks inherent in their decisions. To be sure, public prosecutors’ insistence that their decisions must account for the potentially drastic consequences of criminally prosecuting huge corporations may not be fully representative of the moral terrain. Still, these claims clearly have at least some plausibility.

4.3.2 “Too Innocent to Jail”? Let us now turn from collateral damage associated with criminal prosecution of corporations to the constraints associated with criminal procedures against ²⁸ See Jason Breslow, “Lanny Breuer: Financial fraud has not gone unpunished,” PBS (Jan. 22, 2013), at www.pbs.org/wgbh/frontline/article/lanny-breuer-financial-fraud-has-not-gone-unpunished/ ²⁹ See Department of Justice, “Assistant Attorney General Lanny A. Breuer Speaks at the New York City Bar Association,” Sept. 13, 2012, https://www.justice.gov/opa/speech/assistant-attorney-generallanny-breuer-speaks-new-york-city-bar-association

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individual corporate executives. In order to launch such procedures, public prosecutors must be confident that they possess evidence, admissible in court, which will prove beyond reasonable doubt that the relevant individuals are guilty of criminal wrongdoing. But the enormous complexity of corporate structures very often makes such evidence quite difficult to attain. Several months before he left the Attorney General’s office, Holder defended the Department of Justice’ strikingly low number of individual indictments in the aftermath of the financial crisis by making precisely this point: I n some instances, it is simply not possible to establish knowledge of a particular scheme on the part of a high-ranking executive who is far removed from a firm’s day-to-day operations . . . in an age when corporations are structured to blur lines of authority and prevent responsibility for individual business decisions from residing with a single person, we ought to consider whether the law provides an adequate means to hold the decision-makers at these firms properly accountable . . . at some institutions that engaged in inappropriate conduct before, and may yet again, the buck still stops nowhere. Responsibility remains so diffuse, and top executives so insulated, that any misconduct could again be considered more a symptom of the institution’s culture than a result of the willful actions of any single individual.³⁰

There is ample reason to think that these prosecutorial constraints apply to a very large number of corporate wrongdoing cases, including cases where the criminal responsibility of individual corporate executives may seem glaringly obvious. Consider, for example, the criminal prosecution of Donald Blankenship, the CEO and Chairman of Massey Energy—the energy company whose West Virginia mine exploded in 2010, leaving nearly thirty miners dead. The government claimed that Blankenship’s obsession with cost-cutting led him to willfully ignore hundreds of safety violations in the mine, and to conspire with others at the company to obstruct federal authorities from enforcing safety regulations. Yet despite the litany of charges it pressed against Blankenship, the government was only able to secure his conviction for one misdemeanour count charging a mine safety violation. The government lacked the evidence to satisfy the standards of criminal procedure—to

³⁰ See Department of Justice, “Attorney General Holder Remarks on Financial Fraud Prosecutions at NYU School of Law,” Sept. 17, 2014, https://www.justice.gov/opa/speech/attorney-general-holderremarks-financial-fraud-prosecutions-nyu-school-law. Holder added that the inability to bring charges against individual corporate executives “has been a source of frustration for the public for a long time. I understand and share that frustration. But despite the commitment and tireless work of our prosecutors, we cannot bring cases unless, based upon the facts and the law, we believe that we are likely to succeed in court.”

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prove beyond reasonable doubt that Blankenship was guilty of any of the (many) other offenses attributed to him.³¹ If the requirements of criminal procedure inhibit the government’s ability to achieve convictions in cases such as Blankenship, who was described as an “obsessive” micro-manager,³² than all the more so do these requirements limit the ability to achieve criminal convictions in cases where the top executives’ relationship to the relevant wrongdoing is more remote, as is often the case with major banks. Samuel Buell, the lead prosecutor in the famous Enron case, illustrates this point through an instance of financial fraud at JP Morgan, featuring Londonbased traders who lied to hide their losses from their superiors and protect their bonus-based compensation. Their lies meant that: Investors in JP Morgan were victims of fraud because, to the tune of nearly $1 billion, the bank gave them false information about the value of its portfolio. Senior managers at JP Morgan approved that information and its release. They also approved the compensation system that can fairly be said to have caused the traders in London to take big risks and then lie when their risks went bad. Managers also were responsible for reporting and compliance systems within the bank that did not include a means of preventing the traders from controlling how the bank valued the London derivatives book in its overall financials. But, as far as public evidence shows, the top managers at JP Morgan did not know that the numbers from the usually legitimately profitable group in London had turned massively false.³³

Did this fact pattern suffice to justify moral condemnation of senior JP Morgan executives, as the individuals who bear ultimate responsibility for corporate failures? The answer is clearly “yes.” But did this fact pattern also suffice to justify their criminal conviction? As a matter of existing criminal law, the answer is clearly “no.”³⁴ Does this mean that we should consider changing the law, so as to criminalize a wider range of omissions on the part of corporate executives? Perhaps. ³¹ See, e.g., Alan Blinder, “Mixed verdict for Donald Blankenship, ex-chief of Massey Energy, After coal mine blast,” The New York Times, Dec. 3, 2015. ³² Samuel Buell, “Criminally bad management,” in Jennifer Arlen (ed.), Research Handbook on Corporate Crime and Financial Misdealing (2018): 59–86, at 65. During Blankenship’s trial, “jurors learned about his demands for production reports from Upper Big Branch every 30 minutes, even on weekends, and they heard him, on audio recordings, chastising and lecturing subordinates.” (Blinder, “Mixed verdict for Donald Blankenship”) ³³ Buell, “Criminally bad management,” 7. ³⁴ “Would the top manager of JP Morgan belong in prison because he used financial incentives to encourage his derivatives traders to take risk? Of course not. The banking industry has run on bonusing its salespeople forever. That decision [to send the top manager to prison] could not possibly meet the fault standard, nor could some strained substitute, like a failure by the CEO to decide at some point to institute a more onerous system of controls on how traders across the massive bank mark their books.” (Buell, “The Responsibility Gap in Corporate Crime,” Criminal Law & Philosophy 12 [2018]: 471–491, at 486).

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But we must be cognizant of the fact that there are weighty nonconsequentialist considerations counting against such a change. A dramatic extension in the scope of criminal omissions may lead to the conviction of executives for crimes such as failure to prevent fraud. But such an extension would run up against the nonconsequentialist intuition that “a corporate manager,” as Buell insists, “simply does not deserve imprisonment sanctions for failing to prevent a fraud of which she was not aware.”³⁵ At least in the many cases where willful blindness cannot be proven, that is a real concern.³⁶

4.4 Is it Possible to Defend Both Corporations and Their Executives? If what I have said so far is cogent, then the corporate defender may invoke some important intuitions in favor of sparing major corporations from criminal prosecution. Such a defender may also have different intuitive claims at his disposal in favor of sparing corporate executives from such prosecution. But combining these distinct claims as part the same coherent worldview is more challenging: simultaneously defending both corporations and their executives against criminal procedures is not an easy task. The Economist magazine provides a vivid example of this challenge. In August 2014, an Economist article titled “A mammoth guilt trip: criminalizing the American company,” heaped criticism on what it portrayed as the U.S. Department of Justice’s frequent treatment of “companies as criminals.”³⁷ The article argued that “the focus should be on individuals,” and approvingly cited a federal judge’s claim that not prosecuting individual malefactors after the financial crisis “may be judged one of the more egregious failures of the criminal justice system in many years.”³⁸ However, by October 2016, the very same Economist seemed to endorse a diametrically opposite view. In an article titled “Jail bait,” the magazine repeatedly cautioned against “populist” demands to hold individual corporate executives criminally liable for the financial crisis, and praised the Department of Justice’s focus on corporations:

³⁵ Buell, “Criminally bad management,” 77. ³⁶ As Buell (“Criminally bad management,” 72–73) writes, “For crimes based on knowledge rather than forms of specific intent (to defraud, to obstruct justice, and the like), the doctrine of willful blindness might appear to ease the path to conviction. But the federal courts have been at pains to prevent this doctrine from being treated as anything less than a genuine, and justifiable, substitute for knowledge. Willful blindness is not recklessness. A defendant’s awareness of some risk of falsity or some risk that banked funds are derived from crime, for example, will not suffice. A defendant must both know of a substantial risk that the operative fact exists and take affirmative steps to avoid acquiring additional knowledge.’ ³⁷ “A mammoth guilt trip,” The Economist, Aug. 28, 2014, at www.economist.com/news/briefing/ 21614101-corporate-america-finding-it-ever-harder-stay-right-side-law-mammoth-guilt ³⁸ The Economist, “A mammoth guilt trip.”

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Prosecutorial zeal does not always result in convictions, but that is because prosecutors face some difficult trade-offs—including respecting the rights of some of the world’s most unpopular people . . . the DoJ could bring far more individual prosecutions. But most corporate crime is the result of collective action rather than individual wrongdoing—long chains of command that send (often halfunderstood) instructions, or corporate cultures that encourage individuals to take risky actions. The authorities have rightly adjusted to this reality by increasingly prosecuting companies rather than going after individual miscreants . . . [even if ] prosecuting firms may not have the smack of justice that populists crave.”³⁹

Someone who wishes to defend both corporations and their executives from the reach of criminal law clearly needs to do a better job than The Economist. More specifically, such an ambitious defender needs to confront a significant challenge concerning the combination of desert and consequences. Although I presented the essence of this challenge earlier, it is worth reiterating here. It may be intuitive to appeal, in the manner discussed above, to desert and innocence to save (some) individual executives from criminal prosecution, even in the face of countervailing consequentialist considerations. And it may be intuitive to invoke the fear of drastic negative consequences to explain why large corporate entities who clearly deserve criminal punishment should be allowed to escape such punishment. But it is not very intuitive to make both of these appeals at the same time: to hold that desert trumps consequences in the individual context, but also that consequences trump desert in the corporate context. Is there really a stable way to combine these two claims? My aim in this section is to examine several answers that a corporate defender may offer to this question. In 4.4.1, I discuss a purely consequentialist answer. In 4.4.2, I examine a contractualist answer. Finally, in 4.4.3, I explore an answer that pivots on the distinction between public authorities and private corporations, and that sets up the next stage of our inquiry. Before turning to explore these various alternatives, however, a pair of qualifications may be appropriate. First, I do not wish to claim that the alternatives I will be discussing necessarily exhaust the range of answers available to our corporate defender. But I do believe that if none of them succeeds, then the corporate defender’s position is extremely difficult to sustain. That should be an important result in and of itself. Second, I recognize that the corporate answers I will be discussing are far more complex than those that typically feature in real-world policy debates. Yet I nonetheless hope to show that introducing such philosophical complexity into the conversation is a fruitful middle path, one that avoids a simple

³⁹ “Jail bait,” The Economist, Oct. 27, 2016, at http://www.economist.com/news/business/21709331lock-em-up-mentality-white-collar-crime-misguided-jail-bait

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acceptance of actual policy discourse as we find it, while also avoiding complete philosophical detachment from this discourse.

4.4.1 A Purely Consequentialist Response One way in which the corporate defender might try to tackle our challenge is by disputing its nonconsequentialist framing of current restraint regarding innocent bank executives. The corporate defender might seek to justify this restraint in a purely consequentialist manner, without any appeal to the intrinsic significance of innocence or desert as such. The main thought here is the following. Altering standard procedures of criminal justice—lowering the standard of proof, revising evidential admissibility rules—will indeed make it much easier for the government to prosecute individual corporate executives, and thus to deter corporate crime. Yet this enhanced deterrence is simply outweighed by countervailing consequentialist considerations. One such consideration is the foreseeable chilling effects: corporate executives would surely avoid socially valuable conduct (and many qualified individuals would avoid the corporate world to begin with) for fear of prosecution. But even more crucial is the familiar worry about the dangerous empowerment of government. In the short term, we might cheer when government prosecutors will go after individual executives, unshackled (or at least, much less shackled) by standard criminal justice procedures that so heavily favor defendants. But over time, we are bound to find that unleashing Leviathan in this way is to society’s overall detriment. After all, the same relaxed procedural constraints that would ease the government’s battle against socially harmful behavior by private actors would eventually make it too easy for the government itself to engage in such harmful behavior—to amass and consolidate power not in the service of the public, but rather at its expense. My main response to this argument is that what consequentialism gives the corporate defender with one hand, it takes with the other. The same comprehensive attention that consequentialism gives to all consequences, and that the corporate defender is trying to recruit to his cause, ends up undermining this cause. The reason is simple. If we truly adopt the consequentialist belief that the long-term and indirect consequences of our actions “count just as much as short term or immediate consequences,”⁴⁰ then we can no longer justify the recurrent avoidance of criminal indictments against the largest banks guilty of serious crimes. This is because we can no longer justify the prioritization of short-term economic stability over long-term deterrence of corporate crime. A purely consequentialist outlook, ⁴⁰ Shelly Kagan, Normative Ethics (Boulder: Westview Press, 1998), 64.

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in other words, might keep individual corporate executives off the hook, but only by placing corporations themselves firmly on the hook.⁴¹ Two points will help to unpack this claim. First, whatever short-term stability we buy through a refusal to prosecute banks deemed “too big to jail” should be measured against the longer-term risk of yet more macro-level crises fueled by major banks’ recklessness and fraud—crises that remain a depressingly realistic possibility.⁴² Second, we must also consider the less direct but equally real harms associated with lenient responses to banks’ crimes—harms that also accumulate over time, and that, to the consequentialist, matter just as much. In turn, when evaluating these harms, a consequentialist must take the broadest possible view, considering social problems that are rarely associated with major banks, yet that might very well be ameliorated through enhanced deterrence. One key example of such a problem should suffice to show that consequentialism is not the corporate defender’s friend. Consider the opioid epidemic. A great deal of public attention has already been given to some of the most disturbing statistics at the heart of this epidemic. According to the U.S. National Institute on Drug Abuse, nearly 50,000 people in the United States died in 2019 alone from “opioid-involved overdoses.”⁴³ According to the U.S. Centers for Disease Control and Prevention (CDC), between 1999 and 2019, the rate of overdose deaths involving opioids has quadrupled.⁴⁴ In July of 2021, the CDC publicly estimated the 2020 opioid US death toll at more than 90,000, “the highest ever recorded.”⁴⁵ Four months later, the CDC announced that drug overdose deaths in the U.S. now “top 100,000 Annually.”⁴⁶ Authorities have made significant efforts to curtail abuse of prescription opioids, but their addictive character has meant that many consumers have shifted instead to heroin, which is cheaper and more easily available.⁴⁷ In 2014, the National Institute on Drug Abuse, in a presentation to the Senate titled “America’s addition to

⁴¹ I borrow this turn of phrase from Robert Goodin, Utilitarianism as Public Philosophy (Cambridge: Cambridge University Press), chap. 2. ⁴² For warnings to this effect, see, e.g., Matt Taibi, “How Wall-Street killed financial reform,” Rolling Stone, May 10, 2012, at http://www.rollingstone.com/politics/news/how-wall-street-killed-financialreform–20120510; Ted Kaufman, “Why DoJ deemed bank excecs too big to jail,” Forbes, July 29, 2013; Ralph Atkins, “Problem of banks seen as ‘too big to fail’ still unsolved, IMF warns,” Financial Times, March 31, 2014; James Henry, Pirate Bankers (New York, NY: Columbia University Press, 2016); Frank Partnoy, “The looming bank collapse,” The Atlantic, July/August 2020, at www.theatlantic.com/ magazine/archive/2020/07/coronavirus-banks-collapse/612247/ ⁴³ National Institute on Drug Abuse, “Opioid overdose crisis,” March 11, 2021, at https://www. drugabuse.gov/drug-topics/opioids/opioid-overdose-crisis ⁴⁴ CDC, “Understanding the epidemic,” March 17, 2021, at https://www.cdc.gov/opioids/basics/ epidemic.html ⁴⁵ Maggie Fox, “Drug overdose deaths in 2020 hit highest number ever recorded, CDC data shows,” CNN, July 17, 2021, at https://www.cnn.com/2021/07/14/health/drug-overdose-deaths-2020/index. html ⁴⁶ CDC, “Drug overdose deaths in the U.S. top 100,000 annually,” at https://www.cdc.gov/nchs/ pressroom/nchs_press_releases/2021/20211117.htm ⁴⁷ “About 80 percent of people who use heroin first misused prescription opioids” (National Institute on Drug Abuse, “Opioid overdose crisis”).

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opioids,” noted “growing evidence that abusers of prescription opioids are shifting to heroin as prescription drugs become less available or harder to abuse.”⁴⁸ According to the CDC, Heroin-related deaths more than tripled between 2010 and 2015, with a staggering 12,989 heroin deaths in 2015. In June 2016, the U.S. Department of Health and Human Services estimated that every day, close to 600 people in the country begin heroin use.⁴⁹ And the CDC reported that “[t]he number of heroin-involved overdose deaths was more than seven times higher in 2019 than in 1999.”⁵⁰ Heroin is thus an increasingly significant component of the epidemic of opioid deaths that have been skyrocketing throughout the United States. Insofar as public discussion of this epidemic has paid attention to corporate responsibility, it has targeted the pharmaceutical industry.⁵¹ But a more thorough perspective on the issue also has to account for the nontrivial role that major banks have had in facilitating the opioid epidemic, by providing drug cartels with much of their financial lifeblood. The HSBC example discussed above should make clear why this connection is far from speculative. But it should also be clear that the HSBC example is far from unique. In 2010, Wachovia Bank, for example (now a part of the huge Wells Fargo), signed a deferred prosecution agreement very much paralleling HSBC’s agreement, in which it paid a fine that was once again a trivial portion of its annual profits, to settle charges that it failed to apply proper anti-laundering measures to the transfer of almost 380 billion dollars from Mexico to the U.S.⁵² Nor were such problems ultimately limited to particular banks. At the peak of the 2008 banking crisis, Antonio Maria Costa, then head of the United Nations Office on Drugs and Crime, claimed to have evidence suggesting that proceeds from drugs and crime “were the only liquid investment capital available to banks on the brink of collapse. “Inter-bank loans were funded by money that originated from the drugs trade . . . there were signs that some banks were rescued that way.”⁵³ Given the sheer scope of major banks’ entanglement in the drug trade, there is good reason to think that the considerable gains in deterrence, which would follow from criminal prosecutions of the largest banks guilty of money laundering, can ⁴⁸ National Institute on Drug Abuse, “America’s addiction to opioids: Heroin and prescription drug abuse,” May 14, 2014, at https://www.drugabuse.gov/about-nida/legislative-activities/testimonyto-congress/2016/americas-addiction-to-opioids-heroin-prescription-drug-abuse ⁴⁹ Department of Health and Human Services, The Opioid Epidemic: By the Numbers, June 2016, at www.hhs.gov/sites/default/files/Factsheet-opioids-061516.pdf ⁵⁰ CDC, “Drug overdose,” March 25, 2021, at https://www.cdc.gov/drugoverdose/deaths/heroin/ index.html ⁵¹ See, e.g., Alana Semuels, “Are pharmaceutical companies to blame for the opioid epidemic?,” The Atlantic, June 2, 2017, at https://www.theatlantic.com/business/archive/2017/06/lawsuitpharmaceutical-companies-opioids/529020/ ⁵² See Wachovia’s deferred prosecution agreement, at https://www.justice.gov/sites/default/files/ usao-sdfl/legacy/2012/12/31/100317-02.Agreement.pdf ⁵³ Quoted in Ed Vulliamy, “How a big US bank laundered billions from Mexico’s murderous drug gangs,” The Guardian, April 3, 2011, at https://www.theguardian.com/world/2011/apr/03/us-bankmexico-drug-gangs

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dramatically reduce the staggering death toll from drugs such as heroin, including both drug addicts and hundreds of thousands of victims of drug wars. Area experts, at the very least, seem convinced that such a reduction is attainable. Thus for instance, the anti-money laundering officer fired by Wachovia once he became a whistle-blower fumed, in the aftermath of the bank’s 2011 deferred prosecution agreement: These are the proceeds of murder and misery in Mexico, and of drugs sold around the world. All the law enforcement people wanted to see this come to trial. But no one goes to jail. What does the settlement do to fight the cartels? Nothing—it doesn’t make the job of law enforcement easier and it encourages the cartels and anyone who wants to make money by laundering their blood dollars. Where’s the risk? There is none. Is it in the interest of the American people to encourage both the drug cartels and the banks in this way? Is it in the interest of the Mexican people? It’s simple: if you don’t see the correlation between the money laundering by banks and the 30,000 people killed in Mexico, you’re missing the point . . . New York and London have become the world’s two biggest laundries of criminal and drug money . . . the big laundering is right through the City of London and Wall Street.⁵⁴

Eleven years later, the death toll of Mexico’s drug wars has quintupled.⁵⁵ To be sure, the tallying of such numbers, and such accusations, may seem far removed from how we ordinarily proceed when asking how determined the legal system should be in deterring corporate crime. But, at least when considering crimes by major banks, such accusations have to feature in the consequentialist arithmetic. And once they do, it seems clear that consequentialism cannot shield both banks and their executives from the reach of criminal law. Rather, consequentialism, properly understood, mandates that guilty banks be prosecuted and, once convicted, punished to the fullest extent of the law. The immediate societal repercussions of such prosecutions might very well be serious. But these repercussions will eventually be offset by longer-term benefits associated with a far more deterred, and therefore far more disciplined and responsible, banking industry.⁵⁶ ⁵⁴ Quoted in Vulliamy, “How a big US bank laundered billions.” ⁵⁵ See Council on Foreign Relations, “Criminal violence in Mexico,” May 12, 2022, at https://www. cfr.org/global-conflict-tracker/conflict/criminal-violence-mexico ⁵⁶ I should note that this argument also preempts any appeal that the corporate defender might make to negative retributivism. Negative retributivists hold that the criminal justice system is morally constrained from prosecuting the innocent, yet deny that there is intrinsic moral value to criminal punishment of those who have committed crimes. Instead, the view is that offenders forfeit their rights not to incur criminal sanctions, but whether such sanctions should actually be imposed on them is a question that depends on consequentialist calculations. My suggestion here is that, at least in the case of offending major banks, these calculations favor rigorist rather than lenient treatment. For the canonical statement of negative retributivism, see J.L. Mackie, “Retributivism: A Test Case for Ethical Objectivity,” in Joel Feinberg and Hyman Gross (eds.), Philosophy of Law (San Francisco, CA: Wadsworth, 4th

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4.4.2 A Contractualist Alternative? Consequentialism, then, cannot provide the corporate defender with the explanation he needs. I now want to show that the same is true for a contractualist approach. Though contractualist moral theories take different forms, they all share a nonconsequentialist emphasis on the separateness of persons. Consequentialism demands that we accept even policies or institutions which impose heavy costs on us, if and because they would yield aggregate social gains. But, according to contractualists, such aggregation very often ignores the fact that each of us leads a separate life. Recognizing this fact, contractualist principles, in Rawls’ famous words, “rule out justifying institutions on the grounds that the hardships of some are offset by a greater good in the aggregate.”⁵⁷ More specifically, to use the central contractualist mantra, the demand to subordinate our separate lives to the aggregate social good is one that each of us can “reasonably reject.”⁵⁸ The main critique that has been leveled at contractualism is that its core “reasonable rejection” standard is empty—that it depends on an external normative apparatus to specify what precisely can be reasonably rejected and why.⁵⁹ Here, however, I wish to bracket this line of critique. Instead, I am going to assume, at least arguendo, that the reasonable rejection standard favored by contractualists is a meaningful and substantive one. I want to show that this standard too cannot help the corporate defender achieve his desired result. More precisely, I want to preempt a two-part contractualist argument that the corporate defender might pursue. First, innocent bank executives can reasonably reject a policy that would allow prosecuting them as a means of enhancing general deterrence. Second, a reasonable rejection standard also explains why criminal prosecution of culpable corporations is inappropriate. Such prosecution might generate aggregate gains—pushing major banks (and major corporations more broadly) to mend their ways, to society’s long-run benefit. But—the corporate defender might point out—such long-term gains will be of little comfort to those who will face the most severe and immediate costs as a result of the prosecuted banks’ collapse. These vulnerable individuals, then, can reasonably reject criminal

ed., 1991). For discussions, see, e.g., John Braithwaite and Philip Pettit, Not Just Deserts: A Republican Theory of Criminal Justice (Oxford: Clarendon Press, 1990), 34–35; Nigel Walker, Why Punish? Theories of Punishment Reassessed (Oxford: Oxford University Press, 1991), 127–28; C.L. Ten, Crime, Guilt, and Punishment (Oxford: Clarendon Press, 1987), 84. ⁵⁷ Rawls, TJ, 13. ⁵⁸ Contractualism’s locus classicus remains T.M. Scanlon’s What We Owe to Each Other (Cambridge, MA: Harvard University Press, 1998). For more recent formulations from a fellow traveler, see R. Jay Wallace, The Moral Nexus (Princeton, NJ: Princeton University Press, 2019). ⁵⁹ See, e.g., Philip Pettit, “Two Construals of Scanlon’s Contractualism,” Journal of Philosophy 97 (2000): 148–164, especially section III.

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prosecution of the largest banks. The perspective of the vulnerable is morally decisive, and from this perspective, the largest banks really are “too big to jail.” This argument has some promise (which is partly why we will encounter its analogue in the next chapter as well). Yet this argument too ultimately goes astray, not so much because of what it says, but rather because of what it omits. It is indeed intuitive to say that the innocent can reasonably reject being used as means in pursuit of general deterrence. And it is similarly intuitive to say that society’s most vulnerable can reasonably reject immediate criminal prosecution of major banks, whenever such prosecution would endanger their most basic interests. But it is equally intuitive to argue that all of society’s members can reasonably reject a legal regime which effectively grants indefinite immunity from harsh sanctions to any criminally culpable corporation, so long as it is “too big to jail.” Here is a slightly different way of making the same point. Our corporate defender is right that contractualism (unlike consequentialism) recognizes innocence as a factor which affects the fair distribution of the costs involved in the pursuit of societal ends (including the end of general deterrence). But contractualism also recognizes culpability as such a factor. By the same token, our corporate defender is right that contractualism recognizes the need for certain kinds of fairness across time—disallowing the imposition of certain dramatic costs on those who are most vulnerable at present (those who stand to lose the most from the collapse of criminally sanctioned huge banks), even if the result would yield considerable benefits for future generations (who would enjoy the services of a far more deterred, and therefore far more disciplined and responsible, banking industry). But contractualism also recognizes the need for other kinds of intertemporal fairness, including the need to make sure that actors who have long imposed grave harms on society eventually pay back their resulting debt, even if it is inappropriate and/or unwise to insist that this debt be paid back immediately. What does all this mean in practice? For one thing, it might very well mean reforming the ubiquitous “deferred prosecution agreements,” so as to make “deferred prosecution” much more literal. Rather than such agreements serving as conditional amnesties for culpable corporations that are central to economic activity, the only thing that legal officials would be committing to in announcing a deferred prosecution would be the literal postponement of criminal indictments to a future date by which the government would be able to create various buffers limiting the economic shocks associated with the corporation’s collapse. These buffers might include advance notice to the corporation’s employees, suppliers and business partners that they should prepare for likely eventual indictments targeting these corporations; the creation of a robust structure of governmental support for these and other parties that are likely to be adversely affected by criminal indictments against the corporation; government support (for instance, via tax incentives) for smaller competitors who might gradually absorb the business

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of the relevant corporations; and any other measures which would render less disruptive the transition to a world in which no corporation, no matter how large, is “too big to jail.” Furthermore, very much related, instead of the current practice, where deferred prosecution agreements involve “remedial payments” that are largely symbolic from the corporation’s perspective, there is a clear contractualist case for compelling culpable banks (and other criminally entangled huge corporations) to provide full financial compensation to society, even if only gradually, for the harms associated with their illicit activities. Admittedly, given the scale of the relevant harms, such exhaustive compensation might also represent a facto “death warrant,” here in the shape of a gradual, carefully managed bankruptcy process.⁶⁰ Such a process would be different only in form and timing, but not in substance, from the death warrant that would likely follow a criminal indictment. Yet from a contractualist standpoint this seems like much more of a QED than a reductio. Certainly, contrary to the hopes of the corporate defender, there is nothing in contractualism which opposes such an eventual result—assuming that its worse side effects for innocent parties can be contained.⁶¹ The appeal to contractualism, in other words, can only provide huge

⁶⁰ The need for such a process was at the heart of the famous Dodd–Frank regulatory reform in the aftermath of the financial crisis. See for example “Living Wills (or Resolution Plans),” Federal Reserve Board of Governors at https://www.federalreserve.gov/supervisionreg/resolution-plans.htm; “Agencies release public sections of resolution plans for eight large banks,” July 19, 2021, at https://www. federalreserve.gov/newsevents/pressreleases/bcreg20210719a.htm. Predictably, the largest banks have done everything in their power to combat Dodd–Frank, and so changes that would further bolster the Dodd–Frank framework would go exactly in the opposite direction from that sought by the corporate defender. Fortunately, the success of big banks’ lobbying efforts here has been limited. See, e.g., Michelle Price and Pete Schroeder, “Small banks trump Wall Street on Dodd-Frank rewrite,” Reuters, May 22, 2018, at https://www.reuters.com/article/us-usa-house-banks-lobbying-idUSKCN1IN328; Justin Sink, “Biden revokes Trump orders on financial regulation, immigration,” Bloomberg, Feb. 25, 2021, at https://www.bloomberg.com/news/articles/2021-02-25/biden-revokes-trump-orders-onfinancial-regulation-immigration ⁶¹ I am in fact understating the point here, since, according to the most influential theory of criminal punishment that is inspired by contractualist ideas—Victor Tadros’s “duty view”—those guilty of criminal wrongdoing have an enforceable moral duty to either (depending on the case) provide full compensation for the harms they have culpably caused, or to serve (via punishment) as means of enhancing general deterrence. So a contractualist perspective on the philosophy of punishment might even be less auspicious for the corporate defender than my remarks in the body of the text imply. For Tadros’s intricate theory, see his The Ends of Harm: The Moral Foundations of Criminal Law (Oxford: Oxford University Press, 2011). For some, the debate on this theory’s treatment of compensation for criminal wrongdoing, see the remarks by Kimberly Ferzan and Tadros in a Law and Philosophy symposium on The Ends of Harm (vol. 32 [2013]: 177–198, and 307–309). There are other theories which, like Tadros’s, try to combine a constraint against prosecuting the innocent with a deterrence-based understanding of the function of criminal punishment, but (unlike Tadros) pursue this combination through an emphasis on desert. These theories, usually associated with the label “negative retributivism,” involve their own complexities and challenges (see for example Mackie, “Retributivism: A Test Case for Ethical Objectivity”; John Braithwaite and Philip Pettit, Not Just Deserts: A Republican Theory of Criminal Justice [Oxford: Clarendon Press, 1990], 34–35; Nigel Walker, Why Punish? Theories of Punishment Reassessed [Oxford: Oxford University Press, 1991], 127–128; C.L. Ten, Crime, Guilt, and Punishment [Oxford: Clarendon Press, 1987], 84). For our purposes here, it is sufficient to note

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culpable corporations with a temporary respite, rather than with anything like a permanent “get out of jail” card.

4.4.3 Turning to the Public/Private Distinction Having examined two arguments that the corporate defender might pursue in support of his position, we can turn to a third alternative, which arguably represents the corporate defender’s best prospect. This alternative shifts our attention away from the distinction between short-term and long-term consequences, and towards a different distinction altogether. This is the distinction between public and private wrongdoing. The thought is that it is much worse for public authorities to engage in serious wrongdoing themselves, than it is for public authorities to merely allow private actors to engage in such wrongdoing. That is why it is possible to hold that the fear of significant negative repercussions justifies government decisions not to prosecute large private corporations who have committed serious crime, while also holding that public authorities ought to avoid transgressing upon the morally important constraints at the heart of criminal law, independently of the consequences of such transgressions. The main reason why our corporate defender should favor this explanation is its natural fit with the most venerable deontic arguments regarding criminal law. For one thing, the thought that it is much worse for public authorities to allow private actors to engage in serious wrongs, than it is for public authorities to engage in serious wrongs themselves, is a natural ally of the enduring Blackstonian claim that it is far worse for public authorities to convict the innocent than to let the guilty go free.⁶² Moreover, very much related, the distinction between public and private wrongdoing follows naturally from the core deontic idea that it is qualitatively worse to do wrong than to allow wrong to occur.⁶³

that negative retributivism would arguably be committed to criminal prosecution of guilty banks— prioritizing long-run deterrence gains associated with such prosecution over short-term economic shocks. So negative retributivism cannot save the corporate defender either. ⁶² See for example Justice Harlan’s variation on Blackstone in his concurring opinion in In re Winship, 397 U.S. 358, 372 (1970) (“In this context, I view the requirement of proof beyond a reasonable doubt in a criminal case as bottomed on a fundamental value determination of our society that it is far worse to convict an innocent man than to let a guilty man go free.” ) ⁶³ For an insightful defense of the relevance of this distinction to public authorities, see Adam Hossein, “Doing, Allowing, and the State,” Law & Philosophy 33 (2014): 235–264, contra Cass Sunstein and Adrian Vermeule’s “Is Capital Punishment Morally Required? Acts, Omissions, and Life–Life Tradeoffs,” Stanford Law Review 58 (2005): 703–750. For an earlier debate, see Jeffrey Reiman and Ernest Van Deg Haag, “On the Common Saying That It Is Better That Ten Guilty Persons Escape than That One Innocent Suffer: Pro and Con,” Social Philosophy & Policy 7 (1990): 226–248. Similar debates go on as to whether the deontic distinction between intending and foreseeing is really meaningful when it comes to public authorities. See, e.g., David Enoch, “Intending, Foreseeing and the State,” Legal Theory 13 (2007): 69–99.

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As a general matter, we should be careful not to overstate the weight of these deontic distinctions. We should recognize that even if it is worse for public authorities to do wrong themselves through the law, than to merely allow private wrongdoing to occur through the silence of the law, the latter phenomenon too is of nontrivial moral significance. Here, however, I want to focus on more specific problems that arise for our corporate defender when it comes to major banks. I want to show that even if—at least for the sake of discussion—we grant to the corporate defender a qualitative distinction between public and private wrongdoing, this distinction ultimately cannot get our corporate defender his desired result. Even under these favorable assumptions, the corporate defender cannot defeat the demand to transform the way in which public authorities—at least in the United States—treat the largest banks.

4.5 Complicating the Public/Private Distinction In order to start making our way to this conclusion, we first need to trace an expressive idea at the heart of the public/private distinction. If it is far worse for public authorities to engage in serious wrongdoing themselves, than to allow private actors to inflict such wrongs, this is at least partly because the authorities’ own wrongdoing expresses a distinctly repugnant political message. This expressive position is a close cousin of the view we discussed in chapter 3. On that view (to recall), independently of their effects, certain laws can have intrinsic moral value or disvalue in light of the collective attitudes that they express. And on the related position that we are examining here, public authorities express particularly disturbing collective attitudes when they commit wrongs themselves, as distinct from simply allowing the private commission of the same wrongs. Notice, however, that in order for this expressive rationale to really apply to the distinction between public and private wrongs, it is not enough to merely observe that public authorities’ own wrongdoing expresses a distinctly objectionable attitude towards the relevant victims. It must also be possible to very clearly distance public authorities from the wrongdoing committed by the relevant private actors. My contention, however, is that such distance cannot be maintained when considering public authorities’ treatment of major private banks. Let me elaborate. We can grant, at least arguendo, that if public authorities themselves do wrong, by prosecuting bank executives in certain ways, they thereby express a disturbing official message: to knowingly prosecute innocent executives is to officially endorse their use as mere means for societal ends, such as the pursuit of greater deterrence. Yet in order for the public/private distinction to work here, it must also be possible to firmly distance public authorities from the massive wrongs committed by the banks themselves. The public/private distinction can only justify allowing large banks to escape prosecution for dramatic criminal offenses, if one can draw a very

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clear dividing line between these banks and the authorities. Under existing political conditions, however, such a clear division cannot be drawn. The basic reason has to do with the multiple forms of public support given to the major banks: This support ties public authorities to the banks in palpable, morally important ways. In order to develop this thought, it might be best to turn for a moment to a different policy domain. Consider, then, the use of tax subsidies as a form of public support for private education. When a private educational institution systematically engages in serious wrongdoing, yet nonetheless enjoys tax benefits from the public, its wrongdoing is not a purely private matter: These tax benefits connect the public to the institution’s misdeeds. The case of Bob Jones University (BJU), a private Christian school in South Carolina, illustrates this point. BJU did not admit black students until 1971. From 1971 until 1975, BJU admitted black students only if they were married; after 1975, the university admitted unmarried black applicants, but denied admission to applicants who engaged in, or even supported, interracial marriage or dating. The university also imposed a disciplinary rule that prohibited, on pain of expulsion, interracial dating or even support for interracial dating. During the 1970s, The Internal Revenue Service (IRS) tried several times to revoke BJU’s tax-exempt status, claiming that the federal government’s anti-discriminatory policies justified treating BJU differently from nondiscriminatory private schools that receive this status. After a protracted legal process, in 1983, the Supreme Court finally upheld this IRS measure in Bob Jones University v. the United States, basing its decision primarily on “Government’s fundamental, overriding interest in eradicating racial discrimination in education.”⁶⁴ BJU’s tax benefits attracted public and media attention far exceeding the attention typically given to (often highly technical) tax regulations. Thus for example, when the Reagan Administration announced (prior to the Court’s decision) that it would abandon the previous government position, and would not seek to deny tax benefits to BJU, The New York Times responded with a lengthy campaign condemning the Administration for its support of “tax exempt hate.” The Administration, according to the Times, was going “against the grain of every civil rights achievement in a generation,” by “picking the pocket of every American taxpayer to subsidize racism in education.”⁶⁵ These accusations reflected the understanding that BJU’s case had profound social significance, deriving primarily from the fact that the tax benefits accorded to BJU implicated the public in the university’s wrongdoing.

⁶⁴ See 461 U.S. 574, at http://caselaw.findlaw.com/us-supreme-court/461/574.html ⁶⁵ Quoted in Mayer G. Freed and Daniel D. Polsby, “Race, Religion, and Public Policy: Bob Jones University. United States,” The Supreme Court Review 1984: 1–31, at 2. Freed and Polsby actually dispute the tenor of these claims as a matter of constitutional interpretation. But we can bracket this dispute here insofar as our interest is in moral rather than legal analysis.

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BJU’s case bears on our subject in at least two significant ways. First, if there was a moral duty to remove BJU’s tax subsidies (as I assume), then this duty was independent of whether public officials had intended these subsidies to convey official approval of BJU’s wrongdoing. Even if it could have been proven that no specific legislator or public bureaucrat had the intention of endorsing BJU’s racism by awarding tax subsidies, it would have still been the case that these subsidies implicated the public in the university’s wrongdoing, and there would therefore still be a duty to withdraw these subsidies. This point is significant here, because it has an obvious parallel in the case of private banks. Public support awarded to the banks implicates the public in the banks’ private wrongdoing in a way that is at least prima facie objectionable, independently of whether public officials intend this support to convey official approval of the banks’ behavior. Second, we are willing to say that tax subsidies to BJU implicated the public in the university’s wrongdoing, even though the economic impact of these subsidies on the university’s operations was ultimately limited. But then we should be even more willing to say the same with regard to the banks’ wrongdoing, given the sheer scope of public support they enjoy. Some facts will help to drive this point home. Official bailouts during the financial crisis, using seven hundred billion dollars of public money, are the most famous example of public support given to the banks.⁶⁶ Yet these bailouts actually represent only a portion of public money enjoyed by the banks. For one thing, even when we focus on public authorities’ emergency assistance to major banks, the scope of public support is actually far greater. Only after the financial crisis, for example, it emerged that between 2007 and 2010, the Federal Reserve made secret, nearly interest-free loans to the major banks, totaling more than 16 trillion dollars—a sum larger than the entire U.S. 2010 gross domestic product.⁶⁷ Moreover, according to an official report from the Government Accountability Office (GAO), among the key beneficiaries of this extraordinary sum were the very same banks who faced accusations of criminal conduct during the relevant years. Citigroup and JP Morgan Chase—only two of the huge banks who would later pay federal and state authorities to settle charges of fraudulent marketing of dangerous securities at the heart of the crisis—received almost 3 trillion dollars in Federal Reserve loans between them. Bank of America alone, which would end up paying more than 75 billion dollars to settle a variety of misconduct allegations surrounding the crisis, received 1.344 trillion in Federal Reserve loans. The ⁶⁶ See Matthew Ericson, Elaine He, and Amy Schoenfeld, “Tracking the $700 bailout,” The New York Times, www.nytimes.com/packages/html/national/200904_CREDITCRISIS/recipients. html?mcubz=0 ⁶⁷ See “Federal Reserve System: Opportunities Exist to Strengthen Policies and Processes for Managing Emergency Assistance,” Government Accountability Office report (GAO 11–696), at http://www. gao.gov/assets/330/321506.pdf, p. 131; see also Gretchen Morgenson, “Secrets of the bailout, now told,” The New York Times, Dec. 3, 2011, at http://www.nytimes.com/2011/12/04/business/secrets-of-thebailout-now-revealed.html?mcubz=0

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aforementioned Wachovia Bank, together with Wells Fargo that later acquired it, received loans totaling almost 300 billion—a sum dwarfing the 500 million dollar fine that Wachovia would pay for its material involvement in money laundering for Mexican drug cartels. BNP Paribas and Credit Suisse, both of which would later plead guilty to criminal charges,⁶⁸ were together given almost 450 billion dollars in loans. And the list goes on.⁶⁹ Furthermore, the public support that major banks receive during emergency periods has direct implications for other periods too. As economists, the financial press, and policymakers have noted, the implicit government guarantee enjoyed by major banks makes them safer for deposit and investment than their smaller rivals, thus allowing them to pay lower interest rates to depositors and investors. This advantage effectively represents an annual government subsidy of the major banks. According to some estimates, this subsidy exceeds 80 billion dollars a year for the ten largest U.S. banks alone.⁷⁰ Moreover, this subsidy is only one among several ongoing, routine public subsidies enjoyed by major banks—and other corporate giants. Consider, for example, the “performance-based” compensation— bonuses and especially stock-options—that make up a lion’s share of corporate executives’ earnings. As Forbes put it in 2012, reflecting specifically on the CEOs of major banks, “of course, most of the CEOs’ compensation is awarded in stock options; their salaries are relatively nominal.”⁷¹ The official rationale behind this compensation structure is that making executives’ actual earnings dependent on how the company’s stock performs better aligns their interests with the shareholders’ interests.⁷² In practice, however, stock options have become a salary by any ⁶⁸ See Andrew Johnson, “BNP Paribas pleads guilty to criminal charge in Federal Court,” Wall Street Journal, July 9, 2014, https://www.wsj.com/articles/bnp-paribas-pleads-guilty-to-criminal-charge-infederal-court–1404944484; Andrew Grossman, John Letzing and Devlin Barrett, “Credit Suisse pleads guilty in criminal tax case,” Wall Street Journal, May 19, 2014, at https://www.wsj.com/articles/creditsuisse-top-brass-dodge-tax-evasion-bullet–1400505829 ⁶⁹ All of these loans appear in Government Accountability Office report, 131. It is also worth noting that although the GAO’s report detailing these vast sums was made available to members of Congress, precious few of them sought to bring any public attention to its dramatic findings—a fact that arguably can only be explained through the enormous political clout of large corporations. ⁷⁰ See, e.g., “Why should taxpayers give big banks $83 billion a year?”, Bloomberg, Feb. 21, 2013, at web.archive.org/web/20140101192449/http://www.bloomberg.com/news/2013-02-20/whyshould-taxpayersgive-big-banks-83-billion-a-year-.html ⁷¹ See Halah Touryalai, “Highest and lowest-paid bank CEOs,” Forbes Advisor Network, June 20, 2012 at http://www.forbes.com/sites/halahtouryalai/2012/06/20/highest-and-lowest-paid-bankceos-dimon-makes-15m-more-than-his-closest-rival/. Two examples Touryalai notes are the CEO of JPMorgan Chase (in 2011, $17 million of his $23.1 million compensation was in stock options), and the CEO of Bank of America (whose 2011 salary was less than $1 million, but whose stock option compensation was worth more than $6 million). For similar examples from other industries see Gary Strauss and Matt Krantz, “Stock options swell CEO pay,” USA Today, April 4, 2011. Nor is this a new phenomenon, as noted, for example, in Thomas Pogge, “On the site of distributive justice: reflections on Cohen and Murphy,” Philosophy & Public Affairs 29 (2000): 137–169, at 139. ⁷² If executives’ compensation is entirely independent of how the company performs, then they may have incentives to act in ways that promote their personal interest but not necessarily the shareholders’ interest. Executives may, for example, pursue grandiose projects that increase their media exposure, add to the number of their employees, and generally give them more power and influence,

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other name: It is well known that thousands of companies have backdated stock options (altering the date in which a stock option was granted, to one in which the underlying stock price was lower), in order to ensure the options’ value, and stock options are typically “reloaded”—many executives are automatically given options equal to the ones they have used. The real reason why stock options have become so central to executive compensation is therefore not any genuine concern with incentivizing their “performance,” but rather the fact that stock options are massively subsidized with public funds. Executives pay much less tax on stock options (which are classified as capital gains), than they do on their “official” salary. Companies, in turn, face a law limiting the size of the tax deduction they can enjoy for executive salaries, but deductions for stock options allow them to get past this limit.⁷³ The cost of these public subsidies is estimated at 50 billion dollars a year.⁷⁴ A final instance of public subsidies of major banks is worth mentioning. The Department of Justice’ desire to avoid criminal prosecution of major banks has led it to allow some of these banks to designate various financial settlements as “remedial payments” instead of fines for wrongdoing. Consequently, these banks have been able to designate their legal settlements with the Department of Justice as tax deductible business expenses, allowing JP Morgan Chase, for example, to shift almost 2.5 billion dollars of what should have been its criminal fines to ordinary taxpayers—who are legally barred, as one commentator noted, from deducting even speeding tickets from their taxable income.⁷⁵ The significance of such arrangements for our purposes, however, ultimately goes beyond such specific figures and moral offenses. Most importantly, these arrangements make it considerably harder to distance public authorities from major banks’ wrongdoing. And they therefore make it considerably harder for

but do not maximize shareholders’ profits. This is the theoretical problem which stock-option-based compensation was meant to solve. ⁷³ That was not, of course, the intent of the law limiting salary tax deductions (for the actual law, pursued by President Clinton in 1993, see http://www.gpo.gov/fdsys/pkg/BILLS-103hr2264enr/ pdf/BILLS-103hr2264enr.pdf). The chairman of the Securities and Exchange Commission at the time of its legislation has suggested that this law belongs “in the museum of unintended consequences”; the then-chair of the Senate Committee on Finance simply asserted that “it really hasn’t worked at all. Companies have found it easy to get around the law. It has more holes than Swiss cheese. And it seems to have encouraged the options industry. These sophisticated folks are working with Swiss-watch-like devices to game this Swiss cheese-like rule.” Both quoted in Steven Balsam’s “Taxes and Executive compensation,” Economic Policy Institute, Briefing Paper 344, August 2012, available at http://s1.epi.org/files/2012/BP344_Taxes_and_Executive_Compensation.pdf. See also Dylan Matthews, “Bill Clinton tried to limit executive pay. Here’s why it didn’t work,’ Washington Post, Aug. 16, 2012, at http://www.washingtonpost.com/blogs/wonkblog/wp/2012/08/16/bill-clinton-tried-tolimit-executive-pay-heres-why-it-didnt-work/ ⁷⁴ See, e.g., “Fact Sheet: Tax Subsidies for CEO Pay,” Americans for Tax Fairness, https:// americansfortaxfairness.org/tax-fairness-briefing-booklet/fact-sheet-tax-subsidies-for-ceo-pay/ ⁷⁵ See Matt Taibi, “Eric Holder, Wall-Street secret agent, comes in from the Cold,” Rolling Stone, July 8, 2015, at www.rollingstone.com/politics/news/eric-holder-wall-street-double-agent-comes-in-fromthe-cold–20150708

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our corporate defender to appeal to the public/private distinction as the basis for shielding both corporations and their executives from the reach of criminal law. To make this difficulty especially vivid, consider the following scenario, which I take to be far from purely hypothetical. Suppose that a huge bank, effectively guaranteed by the government against collapse, sees its stock rise for years on the back of revenues arising from laundering drug cartels’ profits, leading its board, in turn, to lavish tax-deductible bonuses and stock options on the bank’s CEO. The bank then signs a tax-deductible nonprosecution agreement with the Department of Justice, and lavishes further tax-deductible bonuses on the CEO for managing to extricate the bank from its legal difficulties with a fine that represents a mere “slap on the wrist.”⁷⁶ The multiple layers of public support involved in such a chain of events are not only intrinsically morally offensive. These myriad forms of public support also make it very hard to treat the bank’s transgressions as entirely independent of any material public involvement. Consequently, these forms of public support undermine the appeal to the public/private distinction as a justification for the legal system’s lenient treatment of major banks and their executives.

4.6 Objections I recognize that, even when bearing in mind the multiple disturbing facts canvassed in the preceding paragraphs, some readers might still be reluctant to endorse the reasoning I have offered. I therefore want to anticipate some objections which are likely to drive this reluctance. The opening objection holds that, contrary to my earlier claims, it is implausible to ignore the intent that underlies government support for private wrongdoers. After all, numerous private wrongdoers regularly receive numerous forms of public assistance. Therefore, if the public can become meaningfully implicated in private wrongdoing whenever a private wrongdoer relies in some special way on the assistance of public authorities, irrespective of any questions about the authorities’ relevant intent, it follows that the distinction between private and public wrongdoing is only going to apply to a vanishingly small number of cases. At the limit, there would be almost no form of purely private wrongdoing. But this—the objection goes—is a reductio of the position, rather than a QED.⁷⁷ ⁷⁶ Note, for example, that the Holder Justice Department failed even to deny HSBC executives their bonuses in case of violations of the bank’s deferred prosecution agreement—a point seized on by Republican critics of the Obama administration. See “Too big to Jail: Inside the Obama Justice Department’s decision not to hold Wall Street Accountable,” Report by the Republican Staff of the Committee on Financial Services, House of Representatives, July 11, 2016, at https://financialservices.house.gov/ uploadedfiles/07072016_oi_tbtj_sr.pdf ⁷⁷ Thanks to an anonymous reviewer for pressing me to address this worry. For different permutations of this worry see Polsby and Freed, Race, Religion, and Public Policy, passim; Hanoch Dagan, A Liberal Theory of Property (Cambridge: Cambridge University Press, 2021).

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My main response to this objection is the following. Erasing the public/private distinction is indeed counterintuitive. However, erasing the expressive rationale that undergirds this distinction’s moral weight is also counterintuitive. And the latter erasure follows immediately, once we insist that public support for private wrongdoers only expresses objectionable attitudes if this support is driven by certain intentions on the part of public officials. The reason is straightforward. Cases such as those of Trump and Duterte, discussed in the previous chapter—ones where patently objectionable forms of public support for private wrongdoing are clearly associated with a single official’s repugnant attitudes—are the exception. In the overwhelming majority of cases, the expressive position is supposed to apply to laws passed by (large) multi-member legislative bodies. But the motivations and attitudes of such bodies are bound to be multiple, heterogeneous, and opaque. Even a given lawmaker herself might have a hard time pinpointing precisely why she voted (say) against this or that regulatory policy, or in favor of subsidizing a certain delinquent industry. For other parties to pinpoint the answer to such a question about her is vastly harder. And to divine precisely why the legislature as a whole voted this or that way is, more often than not, simply impossible. As a result, any rendition of the expressive view which hinged its normative judgments on an assessment of lawmakers’ intentions would deprive the view of almost any practical force.⁷⁸ Now consider the next objection. This objection grants that, at least in some instances, it may be plausible to bracket questions regarding officials’ intentions when assessing the moral status of government support for private wrongdoers. But it holds that more explanation is needed than I have provided so far as to why government financial support of private wrongdoers can implicate the public in the relevant wrongdoing. Perhaps the simplest way to respond to this objection is to imagine an adjacent case. A huge firm systematically engages in large-scale criminal activity which causes severe societal harms. Now suppose, as in our actual case, that the government deems this firm “too big to jail,” and that this designation accords the firm extremely lenient treatment from legal officials, as well as numerous forms of financial support from the government in the face of any threat of insolvency. Yet,

⁷⁸ As emphasized in Enoch, “Intending, Foreseeing and the State.” It is important to distinguish this point, and the context in which it is being raised, from another context where judgments about legislative intent are virtually inescapable. When a court must decide a question which relevant statutes have either not tackled, or have only tackled in a manner that is open to conflicting interpretations, the court must often engage in efforts to reconstruct lawmakers’ intentions. A great deal of legal philosophy is—appropriately—devoted to how courts should pursue this interpretative task. But it is one thing to try to guide efforts to interpret legislative intent when this interpretive task cannot be avoided. It is another thing to choose, despite the presence of alternatives, a broader normative outlook (or, more precisely, a version of such an outlook) that clearly falters whenever legislators’ precise intentions are extremely difficult to discern.

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unlike our actual case, this dubious firm is (fully) formally owned by the government: in the most basic economic sense, it is a government entity. Clearly, it would be implausible to say here that the firm’s transgressions represent an instance of merely private wrongdoing. Morally speaking, these transgressions plainly bear the imprint of public authority, insofar as it is the government that owns the company.⁷⁹ It is easy to see the implications of this hypothetical scenario for our actual case. After all, there must be some level of (ongoing, systematic) financial support accorded to a private firm by the government, such that firm’s wrongdoing stops being a purely private affair, and starts to look distinctly closer to wrongdoing that is committed by a government entity. To be sure, it may be impossible to pinpoint with perfect precision what is the relevant threshold—just how much government financial support removes a firm’s misdeeds from the realm of private wrongdoing. But we need not settle this thorny question here. On any plausible account of where that threshold should be located, the aforementioned facts regarding the scope of U.S. government support of the major banks make clear that the threshold has been crossed in their case. With this point in mind, I want to very briefly anticipate a final objection, which lies in the vicinity. According to this objection, no matter how much money the largest private banks have received from public authorities, it strains credulity to suggest that these banks’ wrongdoing is identical in its moral severity to similar wrongdoing committed directly by the authorities. My response to this objection is simply to dispute its location of the justificatory bar. In order for my argument to succeed, it is not necessary for me to show that wrongdoing by the major banks is indistinguishable in its moral severity from the same wrongdoing committed by directly by formal government entities. Much more modestly, I only need to show, against the corporate defender, there is no qualitative difference between the two. And this I hope to have established. For if my argument in the preceding paragraphs has been cogent, then it suggests that the real difference between public authorities’ own wrongdoing and the private banks’ wrongdoing is a difference in degree, rather than a difference in kind.⁸⁰

⁷⁹ To further bolster this point, one might imagine yet another variant, where the firm’s main transgressions have to do with workplace culture rather than with financial misdeeds. Suppose for instance that sexual harassment is (and is widely known to be) rampant in the company, but that its top echelons do nothing to end such harassment, because they deem some of the culprits to be too valuable for the company. It is easy to see why this would be a matter of government rather than purely private wrongdoing—or, more specifically, why the failure to act would be ultimately a failure of the government to express proper regard for the rights of the relevant victims. Yet, plainly, shifting from this kind of case to the case of financial wrongdoing need not affect the degree to which the government is implicated in the relevant wrongdoing. Of course, financial crime typically elicits less visceral reactions, seeing as the harms it visits are usually much more diffuse and its individual victims are less easily identifiable. But none of this changes the basic normative point here. ⁸⁰ This conclusion is compatible with holding, for instance, that it is worse for a state-owned bank to engage in serious wrongdoing than it would be for a private bank to engage in the same wrongdoing. And it might even be worse still if wrongdoing of the former sort was met with official approval by the

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I accordingly conclude that our corporate defender cannot reject criminal prosecution of major banks’ executives while also rejecting criminal prosecution of major banks themselves, and retaining the considerable public support currently given to these banks. At least one of these three corporate-friendly policies has to give.

4.7 Conclusion We can now take stock. In the chapter’s opening part, I motivated the focus on strategic theorizing within corporate premises. The chapter’s latter part, devoted to wrongdoing by major banks, provided a first extended illustration of a strategic argument that deploys such premises. One basic way to think about this argument is to see it as an extended commentary on the failure of liberal democracies in general, and American democracy in particular, to realize basic standards of equality through their legal systems. To be sure, governments continue to pay lip service to their duty to realize such standards. It should not be surprising, then, that the Department of Justice has taken to citing, in its official documents, Thomas Jefferson’s uplifting statement, that “The most sacred of the duties of government [is] to do equal and impartial justice to all its citizens.”⁸¹ But if what I have said in the latter parts of this chapter is right, even the most sophisticated corporate defender faces a very hard time showing that public authorities’ current treatment of major banks even approximates Jefferson’s dictum. Given that this is the case, we can and should be sympathetic, contrary to The Economist, to the waves of populist anger towards corporate elites in the aftermath of the financial crisis. These elites, and the corporations they head, have increasingly become, in the words of one fierce Justice Department critic, an “unjailable class.”⁸² That is a source of warranted resentment for the rest of us. For many, sad facts of this sort are a key part of the reason for why Americans, at least, have been living in quite dark times. Such dark times, however, make it especially important for political philosophy not to cast aside patently indefensible as theoretically uninteresting, but rather to engage such policies in a systematic manner. The strategic mode of theorizing that I have been illustrating here is one form that such philosophical engagement can take—one way of helping us see clearly even in the dark. My aim in the next two chapters is to provide further examples of such strategic flashlights.

highest echelons of government. But what ultimately matters here is that we think about these various instances of public involvement in wrongdoing as different points on the same scale. ⁸¹ See, e.g., Department of Justice, “Organization, Mission and Functions Manual: Overview,” at https://www.justice.gov/jmd/organization-mission-and-functions-manual-overview ⁸² See Taibi, “Eric Holder, Wall-Street secret agent.”

5 Strategic Theorizing, Corporations, and Dictators This chapter provides another extended illustration of strategic political theorizing within corporate-friendly premises. This time, I focus on the way in which global corporations facilitate unsavory regimes’ abuse of their people’s property. More specifically, I focus on customary commercial ties that provide dictatorships with significant nontax revenue, in exchange for public property they control. I have long argued against such ties. I have questioned the customary practice which allows every de facto government, irrespective of the process by which it came to power, to borrow funds in its people’s name, and to commit portions of its people’s property towards future payment of the relevant loans.¹ I have similarly questioned the customary recognition of every de facto government as entitled to sell off its people’s natural resources.² In both contexts (on which I will also focus here whenever I speak of “customary commercial ties”), I have been broadly in agreement with several other philosophers who have called for reform of the relevant customary practices, and whose ideas have inspired my own.³ However, I have also come to think that proponents of reform—myself included—can and should do more to anticipate corporate justifications of the status quo. This thought is likely to strike various philosophers as puzzling. At the very least, this is true for those philosophers who have dismissed customary commercial ties with dictators as a distraction from the central normative issues of global politics. Samuel Scheffler, for example, holds that arguing against “brutal, corrupt, and thuggish dictatorships” is simply “arguing against murder and theft,”⁴ and that such arguments do not tell us anything very informative about the foundational normative principles that ought to govern global politics. Stephen Macedo

¹ See Shmuel Nili, The People’s Duty (Cambridge: Cambridge University Press, 2019), chap. 4. ² See, e.g., my “Democratic Disengagement: Towards Rousseauian Global Reform,” International Theory 3 (2011): 355–389; “Our Problem of Global Justice,” Social Theory and Practice 37 (2011): 629– 653; “Conceptualizing the Curse: Two Views on Our Responsibility for the Resource Curse,” Ethics & Global Politics 4 (2011): 103–124. ³ In particular, I have learned much from Thomas Pogge’s “Achieving Democracy,” Ethics and International Affairs 15 (2001): 3–23; from Christian Barry’s “Sovereign Debt, Human Rights, and Policy Conditionality,” Journal of Political Philosophy 19 (2011): 282–305; and from Leif Wenar’s “Property Rights and the Resource Curse,” Philosophy & Public Affairs 36 (2008): 2–32 (see also Wenar, Blood Oil [Oxford: Oxford University Press, 2016]). ⁴ Samuel Scheffler, “The Idea of Global Justice,” Harvard Review of Philosophy 20 (2014): 17–35, at 25.

Philosophizing the Indefensible. Shmuel Nili, Oxford University Press. © Shmuel Nili (2023). DOI: 10.1093/oso/9780198872160.003.0006

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similarly implies that it is obvious that nations may “accumulate additional debts and obligations of compensation and redress” in case they “have engaged in unfair trade practices,”⁵ but that such debts and obligations have a distinctly secondary place in normative theorizing about global affairs. Along the same lines, Samuel Freeman asserts that liberal societies are obviously morally prohibited from perpetuating the continued rule of severely repressive regimes: Freeman takes it simply as a given that such regimes are to be seen as heads of “outlaw states”⁶ and therefore as outside the “society of peoples.” The explicit aim of these claims is to distance political philosophy from patently indefensible policies—to suggest, in a manner that should be familiar to the reader at this point, that such policies are devoid of philosophical interest.⁷ But there is also a crucial implicit assumption underlying these claims: that those “brutal, corrupt, and thuggish dictatorships,” with whom we should obviously not be dealing, are few—that even within the universe of authoritarian regimes, they are an exception, rather than the rule. After all, it would be harder to promptly write kleptocracies out of the “society of peoples,” if they turned out to comprise a sizeable portion of the real world’s society of peoples. I believe, however, that this is in fact our predicament—which is partly why corporations have often found receptive ears when defending their customary ties with dictators. Seeking yet again to preempt the corporate defender, I shall focus on two arguments meant to justify customary ties, and on the relationship between them. According to the first, vulnerable innocents argument, customary commercial ties ought to be continued even when they benefit highly repressive regimes, since boycotting these regimes is much more likely to hurt rather than help vulnerable people living under them. The second argument, which I label the challenge from soft authoritarianism, holds that outside of a few extreme cases, de facto rulers ought to be treated by outsiders as representative of the people over whom they preside, not least because they channel the lion’s share of public revenues towards purposes that are not alien to public interests. I believe (for reasons noted below) that both of these arguments rest on flawed premises. Nonetheless, I will try to illustrate how reform of customary commercial ties with dictators can be defended even within these corporate-friendly premises. More specifically, I will try to show ⁵ Stephen Macedo, “What Self-Governing Peoples Owe To One Another: Universalism, Diversity, and the Law of Peoples,” Fordham Law Review 72 (2003–4): 1721–1738, at 1732. ⁶ Samuel Freeman, “Distributive Justice and the Law of Peoples,” in Rex Martin and David Reidy (eds.), Rawls’ Law of Peoples: A Realistic Utopia? (Malden, Mass.: Blackwell, 2006): 243–260, at 251. ⁷ Joseph Heath makes this point with particular directness. Defending Rawls against charges of excessive focus on ideal visions of a just world, Heath asserts: “Many of Rawls’s critics have faulted him for failing to accentuate the many ways in which the current world system imposes harms upon poorer nations—the terms of trade, the legacy of colonialism and imperialism, etc. This may be true, but . . . . Rawls does not deal with these issues in The Law of Peoples for the same reason that there is no discussion of murder in A Theory of Justice. There is simply no theoretical issue there to discuss—people shouldn’t do it.” See Joseph Heath, “Rawls on Global Distributive Justice: A Defence,” Canadian Journal of Philosophy 35 (2005): 193–226, at 198.

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that both the vulnerable innocents argument and the challenge from soft authoritarianism can be addressed in a way that leaves intact the core moral case for reform. I proceed as follows. In 5.1, I articulate a basic deontological rationale for reform of customary commercial ties with dictatorships. According to this rationale, democracies have weighty—albeit defeasible—moral reasons to step back from customary commercial ties with dictatorships, since such ties implicate them in dictatorships’ wrongdoing. I explain why common appeals to collective action excuses are not a promising strategy for the corporate defender to adopt in the face of this deontic rationale, and why the corporate defender is therefore likely to resort to the vulnerable innocents argument instead. In 5.2, I put pressure on the vulnerable innocents argument, through a novel strategy. I compare the risks to innocents highlighted by this argument to the risks that a “no payment” policy poses in the face of familiar ransom demands made by hostage-takers. There is a disparity between our willingness to countenance a rigorist policy in these smaller-scale ransom cases, and our reluctance to endorse a similar “no payment” policy in the case of commercial ties with dictatorships. I show that the corporate defender has difficulty explaining this disparity. And this difficulty leads me to suggest that it is ultimately the challenge from soft authoritarianism, rather than the vulnerable innocents argument, which holds the real key for the corporate defender. In 5.3, I illustrate a creative strategy for dealing with the soft authoritarian challenge. Finally, I note several resulting policy prescriptions, which take seriously the deontic impulse favoring reform of customary commercial ties, while also giving due weight to concerns regarding threats to vulnerable innocents.

5.1 A Deontological Argument for Reforming Customary Ties When the governments of affluent democracies and the corporations they regulate pursue commercial ties with repressive regimes, they implicate themselves in these regimes’ wrongdoing through what they give, as well as through what they get. The money that democracies’ governments and corporations transfer to repressive regimes often ends up funding the unjust conduct—including the violence—of these regimes. At the same time, whenever this money purchases state property, it implicates democracies and their corporations in violations of the property rights of the peoples who live under the relevant regimes.⁸ Regimes that rely on bullets rather than ballots often sell state property that belongs to their people without allowing the people to know about these sales; rarely if ever allow their people to protest the sales; and never allow the people to control the resulting revenue ⁸ See, again, Pogge, “Achieving Democracy”; Barry, “Sovereign Debt”; Wenar, Blood Oil.

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through elected delegates. Such regimes can therefore be said to be systematically violating their people’s property rights. In turn, any foreign actor who purchases state property from such regimes is knowingly aiding, abetting, and profiting from these violations. At least in principle, then, foreign democracies ought not engage in such purchases, and ought to prohibit their corporations from making such purchases. The qualification—“at least in principle”—will eventually turn out to be significant to my position. But much before this qualification, I want to focus on a more fundamental issue. Even a qualified, presumptive stance in favor of legal limitations on corporate dealings with repressive regimes is bound to draw considerable corporate fire. I therefore devote the bulk of this chapter to the best arguments that a corporate defender might make against legal reform and in favor of “business as usual.” More specifically, I want to begin with a pair of arguments that have long featured in public discussions of commercial ties with dictators. According to the collective action argument, a democracy that limits commercial ties with a dictatorship will very likely do little to induce positive change in the regime, and will only loss out in competition with other countries, since the business opportunities it relinquishes, and forces its corporations to relinquish, will be taken up by less scrupulous actors.⁹ According to the vulnerable innocents argument, introduced above, limitations on commercial transactions with a dictatorship overwhelmingly impose economic harm not on ruling elites, but on the people living under them. One key point about these two arguments should be obvious upon reflection, but is rarely noted in public (or even philosophical) discussions of the topic. The point is that there are going to be at least some cases where the two arguments conflict with one another. Suppose that, per the collective action argument, a given dictatorship’s economic position is entirely unaffected by a solitary democracy’s legal reform: precisely the same amount of money that the dictatorship would have secured from this democracy and its corporations is now provided by other countries’ corporations. Under such circumstances, it is very hard to see how exactly the relevant democracy’s legal reform has imposed economic harm on the people living under the dictatorship. After all, whatever amount of money would have been available to the dictatorship under “business as usual” also remains available (ex hypothesi) following the reform. Another critique targets the collective action argument, taken on its own. This argument certainly gets something right: collective action problems are a principal reason for why a democratic refusal to pursue commercial ties with unsavory regimes will typically not suffice to trigger positive changes in these regimes

⁹ Corporations continuously rely on this argument when lobbying government officials. See, e.g., Rachel Maddow, Blowout: Corrupted Democracy, Rogue State Russia, and the Richest, Most Destructive Industry on Earth (New York: Crown, 2019), 118.

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(although, for reasons noted below, there are grounds for believing that such refusal is necessary for positive changes to occur). However, it is also vital to see that the collective action argument leaves intact a nonconsequentialist argument for reform of customary commercial transactions with dictatorships. If one grants the aforementioned claim that such transactions implicate democracies and their corporations in dictators’ wrongdoing, then it seems that at least in principle, each democracy has sufficient moral reasons to limit these transactions, irrespective of how other countries behave. The force of the underlying moral constraint here seems clear enough with regard to micro-level interactions. Common-sense morality, at least, holds that my moral duty to refrain from stealing from you holds even if whatever I refuse to steal will be stolen by less scrupulous third parties. The same point holds when we move from the interpersonal to the international realm, and from individual wrongdoing to corporate entanglement in wrongdoing. The corporate defender may wish to contest this point. This defender might start by objecting that customary transactions with dictators are qualitatively different from micro-scale theft.¹⁰ These transactions might make affluent democracies’ corporations complicit in dictators’ theft. But these transactions do not mark the corporations of affluent democracies as themselves thieves. It follows that any analogy between these corporations and individual thieves is problematic. The main difficulty with this objection is that its heavy emphasis on the distinction between perpetrating theft and “mere” complicity in theft is misleading. We can see this point already at an abstract level. Parties who are ostensibly mere “accomplices” to perpetrators’ theft can sometimes be so intimately involved in this theft that it would in fact be misleading to describe them as accomplices, and more accurate to describe them as co-perpetrators. If I continuously promise to buy the loot you obtain from your victims after every robbery you commit, and over time we develop a clear set of mutual expectations where I rely on your offers of the loot and you rely on my willingness to buy it, then you may be the chief perpetrator and I may initially be merely “complicit,” but my involvement in your crime could be argued to be so deep so as to make me (eventually, at least) a co-conspirator. Indeed, my failure to respect the victims’ rights is, arguably, almost as pronounced as yours.¹¹ In turn, it seems intuitive to think that this moral description applies to the role that many corporations play in kleptocrats’ theft of their peoples’ resources—that at least some corporations based in affluent democracies can be seen as actively colluding with kleptocrats to steal their peoples’ wealth.¹² ¹⁰ I am grateful to an anonymous reviewer for pushing me to address both this and the next objection. ¹¹ See in this context the discussion in Chiara Lepora and Robert Goodin, On Complicity and Compromise (Oxford: Oxford University Press, 2013). ¹² See, e.g. Pogge, World Poverty and Human Rights (Cambridge: Polity Press, 2002), at 142.

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Another tack that the corporate defender might pursue is to challenge the common-sense view expressed a moment ago. Here the objection would be that if our realistic choice is between a world in which unscrupulous perpetrators steal from innocents and then use the proceeds of their theft to nefarious ends, and a world in which we steal from the same innocents, but use the proceeds to do good in the world, we should, in fact, opt for the latter rather than the former. My first response to the objection notes that it involves something of a normative bedrock. An ardent consequentialist who insists that interpersonal morality is concerned solely with how our actions affect others, without any independent attention to how we treat others, is very likely to simply shrug at the fact that the consequentialist approach to the relevant collective action problem radically departs from common-sense morality. In contrast, for many nonconsequentialists, the willingness to even entertain certain “dirty deeds,” simply because it is foreseeable that others will commit them if we do not, manifests a failure to treat the prospective victims of our actions in the right way, independently of how our actions affect them. There is no obvious middle ground between these two positions, nor is there—despite an insightful philosophical literature—any easy way to adjudicate between them.¹³ The second, related response, has to do more specifically with act consequentialism. If one wants to hold that it is justifiable for A to steal from B simply because A will make better use of the stolen property (or of the proceeds of theft) than alternative likely thieves C, D, and E, then one is overwhelmingly likely to turn for support to act consequentialism—that is, the view according to which the focal point of moral evaluation is the consequences of particular actions, as distinct from (say) the consequences of more general rules. But act consequentialism is an extremely odd position for any defender of corporate interests to adopt. After all, if one holds that A may steal from B simply because A will make better use of the stolen property than alternative likely thieves, why cannot A also steal from B if and when A has reason to believe that he would make better use of the property than B himself ? For the act consequentialist, this question suggests a QED rather than a reductio: This broader license to steal in the name of overriding good is indeed the result that morality mandates. But this is precisely the kind of result that corporations in general try to avoid—and indeed frame as unjust theft. This is true, for example, whenever corporations protest infringements on their intellectual property rights, even when these infringements clearly serve extremely weighty public needs.¹⁴ ¹³ See, e.g., Shelly Kagan, “Do I Make a Difference?,” Philosophy & Public Affairs 39 (2011): 105–141; Julia Nefsky, “Consequentialism and the Problem of Collective Harm: A Reply to Kagan,” Philosophy & Public Affairs 39 (2011): 364–395. ¹⁴ See again the pharma campaign noted in the previous chapter: Brian Schwartz, “Big Pharma lobbyists launch campaign against Biden over Covid vaccine patent waiver,” CNBC, June 1, 2021, at www.cnbc.com/2021/06/01/big-pharma-launches-campaign-against-biden-over-covid-

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But—more directly on point here—the same is true, for example, when corporations protest nationalizations of resource-extraction facilities, or renegotiations of extractive contracts, as violations of their “investor rights.”¹⁵ In these (and many other) contexts, the claim that more good would follow from infringing upon their property rights as compared to respecting these rights leaves corporations decidedly cold. Endorsing this claim here would thus put them in an extremely awkward position. These observations suggest that the corporate defender, wishing to justify commercial ties with dictatorships, would do well to simply put aside the collective action argument, and to focus on the vulnerable innocents argument. I therefore turn to scrutinize the latter argument in some detail.

5.2 The Vulnerable Innocents Argument Unlike the collective action argument, the vulnerable innocents argument does not treat the likelihood that other parties will steal what we won’t as erasing the wrong involved in stealing. The vulnerable innocents argument (as I construe it, at least) grants that customary commercial ties with dictatorships are indeed presumptively wrong, in light of the entanglement they yield in dictators’ abuses of their peoples’ resources. But the argument holds that this presumptive wrong is outweighed by the risks that stopping customary commercial ties would impose on vulnerable people who live under dictators. A sizeable body of social-scientific work on the effects of economic sanctions shows that dictatorships are often adept at shifting the costs of sanctions onto their most powerless subjects. Even when economic sanctions “bite,” and the regime finds itself with less money at its disposal, ruling elites respond by concentrating more limited resources on a narrower group of powerful supporters, leaving less to spend on broader societal needs. Furthermore, sanctions lead dictators to put more emphasis on violence as compared to patronage in their never-ending quest to sustain their power.¹⁶ All this supports the claim—to which the corporate defender is bound to cling—that limitations on customary commercial ties commonly bring considerable suffering to vulnerable innocents.

vaccine-patentwaiver.html; see also Kevin Breuninger, “Pfizer CEO opposes U.S. call to waive Covid vaccine patents, cites manufacturing and safety issues,” CNBC, May 7, 2021, at https://www.cnbc.com/ 2021/05/07/pfizer-ceo-biden-backed-covid-vaccine-patent-waiver-will-cause-problems.html ¹⁵ See, e.g., Aaron James, “Investor Rights as Nonsense—On Stilts,” in Lisa Herzog (ed.), Just Financial Markets? (Oxford: Oxford University Press, 2017), 205–229. ¹⁶ For an overview of the relevant social-scientific research which puts special emphasis on both of these worries, see Chris Armstrong, “Dealing with Dictators,” Journal of Political Philosophy 28 (2020): 307–331.

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This is in many ways an old claim.¹⁷ But I would like to consider it here from a new perspective, involving a comparison that (to the best of my knowledge) has not featured in social-scientific or philosophical discussions of the topic. The threats that dictatorships often pose to their most vulnerable subjects in case of limitations on customary commercial ties can be fruitfully compared to the threats that smaller-scale criminals pose to hostages whom they hold while demanding a hefty ransom. I should emphasize up front that I do not think a perfect analogy obtains between these cases. But comparing dictatorships to smaller-scale hostage-takers can nonetheless be illuminating, in at least two respects. First, this comparison shows that the vulnerable innocents argument must ultimately be nonconsequentialist—a finding which renders the argument unstable and (to a significant extent) defangs it. Second, comparing the case of sanctioned dictators to hostage-takers helps us see that the real heavy lifting for the corporate defender is ultimately done not by the vulnerable innocents argument, but rather by a different argument altogether. I elaborate each of these ideas in turn.

5.2.1 Dictatorships, Ransom Demands, and the Separateness of Persons Various kinds of criminals threaten to impose the gravest harms on innocents they hold hostage, unless they receive ransom payments. In perhaps the most familiar cases, the hostages are distinct individuals, who are kidnapped by criminals principally interested in money. In other instances, the criminals are clearly seeking ransom payments as a means that will support their political cause. A key case in point is ISIS, extorting tens of millions of dollars from European governments in exchange for the release of European journalists and other European citizens taken hostage in order to fund the terrorists’ Jihad.¹⁸ In other cases still, the criminals aim for pecuniary gain, but what they hold hostage are (in the first instance) vital information systems, rather than distinct individuals. Here, I particularly have in mind the wave of cyberattacks shutting down the vital electronic infrastructure of numerous municipalities and companies until princely ransoms are paid.¹⁹ ¹⁷ This claim recurred, for example, in the Congressional debate on the landmark Foreign Corrupt Practices Act of the 1970s, where the aforementioned collective action excuses were also central. See, e.g., Mike Koehler, “The Story of the Foreign Corrupt Practices Act,” Ohio State Law Journal 73 (2012): 929–1013. ¹⁸ See, e.g., “ISIS collects millions in ransom for abducted Christians,” CBS News, February 16, 2016, at https://www.cbsnews.com/news/isis-collects-millions-in-ransom-for-abducted-christians/ ¹⁹ See, e.g., Frances Robles, “A city paid a hefty ransom to hackers. But its pains are far from over,” The New York Times, July 7, 2019; Manny Fernandez, David Sanger, and Marina Trahan Martinez, “Ransomware attacks are testing the resolve of cities across America,” The New York Times, Aug. 22, 2019; Brian Fung, “Another big company hit by a ransomware attack,” CNN, Aug. 11, 2021, at https:// www.cnn.com/2021/08/11/tech/accenture-ransomware/index.html

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In all of these cases, we are familiar with the consequentialist claim that ransoms ought not be paid, because they merely incentivize the next criminal attempt to secure ransom payments. Indeed, this trenchant, future-oriented opposition to ransom payments is the official policy of the U.S. and UK governments with regard to kidnapping attempts targeting their citizens.²⁰ It is also the policy officially recommended by the FBI in the face of cyberattacks that have paralyzed dozens of American cities and firms.²¹ And it is, more generally, a view familiar in public discourse: “paying ransoms now will only incentivize the criminals to seek the next ransom tomorrow.” To be sure, when democratic governments and the corporations they regulate transfer money to dictators, they do not normally take themselves to be paying ransoms, nor are they typically understood by any observers to be engaged in ransom payments. Nonetheless, the vulnerable innocents argument seems (however unwittingly) to cast these monetary transfers as de facto ransom payments. Dictatorships hold vulnerable populations at their mercy, and—the argument goes—it is simply the sad truth that if money doesn’t make its way to the ruling elite, this elite will ensure, in both direct and indirect ways, that the population will suffer tremendously. The ruling elite will subject ordinary citizens to more torture, for example (since, as was noted above, repression has to be increased to maintain the regime, with less funds available for patronage).²² The population will also suffer from myriad other threats to basic interests as economic and health infrastructure deteriorate.²³ In these ways, the vulnerable innocents argument casts commercial ties with repressive regimes as very much akin to a hostage situation in at least one pivotal sense: we either pay the criminals, or those under their thumb will suffer greatly. In the case of dictatorships, however—in stark contrast to the classic hostage situation—a categorical, firm refusal to pay the relevant criminals is very rarely countenanced, and is certainly far less familiar in public and policy discourse than is the case with smaller-scale hostage situations. In order to undermine the argument for reform of commercial ties, the corporate defender must be able to provide a normative justification for this discrepancy.²⁴

²⁰ See, e.g., Jeffrey Howard, “Kidnapped: The Ethics of Paying Ransoms,” Journal of Applied Philosophy 35 (2018): 675–688. ²¹ Fernandez et al., “Ransomware attacks are testing the resolve of cities.” ²² See, e.g., Dursun Peksen, “Better or Worse? The Effect of Economic Sanctions on Human Rights,” Journal of Peace Research 46 (2009): 59–77, at 69–74. ²³ See, e.g., Yitan Li and A. Cooper Drury, “Threatening Sanctions When Engagement Would Be More Effective: Attaining Better Human Rights in China,” International Studies Perspectives 5 (2004): 378–394; Richard Hanania, “Ineffective, Immoral, Politically Convenient: America’s Overreliance on Economic Sanctions and What to Do about It,” Cato Institute Policy Analysis 884 (Feb. 2020): 1–18. ²⁴ I take it to be obvious that de facto ransom payments cannot be morally justified in the macrolevel case simply through reference to the fact that democracies and their corporations reap economic benefits from these payments.

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Initially, it may seem as if this discrepancy can be explained on simple consequentialist grounds. In the smaller-scale ransom cases, the corporate defender might argue, those who receive ransom demands have much more room for confidence about their ability to “solve the problem once and for all,” by categorically refusing to transfer money to the criminals. Additionally, these actors can be much more confident in the probabilities they assign to different outcomes materializing, as compared to the case of de facto hostages living under dictatorship. This explanation, however, suffers from serious weaknesses. For one thing, it offers an overly rosy picture of the policy situation in the micro-level cases. Take the case of micro-level kidnappings again. No single government has the ability to single-handedly “solve the problem” of such kidnappings—not even of its own citizens. When attempting to kidnap Western journalists, for example, ISIS does not pause first to ask whether a given prospective victim is a citizen of a ransompaying country or not. Rather, ISIS kidnaps first and asks such questions later. So even if the UK and the US, for example, continued in their trenchant refusal to pay ransoms when their citizens are kidnapped, the kidnapping rate is extremely unlikely to drop to zero, at least so long as some Western countries—however few— continue to show willingness to pay.²⁵ Similar difficulties apply to the claim that smaller-scale ransom cases involve clearer probabilities. Consider cyber-ransoms once more. What is the probability that all municipalities in a given affluent country ever manage to form a united front and collectively refuse to pay cyber-ransoms? It is virtually impossible to say, not least because many municipalities (and companies) routinely keep their ransom payments secret, for obvious reasons. What is the probability that, for any given time-period, hackers from various countries manage to develop technologies that outsmart even the most advanced and well-resourced IT security infrastructure devised by the world’s most affluent democracies? Again, it is far from easy to say. Compared to all this, the macro-level case that is our main interest does not seem to be qualitatively different. In the case of dictatorships that effectively hold their people hostage, just as in the micro-level ransom cases, our overall epistemic position is poor. Take the case of Iran. If China and Russia, pursing their own geopolitical calculations, reach various (very likely tacit) agreements with the United States, and, as a result, provide the Iranian regime with less economic and diplomatic backing, would long-standing American sanctions against Iran impose real costs on the Ayatollahs? What is the probability that the Ayatollahs’ ever-extending use of violence will become counterproductive and push a critical mass of citizens to topple them? If that happens, what will be the relative significance of sanctions

²⁵ Howard, “Kidnapped,” 680. Of course, one could imagine a case where all relevant countries band together and credibly commit not to pay ransoms. But then why not imagine parallel collective action obtaining in the macro-level case?

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as compared to independent fluctuations in the price that the Ayatollahs are able to charge for Iranian oil, or as compared to broader changes in Iranian public sentiment? And how does one disentangle these factors?²⁶ Our epistemic limitations are perhaps even more evident when reflecting on much-discussed sanctions that ended decades ago, and whose effects are still debated today. Were sanctions against South Africa pivotal to the demise of the apartheid regime, or did they actually play a very limited role as compared to geopolitical transformations associated with the end of the Cold War?²⁷ We now know that, contrary to the popular myth propagated by Saddam Hussein’s government in the 1990s, economic sanctions against Iraq did not “kill” anywhere near half a million children,²⁸ but how many Iraqi children would have died under Saddam had sanctions not occurred? Even larger questions arise when we reflect on the relationship between the past and future. When designing future economic policies concerning dictatorships, how much weight should we assign to dispiriting past evidence about episodes of economic sanctions associated with severe costs for the “target” country?²⁹ Should we regard this past evidence as reflecting primarily lack of sufficient political will, skill, or international coordination—“lessons on what to avoid” as we set about to design ever-“smarter” sanctions? Or should we mostly give up on the idea that sanctions can be “smart”? I must confess my deep doubt that any amount of empirical work can ever settle such questions definitely, not least due to structural limitations of global social science. As I have argued at length elsewhere,³⁰ our inability to compare our world to

²⁶ Unlike Armstrong (“Dealing with Dictators,” 318), Wenar is optimistic regarding the efficacy of Western sanctions against the Ayatollahs, at least concerning the country’s nuclear program. See his “Reply to Blake and Mehdiyeva,” in Leif Wenar, Michael Blake, Aaron James, Christopher Kutz, Nazrin Mehiyeva, and Anna Stilz, Beyond Blood Oil (Lanham: Rowman and Littlefield, 2018), at 124. In the same piece (p. 123), Wenar is also distinctly more optimistic than Blake regarding the effects of trade restrictions on Congo, for example. I am taking something of a middle ground here. In my view, at the macro-level, neither general optimism nor general pessimism are truly warranted, because our epistemic difficulties are too profound. This is true even if, as evidence accumulates over time, we may able to disprove more fanciful claims (especially those made by self-serving corporations) regarding the effects of specific trade limitations in specific times and places. Iran in particular is (arguably) an especially complicated case. At the time of writing, at least, Western sanctions targeting Iran’s oil industry seem to be nearing an end, ironically because of the Western desire to contain the costs of economic sanctions against Russia’s oil industry. ²⁷ See, e.g., Philip Levy, “Sanctions on South Africa: What Did They Do,” Economic Growth Center, Yale University Discussion Paper, No. 796, Feb. 1999. ²⁸ See Tim Dyson and Valeria Cetorelli, “Changing Views on Child Mortality and Economic Sanctions in Iraq: A History of Lies, Damned Lies, and Statistics,” BMJ Global Health 2 (2017): 1–5. ²⁹ In “Rethinking economic ‘sanctions,’ ” International Studies Review 18 (2016): 635–654, I object to the frequent reference to “target” countries in the sanctions literature, partly because this term ignores the possibility of a nonconsequentialist justification for sanctions, of the sort I am stressing in this chapter. I use “target” here simply as a nod to the conventional—flawed—terminology in the literature. ³⁰ See my “Liberal Global Justice and Social Science,” Review of International Studies 42 (2016): 136–155.

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any other means that we cannot reliably untangle the sheer panoply of interlocking factors driving the global economy. It is almost impossible to isolate with any significant confidence the casual impact of truly global economic policies. When it comes to global economic affairs, muddling through pervasive uncertainty is simply our fate.³¹ Given these structural limitations, at least one natural consequentialist option is to go back to the basics: to refuse to surrender to short-term pressures, and to prioritize the long-term impact of fundamental shifts in the structure of relevant incentives. This is the same prioritization that we noted in Chapter 4’s discussion of “too big to jail.” And it is also the same prioritization which makes the “no compromise” strategy appear so attractive when it comes to ransom payments to terrorists, financially driven kidnappers, and cyber-hackers. In the short term, hostages will suffer, and possibly even die, but if we consistently refuse to reward criminals’ hostage-taking with money, they will have much less of an incentive— and eventually also much more limited ability—to take future hostages, leading to an overall reduction in the number of hostages. The same consequentialist prioritization of the long-term is likely to be operative with regard to commercial transactions with dictatorships. If we consistently refuse to reward violence aimed at obtaining and securing political power, and if we do not allow de facto rulers to enjoy the foreign funds that have traditionally been associated with de facto control over a country, actual and aspiring rulers will have weaker incentives to resort to such violence to begin with, and stronger incentives to be meaningfully accountable to those they govern.³² Focusing on this fundamental shift in incentive structure, the consequentialist would accordingly call on us to be willing to tolerate even significant short-term humanitarian costs involved in limitations of commercial transactions with dictatorships, with an eye towards even more significant future gains.³³ Now, the corporate defender may object that the preceding argument ignores an important difference between micro-level hostage situations and the macro-level case of customary transactions with dictators. This is because, whenever democracies refuse to transact with certain dictators, there follows a very real risk that these dictators’ subjects will be trapped ever more firmly under their rule, as fellow authoritarians simply take up the commercial opportunities that democracies

³¹ To be clear, it does not follow that we should completely forsake any reliance on whatever socialscientific knowledge we have accumulated. What does follow is that we must always be cautious about what past social scientific evidence tells us with regard to the future—and this is especially true the further into the future we look. ³² Pogge, Achieving democracy, passim. Elsewhere, I criticize Pogge’s complex hybrid of deontological and consequentialist arguments regarding global injustice in general, and customary commercial ties in particular. See my “Rigorist Cosmopolitanism: A Kantian Alternative to Pogge,” Politics, Philosophy & Economics 12 (2013): 260–287. ³³ Wenar’s analysis of customary natural resource trade provides an especially explicit example of this consequentialist reasoning. See his “Reply to Blake and Mehdiyeva.”

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choose to relinquish, but without using this commercial leverage to pressure the relevant dictators to reform in any way. No comparable problem, however, exists in the micro-level case. Several responses can be made to this objection, in ascending order of significance. First, the objection is (arguably) incoherent. This is because the kind of leverage that it prizes—the leverage associated with continued customary commercial ties between democracies and authoritarian regimes—realistically depends on their being a credible threat of withdrawal of such ties, at least under some circumstances. If customary ties are taken as fixed given that is not to be tempered with under virtually any conditions, there is room to doubt just how much actual clout these ties can accord democracies in affecting the behavior of the relevant regimes. Second, as my earlier reference to Iran, Russia, and China implies, appeals to leverage can go both ways. The leverage (economic and otherwise) that— according to the objection—democracies should deploy to nudge a given dictator to reform while trading with his regime can also be deployed to pressure third parties not to trade with this regime. Put otherwise, a convincing perspective on what democratic leverage can do must be a holistic perspective. But is not clear that a holistic perspective would actually yield the result for which the objection calls. Third, the fear highlighted by the objection is real: there is a genuine risk that a people whose dictatorship is forced to trade solely with other dictatorships will see fewer prospects for positive change in comparison to the customary statusquo. But that this risk exists should not blind us to the fact that, at least for the vast majority of peoples who have been living under dictatorships, the customary status quo also features its own very real prospects of deepening entrapment under authoritarian rule, for obvious reasons. Bearing these empirical observations in mind, I also want to stress a pair of more purely normative points. One is that although the objection highlights a genuine risk in the macro-level, dictatorship case, a morally comparable risk obtains in the micro-level case as well. To repeat, in the macro-level context, a democratic “nocompromise” approach does indeed risk harming the wrongdoers’ most immediate victims (any given people subjected to a dictatorial regime). But the same is true even more clearly in the micro-level case. Here too, a “no-compromise” policy imposes straightforward risks of the most acute harm befalling the wrongdoers’ most immediate victims—namely, the hostages. Yet despite these obvious risks, a rigorist refusal to compromise with micro-level hostage-takers retains considerable appeal. So the question still stands: why should we not view a refusal to compromise with the macro-level hostage-takers as equally appealing? My other normative point is very much related. So long as we are operating within a consequentialist framework, there is no normative basis for prioritizing the risks posed to any given people as a result of democracies reforming customary commercial ties, over the risk that continuing customary ties would carry for many

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other peoples, including the extremely long list of peoples who are potential future victims of dictatorships. The micro-level case is instructive here as well: in this case, consequentialism gives us no grounds on which to prioritize the risk of harm befalling current hostages over the risks facing many other individuals who are prospective victims, and who are more likely to be targeted as lucrative hostages so long as we disavow a “no-compromise” policy. Yet the objection does little to show that a consequentialist account must yield a different verdict in the macro-level context. With all this in view, it becomes clear that a trenchant corporate defender would be wise to take distance from consequentialism. More specifically, such a defender would do well to adopt a particular nonconsequentialist argument, which echoes the contractualist approach discussed in the previous chapter. According to this argument, the fundamental moral reason why we ought not disengage from dictators’ commercial dealings is that their current subjects, who are overwhelmingly likely to suffer significant harm in the short term, can reasonably reject the consequentialist demand that they accept these harms for the sake broader gains that will accrue to others at a later point in time—be it future members of their own society, or members of other societies. In a moment, I shall register continued doubts as to whether this nonconsequentialist approach can really explain the gap on which we have been focusing, between customary transactions with dictators and smaller-scale hostage situations. But even before I turn to these doubts, I wish to point out that once the corporate defender adopts a nonconsequentialist tack, the vulnerable innocents argument is destabilized in significant ways. To see this, consider yet again the oft-repeated charge that economic sanctions against dictatorships “kill” innocents.³⁴ This charge loses much of its dramatic force if one emphasizes the core nonconsequentialist idea of the separateness of persons—the same idea which ultimately underlies the reasonable rejection standard, and which explains why costs imposed on some cannot automatically be outweighed by larger gains accruing to others. The more weight we put on the separateness of persons, the more weight we must also put on the distinction between what each one of us does and what others do. And the more weight we put on this distinction, the more tempting it is to simply deny the charge that economic sanctions on dictatorships “kill” innocents. Sanctions on dictatorships, the nonconsequentialist will insist, do not kill innocents. If anyone does, it is dictatorships that kill the relevant innocents. The regime’s henchmen who decide, for example, to increase the use of violence to sustain political control when fewer funds are available for patronage, cannot plausibly say to outsiders who stop supplying them with funds “you left us with no choice,” any more than standard hostage-takers can

³⁴ See, e.g., Michael Blake, “Bad Men and Dirty Trade,” in Wenar et al., Beyond Blood Oil, 37–49.

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say this. As Bernard Williams observed long ago, virtually anyone who resorts to this defense is lying.³⁵ Of course, to say all this is not to say that wrongdoers’ choices in response to our actions are simply irrelevant in identifying what we ought to do. So, in the case before us, whenever there really are credible grounds for thinking that massive innocent suffering would follow from halting commercial ties with a dictatorship, this is a factor for which our moral analysis must account, even if the suffering is ultimately imposed by the dictatorship.³⁶ But to recognize the existence of this factor is still quite different from accusing governments that limit commercial ties with dictatorships of “killing” innocent people who live under them.³⁷ Furthermore, once we pay special attention to what we do, as compared to what others do, the basic nonconsequentialist reservation about continuing our commercial entanglements with dictatorships reappears, with ever-greater force. To reiterate what I said above, customary commercial transactions implicate our governments, and the corporations they regulate, in dictators’ abuses. Our governments and the corporations they regulate are deeply entangled in dictators’ systematic abuses of their people’s property, and, more generally, in the numerous forms of violence and injustice that dictators regularly inflict on their subjects. This entanglement worry already gives us a weighty moral reason to reform customary commercial ties. Certainly, this worry will always have to be balanced against the collateral damage that is likely to be associated with reform. Still, the more distance we take from consequentialism, the more likely it is that the concern with ending our entanglement in wrongdoing will be decisive at least in some instances. This finding may point towards circumscribed reforms. But it is still quite far from the conclusion for which the corporate defender hopes: that customary commercial engagement with dictatorships is, virtually always and everywhere, morally appropriate as a matter of course.

5.2.2 Ransoms, Vulnerable Innocents, and the Challenge from Soft Authoritarianism Earlier, I registered doubt as to whether a “reasonable rejection” argument can explain the gap between the familiar willingness to entertain a “no compromise” ³⁵ Bernard Williams, “A Critique of Utilitarianism,” in Williams and J.J.C Smart, Utilitarianism—For and Against (Cambridge: Cambridge University Press, 1973). ³⁶ On this specific point I agree with Armstrong, “Dealing with Dictators,” 316, who in turn echoes Cecile Fabre, Economic Statecraft: Human Rights, Sanctions, and Conditionality (Cambridge, MA: Harvard University Press, 2018), 54. ³⁷ Wenar (“Reply to Blake and Mehdiyeva”) endorses the same conclusion, though it is unclear how his consequentialist commitments align with this conclusion.

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position with regard to small-scale ransom payments, and the reluctance to entertain such a position with regard to (de facto) ransom payments extracted by dictators. I should now note the fairly straightforward source of this doubt. If it is morally inappropriate to expect a dictatorship’s victims to reconcile themselves to the costs that a “no engagement” policy would inflict on them, even if such a policy would really yield broader social benefits once it is generalized and followed steadfastly, then the same should be true in the smaller-scale case: the same nonconsequentialist reasoning should also lead us to think that the victims of small-scale hostage-takers can reasonably reject a “no engagement” policy in response to ransom demands. The corporate defender, therefore, has to turn to yet other alternatives if he is to explain the asymmetry that has been bothering us. Yet I believe that these alternatives will not be any more successful. Start with a stable expectations alternative. The corporate defender might argue that in the case of dictatorships, customary patterns of commercial engagement with any de facto government have been in place for centuries, and many peoples have been planning accordingly. Stepping away from commercial engagement with dictatorships thus means disrupting the expectations of the peoples who have been living under them. This, however, is not true in the smaller-scale ransom cases, since here there are at least some instances where expectations never developed about money routinely making its way to the hostage-takers (since, as was already noted, some governments have long been formally committed to a “no payment” policy). There are at least three problems with this position. First, it is a very strange position for corporations in particular to take, given how frequently they are willing to upset stable expectations when profit is on the line. Corporations, after all, thrive on “creative destruction,” even when it means that whole sectors of the economy, modes of employment, and forms of specialization that have long been stable are forced to give way, however unexpectedly, to new modes of production. Second, more importantly, stable expectations surely can be—and sometimes ought to be—adjusted gradually. Announcing complete economic disengagement from dictatorships overnight, without any prior notice and phasing-in period, would indeed amount to pulling the rug from under their subjects’ feet. But that simply means that commercial disengagement can and should be introduced much more gradually. Third, very much related, there are some specific forms of commercial engagement where it seems especially odd to suggest that stable expectations alone can suffice to generate any kind of perpetual duty—unbounded in time—to persist with economic ties. Loans are a key case in point. From a nonconsequentialist perspective, it is already a tall order even to establish that foreign creditors must continue offering loans to a dictatorship in the present, simply because they have offered similar loans in the past. But it is harder still to show that this (supposed) expectations-based duty persists indefinitely, lacking any kind of cut-off point.

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Stable expectations, then, will not explain the discrepancy between the microlevel ransom cases and the macro-level, dictatorship case. Might the corporate defender appeal instead to differences in the gravity of the risk involved in not paying the ransom? The thought here would presumably be that ending commercial engagement with dictatorships would involve graver risks than those entailed by a “no-payment” policy in the smaller-scale ransom cases. This reasoning also encounters serious difficulties. It is probably true that, at least on average, commercial disengagement from any given dictatorship will impose risks on a larger number of individuals than the number that would face significant risks in the case of refusal to pay standard ransoms (although even this point may no longer be true if cyber-attackers demanding ransoms keep hitting ever-larger cities). However, the gravity of a given risk is not solely a function of the number of people affected by it. Since—to recall—we are operating here within a nonconsequentialist outlook that puts a strong emphasis on the separateness of persons, our assessment of threat gravity must also account for the severity of the threat that each individual faces, as well as for probability that the threat faced by each individual will actually materialize. Once we introduce these additional factors into the equation, it is far from clear that the risks involved in a refusal to pay standard ransoms are any less acute than the risks involved in refusing to continue channeling money to dictators. Average Saudis might, for instance, suffer an economic hit if foreign democracies stopped purchasing oil from the Saudi Royal Family. But there is no obvious reason to think that many average Saudis would risk economic impoverishment that is acute enough to threaten their very survival merely because of such a foreign measure. In contrast, it is quite easy to see why the victims of kidnapping who are held hostage often face a very high probability (if not virtual certainty) of being murdered in case money doesn’t make its way to the criminals.³⁸ An appeal to gravity of risks, then, cannot save the corporate defender any more than an appeal to stable expectations. So the corporate defender still owes us an explanation of why we should not treat dictators as simply large-scale hostagetakers. In my view, if the corporate defender has any hope of offering a compelling answer to this question, this hope pivots on idea that the relationship between the vast majority of dictatorships and their subjects is radically different from the

³⁸ Moreover, it is worth noting that it would be a fairly meagre achievement for the corporate defender to justify customary transactions only in cases where deaths of numerous innocents represent a live option. Corporations, after all, are much more ambitious than that. Only one reason is that countries where significant portions of the population are already struggling to survive, even under customary commercial engagement practices, are often unenticing for key corporate actors, such as major private lenders. Many of the world’s poorest nations, plagued by combined political and economic maladies, are also effectively blacklisted by the major private banks: No such bank would lend money to these countries to begin with. Therefore, an argument showing merely that “business as usual” should continue with these countries would be quite a pyrrhic victory for the financial sector’s corporate giants.

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relationship between hostage-takers and their victims: the vast majority of dictatorships, though certainly violent at times, are not viewed by their subjects as alien to them. This position is what I labeled, in the beginning of the chapter, “the challenge from soft authoritarianism.” We can further elaborate this challenge, as follows. Most dictatorships, though, by definition, not bound by democratic elections and rule of law,³⁹ limit their use of lethal force only to quashing challengers or demands for democratic procedures, distribute a significant portion of state revenue to the population, and generally try to ensure decent (sometimes even high) standards of living for the population. To be sure, even in such “distributive dictatorships,” the structural lack of accountability and binding rule of law increases the risk of rulers abusing state resources. But, the challenge continues, there is little empirical proof that such abuse is either frequent or grave. Specifically, there is no empirical proof that moderate authoritarians systematically use state resources for purposes that are entirely alien to the interests of their people.⁴⁰ Absent such proof, foreign actors should assume a “presumptive fit” between each people and its de facto government,⁴¹ such that the people are willing—however grudgingly—to view the de facto government as representing them vis-à-vis foreign actors. And given this assumption, foreign actors should—at least in the vast majority of cases—bestow on the regime all the customary commercial privileges that have long been associated with de facto sovereignty, including the ability to transact in state resources in the name of the people. This challenge rests on several flawed premises.⁴² However, given the strategic mode of political theorizing in which we are engaging, we should not rely exclusively on contesting these premises. We should also try to defeat the challenge directly, by seeking the proof of systematic alien spending it requires. Moreover, I believe that we should be especially motivated to seek such a proof if everything ³⁹ See, e.g., Jose Maria Maravall and Adam Przeworski (eds.), Democracy and the Rule of Law (Cambridge: Cambridge University Press, 2003). ⁴⁰ Scott Wisor is probably the political theorist that comes closest to making such claims explicitly, though with a greater emphasis on social-scientific skepticism regarding drastic reforms to customary commercial ties. See for example his “Conditional Coercion Versus Rights Diagnostics,” Politics, Philosophy and Economics 15 (2016): 405–423. Christopher Kutz also appears sympathetic to something like the soft-authoritarian challenge, albeit more equivocally. See his “Collective Resource Control and the Power of Complicity,” in Wenar et al., Beyond Blood Oil, 73–88. ⁴¹ This is Michael Walzer’s famous term in his “The Moral Standing of States: A Response to Four Critics,” Philosophy and Public Affairs 9 (1980): 209–229, at 212. ⁴² For one thing, this challenge understates the intrinsic moral significance of the people’s ability to control state resources through democratic procedures, and (massively) overstates the moral significance of the regime’s sheer capacity to deploy violence. Furthermore, the challenge imposes too high a bar on ordinary people who must undertake grave risks to “prove” that they view the regime as alien to them. And finally, this challenge ignores a basic point about morally plausible conceptions of ownership: If the sovereign people, rather than de facto rulers, are truly to be regarded as the owners of state property, then the burden should be on de facto rulers to prove that they have valid authorization from the people to manage the people’s property: The burden should not be on the people to prove the opposite. See, e.g., my “The Idea of Public Property,” Ethics 129 (2019): 344–369, as well as “The People’s Integrity and Property—a Reply to My Critics,” Critical Review of International Social and Political Philosophy 24 (2021): 657–666.

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I have said so far is correct. For if my reasoning up to this point has been cogent, then the challenge from soft authoritarianism does much more of the actual normative work for the corporate defender than the vulnerable innocents argument, despite the fact that the latter argument has been far more prominent in public and policy discussions.⁴³ I therefore zoom in on the soft authoritarian challenge in what follows. I explain why some creativity is needed in order to provide the proof that the challenge requires, and then proceed to illustrate, through an examination of two particular dictatorships, a creative strategy for furnishing the necessary proof.

5.3 Thinking Creatively about the Challenge from Soft Authoritarianism 5.3.1 Seeking Proof of Alien Spending Why is it hard to offer proof of systematic alien spending, of the sort required by the challenge from soft authoritarianism? In order to see the answer, consider first a case in which a distributive dictatorship sends state revenue beyond the country’s borders—what we may call external use of this revenue. The classic story of such external use involves straightforward theft: state revenue routinely making its way to foreign bank accounts personally associated with the dictatorship’s nomenklatura. This classic story would be a “smoking gun.” But the problem is that, when it comes to distributive dictatorships, such a smoking gun is often impossible to find. So it is very difficult to provide clear proof that ruling elites in distributive dictatorships are abusing public office (or de facto political power) for straightforward private gain. However, second, when we shift our gaze to dictators’ internal use of state revenue—to spending of the revenue inside the state’s borders—we encounter the opposite problem. As an empirical matter, distributive dictatorships’ internal spending, far from secret, is often highly visible. It is the moral status of this spending that is unclear: it is extremely difficult to designate almost any domestic spending of state revenue as alien to the population and as detached from its interests. This is because almost any government spending of state revenue inside the state’s borders benefits a portion of the population that goes far beyond the regime’s nomenklatura. One may of course condemn such spending as morally deficient patronage. But spending of state revenue on patronage is clearly not the same as spending it on purposes that are completely alien to the citizenry’s

⁴³ Perhaps because it has been a recurrent feature of corporate rhetoric. See for instance, Steve Coll, Private Empire (New York: Penguin, 2012), e.g., at 521.

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interests. Proof of patronage is therefore insufficient to defeat the challenge from soft authoritarianism.⁴⁴ In order to provide a complete response to the challenge, then, we should strive to identify highly visible projects that dictatorships fund through state revenues, that are ongoing beyond state borders, and that are entirely alien to popular interests, under any plausible definition of what popular interests consist in. In what follows, I want to offer one example of such alien projects, which has largely gone unnoticed in the global justice literature: the systematic acquisition of foreign soccer teams, and soccer-related sponsorships, by distributive dictatorships. Foreign soccer acquisitions are a quintessential example of an alien project. Clearly fueled by state revenues, these acquisitions are highly visible. At the same time, unlike many highly visible uses of state revenue inside the state’s borders, these acquisitions cannot plausibly be depicted as familiar patronage. Foreign soccer purchases are completely detached from any interests that the people at home can possibly be construed as having. These purchases therefore truly are alien to the people. And while the sums that dictators spend on these purchases are small as a relative portion of the state revenue they control, these sums are nonetheless very significant in absolute terms. These features mean that foreign soccer acquisitions are an especially useful example of how the challenge from soft authoritarianism can be met. Dictatorial spending on foreign soccer is a global trend, ranging from Russia and Chechnya through Azerbaijan to China.⁴⁵ A complete account of this trend would trace all of its instances and explore their normative implications. Here, for the sake of brevity, I will limit myself to two illustrative cases—Qatar and the United Arab Emirates (UAE)—on the plausible assumption that their normative lessons generalize to multiple other (relevantly similar) dictatorships.⁴⁶ Both Qatar and the Emirates feature regimes that constantly strive to appear to the world as progressive modern governments, endorsing twenty-first-century globalization in anything from high-powered business and technology through ⁴⁴ Moreover, the corporate defender is bound to insist that, however rampant patronage may be in distributive dictatorships, it is ultimately different only in degree, but not in kind, from the pork barrel politics that are pervasive in established democracies as well. ⁴⁵ For examples, see, respectively, Andrei Uspensky, “Our best gas supplied to Chelsea, Schalke . . . Belgrade—But why doesn’t one find these cities on the map of Russia?” Novaya Gazeta, November 16, 2012 http://en.novayagazeta.ru/arts-and-sports/55459.html; Peter Wilkinson, “Gullit transfer to Grozny stuns football world,” CNN, Jan. 20, 2011, at http://edition.cnn.com/2011/SPORT/ football/01/20/chechnya.gullit/; Tariq Panja, “How China is spending billions to conquer world soccer,” Bloomberg, July 13, 2017, at https://www.bloomberg.com/news/features/2017-07-13/soccerballs-and-china-s-billions; en.clubatleticodemadrid.com/noticias/much-more-than-a-sponsorship ⁴⁶ The following background relies upon Freedom House 2022 reports on Qatar and the UAE, at https://freedomhouse.org/country/qatar/freedom-world/2022, and https://freedomhouse. org/country/united-arab-emirates/freedom-world/2022, as well as on Christopher Davidson, From Sheikhs to Sultanism: Statecraft and Authority in Saudi Arabia and the UAE (Oxford: Oxford University Press, 2022); Matthew Gray, Qatar: Politics and the Challenges of Development (London: Lynne Rienner, 2013); Mehran Kamrava (ed.), The Political Economy of the Persian Gulf (London: Hurst, 2012).

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tourism and transportation to education and sports.⁴⁷ Yet the same regimes remain, quite explicitly, absolutist. In neither country are ultimate decision makers bound by a rule of law; neither regime allows the existence of political parties or of meaningful elections.⁴⁸ In the UAE, leadership rests exclusively with the dynastic rulers of the seven emirates who make up the federation (Abu Dhabi, Ajman, Dubai, Fujairah, Ras al-Khaimah, Sharjah, and Umm al-Quwain); in Qatar, leadership rests exclusively with a small portion of the Al-Thani family. Just like the rulers of the UAE, the Al-Thanis are committed to retaining their absolute control over their country’s hydrocarbon wealth—the core of what even sympathetic observers refer to as a literally “family owned”⁴⁹ national economy.⁵⁰ Since the publication of poems “insulting the emir” has resulted in prison for life in Qatar, and calling for free elections has led to Emirati citizenship being revoked,⁵¹ it is clear that worse fate can easily be inflicted on anyone who challenges either regime’s control of state revenue. However, while staunch in their denial of their peoples’ rights to control state resources, both regimes distribute much of the state’s wealth to their people. Indeed, thanks to natural resource revenues (on which, despite continuous diversification efforts, both countries remain heavily dependent), nationals of both Qatar and the UAE have experienced a dramatic rise in their standard of living in recent decades, reflected, for example, in their ranking in the Human Development Index, right next to countries like Latvia, Portugal, and Slovakia.⁵² Both Qatar and the UAE thus provide classic examples of distributive dictatorship. And in both cases, it may seem impossible to prove that the dictatorship is making systematic alien use of its peoples’ revenues, precisely because of the general reasons noted above. In the UAE as in Qatar, internal use of natural-resource revenue not only can be classified as familiar patronage, but in fact it is difficult to see it as anything other than patronage, which is not alien to popular needs. ⁴⁷ “Gulf cities such as Dubai, Doha, and Abu Dhabi,” as one scholar put it, “are offering an image of openness to ‘modernization’ and a model of integration into the norms of global (consumerist) culture and economy.” See Mahfoud Amara, Sport, Politics and Society in the Arab World (Basingstoke, Hampshire: Palgrave Macmillan, 2012), 96. ⁴⁸ The Qatari regime may superficially seem the more open of the two, primarily because of its sponsorship of the famous Al-Jazeera channel; yet the channel does not cover Qatar’s politics, and, just as in the UAE, criticism against the government or its allies is a criminal offense. For Al Jazeera’s impact see for example Barrie Gunter and Roger Dickinson (eds.), News Media in the Arab World (New York: Bloomsbury, 2013). ⁴⁹ Gray, Qatar, 175. ⁵⁰ Unsurprisingly, more critical observers concur. Here for example is Wenar: “Qatar’s hydrocarbon revenues do not get divided per capita or per cives; it all goes ad tyrannum. The Emir of Qatar, the head of the al-Thani family, controls the tens of billions of dollars of hydrocarbon revenues that come in to the Qatari state each year. The Emir decides how much the state will spend on coercion, how much on clientelism. He also decides how much to keep for himself.” Wenar, Blood Oil, 42. ⁵¹ See Freedom House reports on both countries cited above. ⁵² See the UNDP’s Human Development Report for 2019, at http://hdr.undp.org/sites/default/files/ hdr2019.pdf. It is important to note, at the same time, that in both Qatar and the UAE, nationals make up only a minority of the population—between 15 and 20 percent. The remainder is made up of migrant workers, the vast majority of whom see little if any of the natural resource wealth. More on these workers and their mistreatment below.

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From healthcare and education to employment and income taxation (nonexistent for nationals in either country), the regimes of Qatar and the Emirates are running as thoroughgoing a patronage system as any.⁵³ Yet when we examine Qatar and the UAE’s external use of state revenues, evidence of alien use initially seems even harder to come by. If the Al-Thanis or the rulers of the UAE have siphoned off billions in natural-resource revenues to Swiss bank accounts, they have been very successful in keeping this practice secret. Visible evidence of alien use of state revenue, ongoing beyond the Emirates or Qatar’s borders, is extremely difficult to find. Foreign soccer expenditure, however, is a rare exception—an external expenditure that is alien to the people’s interests, yet that is also highly visible. This is true for both foreign soccer ownership (spending state revenue to purchase foreign sports teams, buy players for these teams, pay their wages, and so on) and foreign soccer sponsorship (state organs paying to have their names and logos on foreign teams’ shirts, as part of foreign teams’ stadiums, and so forth). In the Emirates’ case, the relevant expenditure totals more than 4 billion dollars’ worth of state revenues (a significant portion of which has been spent on English soccer club Manchester City).⁵⁴ Qatar’s Al-Thanis have similarly spent multiple billions out of their people’s money on foreign soccer, focusing on French club Paris Saint-Germain (PSG), purchased by Qatar’s sovereign wealth fund.⁵⁵ Since 2012, PSG has accordingly been splashing sums that are orders of magnitude apart from ordinary soccer market prices on player purchases⁵⁶ and salaries,⁵⁷ while ⁵³ There are also, to be sure, internal expenses that may seem detached from popular interests, first and foremost those involving ruling luxuries—royal palaces and the like. Yet however ostentatious these expenses may be, it is not entirely clear that they are, in and of themselves, alien to the people—after all, the lavish expenses associated with the royalty of England, Spain or the Netherlands (or, for that matter, the multiple official resorts of the American President) are not, in and of themselves, alien to the people. These expenses can contribute to tourist interest, for example, or serve as a focal point of national identity—something that is particularly important in young states like Qatar and the UAE, with their rulers consciously pursuing nation-building strategies in myriad ways. ⁵⁴ Since 2008, Abu Dhabi’s sovereign wealth fund has spent around 2.5 billion dollars on Manchester City alone—purchasing the club, paying off its past debts, and purchasing new players. See for example https://www.transfermarkt.com/manchester-city/transferrekorde/verein/281/plus/0/ galerie/0?saison_id=&pos=&detailpos=&altersklasse=&w_s=; ⁵⁵ See Rob Huges, “Paris Saint-Germain is in a spending league of its own,” New York Times, August 7, 2012, http://www.nytimes.com/2012/08/08/sports/soccer/08iht-soccer08.html?_ r=0; Motez Bishara, “European soccer feels force of PSG and Qatar’s ‘soft power,’ ” CNN, Sept. 1, 2017, at http://www.cnn.com/2017/09/01/football/soft-power-and-football-mega-transfers-psgneymar-mbappe-qatar/index.html ⁵⁶ In the summer of 2017, for example, the Al-Thanis, using Qatar’s sovereign wealth fund, spent more than 400 million Euros to purchase just two players for PSG, with both transfers far eclipsing the previous world record for largest transfer in soccer history. See Mark Doyle, “The 100 most expensive football transfers of all time,” Goal.com, August 31, 2017, at http://www.goal.com/ en-us/news/the-100-most-expensive-football-transfers-of-all-time/ikr3oojohla51fh9adq3qkwpu. See also Marc Mechenoua, “How PSG convinced Mbappe to sign new contract and snub Real Madrid transfer,” Goal, May 22, 2022, at https://www.goal.com/en-us/news/how-psg-convinced-mbappe-tosign-new-contract-and-snub-real/blt3d4b17b9db4d3280 ⁵⁷ In the 2016–17 season, for example, PSG’s average first-team player salary was more than three times the corresponding average for the second-highest paying club in the French league.

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receiving enormously inflated advertisement rates⁵⁸ through “sponsorship deals” with official organs of the Qatari state. Although the various actors involved in the game—players, coaches, fans, pundits—have already come to take the spending of these state billions as an almost obvious given, it is worth emphasizing just how morally disturbing this spending ought to be for anyone who takes seriously the idea that a state’s property belongs to its people rather than to its rulers. First, as a general point, consider just how morally disturbing (as well as outright bizarre) it would be for a leader of a liberal democracy to make parallel decisions regarding state resources. Imagine the uproar that would arise if the Norwegian prime minister, for instance, were to announce that the Norwegian sovereign wealth fund will spend billions on, say, a Mexican soccer team. Second, the reason why such a scenario would border on the surreal would not only be that such spending requires the approval of parliament, which would never be given. It is also because this kind of spending has absolutely nothing to do with any plausible interest of the Norwegian people, the owner of these revenues. The same point applies to the Qatari and Emirati people. What possible interests could they have in seeing state revenues spent on foreign soccer teams? At this point, the corporate defender might raise an important objection, which I want to address in detail. This objection holds that even if it is unlikely that any people will approve of the use of state revenues to purchase or finance foreign sports teams, such use is ultimately not very different, if it is different at all, from any other business investment of state funds. Note that this objection can be construed in two ways. First, as suggesting that owning a European soccer team is, in and of itself, a good business investment. On a second construal, the objection holds that owning a European soccer team makes sense when viewed as part of a broader “state branding” strategy pursued by both Qatar and the UAE. The next two sub-sections consider each of these variants in turn. I aim to show that while the second is more plausible than the first, neither of them ultimately withstands scrutiny.

5.3.2 Club Ownership and the “Prune Juice Effect” In and of itself, owning an elite soccer team is never a profit-maximizing venture— indeed, it is rarely a profit at all. Generally, elite soccer is a losing business proposition. The core reason is that elite clubs never behave like standard profit-seeking entities. Here, for example, is prominent soccer writer Simon Kuper: See Global Sports Salaries Survey 2016, sportingintelligence, at https://www.globalsportssalaries.com/ GSSS%202016.pdf ⁵⁸ On which more below.

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very few soccer clubs are out to make profits. Most put every penny they have into trying to win matches. In this sense, clubs are not like normal businesses . . . Because there are some rival clubs willing to spend even more than their last penny, the inexorable logic is debt. And yet soccer clubs almost never fold, because hardly any creditor wants to pull the plug on a beloved and ancient local institution. Even when a creditor does, it’s easy enough simply to refound the club at once. In fact, this often happens.⁵⁹

Once we bear this simple truth in mind, the idea that anyone would invest in soccer with straightforward financial motivations immediately loses credibility. And this idea has even less credibility once one examines some actual numbers. Here, for instance, is what The Economist had to say about the game’s finances in 2001, as the globalization of soccer (or football, as it is known in most of the world) was just beginning in earnest: From the way football sucks in money, it looks like a fantastic business. Media companies’ bids for rights have rocketed; subscriptions to pay-TV channels offering football continue to rise; clothing firms spend billions stamping their brands on the game . . . . Yet below the top-line figures, the world’s greatest clubs look less like real businesses than does the average corner grocery shop. According to the annual survey of football finance carried out by Deloitte & Touche, between 1993–94 and 1998–99, wages rose by 266% compared with revenue growth of 177%. More than half the clubs in the Premier League [England’s top division] have wage bills that are more than two-thirds of turnover. Many are already, in effect, spending next year’s TV money. Alan Sugar, who is quitting as chairman of Tottenham Hotspur in disgust, calls it “the prune-juice effect”: much is taken in, but it passes quickly through.⁶⁰

Optimists may want to think that the soccer business has taken a turn for the better between 2001 and the present. But the opposite is the case: “the prune-juice effect” has only become more dominant. Deloitte’s June 2013 survey, for example, found that “[i]f anything, the trend for any additional revenue generated to disappear as additional costs, the widely quoted ‘prune juice’ effect, has become more pronounced.”⁶¹ In 2019, a comprehensive analysis of over 300 balance sheets of the English Premier League—still world soccer’s most profitable league—concluded that while the league has earned more than 30 billion pounds in revenue during ⁵⁹ Simon Kuper, “Foreword,” in Stefan Szymanski, Money and Soccer: A Soccernomics Guide (New York: Nation Books, 2015), xi. See also Kuper and Szymanski’s Soccernomics—2018 World Cup Edition (New York: Nation Books, 2018). ⁶⁰ “Football and prune juice,” The Economist, Feb. 8, 2001, at http://www.economist.com/node/ 501863 ⁶¹ Deloitte Annual Review of Football Finance 2013¸ 3, at https://www2.deloitte.com/content/dam/ Deloitte/uk/Documents/sports-business-group/deloitte-uk-sbg-arff-2013-highlights-download.pdf

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the last decade, it still managed to achieve a net economic loss (of more than 2 billion pounds) during the period.⁶² Nor, it should be stressed, is the picture different when looking at specific clubs, even those traditionally considered financial powerhouses. Take Manchester United, for instance. United has been considered for many years the quintessential example of global financial success. Even young fans socialized into soccer by playing its popular electronic versions on game consoles (such as the FIFA game series) can hear from the broadcasters that Manchester United were “one of the first clubs to realize the economic potential of the game’s globalization,” launching their own TV channel, going on preseason tours of North America and Asia, and so on. But even United have not been financially healthy for quite a while. In 2010, for example, a CBS News item began by wondering “why would Manchester United, the world’s biggest sports brand, bother to sign a piffling £2.7 million sponsorship deal with Turkish Airlines,” continuing: The answer is that despite its reach and riches, Man Utd teeters permanently on the brink of bankruptcy, swaying under £716.5 million in debts, about £504 million of which it recently refinanced on the bond market. Man Utd showed profit of only £25.6 million for the year. It also explains why Man Utd booked £35.9 million of its new Aon contract before it even begins (later in 2010) . . . The suspicion is that this was done to flatter last year’s accounts because prudent accounting practices require that revenues are booked in the years when they are earned. Man Utd needs every pound and penny it can get . . . These tiny deals give the lie to the madness of football economics. Out-of-control player wages spiral upward far faster than club revenues from ticket and merchandise sales could ever hope to keep up.⁶³

More recently—November 2017—Forbes declared Manchester United a classic example of the “prune juice” story: A few years ago the former owner of Tottenham Hotspur, Lord Sugar, quipped that money from a new Premier League TV deal would be just like prune juice— “go in one end and out the other.” A look at Manchester United’s financial results for the first quarter on the 2017/18 and you can see what he meant . . . . In this quarter alone, Manchester United exceeded the revenue generated of all but 14 Premier League teams for that entire year . . . . The downside for Manchester United is that expenses are also growing at around the same rate of 17% ⁶² See summary of the 2019 Vysyble report by Roger Bell and John Purcell—We’re So Rich It’s Unbelievable!—The Illusion of Wealth Within Football, at https://vysyble.com/wsriu-4 ⁶³ Jim Edwards, “Why Manchester United signed a tiny £2.7 million sponsor deal with Turkish Airlines,” CBS News, Jan. 26, 2010, at https://www.cbsnews.com/news/why-manchester-united-signedtiny-apound27m-sponsor-deal-with-turkish-airlines/

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over a year ago. Employee costs are up 12% from $82.2M to $92.3M. Operating expenses less Employee costs increased by over 22 percent.⁶⁴

In light of all this, it strains credulity to think that the Qatari and Emirati investments in PSG and Manchester City (respectively) were driven by any kind of simple financial calculations regarding the return that these clubs would yield. The aforementioned “sponsorship deals,” through which state entities channel enormous funds to both clubs, should suffice to prove this point. Even when one allows for differences in the scope of sponsorship, the difference between the aforementioned 2.7 million pounds (roughly 3.7 million dollars, as of 2021) that Turkish Airlines paid for sponsoring Manchester United, and the 400 million dollars that competing Emirati airline Etihad paid to sponsor Manchester City, is quite staggering. More striking still is the fact that the Qatar Tourism Authority spent 900 million dollars to sponsor Paris Saint-Germain, a sum that—even accounting for what the French club does in return—is widely agreed to be “hugely out of kilter,” as the Telegraph put it, “with the historic value of sponsorship deals for Paris SaintGermain and the French League . . . even the likes of United, Bayern Munich and Real Madrid—football’s superpowers of commercial revenue—fail to earn such sums.”⁶⁵ Just like Etihad with Manchester City, then, the Qatar Tourism Authority paid far more than it had to in order to obtain the sponsorship it got. Arguably, the only reason for this “generosity” can be that the main intent of these sponsorship deals was not familiar business. Rather, these are simply transparent attempts to bypass UEFA’s fair play regulations, which seek to limit (for the sake of teams of more modest means) how much money extremely affluent owners can spend on their clubs. Finally, as for the clubs themselves, there is little reason to think that they would ever generate sufficient revenue to be economically viable as stand-alone investments. Take the Emirates’ Manchester City again. At the end of 2017, UAE specialist Nicholas McGeehan summarized City’s financial performance as follows: Manchester City make much of the fact that the club has turned a net profit of £32.2 million in the last three years, but the net losses of the previous five seasons totaled £491.3 million—£121.3 million in 2009/10, £197.5 million in 2010/11, £97.9 million in 2011/12, £51.6 million in 2012/13, £23 million in 2013/14. When ⁶⁴ Bobby McMahon, “Manchester United’s financial results show record revenue coming in and record costs flowing out,” Forbes, Nov. 17, 2017, at www.forbes.com/sites/bobbymcmahon/ 2017/11/17/latest-financial-results-for-manchester-united-show-record-revenue-but-same-goes-foroperating-costs/?sh=78eafd8f3fc0 ⁶⁵ Mark Ogden, “Paris Saint-Germain sponsorship deal eclipses all rivals but opens questions about Financial Fair Play regulations,” The Telegraph, Nov. 12, 2013, at http://www.telegraph.co.uk/sport/ football/european/10443730/Paris-Saint-Germain-sponsorship-deal-eclipses-all-rivals-but-opensquestions-about-Financial-Fair-Play-regulations.html

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you throw in the cost of buying the club, estimated at £210 million, the losses from the 2008/2009 season, which the club do not appear to have published, and the £161 million net spend on players since it signed off its latest accounts, the net loss is probably close to £850 million. If the idea is to generate alternative revenue streams for [the Emirates’] post-oil economy, they’re not doing a very good job of it.⁶⁶

5.3.3 Whose Brand Is It Anyway? Soccer Spending as PR I hope to have refuted any suggestion that Gulf States’ purchases of European soccer clubs represent a straightforward financial investment. But the corporate defender has a better argument to make to try to preempt the claim that these purchases are an instance of alien spending. This argument holds that the relevant purchases should be analyzed against the background of a broader “nation-branding” strategy. Buying a European soccer club such as PSG or Manchester City is merely one piece of a much larger “sports puzzle,” within which also fit numerous Qatari and Emirati state sponsorships of high-profile foreign and international sporting brands, as well as sustained efforts to host major international sport events. All of these (and similar) efforts, according to the argument, ultimately aim to improve the national brand in the eyes of potential investors, tourists, and international partners. Yet this aim is not alien to the public interest. The nation-branding argument has much more surface plausibility than the claim that a state’s ownership of a foreign soccer club straightforwardly advances the economic interests of its people. But upon closer inspection, this argument turns out to be deeply problematic as well. At most, the argument might explain why the Qatari and Emirati regimes embarked on their massive foreign-sports spending spree. But this argument does not explain why these regimes have persisted in their sports spending even in the face of accumulating evidence that their “sportswashing” enterprises have largely backfired, at least as far as relevant national reputations are concerned. Take the Qatari case first. In a 2019 book, Jonathan Grix, Paul Michael Brannagan, and Donna Lee catalogue the various positive associations—from stability and excellence to humanitarianism and cultural attractions—that the Qatari leadership has sought to cultivate in international public opinion through its extensive investment in sports-based “nation branding.” Yet the authors conclude that the result of this effort has been quite ironic, since Qatar’s “desire to use sport to project a positive international image of itself has, to-date, largely backfired”: ⁶⁶ Nicholas McGeehan, “The men behind Man City: A documentary not coming soon to a cinema near you,” Medium, Dec. 18, 2017, at https://medium.com/@NcGeehan/the-men-behind-man-city-adocumentary-not-coming-soon-to-a-cinema-near-you-14bc8e393e06

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The leadership’s intent to use sport to showcase acts of humanitarianism and benevolence abroad have . . . arguably been repressed by the “international outcry” over the country’s human rights violations, highlighted by various media and nongovernmental organizations since the state’s awarding of the 2022 World Cup in 2010 . . . Furthermore . . . the state’s desire to position itself as a global hub for sports expertise, efficiency and excellence has been overshadowed by accusations of bribery and corruption surrounding the 2022 World Cup, which has arguably instead situated the state in the minds of international audiences as one who resorts to cheating in the quest for excellence and victory . . . Finally . . . Qatar’s desire to use sport to project itself as a safe and attractive tourist destination has also largely backfired . . . With average temperatures in Qatar ranging from 30–40∘ C in the hottest months, continuous questions have been raised by international audiences over the potential dangers posed to players and fans during the country’s staging of the World Cup . . . the drama surrounding the state’s climate has arguably forced many onlookers to seriously question Qatar’s suitability as an appealing summer holiday destination.⁶⁷

Moreover, it should be stressed that this boomerang was evident even earlier. Already in 2014, for instance, Brannagan, with fellow sports scholar Richard Giulianotti, observed that Qatar’s pursuit of “soft power” via sports has led primarily to “soft disempowerment”: where there is the pursuit of soft power, there is always the potential for soft disempowerment, as nations may disturb, offend or alienate other nations, thereby leading to a loss of attractiveness and influence. In the case of Qatar and sport, this soft disempowerment has been most acutely witnessed through international responses to human rights and organizational issues. For example, in the buildup to the 2022 World Cup finals, there has been substantial criticism from the international media, trade union organizations, and some football officials on how migrant workers (particularly South Asians) are treated in the Qatari construction industry; the most chastening reports point to high death tolls and widespread abuse of workers . . . . There has also been concern from the international community regarding Qatar’s controversial anti-gay legislation ahead of the tournament. Such incidents remind us that any sport-based soft power strategy carries with it reputational risks, as the nation is exposed more fully to international scrutiny, particularly from civil rights groups and liberal media.⁶⁸ ⁶⁷ Jonathan Grix, Paul Michael Brannagan, and Donna Lee, Entering the Global Arena (Singapore: Palgrave, 2019), 105–106. ⁶⁸ Paul Brannagan and Richard Giulianotti, “Qatar, Global Sport and the 2022 FIFA World Cup,” in Jonathan Grix (ed.), Leveraging Legacies from Sports Mega-Events: Concepts and Cases (London: Palgrave, 2014): 154–165, at 162.

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Much the same dynamic can be observed regarding the Emirati sports-branding exercise, certainly insofar as Abu Dhabi’s Manchester City is concerned. In 2014, Abu Dhabi United Group—the vehicle through which Abu Dhabi’s ruling family owns the club—signed a billion-pound property-development agreement with Manchester’s municipal council. In response, British media highlighted all-tooclose ties between senior members of the council and the Abu Dhabi group, while citing Amnesty International reports referring to Abu Dhabi as the “most brutal police state in the Middle East.”⁶⁹ Similarly, in what initially seemed like a PR coup, Manchester City was the subject of a “sanitized” Amazon documentary, following the team’s progress through a record-breaking season on the pitch. But the documentary’s branding effect was dented even before its release by some scathing coverage, not least by those associated with human rights organizations. A key case in point was the aforementioned essay by McGeehan (formerly of Human Rights Watch), which started as follows: I have had an idea for the opening scene of Amazon Prime’s in-production fly-onthe-wall documentary about Manchester City’s 2017/2018 season. It begins with a somber warning from a U.S. TV news reporter from 2009: “A reminder that what you are about to see is extremely violent and disturbing.” Then an ominous pause followed by some menacing music as they introduce the grainy footage of Sheikh Issa bin Zayed Al Nahyan using a cattle prod on a former business partner who is being held down by [a] police officer somewhere in the desert outside Abu Dhabi. The menacing music gives way to the sound of Manchester City supporters hailing their owner Sheikh Mansour bin Zayed Al Nahyan—Sheikh Issa’s brother—to the tune of kumbaya. “Sheikh Mansour m’lord, Sheikh Mansour,” roars the crowd as we see Issa beating the man with a board with a nail protruding from it, pouring salt into his wounds, electrocuting him, and setting him on fire. At this stage the producers must resist the urge to lighten the mood by showing some exquisite interplay between Kevin de Bruyne and David Silva. Instead the camera follows Sheikh Issa driving repeatedly over his victim in a Mercedes SUV, as City supporters continue to acclaim the royal family of Abu Dhabi, whose money has financed their rise to the top tier of European football. The scene is now set for an incendiary analysis of modern football’s most sinister benefactors.⁷⁰

Essays such as McGeehan’s, and equally critical pieces by prominent outlets such as Der Spiegel,⁷¹ have contributed to a “distinct shift” in the “cost-benefit analysis ⁶⁹ Conrad Bower, “Council in partnership with ‘most brutal police state in the Middle East’ says Amnesty International,” The Meteor, Dec. 14, 2018, at https://themeteor.org/2018/12/14/council-inpartnership-with-most-brutal-police-state-in-the-middle-east-says-amnesty-international/ ⁷⁰ McGeehan, “The men behind Man City.” ⁷¹ See, e.g., Der Spiegel, “Manchester City exposed—Chapter 1: Bending the Rules to the Tune of Millions,” Nov. 5, 2018, at www.spiegel.de/international/manchester-city-exposed-bending-the-rulesto-the-tune-of-millions-a-1236346.html

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of Abu Dhabi’s involvement in football,”⁷² to the obvious satisfaction of human rights organizations. In 2019, for example, Kate Allen, Amnesty International UK’s director, offered a concise summary to the Guardian: Instead of actually tackling abuse, many countries with atrocious human rights records have a habit of enlisting expensive PR firms—and football ownership can be another form of PR. “Sportswashing” is likely to grow as the reach of global sport also grows, but at the same time fans and the wider public are beginning to look beyond the glamour of the star players and the bulging trophy cabinets.⁷³

There is every reason to think that Qatari and Emirati ruling elites are aware that the media attention that comes with high-profile soccer investments is (at best) a double-edged sword, at least as far as simple PR is concerned. And yet these elites have shown no sign of tampering these investments. And so the question still stands—what is the motivation behind these investments? It is sometimes suggested that in Qatar’s case, at least, much of the regime’s branding effort can be seen as part of a national security strategy, aiming to increase the chance that powerful Western countries will come to Qatar’s aid in case predatory neighbors pose a military threat, just as the United States came to Kuwait’s aid against Iraq in the first Gulf War, for instance. If this reasoning were persuasive, then perhaps the case could be made that even foreign soccer spending is not alien to the national interest. But, for one thing, as an empirical matter, by far the best explanation for why powerful Western nations such as the United States intervened in the past to protect small states such as Kuwait is simply concrete realpolitik calculations, independent of any “branding” considerations. Furthermore, if the key aim is to consolidate ties with powerful Western nations in order to increase the chances of Western aid against predatory neighbors, then this aim could be advanced far more effectively by more familiar diplomatic, economic and military ties, involving much more standard mutually beneficial exchanges, rather than the spending of billions without any obvious return and with sizeable opportunity costs. Finally, the security rationale is also weakened by the fact that virtually all of Qatar’s Western soccer spending is ongoing in European countries that have neither the military capacities to stage a serious intervention to save Qatar in a time of war, nor any intent to develop such capacities. These observations lead to the thought that insofar as foreign soccer spending in Qatar—and more generally in the Arabian Peninsula—aims to influence Western behavior in a case of threat to political survival, both the relevant survival and the relevant behavior are different. If there is any fear for survival that ⁷² Tim Wigmore, “Want to know how successful sportswashing is?” INews, Nov. 30, 2018, at https:// inews.co.uk/sport/football/manchester-city-abu-dhabi-uae-sports-washing-229247 ⁷³ Barney Ronay, “Sportswashing and the tangled web of Europe’s biggest clubs,” The Guardian, Feb. 15, 2019, at www.theguardian.com/football/2019/feb/15/sportswashing-europes-biggest-clubschampions-league-owners-sponsors-uefa

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could explain Qatar and the UAE’s persistent spending on foreign soccer, it has to do with the survival of the regime against potential internal threats, coming both from oppressed nationals and from the huge number of exploited foreign workers in these countries. In either case, the brand that is being advanced through foreign soccer spending is that of the ruling elite, not just independently of, but indeed at the expense of the population it rules.⁷⁴ To be more specific, if, at any point, Arab Spring–like protests break out in either Qatar or the UAE, or if immigrant workers launch what would quite literally be slave revolts, it would be a prime interest of the ruling elites to prevent quick Western disengagement from the regime. And the unique visibility of Qatar and the UAE’s foreign soccer sponsorships, omnipresent now in Western Europe, is very likely to advance this key regime interest. This is not only because foreign soccer spending is a way to convince Western decision makers that the ruling elites of both countries are “the kind of people that it’s ok to do business with.”⁷⁵ Less noted but at least equally important is the thought that due to its unique visibility, foreign soccer spending also makes it impossible for the West to hide or deny that it is already in business with the ruling elites.⁷⁶ Three points will help to make this thought more concrete. First, elite European soccer is by now too entangled with unsavory autocracies to allow any “clean break.” The Guardian offered a neat example in the run-up to the 2019 knock-out stages of the European Champions League: Here’s an interesting circular equation. Manchester United are currently playing Paris Saint-Germain over two legs in the Champions League. Paris SaintGermain are owned by Qatar. Qatar also sponsors Bayern Munich and Roma and has a “foundation” project with Real Madrid. Real Madrid are sponsored by the Emirates airline of the UAE. Another of the emirates, Abu Dhabi, owns Manchester City. Manchester City are taking on Schalke, who are sponsored by Gazprom, which is owned by Russia, which is in effect at war in Syria with Qatar, which is being blockaded by Dubai, which is a financial services partner of Manchester United, whose next opponents will be Paris Saint-Germain, who ⁷⁴ Here I am going a step further than the more euphemistic language of some social scientists working on the subject. See, e.g., Anabel Kristin Eggeling, Nation- Branding in Practice: The Politics of Promoting Sports, Cities and Universities in Kazakhstan and Qatar (London: Routledge, 2021), 137: “in the process of producing a brand for the state, sports and sporting initiatives . . . (re)produce a version of ‘Qatar’ that is governed and guided by the policies and future ambitions of the Al-Thani elite.” ⁷⁵ See for example David Conn, “Abu Dhabi accused of ‘using Manchester City to launder image,’ ” The Guardian, July 30, 2013, at http://www.theguardian.com/football/2013/jul/30/manchester-cityhuman-rights-accusations ⁷⁶ Qatar’s hosting of the 2022 World Cup is also a useful example in this context. Clearly, the ability of Western governments to threaten the regime with various sanctions over its treatment of migrant workers diminishes the more deeply Western entities are involved in the tournament whose infrastructure is overwhelmingly built on the back of slave labor.

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are owned by Qatar. Which is pretty much where we came in. Confusing, isn’t it? If only there were a single figure who could stand above and wade through this confusion of interests. For example, Nasser al-Khelaifi, the newest member of Uefa’s executive committee. Khelaifi is also chairman of BeIn sports, which pays Uefa for its Champions League TV rights. Uefa is investigating claims of financial fair play breaches by PSG. Where he is—do keep up—the club chairman.⁷⁷

Second, very much related, it is commonplace for senior elected politicians to seek “plausible deniability” of their efforts to court sordid actors. But when the sordid actors in question use high-profile sports spending to draw extensive media attention, they can largely preempt this quest for deniability. In 2015, for example, The Guardian revealed that “Ministers set up a secret Whitehall unit that gave the United Arab Emirates privileged access to Britain’s political elite, prime land deals and world-famous institutions in academia and the NHS.”⁷⁸ The fact that the Emirates’ soccer spending has made it a household name in the UK has it clearly made it harder for British politicians to respond to these revelations with any attempt to distance themselves, or the British government as a whole, from the UAE. This fact also made the government’s courting of the Emirates’ ruling elite seem much like a fait accompli, despite details that might have been considered shocking in the past: The 10-person team of top [British government] officials, codenamed Project Falcon, was put together in the summer of 2013 for the UAE . . . to try to ensure the gulf state would spend its money in Britain. Falcon was created to deal with non-defence investments. It was overseen by the Tory Treasury minister Paul Deighton and run by a director general in the civil service . . . Its dealings were never made public. However, after extensive freedom of information requests and speaking to key sources in Whitehall and business, the Guardian has established . . . that Falcon officials and Lord Deighton produced a “beauty parade” of projects to be proffered to the crown prince’s investment fund in an extraordinary secret meeting in July 2013 with Tony Blair, who acted as a lobbyist in London; [that]Whitehall intervened when one of London’s top universities provoked a “crisis” by questioning a £60m donation from the emirates [and that] Manchester [municipal] council kept details secret of how public land was transferred to a company controlled by an offshore vehicle owned by the crown prince’s brother [the same Sheikh Mansour who is the nominal owner of Manchester City].⁷⁹ ⁷⁷ Ronay, “Sportswashing and the tangled web.” ⁷⁸ Randeep Ramesh, “UK set up secret group of top officials to enable UAE investment,” The Guardian, Nov. 9, 2015, at www.theguardian.com/politics/2015/nov/09/uk-secret-group-of-topofficials-enable-uae-investment-united-arab-emirates ⁷⁹ Ramesh, “UK set up secret group of top officials.”

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Finally, again very much related, the link between a regime’s soccer-infused PR efforts abroad and perceived domestic threats to its stability is far from amorphous or vague. In the case of the UAE at least, such threats have a specific name: the Muslim Brotherhood. Traumatized by the Brotherhood’s (extremely short-lived) rise to power in Egypt following Mubarak’s overthrow, the UAE’s ruling elite has used virtually every means at its disposal to push Western governments in general, and the UK government in particular, to treat the Brotherhood as an “existential threat.” There is little doubt that the UAE’s high-profile investment in Manchester City made it easier for its rulers to cultivate “close political and economic links with very important people”⁸⁰ in the UK.⁸¹ And similarly, there is little doubt that these links were deployed to full effect in these rulers’ battle against the Brotherhood. Here, for example, is the Huffington Post (relying on yet another Guardian investigation): Khaldoon Al-Mubarak, chairman of Manchester City, one of Britain’s most popular soccer clubs and a close business associate of UAE Crown Prince Mohammed bin Zayed bin Sultan Al Nahyan, has warned the UK that his country would block multi-billion dollar arms deals, halt investment in Britain and suspend intelligence cooperation if Prime Minister David Cameron failed to crack down on the Muslim Brotherhood, according to internal UAE documents viewed by The Guardian. Mr. Al-Mubarak did not refer in his warnings to UAE popularity garnered by the Gulf state’s massive investment in Manchester City. Nonetheless, his involvement in the Gulf state’s coercive efforts to shape British policies and impinge on press freedom underscores the need to govern the relationship between soccer and politics that has been allowed to fester in the shadows to the detriment of the sport and the advantage of autocrats with deep pockets. The murky relationship between sports and politics was further highlighted by the fact that, according to The Guardian, Manchester City non-executive director Simon Pearce, who doubles up as a public relations advisor to Prince Mohammed and the UAE government, drafted briefing notes suggesting the Branding in Practice: The Politics of Promoting Sports, Cities and Universities UAE could motivate David Cameron’s government to embrace the Gulf

⁸⁰ Wigmore, “Want to know how successful sportswashing is?” ⁸¹ Similar points clearly apply in other cases. See, e.g., David Goldblatt, “Abramovich is but one in a long list of tainted owners. Is there no end to sportswashing?” The Guardian, March 13, 2022, at https://www.theguardian.com/commentisfree/2022/mar/13/still-believe-politicsfootball-dont-mix-tell-that-to-dictators-oligarchs

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state’s anti-Brotherhood attitude through lucrative oil and arms contracts and cooperation with the British military.⁸²

This story had an unsurprising conclusion. Manchester City’s Mubarak and the UAE’s crown prince met Prime Minister Cameron at a 2014 summit, and “three weeks later,” as the Guardian relayed, the UK announced a “government review into the philosophy, activities, impact and influence on UK national interests, at home and abroad, of the Muslim Brotherhood and of government policy towards the organization.”⁸³ To be sure, ruling elites’ general interest in a very public bear hug with the West is not the only possible motive underlying their foreign soccer spending. For example, the rulers of Qatar and the UAE might be investing in foreign soccer not only to prevent Western disengagement from them, but also, more specifically, as a way to increase their chances of comfortable asylum in case of successful revolts or coups. These rulers might also be investing in foreign soccer simply as a toy; as a means of gaining inherently valued personal social status in the West; as way to create ties that will allow their children to acquire Western education and future;⁸⁴ or for some combination of these reasons. My point is simply that all these reasons are fundamentally alien to the populations that they rule. Whatever the correct combination of reasons might be, the ultimate “PR value” of foreign soccer involvement is meant to benefit solely those who govern Qatar and the Emirates. It has little if anything to do with their people.

5.4 What Ought We Do? Let us now circle back to where we were before our foray into authoritarian soccer spending. Remember that we delved into this spending as a way of responding to the challenge from soft authoritarianism. The idea was to show, against the corporate defender, that even quintessential “distributive dictatorships” systematically use significant state resources for purposes that are alien to the people who own this property. If that is true, then the challenge from soft authoritarianism ultimately cannot justify corporations’ customary ties with dictatorships, any more than the vulnerable innocents argument examined earlier. With this theoretical conclusion in view, it is now time to derive policy conclusions. First and most important, contrary to the dominant policy discourse shaped ⁸² James Dorsey, “UAE chairman of Manchester City pressures UK to crack down on Muslim Brothers,” Huffington Post, Nov. 7, 2015, at https://www.huffpost.com/entry/uae-chairman-of-mancheste_ b_8498258 ⁸³ Ramesh, “UK set up secret group of top officials.” ⁸⁴ On just how common is Western education for dictators” children, see Thomas Gift and Daniel Krcmaric, “Who Democratizes? Western-Educated Leaders and Regime Transitions,” Journal of Conflict Resolution 61 (2017): 671–701.

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and reinforced by corporations, there should be a strong presumption against such ties, at least when they involve state resources controlled by dictators. More precisely: All and only dictatorships—that is, all and only regimes that clearly lack free and fair elections and a rule of law binding upon those wielding effective political power—should be treated as presumptively illegitimate vendors of their people’s property.⁸⁵ Note that orienting the argument towards all and only dictatorships means putting outside its scope those regimes that can be considered flawed democracies: Regimes that clearly take free and fair elections and rule of law seriously, even if imperfectly, should be considered legitimate vendors of their people’s property. On the other hand, the category of “all and only dictatorships” includes within the argument’s scope both dictatorships that deprive their peoples of almost all state revenues, and those dictatorships that distribute much of this revenue to the people in the form of public spending. The effort to step back from customary commercial ties with dictatorships— and, at the limit, outlaw these ties altogether—should be coupled with measures seeking to preempt the worst kind of collateral damage that might befall the population living under the relevant dictatorship. Depending on the case, these measures may include the provision of basic necessities, materials for crucial public infrastructure, and so on. Initially, any disengaging democracy would have an especially stringent and weighty responsibility to extend such support. Eventually, such support will simply be a matter of a positive duty to help that is incumbent upon any affluent democracy capable of offering help. To say that there ought to be a strong presumption against customary commercial ties with dictatorships is importantly different from saying that all such ties ought to be stopped. Like any other presumption, this one too could be defeated. But it should be the duty of corporations to prove, on a case-by-case basis, why disengagement would be inappropriate. So, in any given case, it should be the responsibility of corporations to show, for example, why it would be impossible to secure the population’s basic interests even if customary commercial ties were discontinued. And it should also be the responsibility of corporations to provide a clear and convincing causal analysis, showing exactly how and why continued commercial engagement with a given dictatorship over a given period is likely to ameliorate (or at the very least not deepen) institutional maladies and human rights deficits in the relevant country. The more general thought here is that any given case of continued customary trade with dictatorships ought to be viewed as a regrettable anomaly, rather than as the norm—just as (to return to our earlier analogy) any given deal with hostage-takers ought to be seen as a regrettable anomaly rather than as customary, morally innocent practice.

⁸⁵ For an emphasis on how control of state property requires democratic procedures, and cannot be satisfied even by “decent hierarchies,” see section 4 of my “Rawlzickian Global Politics,” Journal of Political Philosophy 21 (2013): 473–495.

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Now, I am aware that not only corporate defenders, but even some less biased observes—within and beyond academia—do tend to regard customary trade, even with dictatorships, as the moral norm. In fact, some such observers have rejected reformist proposals made by myself and others, contending instead that we ought to increase trade with dictatorships.⁸⁶ The main reason is that increased trade would further facilitate the rise of a modern middle class that the “modernization thesis” has long told us is central to any stable liberal democracy.⁸⁷ Taking a brief detour from my more specific policy recommendations, I want to offer an explicit response to this “modernization” line of critique. Part of my answer to this critique obviously lies with my earlier arguments. But alongside these arguments, I also believe the modernization story advanced by the proponents of increased trade underestimates the significance of a crucial distinction. This is the distinction between fragile democracies and regimes in which dictators still clearly hold the reins of power. The modernization thesis is far more likely to work with regard to the former.⁸⁸ When dictators keep their hands on the tiller—when they are able to exercise real control over the volume of international trade and (equally crucially) on the part of the economy to which it flows—there is every reason to fear that they will ensure that the resulting revenues enhance not democracy, but only their power and privileges.⁸⁹ This is perhaps why, as two prominent social scientists put it in a 2009 overview of the global evidence, “empirical support for the predicted positive effect of economic openness on democracy among developing countries is weak.”⁹⁰ The aforementioned dictatorships of the Arabian Peninsula are obviously illustrative of this point. Moreover, those who require additional examples may want to consider the world’s most powerful dictatorships, starting with the Chinese regime and its use of international trade revenue to construct a profoundly Orwellian technological apparatus. In October 2019, New York Times columnist Farhad Manjoo offered a forceful summary of the yawning gap between this apparatus and the modernization thesis: [F]or 40 years, the West’s relationship with China has been governed by a strategic error the dimensions of which are only now coming into horrific view. A parade of American presidents on the left and the right argued that by cultivating China as a ⁸⁶ I particularly have in mind here Armstrong, “Dealing with Dictators,” especially 327–331. See also Wisor, “Conditional Coercion.” ⁸⁷ For the classic statement of this thesis, see Seymour Lipset, “Some Social Requisites of Democracy: Economic Development and Political Legitimacy,” American Political Science Review 53 (1959): 69–105. ⁸⁸ See, e.g., Xuepeng Liu and Emanuel Ornelas, “Free Trade Agreements and the Consolidation of Democracy,” American Economic Journal: Macroeconomics 6 (2014): 29–70. ⁸⁹ For numerous historical examples of this point, see Daron Acemoglu and James Robinson, Why Nations Fail (New York: Random House, 2013). ⁹⁰ Helen Milner and Bumba Mukherjee, “Democratization and Economic Globalization,” Annual Review of Political Science 12 (2009): 163–181, at 163.

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market—hastening its economic growth and technological sophistication while bringing our own companies a billion new workers and customers—we would inevitably loosen the regime’s hold on its people . . . China has engineered ferocious economic growth in the past half century, lifting hundreds of millions of its citizens out of miserable poverty. But China’s growth did not come at any cost to the regime’s political chokehold . . . [enhanced by] the seductive efficiency that technology offers to effect a breathtaking new level of control over its population . . . Through online surveillance, facial recognition, artificial intelligence and the propagandistic gold mine of social media, China has mobilized a set of tools that allow it to invisibly, routinely repress its citizens . . . . Under Xi Jinping, “president for life,” the Communist Party of China has built the most technologically sophisticated repression machine the world has ever seen.⁹¹

Finally, Putin’s mega-kleptocracy does not lag far behind China when it comes to using foreign income in ways that are, to put it mildly, extremely suspect. Between 2000 and 2011, for example, the Russian state reaped more than 1.6 trillion dollars from oil and gas exports. Yet during the same period, as Putin and his cronies became fabulously wealthy, they constructed no legal market in which well-educated graduates can succeed, built exactly zero multi-lane highways, made no meaningful improvements to chronically inadequate healthcare services, and did virtually nothing to stem rampant homicides, suicides, and domestic violence.⁹² The World Health Organization’s 2016 data, for instance, estimated the average life expectancy of a 15-year-old Russian male to be three years lower than the average life expectancy of a 15-year-old male in Haiti.⁹³ In light of such data, it strains credulity to think that Western sanctions on Russia (whose justification was overdetermined following Putin’s shameless annexation of Crimea in 2014, and is clearly even more overdetermined following his even more shameless invasion of Ukraine) have “prevented” customary commercial ties from empowering ordinary Russians vis-à-vis Putin. There is no reason to think, for example, that the inability of state-owned Russian banks to borrow trillions from the West has necessarily been detrimental to the Russian people’s long-term prospects. Rather than the Montesquieuian doux commerce envisioned by the modernization thesis, in Russia—as in many other places—customary commercial ties have long served ⁹¹ Farhad Manjoo, “Dealing with China isn’t worth the moral cost,” New York Times, Oct. 9, 2019. Manjoo was equally firm in his criticism of American corporations who are unwilling to trigger Beijing’s ire through any references to the regime’s conduct: “This sort of corporate capitulation is hardly surprising. For Western companies, China is simply too big and too rich a market to ignore, let alone to pressure or to police. If the first and most important cost of doing business in China is the surgical extraction of a C.E.O.’s spine, many businesses are only too happy to provide the stretcher and the scalpel.” ⁹² Maddow, Blowout, 335, following Karen Dawisha, Putin’s Kleptocracy (New York: Simon and Schuster, 2014). ⁹³ Compare https://www.who.int/countries/rus/en/ to https://www.who.int/countries/hti/en/

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oppressors’ primary concern, emphasized by Rousseau already long ago: “that the people be weak, wretched, and never able to resist them.”⁹⁴ To repeat, these stark examples are not meant to suggest that continuing customary ties with dictatorships is always and everywhere morally inappropriate. The thought is rather that even if such ties can be justified in certain instances, such justifications require real work and cannot simply be assumed. Moreover— and here we can return to specific policy recommendations—because we must not take it for granted that the “modernization thesis” (or any other sanguine thesis about customary trade) is obviously correct, we also cannot leave it to corporations to effectively control the assessment of different policy options regarding commercial engagement or its curtailment. Even if, and partly because, we can expect corporations to continue framing the impact of customary commercial ties in the rosiest possible terms, an impartial, well-resourced body must be available to adjudicate these corporate claims with regard to any given case.⁹⁵ This body, in turn, should be as far removed as possible—in both reality and appearance—from anything remotely resembling a neocolonial imposition. It would be eminently appropriate, for example, for this body to include expatriates who maintain strong connections in the relevant country. It would also be appropriate to include experts associated with relevant regional actors (such as ECOWAS in any matter that involves West Africa); and actors from countries with recent experience in moving away from authoritarianism and dealing with corruption (such as South Korea). Three final points are important here. First, even when the impartial body in question licenses customary commercial dealings with a given dictatorship, the license must be subject to stringent periodic review. This review, in turn, might imitate “stress test” regulations adopted in the aftermath of the financial crisis of the late 2000s: These regulations require banks to show how they could sustain adequate capital reserves even if the economic environment became highly unfavorable.⁹⁶ Similarly, a stringent, recurrent review of corporations’ dealings with dictatorships should force corporations to show how their predictions regarding macro-level developments in the relevant country would fare in the face of shifting empirical assumptions. More specifically, both corporations’ optimistic predictions regarding the social gains resulting from customary dealings, and

⁹⁴ Jean Jacques Rousseau, “The Social Contract,” in Victor Gourevitch (ed.), The Social Contract and Other Later Political Writings (Cambridge: Cambridge University Press, 1997), Book 3, chap. 6, paragraph 5. ⁹⁵ For a similar suggestion, see Jonathan Shafter, “The Due Diligence Model: A New Approach to the Problem of Odious Debts,” Ethics & International Affairs (2007): 49–67, at 59. ⁹⁶ It is unclear what will be the fate of these tests in an economy struck by the Coronavirus. See, e.g., “Coronavirus: First test of a U.S. financial system 10 years in repair,” The New York Times and Reuters, March 16, 2020, at https://www.nytimes.com/reuters/2020/03/16/business/16reuters-healthcoronavirus-fed.html

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their pessimistic predictions regarding the disruptions that would follow from limitations on those dealings, should be subject to frequent “stress tests.” Second, in any given instance where a corporation passes the relevant tests, its dealings with the relevant dictatorship should be subject to special taxation. This taxation will reflect the social risks involved in corporations getting their assessments wrong, and defending continued commercial ties in circumstances where these ties should in fact be limited or even discontinued altogether. In turn, the revenue generated by this tax can be used in a variety of pertinent ways. Most obviously, this revenue can be used to fund the aforementioned forms of support extended to dictatorships’ subjects in need. Elsewhere, I have also argued that in specific contexts where the relevant dictatorship is highly personalist, and where there is real reason to think that removing the ruler from power would trigger significant opportunities for positive social and political change, offering the dictator exile—even quite lucrative exile—could be morally appropriate.⁹⁷ A less obvious use of the revenue from special taxes levied on corporations dealing with such dictators would be funding such exile offers. Third, revenue from special taxes imposed on corporations who continue customary dealings with dictatorships can also be used to facilitate efforts by democratic governments to enable themselves to cease the relevant commercial ties with minimal risks, not only to the subjects of the relevant dictatorship, but also to their own citizens. In fact, if the arguments of this chapter are correct, and customary commercial dealings with dictatorships can indeed be usefully analogized (at least to some extent) to dealings with hostage-takers, then democratic governments—and the corporations they regulate—have a stringent and weighty moral duty to place themselves in a position where they can cease these dealings whenever the relevant “hostage situation” changes. Put otherwise: If at a certain point it became clear that a given democracy’s commercial ties with a specific dictatorship are harmful rather than beneficial to the people who live under it, it would hardly be plausible for this democracy’s policymakers to say “stopping business as usual will cost us too much; we never saw this coming, and so we never took steps to prepare.”⁹⁸ If it is indeed true that customary trade is a moral anomaly, which must continuously be justified anew on a time-bound, case-by-case basis, then it is the moral responsibility of each democracy to do its utmost to prepare for a point in which this anomaly can no longer be defended.

⁹⁷ See The People’s Duty, 179–185. ⁹⁸ A prime case in point, thrust into global headlines as a result of the war in Ukraine, is of course European dependence on Russian oil and gas exports. See, e.g., Martin Arnold, Amy Kazmin, and Erika Solomon, “Can Europe wean itself off its dependence on Russian fossil fuels?” Financial Times, March 21, 2022.

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Once stated, this point may seem so clearly correct as to be uninformative. But in the next chapter, I am going to argue that, at least in the context of strategic political theorizing, this point nonetheless has important implications for one of the most glaring public policy failures of our time—namely, the failure to enact certain commonsensical green policies in response to the facts of climate change.

6 Strategic Environmentalism Oil, Gas, and Green Energy

This final chapter provides one last illustration of strategic political theory in action. To some extent, this chapter continues the previous chapter’s examination of customary commercial ties with dictatorships. But here, the focus of my strategic argumentation is narrower in one sense, and broader in another. My focus is narrower, insofar as I put aside lending to dictators, on which I spent considerable space in chapter 5. Instead, I pay exclusive attention to a specific component of customary commercial ties with dictatorships—oil and gas trade. However, my focus in this chapter is also broader, insofar as I link oil and gas trade to an additional, analytically distinct issue which I entirely bracketed in the last chapter: green energy. In what follows, I show how strategic political theorizing yields a distinctive argument for the development of green energy that will do away with affluent democracies’ overwhelming reliance on fossil fuels. As will quickly become clear, this argument follows quite naturally from key positions defended in chapter 5. Yet I believe that the complexity and significance of environmental politics warrants an independent discussion. This chapter is devoted to such a discussion. To the extent that the development of green alternatives to fossil fuels has met with political resistance, this resistance has been most pronounced in the United States, where climate change skepticism has had considerable sway over public sentiment and public policy. I accordingly accept—in a qualified way and once again solely for the sake of discussion—key empirical and normative assumptions associated with American skepticism regarding climate change. From this starting point, I make two main moves. First, while environmentalists have traditionally justified the development of green energy through moral claims regarding future generations, I try to show that they need a present-oriented strategy focused on negative duties to respect rights, in order to justify prioritizing the development of green energy to environmental skeptics in the United States. Second, I construct a strategic argument for the development of green energy that relies upon the duty, articulated in the previous chapter, to respect the property rights of existing persons. Specifically, according to this argument, affluent democracies must develop green energy in order to be able to stop their complicity, through oil and gas trade, in dictators’ violation of their peoples’ property rights. I develop the argument as follows. In 6.1, I begin with preparatory remarks explaining (among other things) why I put aside the threat that climate change

Philosophizing the Indefensible. Shmuel Nili, Oxford University Press. © Shmuel Nili (2023). DOI: 10.1093/oso/9780198872160.003.0007

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poses to existing generations. In 6.2, I outline the skeptical position within whose terms the argument will run, and lay out a philosophical version of the skeptical attack on green appeals to future generations. In 6.3, I tackle this skeptical position by utilizing the previous chapter’s argument for reform of customary commercial ties with dictators, as it applies to oil and gas trade. Finally, I anticipate objections, paying extended attention to the worry that stopping oil and gas trade with dictators will not lead to green energy as a replacement (6.4).

6.1 Environmental Philosophy and Political Engagement One key assumption of this chapter is that philosophical discussions of environmental public policy should be informed by concrete challenges facing environmentalism as a political movement. Such an approach aligns with the way at least some scholars conceive of the purpose of environmental political theory. “Environmental philosophy,” Avner De Shalit for instance emphasizes, “is not simply an armchair exercise, nor is it a discipline of purely academic interest. The goal of environmental philosophers—interestingly, many of them are also activists—is to influence policies and change the world we live in.”¹ Environmental theorists, David Schlosberg insists in similar spirit, must connect their understanding of “environmental or climate justice” to “the actual demands of social movements that use the idea as an organising theme or identity.”² An argument that can push even environmental skeptics to endorse policies at the heart of the environmentalist agenda comports well with this practical orientation. In turn, no practical discussion of environmental skepticism can ignore the distinct significance of the American context. The United States is of special importance to the environmentalist cause due to its geopolitical clout, the sheer impact of its policies on the global environment, and its reluctance, in comparison to many other liberal democracies, to pursue environment-friendly policies when these conflict with other societal goals. This American reluctance has received especially dramatic expression under the Trump administration, manifested, among other things, in the administration’s constant threats to the operation of the Environmental Protection Agency, and in Trump’s withdrawal from the Paris climate accord. However, there is every reason to expect that even under the Biden (and any successor) administration, environmental efforts in the United States will continue to face considerable headwinds. At least one reason is the prominent public presence of the world’s most aggressive

¹ Avner De-Shalit, The Environment: Between Theory and Practice (Oxford: Oxford University Press, 2000), 3. See also Andrew Light and De-Shalit (ed.), Moral and Political Reasoning in Environmental Practice (Cambridge, MA: MIT Press, 2003). ² David Schlosberg, “Theorising Environmental Justice: The Expanding Sphere of a Discourse,” Environmental Politics 22 (2013): 37–55, at 50.

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anti-environmentalist campaigns, financed by corporate giants,³ and typically tied to conservative political actors, including numerous think-tanks,⁴ the Republican Party,⁵ and conservative media.⁶ These campaigns, in turn, routinely appeal to normative ideas that are at the heart of American political culture when seeking public support for their preferred policies. An argument that consciously begins from at least some of these ideas— that engages directly with key elements of the public philosophy of American society—is therefore especially well-suited to confronting environmental skeptics (as much as possible) on their own terms. In line with the “worldviewing” technique that should already be familiar to the reader at this point, I will construct here what I take to be the strongest, most wide-ranging account of American anti-environmentalism. This account will be represented in our discussion by the imaginary figure of “the skeptic.” This skeptic will be moderate, in the following sense: he will accept that environmental degradation poses genuine threats, and will accordingly recognize that fossil fuels cannot be relied upon indefinitely. But our skeptic will nonetheless be much more leisurely about the pace of energy reform than environmentalists are. The assumption with which our skeptic will begin is that at some point a complete shift to green energy will be necessary, but that this point is much further down the line than environmentalists make it seem—even if, as opposed to what radical skeptics argue, such a point does exist. This is because, while our skeptic affirms that global warming is a genuine concern that should be confronted in the long-run, he denies that present generations face grave (let alone existential) risks due to global warming. Our skeptic thus agrees with Bjørn Lomborg that “[g]lobal warming is real—it is man-made and it is an important problem. But it is not the end of the world.”⁷ My attempt to work within these moderately skeptical terms is bound to trigger several objections. Since these objections bear in fundamental ways on the rest

³ Naomi Oreskes and Erik Conway, Merchants of Doubt (London: Bloomsbury Press, 2010), chap. 6. ⁴ See, e.g., Peter Jacques, Riley Dunlap, and Mark Freeman, “The organisation of denial: Conservative think tanks and environmental scepticism,” Environmental Politics 17 (2008): 349–385. ⁵ See for example Riley Dunlap, C. Xiao and A.M. McCright, “Politics and Environment in America: Partisan and Ideological Cleavages in Public Support for Environmentalism,” Environmental Politics 10 (2001): 23–48; Judith Layzer, Open for Business (Boston, MA: MIT Press, 2012); Eric Merkley and Dominic Stecula, “Party Cues in the News: Democratic Elites, Republican Backlash, and the Dynamics of Climate Skepticism,” British Journal of Political Science 51 (2021): 1439–1456. Though see also Dennis Romboy, “Why Mitt Romney says doing nothing about global warming would be seen as ‘extraordinary lapse,’ ” Desert, July 21, 2021, at https://www.deseret.com/utah/2021/7/21/22587651/ why-mitt-romney-says-not-doing-anything-global-warming-extraordinary-lapse-climate-change ⁶ See, e.g., Riley Dunlap and Robert Brulle, “Sources and Amplifiers of Climate Change Denial,” in David Holmes and Lucy Richardson (eds.), Research Handbook on Communicating Climate Change (Cheltenham: Edward Elgar, 2020), 49–61. ⁷ Quote from Sophie Elmhirst, “The NS interview: Bjørn Lomborg, New Statesman, Sept. 24, 2010, at http://www.newstatesman.com/environment/2010/09/interview-gay-climate

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of this chapter, I want to anticipate them already at this point. First, some environmentalists might insist that any kind of skepticism regarding the threat posed by climate change, including skepticism as to the threat that climate change poses to present generations, must simply be rejected out of hand as incompatible with scientific evidence. One response to this objection should be clear from what I said in chapter 3 about the nature of strategic arguments. I do not mean to suggest that environmentalists need to “forget the facts of climate change,” or forget their broader value system, when making policy arguments in the American context. Nothing in the argument I will present here goes against environmentalists continuing to emphasize the scientific consensus on the facts of climate change, for example, or even, more specifically, emphasizing the threat that climate change poses to present generations. What I am suggesting is an additional argument, which might generate support for green energy policies among some who have been at least somewhat unmoved by environmentalists” factual claims. Furthermore, the appeal of such an additional argument should be amplified given that environmentalists themselves emphasize how urgent it is to prioritize the development of green energy. Given this sense of urgency, a new argument that might help win support for such priority is significant, even if some of those that the argument might convince hold empirical assumptions regarding climate change that many environmentalists consider false. If there is potential convergence on measures that environmentalists themselves declare to be crucially time-sensitive, this should matter independently of enduring disagreements among supporters of these measures. It hardly seems sensible, for example, to say that I should refuse to enlist your support in managing what I myself declare is a potentially lethal fire, until I make sure that you support the effort because you agree with me on our precise reasons for fighting the fire. The same point applies here. There is value to environmentalist coalition-building that reaches practical agreement on the right course of action, even if some parties accept this agreement motivated by what environmentalists deem to be the wrong reasons. President Biden’s systematic effort to “equate climate action with jobs”⁸ is perhaps the most high-profile American example of such a pragmatic environmentalist approach.⁹ Similar pragmatism has clearly characterized the green-energy investments—the largest to date in U.S. history—at the heart of the 2022 Inflation

⁸ Coral Davenport and Lisa Friedman, “Five decades in the making: Why it took Congress so long to act on climate,” The New York Times, Aug. 7, 2022. ⁹ Although it is far from the only example. In 2015, for instance, environmentalists formed a “Green tea party” coalition for solar energy with Tea Party members who saw solar energy as a response to state energy monopolies. See Carolyn Kormann, “Greening the Tea Party,” The New Yorker, Feb. 17, 2015.

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Reduction Act.¹⁰ To be sure, as The New York Times noted, “the incontrovertible evidence that climate change has already arrived—in the form of frighteningly extreme wildfires, drought, storms, and floods afflicting every corner of the United States—has helped build political support.”¹¹ Nonetheless, serious legislative progress clearly required extensive coalition-building. This process had to include extremely recalcitrant politicians from fossil fuel–reliant states.¹² And it also had to include, as the Times observed, broader groups with which environmentalists have rarely found common ground in the past: Environmentalists forged alliances with groups they had previously sparred with, like unions and farmers. They began to talk about climate change not only as a threat to polar bears and coastlines, but also as an opportunity for the United States to develop a new economy untethered to fossil fuels. “The movement had to mature,” said Senator Brian Schatz, Democrat of Hawaii, who fought back tears immediately after Sunday’s vote. “There’s plenty to catastrophize about, but that was no way to build political momentum.”¹³

My last response to the objection is similarly practical. It is important to bear in mind that, even after decades of environmentalists emphasizing the scientific consensus regarding the facts of climate change, a sizable portion of U.S. public opinion—albeit to varying degrees—believes that climate change is less urgent of a concern than environmentalists argue.¹⁴ Exactly because time is of the essence, I am suggesting that environmentalists take seriously this enduring state of U.S. public opinion not only by trying to alter it, but also by trying to show that even premises closer to those of their opponents can lead to the policies that environmentalists themselves deem urgent. ¹⁰ See, e.g., Arianna Skibell, “We’ve got a climate law. Who wins?,” Politico, August 16, 2022, at https://www.politico.com/newsletters/power-switch/2022/08/16/weve-got-a-climate-law-who-wins00052128 ¹¹ Davenport and Friedman, “Why it took Congress so long to act.” ¹² Most conspicuously, West Virginia’s Joe Manchin, mentioned already in chapter 2. As the decisive vote in an evenly divided Senate, Manchin has drawn extraordinary political attention in the United States since the 2020 elections. Tellingly, Manchin has repeatedly invoked the Russian invasion of Ukraine, and the resulting sanctions targeting the Russian oil and gas industry, as grounds for demanding extensive development of all U.S. energy sources. The environment-friendly view that I will defend here, though adjacent, is of course more discriminating, along the lines noted, e.g., in Bill McKibben, “This is how we defeat Putin and other petrostate autocrats,” The Guardian, Feb. 25, 2022 (“if you want to stand with the brave people of Ukraine, you need to find a way to stand against oil and gas”). ¹³ Davenport and Friedman, “Why it took Congress so long to act.” ¹⁴ See for example Anthony Leiserowitz., Edward Maibach, Seth Rosenthal, John Kotcher, Parrish Bergquist, Matthew Ballew, Matthew Goldberg, and Abel Gustafson, Climate Change in the American Mind: November 2019 (New Haven, CT: Yale Program on Climate Change Communication, 2019); Anthony Leiserowitz and Nicholas Smith, “The Rise of Global Warming Skepticism: Exploring Affective Image Associations,” Risk Analysis 32 (2012): 1021–1032.

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Now consider a related but distinct objection. According to this objection, the scientific evidence regarding climate change is so overwhelming that anyone who refuses to fully accept this evidence must be deemed an utterly lost cause insofar as rational persuasion is concerned. Given the general views I expressed in chapter 3, it should not be surprising that I find this kind of fatalist attitude problematic. I also think, more specifically, that there is a plausible way to view certain climate change skeptics as subjectively rational. In this I follow Simon Keller: Suppose that you begin from the following ideological perspective: you believe that industrial activity and consumption are responsible for the progress and improved living standards of humanity over the last few hundred years; you believe that the human impulse to innovate . . . provides our best hope for continuing to lift people out of poverty; you have no particular love of “nature” . . . you are suspicious of governments that gather power for themselves, and you believe that governments have a natural tendency to grow larger and levy higher taxes and exert more control wherever they can . . . You are then confronted with the thesis of anthropogenic climate change . . . The thesis comes to you as part of an ideologically potent package, associated with a movement that looks to impose new taxes on energy and development . . . and to alter fundamentally the economic system that has dominated in the West for the past few centuries.¹⁵

Keller’s conclusion as to how such a person is likely to reason should not be surprising: In deciding whether or not to trust those who advance the thesis of anthropogenic climate change, you will notice the existence of voices at the scientific margins expressing doubts about whether the thesis is correct. Much of what is said by those voices fits nicely with your pre-existing set of values and beliefs . . . you will then have some reasons to trust these experts, not the climate change believers. To that extent, climate change scepticism . . . can be subjectively rational. The climate change sceptic might be wrong. Their ideological starting point might be misguided. But the move from their ideological starting point to their scepticism about climate change . . . need not be a result of laziness and selfishness, or willful ignorance of the science, or brainwashing by corporations and right-wing politicians. It could be a result of an ordinary person doing their best to form true beliefs, within a certain social context and beginning from a certain ideological framework.¹⁶ ¹⁵ Simon Keller, “Empathizing with Scepticism about Climate Change,” in Jeremy Moss (ed.), Climate Change and Justice (Cambridge: Cambridge University Press, 2015): 219–235, at 228. ¹⁶ Keller, “Empathizing with Scepticism about Climate Change,” 229.

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I admit that I find these remarks appealing partly because of their natural fit with the broader philosophical framework defended in this book. In particular, these remarks clearly align with my exhortation (in 3.1) to treat our fellow citizens as persons of integrity—to ascribe to our fellow citizens an interest in making their worldview as coherent and wide-ranging as it can be. But even some environmentalists who grant the significance of treating our fellow citizens in this way might still insist that there is a serious concern about the kind of argument I wish to make. The concern is that even moderately skeptical premises will never suffice to convince radical anti-environmentalists who completely deny the reality of climate change, and who are the real opponents of the environmentalist movement, especially in the United States. This objection would only work if U.S. public opinion on environmental issues was far more binary than it actually is. It is simply not the case that there exists only a straightforward dichotomy with regard to environmental issues, featuring environmentalists on one side and “radical climate change deniers” on the other. It is far more plausible to understand U.S. public opinion on the environment as a scalar matter—as featuring many different points on a very wide spectrum. Radical denial of any large-scale environmental threats is merely one point on this spectrum. Furthermore, while environmentalists may not be able to convince radical skeptics, and may just have to hope to outvote them, one useful way to try to achieve this is to devise new arguments that can appeal to moderate skeptics: to those who, while not committing themselves to extreme views, are attentive to extreme skeptics, and empathize with (at least some of ) the normative claims associated with extreme skeptics. Moderate skeptics, in turn, are much easier to find in the United States than one may think. To see this point, it will be helpful to consider the most comprehensive project examining U.S. public opinion regarding climate change. This is the “Six Americas” project, distinguishing among six different segments of Americans according to their views on environmental threats (labeled Alarmed, Concerned, Cautious, Disengaged, Doubtful and, only at the very anti-environmentalist extreme, Dismissive). According to the project’s latest report, detailing survey findings from September 2021, the Concerned, who “tend to view global warming as a threat to other nations and future generations, but not as a personal threat or a threat to their community,”¹⁷ make up more 25 percent of American adults.¹⁸ The Cautious, who are “less worried than the Concerned,” and who think of global

¹⁷ Connie Roser-Renouf, Edward Maibach, Anthony Leiserowitz, and Seth Rosenthal, Global Warming’s Six Americas and the Election, 2016 (New Haven, CT: Yale Program on Climate Change Communication, 2016), at http://climatecommunication.yale.edu/publications/six-americas-2016election/ ¹⁸ Global Warming’s Six Americas, at https://climatecommunication.yale.edu/about/projects/ global-warmings-six-americas/

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warming as a “distant threat,”¹⁹ make up another 17 percent of American adults. Moreover, while the Concerned and the Cautious “range in certainty about the reality and dangers of climate change, they are similarly inclined to believe it is a real threat that should be addressed.”²⁰ If we combine the two groups, then, we find that 42 percent of American adults hold positions on climate change that at least roughly correspond to those of the “moderate skeptic” I have sketched.²¹ Therefore, even if the figure of the moderate skeptic is not meant to be a precise reflection of current public opinion in the U.S., it would be a mistake to dismiss it as entirely detached from any actual public sentiment. With these points in mind, we can turn to examine in greater detail the moderately skeptical position within whose terms my argument will run. I will start with a list of its basic elements, and then show how they can be tied together as a coherent whole to oppose familiar environmentalist arguments for the development of green energy.

6.2 “The Skeptic” 6.2.1 Foundations of the Skeptical Position in American Political Culture I will attribute to our moderate skeptic a cluster of ideas that are prominent in American political culture. Perhaps the most foundational of these ideas is the primacy of rights, which has three main implications. First, agents’ rights are normally assumed to trump utilitarian calculations of other agents’ welfare. Second, the emphasis of public policy and legislation is on negative duties not to violate the immunities that rights provide. Third, related, the primary (if not only) kind of moral duties that public policy and legislation should be based on are duties that correspond to rights. This means, for one thing, that positive duties to help, as distinct from negative duties to refrain from violating rights, are relegated to a distinctly secondary role: “The grain of the Anglo-American moral and legal tradition,” as Thomas Pogge writes, denies “that persons have duties to protect and aid ¹⁹ For these definitions see Connie Roser-Renouf, Edward Maibach, Anthony Leiserowitz, Geoff Feinberg, Seth Rosenthal, and Jennifer Kreslake, Global Warming’s Six Americas, October 2014 (New Haven, CT: Yale Project on Climate Change Communication, 2015), p. 7, at http://environment.yale. edu/climate-communication/article/global-warmings-six-americas-perceptions-of-the-health-risks ²⁰ Six Americas, October 2014, 8. ²¹ The same two groups accounted for 54 percent in the Six Americas survey of September 2014 (when the Concerned accounted for 31 percent, and the Cautious for 23 percent), and 55 percent in the Six Americas survey of March 2016. More generally, in 10 of the 11 national surveys that have been tracking the “Six Americas” between 2008 and 2014, the Concerned have been the largest segment of the six. The relative decline in the combined size of the Concerned and Cautious segment is best understood as a result of the significant growth of the Alarmed segment, which jumped from 11 percent in 2014 to 33 percent in 2021. Between 2017 and 2021, the Dismissive segment shifted from 11 percent to 9 percent. See, again, https://climatecommunication.yale.edu/about/projects/global-warmings-sixamericas/

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other persons in distress.”²² While there may be a governmental duty to aid individuals whose very survival is at stake, any broader positive duties to aid are often seen as only supererogatory, and their enforcement through law is cast as illegitimate, among other things since such enforcement itself violates agents’ rights.²³ Furthermore, public policy and law should focus on ensuring that agents respect the rights of others. Moral demands that arise from supposed duties that agents have towards themselves—to cultivate themselves, to develop certain sensibilities or virtues—cannot be incorporated into law without triggering firmly entrenched fears of paternalism, as well as accusations of violating the state’s moral duty not to endorse specific conceptions of what amounts to a good life.²⁴ Alongside these claims, American political culture is dominated by Lockean ideas concerning property, prosperity, and innovation.²⁵ Property rights have a pivotal place in the list of rights that public law and policy should protect. In turn, agents’ freedom to exercise their property rights is seen as the key driver of society’s economic prosperity, while government regulation is deemed as almost always a threat to both this freedom and prosperity. Because of its significance, attention is constantly given to any (perceived or real) trade-offs between economic prosperity and other public goods: Noneconomic public goods that are seen as undermining economic growth are unlikely to gain policy precedence. Finally, American public culture emphasizes human capacity for transforming nature into prosperity through skill, labor, and innovation. This emphasis (reflected in Keller’s aforementioned remarks) generates a particularly pronounced optimism regarding the ability of human technology to overcome natural predicaments. Let us now see how the ideas of the last two paragraphs, combined with the moderate empirical skepticism noted above, translate into a rejection of the environmentalist demand to make the development of green energy a public policy priority.

6.2.2 The Skeptical Critique Because our moderate skeptic rejects empirical green arguments referring to environmental calamities facing present generations, I focus on future-oriented ²² Thomas Pogge, Realizing Rawls (Ithaca: Cornell University Press, 1989), 34. ²³ This point finds expression even in American popular comedy. The final episode of the famous Seinfeld, for instance, features Seinfeld’s lawyer stunned to hear about a new “Good Samaritan law,” responding: “Good Samaritan Law? Never heard of it. You don’t have to help anybody. That’s what this country’s all about.” See http://www.seinfeldscripts.com/TheFinale.htm ²⁴ It is worth emphasizing that this is not a fringe intuition characterizing only extreme libertarian views. To give only one well-known example from American philosophy: Rawls’ famous insistence on the “inviolability” of the person who spends his days “counting the blades of grass” (A Theory of Justice, 3, 379) reflects a rejection of paternalism that is just as trenchant as the one expressed by Rawls’ libertarian critics. ²⁵ For a contemporary statement of these ideas see Michael Zuckert, Launching Liberalism: On Lockean Political Philosophy (Lawrence: Kansas University Press, 2002).

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environmentalist arguments, and on how our skeptic might respond to such arguments. What moral arguments can our skeptic make in response to moral appeals to future generations? The skeptic can start by attacking all future-oriented arguments that appeal to moral considerations other than those associated with negative duties not to violate rights. Here we can imagine the skeptic saying the following: Environmentalists can talk about intuitive sensibilities towards future generations, and can chastise contemporary-centric arrogance; they can contend that existing lives will be more fulfilling if future generations are kept in mind, and they can seek to extend the cognitive and emotional time-horizon of individual lives. But a public policy based on such arguments would be paternalistic (because it would impose policies on citizens “for their own good”), and would violate the state’s duty to remain neutral among different conceptions of the good life (by imposing on some citizens others’ conceptions of what gives value to life). Therefore, all of these arguments can at most serve as guides for the behavior of individuals or voluntary civil society groups. So long as they do not convincingly appeal to negative duties not to harm future generations, none of these arguments can be used to justify public policies that shift resources to future generations at the expense of current generations.

Having narrowed the discussion to negative duties towards future generations, the skeptic might highlight the difficulties in establishing that present generations are violating such negative duties—are harming future generations in morally significant ways. Suppose for the moment that the skeptic accepts a comparative notion of “harm,” according to which setting back agents’ important interests counts as illegitimately harming them. Under this notion, the skeptic can present two arguments against the environmentalist charge of “harming” future generations. First, the skeptic will argue that present generations suffer from serious epistemic problems regarding the interests of future generations. This is not only because present generations cannot know what the exact interests of future generations will be. It is also because present generations cannot know what trade-offs between which interests future generations will be forced to make. Since it is extremely hard to know what future generations may have to give up for the sake of environmental goals, it is difficult to say with any confidence that nonenvironmental policies will set back their overall interest. Present generations cannot even fully know (or conceptualize) the parameters or dimensions of these trade-offs. “Would we expect the generations of the eighteenth century,” the skeptic would say, “to make sense of the dilemmas of the twentieth century between development and conservation? And if not, why should we be confident of our ability to make sense of the dilemmas and trade-offs of (say) the twenty-third century?”

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Second, the skeptic will continue, even if we assume the shape of future tradeoffs can be sufficiently clear to present generations, this still does not mean that present generations have a duty to adopt policies that favor the environmental side of the trade-off, nor does this mean that present generations will be harming future generations by failing to make the environmental choices for them. After all, it might very well be that future generations will themselves prefer the nonenvironmental side of these trade-offs, in much the same way, for example, that many developing countries are currently prioritizing economic growth over environmental goals. The skeptic can make both of these arguments even if he accepts the assumption that setting back others’ important interests necessarily means violating a negative duty not to harm them. But the skeptic is in fact likely to reject even this assumption. He might say the following: We do not in fact think that setting back people’s important interests necessarily means violating a negative duty not to harm them. For instance, Jane might make Jack significantly worse off by driving him out of business through legitimate competition, but that in itself does not necessarily mean that Jane illegitimately harmed Jack. Similarly, even if it could somehow be established that present generations are setting back important interests of future generations by avoiding more environment-friendly policies, this does not by itself mean that present generations are violating a negative duty not to harm future generations.

Arguably, the only thing that would convince the skeptic that present generations are violating negative duties towards future generations, is an argument showing that that the former are violating the latter’s rights in some reasonably clear way. But here all that the skeptic has to do is to point out the various works in which philosophers have argued that even if present generations have duties towards future generations, these duties cannot stem from any rights of future generations. Indeed, despite valiant efforts from multiple directions, it remains difficult to defeat the claim that future persons are merely “possible persons,”²⁶ who cannot have any rights in the present. Even if one concedes that the existence of future persons is “virtually certain,”²⁷ It is hard to entirely defeat the intuition—to which the skeptic is bound to cling as forcefully as possible—that “when and only when a person will come into existence, she will have rights.”²⁸ ²⁶ Ruth Macklin, “Can Future Generations Correctly Be Said to Have Rights?” in Ernest Partridge (ed.), Responsibilities to Future Generations: Environmental Ethics (New York, NY: Prometheus, 1981): 151–156. ²⁷ Cf. Joel Feinberg, “The rights of animals and unborn generations,” in Partridge, Responsibilities to future generations, 139–150, at 147. ²⁸ Alex Gosseries, “On Future Generations’ Future Rights,” Journal of Political Philosophy 16 (2008): 446–474, at 456.

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The difficulties involved in ascribing rights to future persons have seen, among other things, the rise of an explicitly “concessional view,”²⁹ seeking to argue for future-based duties even without an appeal to any supposed present rights of future persons. But from the perspective of our skeptic, to argue for duties towards future persons that amount to “more than they have a right to,”³⁰ is already to argue for the kind of duties that can at most guide only supererogatory private action, not public policy. If environmentalists wish to retain their focus on the needs of future generations, but also to argue strategically, from premises closer to those of their critics, then it seems that at this point there is only one more claim to which environmentalists might appeal. Environmentalists might contend that if present generations do not pursue green policies—chief among them the development of clean renewable energy—this will threaten the very survival of future generations. Such a claim could invoke a Lockean proviso stipulating a right to basic subsistence, or even simply a very minimal positive duty to help others survive. The chief problem with an appeal to the very survival of future generations, however, is that it invites even the moderate critic to accuse environmentalists of excessive pessimism. Our moderate skeptic can be expected to say something like the following:

To be sure, we will need to do so something about the environment eventually. But to prophesize that environmental degradation will very soon threaten human survival on a massive scale is nonetheless too apocalyptic. Even if such a claim could be proven (which is doubtful) it in effect holds technology constant, and thus—crucially—ignores human capacity for innovation. Doomsday predictions regarding humanity’s inability to tend to its basic needs are nothing new, and these predications have been repeatedly shown wrong by technological progress.

The skeptic will not find it too hard to come up with evocative examples either. For instance, it is all too convenient to associate environmentalist alarmism about future survival with past Malthusian fears that have been vastly—and with hindsight, easily—disproved by technology. In 1798, the skeptic will remind his opponents, Thomas Malthus declared that “The power of population is indefinitely greater than the power in the earth to produce subsistence for man.”³¹ Yet only 150 years after Malthus, the sole threat to humanity’s survival was to be

²⁹ Robert Elliot, “The Rights of People,” Journal of Applied Philosophy 6 (1989): 159–169, at 162. ³⁰ See for example Lukas Meyer, “More than They Have a Right To: Future People and Our Future Oriented Projects,” in Nick Fotion and Jan C. Heller (eds.), Contingent Future Persons—On the Ethics of Deciding Who Will Live, or Not, in the Future (London: Kluwer Academic Publishers, 1997). ³¹ Thomas Malthus, An Essay on the Principle of Population (Oxford: Oxford University Press, 2008 [1798]), 13.

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found in weapons of its own making. And today, the power of technology to produce food is indefinitely greater than the “power” of population growth.³² Holding technology constant, the skeptic will say, yields mistaken predictions about the environment, just as it has yielded mistaken predictions with regard to subsistence. We can now close this section, with the following interim conclusion. So long as environmentalists retain their focus on future generations, they cannot prove on our skeptic’s terms that the development of green energy is crucial. Insofar as environmentalists have reason to value such a strategic argument, they need to find alternative ways to make it. Specifically, environmentalists need a present-oriented argument focused on negative duties to respect rights, which emphasizes technological optimism. If this argument can focus on negative duties to respect present rights central to American skeptics, this would be even better. The argument to which I now turn aims to provide all of these things.

6.3 An Alternative Argument for Green Energy: Reforming Customary Trade The alternative justification for green energy policies that I wish to elaborate here starts with a simple thought: Negative duties, the kind of duties that our skeptic cherishes, travel in space much more easily than they travel in time. Our skeptic may devise multiple arguments for why negative duties towards noncontemporaries are neither as clear nor as forceful as negative duties towards contemporaries. But, even if negative duties are indeed diluted by temporal distance, they are not diluted by spatial distance—nor, for that matter, by “distances” of identity or citizenship. Whatever conceptual problems we may face in asserting negative duties towards noncontemporaries, we face no such difficulties in asserting negative duties towards contemporaries who are noncompatriots. There is no spatial gradient for our duties not to violate rights. As Pogge writes, “the moral reasons to refrain from drunk driving do not become much weaker when we are briefly working in India or holidaying in Indonesia. They remain strong when those one is putting in jeopardy are not neighbors or compatriots but people with a different language, culture, religion, latitude or nationality.”³³ Now, if environmentalists can identify ongoing violations of global negative duties towards contemporaries that trigger a need for affluent democracies to develop green energy, this will have strategic value in debating American skeptics on their own terms. Such strategic value will be particularly pronounced, if the relevant violations refer to rights that American skeptics themselves prioritize. I wish to suggest ³² See, e.g., Joshua Cohen, “Philosophy, Social Science, Global Poverty,” in Alison Jaggar (ed.), Thomas Pogge and His Critics (London: Polity, 2010): 18–45, at 18. ³³ Pogge, “Reply to Critics,” in Jaggar, Pogge and His Critics, 212.

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that there is at least one ongoing type of rights violations that fits this description, whose contours should already be familiar from the previous chapter’s argument: These are the massive-scale violations of national property rights that occur when affluent democracies allow corporations based in their territories to purchase oil and gas controlled by dictators. It might be helpful to briefly restate that argument. In chapter 5, I sought to show that customary commercial ties with dictators—including customary transactions in natural resources—ought to be seen as a moral anomaly, mainly because these transactions involve the continued violations of the property rights of the peoples who live under dictators. In some cases, this anomaly means that these customary ties ought to be legally prohibited altogether. But even where there are important considerations militating in favor of continuing such ties, it is morally incumbent upon resource corporations to prove, on a case-by-case basis, that these considerations are indeed decisive (principally by showing that customary ties are crucial to the welfare of the most vulnerable people living under dictators). Moreover, the end of chapter 5 argued that even in those cases where customary commercial ties ought (all things considered) to be continued at present, affluent democracies ought to act so as place themselves in the best possible position to cease these customary ties, at the earliest possible point. More specifically, the previous chapter argued that affluent democracies ought to treat all dictatorships as (at least presumptively) illegitimate vendors of national property. But if so, then the national property argument can make an extremely significant—even if indirect—contribution to environmentalists’ policy agenda. This is because the argument means that affluent democracies must work to enable themselves to part with the crucial portion of their oil and gas imports that comes from dictatorships. And this fact, in turn, connects in two ways to green policies. First, there is the theoretical possibility that affluent democracies will pursue policies to reduce their energy consumption, so as to offset the “lost” oil and gas supplies that they will now prohibit their corporations from purchasing. Such a scenario will obviously be extremely positive from an environmentalist perspective.³⁴ But the resulting reduction in energy consumption would have to be extremely dramatic, with stark economic repercussions.³⁵ Our skeptic, attached as he is to continuous economic growth and prosperity, is therefore much more ³⁴ See Leif Wenar, “Property rights and the resource curse,” Philosophy & Public Affairs, 36 (2008): 2–32, at 30. ³⁵ At the time of writing, this point is amply illustrated in Germany, following the economic shockwaves of the energy sanctions imposed on Russia in the aftermath of Putin’s invasion of Ukraine. As Germans dread a winter without fossil fuels imported from Russia, one can only imagine how much more profound the relevant anxiety and economic cost would be if Germany (and Western Europe and affluent democracies more generally) would have to contend without energy imports from any dictatorship. See, e.g., “The energy shock: Germany plans for a winter without gas from Russia,” Der Spiegel, July 29, 2022, at https://www.spiegel.de/international/germany/the-energy-shock-germanyplans-for-a-winter-without-gas-from-russia-a-3058931c-d3c8-4146-9144-3f957f490f88; Patrick Wintour, “’We were all wrong’: How Germany got hooked on Russian energy,” The Guardian, June

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likely to prefer the second option: prioritizing the development of green alternatives to oil and gas, which will make it possible for affluent democracies to reform customary natural resource trade while retaining current levels of energy consumption. I will spend the remainder of this chapter on further developing this latter option, by anticipating likely objections. Before doing so, however, I wish to reiterate how the connection between green energy and the duty to reform customary oil trade is strategically useful for environmentalists who wish to justify the prioritization of green energy development even to moderate environmental skeptics. These strategic green advantages arise, first and foremost, from the argument’s emphasis on a negative duty to respect property rights. Admittedly, the property rights invoked here refer to a people’s ownership over state property, rather than to individual property. But, notwithstanding possible impressions to the contrary, there is no reason why this should matter in the context of our discussion. Indeed, to explicitly return the focus to the United States, as a matter of historical fact, it is clear that some of its most anti-environmentalist leaders, including those who have sought to minimize the role of state ownership and regulation in the economy, have taken seriously the property rights invoked here. As Leif Wenar notes, when the Reagan administration, for instance, sold to Shell the rights to oil deposits off the coasts of Louisiana and Florida, these deposits may have become private property, but the revenue from the sale clearly belonged to the American people, rather than to the president personally: “[o]ne can imagine the response had President Reagan secretly sold this oil to Shell, then put the profits from these sales into his private bank account and ordered the FBI to detect and squash any dissent.”³⁶ Similarly, when President George W. Bush, for example, discussed Iraqi oil after the overthrow of Saddam Hussein, there was no mention of any private appropriation of this oil preceding its ownership by the people. “The oil,” the president declared, “belongs to the Iraqi people. It’s their asset.”³⁷ The other strategic advantage of arguing from reform of customary natural resource trade to green energy is avoiding the marking of environmentalists as “modern day luddites”³⁸ who underestimate technology’s ability to better human 2, 2022, at https://www.theguardian.com/world/2022/jun/02/germany-dependence-russian-energygas-oil-nord-stream ³⁶ Wenar, Property Rights, 10. ³⁷ “President’s Statement to the Press,” June 12, 2006, quoted in Wenar, Property Rights, 10. A more abstract way of making the point would be to say that the issue of state property illustrates the key differences between Lockean political philosophy and libertarian-anarchist philosophy. For a similar emphasis on the distinction between Lockean minimal government and libertarian no-government, see Zuckert, Launching Liberalism, chap. 13. ³⁸ To take one example, this label was explicitly invoked by Aubrey McClendon, then-CEO of Chesapeake Energy, to respond to green opponents of fracking (on which more below). See Rachel Maddow, Blowout: Corrupted Democracy, Rogue State Russia, and the Richest, Most Destructive Industry on Earth (New York: Crown, 2019), 155.

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life and solve societal problems. In highlighting this point, I do not mean to portray environmentalists in general as having an anti-technological orientation. I only wish to emphasize the contrast between an environmentalist position that is forced—even if only through external criticism—to identify itself with bleak predictions holding technology constant (as noted above), and on the other hand a position that places environmentalists as believers in what technology can achieve.

6.4 From Dictators to Green Energy? Let us now turn to possible objections. The first and perhaps most important objection is that my argument hinges on a false setup of the relevant choice situation facing affluent democracies, and the United States in particular. Rather than developing green alternatives to fossil fuels controlled by dictators, both democratic governments and markets can instead turn to other alternatives that will do little to solve environmental problems. The main driver of this objection is shale, and I therefore want to discuss shale energy sources at some length. Over the last fifteen years, technological advances in horizontal drilling and hydraulic fracturing (“fracking”) have exponentially increased the amount of recoverable shale gas and oil in the United States, reducing the need for natural resource imports from dictatorships. Fracking, however, involves serious environmental costs of its own, ranging from methane emissions, through the release of toxic chemicals and the contamination of drinking water, to an exponential increase in the risk of earthquakes around drilling sites (resulting from wastewater disposal processes).³⁹ So insofar as reform of customary natural resource trade with dictators would mean continued (let alone deepened) reliance on fracking, it would only perpetuate our environmental predicament.⁴⁰ This objection relies upon the idea that, into the foreseeable future, shale (or “tight”) gas and oil are going to be genuine alternatives to fossil fuel sources controlled by dictators. But this is not the case. One reason is simply the science. Many scientists continue to doubt that tight oil, for example, is really capable of “doing the work” that is currently done by conventional oil (of the sort controlled by dictators). This is in large part because of tight oil’s extremely low ratio of energy ³⁹ See, e.g., Maddow, Blowout, 136–146, 290–303. ⁴⁰ There is some debate as to degree to which stringent regulation of fracking can reliably prevent (at least some) of its environmental hazards. Obviously, more optimistic assumptions here would render the objection less serious to begin with. But here I assume the most pessimistic outlook, according to which even vigorously enforced regulations will not turn fracking into an environmentally adequate “bridge” on the way to renewable energy, contrary to the rhetoric of the fracking firms and certain politicians, who emphasize that fracked gas burns much more cleanly than coal. For relevant discussions, see Robert Howarth, “A Bridge to Nowhere: Methane Emissions and the Greenhouse Gas Footprint of Natural Gas,” Energy Science & Engineering 2 (2014): 47–60; Jason Delborne, Dresden Hasala, Aubrey Wigner, and Abby Kinchy, “Dueling Metaphors, Fueling Futures: “Bridge Fuel” Visions of Coal and Natural Gas in the United States,” Energy Research & Social Science 61 (2019): 1–10.

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returned on energy invested (EROI).⁴¹ Thus for instance, the editors of a 2013 special issue on “the future of oil supply,” published by the physical sciences journal of the Philosophical Transactions of the Royal Society, summarized the issue as providing “a sobering picture of the challenges ahead”: Most authors accept that conventional oil resources are at an advanced stage of depletion and that liquid fuels will become more expensive and increasingly scarce. The tight oil “revolution” has provided some short-term relief, but seems unlikely to make a significant difference in the longer term. Even with a more sanguine view of global supply prospects, the large scale, capital intensity, long lead times and constrained potential of the various mitigation options point to the need for a coordinated response . . . there is a growing consensus that the era of cheap oil has passed and that we are entering a new and very different phase.⁴²

Furthermore, green alternatives are already gaining significant commercial ground, alongside their other obvious advantages. In January 2022, the Rocky Mountain Institute made the following observations about the comparison between renewables and new gas infrastructure: As coal plants shut down across the United States, there is a pervasive belief that gas is the necessary “bridge” to a low-carbon grid. As of late 2021, utilities and other investors are anticipating investing more than $50 billion in new gas power plants over the next decade. However, currently available renewable energy technologies are often cheaper than gas. In fact . . . clean energy portfolios— combinations of renewable energy, efficiency, demand response, and battery storage—are a cheaper option than more than 80 percent of gas plants proposed to enter service by 2030 . . . Already, more than half of gas plants proposed to come online in the past two years have been canceled before construction began . . . Replacing all of the proposed power needs with clean, renewable power also has other benefits. It creates 20 percent more job-years, mostly in construction and manufacturing, and would prevent $1.6 billion to $3.7 billion in health impacts each year compared with fossil alternatives . . . Today, even more risks are emerging making renewables an obvious choice. Declining renewable energy costs, rising gas prices, pollution-regulating policies, and more all threaten the viability of new gas projects.⁴³ ⁴¹ Even accounting for new technologies to recover tight oil, its EROI stands at 1.5:1, vastly inferior to conventional oil, standing at 20:1. See Cutler Cleveland and Peter O’Connor, “Energy Return on Investment (EROI) of Oil Shale,” Sustainability 3 (2011): 2307–2322. ⁴² Richard G. Miller and Steven R. Sorrell, “Introduction—The Future of Oil Supply,” Philosophical Transactions of the Royal Society A: Mathematical, Physical and Engineering Sciences 372 (2014): 1–28, at 2, 24. ⁴³ Laurie Stone, “Reality check: US renewable energy portfolios can outcompete new gas plants,” RMI, Jan. 4 2022, at https://rmi.org/us-renewable-energy-portfolios-can-outcompete-new-gas-plants/

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Alongside these specific observations, there is also a general point. Debating fracking with a climate change skeptic is much easier for environmentalists than debating global climate change. So if the call to reform purchases of natural resources from dictators puts the former debate center stage, this call already performs a strategic service for environmentalists. Why is it easier for environmentalists to debate fracking as opposed to global climate change? Three answers come to mind. First, there is the difference in the geographical distribution of environmental costs. As I noted above, a nontrivial portion of Americans has been reluctant to endorse environmentalists’ sense of urgency about green reforms. This reluctance can clearly be traced in part to the thought that the environmental costs associated with anti-green energy are mostly diffuse, and in those cases where the relevant costs have been concentrated, they have been concentrated in “sacrificial places”⁴⁴ that are “far away” (for instance, in “distant” low-laying islands, or in sites in the global south used by the U.S. and other Western democracies for nuclear waste storage). In contrast, several of the acute environmental hazards associated with fracking are highly concentrated very close to home—quite literally. More than 17 million Americans currently live within one mile of fracking sites,⁴⁵ and are therefore directly exposed to the risks of dangerous chemicals, contaminated water, and earthquakes that fracking brings in its wake. All else equal, it should be easier to convince these millions of the urgency of developing green energy in order to reduce the need to take on such risks, as compared to efforts to persuade them of the urgency of adopting policies tackling global climate change.⁴⁶ Second, very much related, there is the collective action difference. Collective action excuses are far less tempting—and indeed, far less relevant—when environmental threats lie in your own front yard. To say, for example, “we will only increase our efforts to develop green energy if X other countries make a comparable contribution” might seem intuitive and pertinent if one believes that the main problems to which green energy is supposed to respond are diffuse global problems. But collective action excuses seem entirely moot if green

⁴⁴ This provocative but apt label is due to Nazrin Mehiyeva. See her “The West’s Energy Trap: Can It Be Broken,” in Wenar et al., Beyond Blood Oil, esp. 57–60. ⁴⁵ See, e.g., Umair Irfan, “The best case for and against a fracking ban,” Vox, Feb. 19, 2020, at https://www.vox.com/energy-and-environment/2019/9/12/20857196/democratic-debate-climatechange-fracking-ban ⁴⁶ At least so long as such green policies would reliably generate employment opportunities to replace the opportunities that have been generated by fracking. Such replacement would all but ensure the demise of the fracking industry, since even communities which have reaped significant economic benefits from the industry have not been blind to the serious environmental risks it involves. I note one especially vivid example below, but the point applies more broadly. See, e.g., Alexander Bartik, Janet Currie, Michael Greenstone, and Christopher Knittel, “The Local Economic and Welfare Consequences of Hydraulic Fracturing,” American Economic Journal: Applied Economics 11 (Oct. 2019): 105–155.

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energy is understood as a substitute for energy extraction methods that pose acute, immediate, and concentrated risks to the basic health of one’s own citizens. Third, again related, there is the difference in causal complexity. Comparatively speaking, the causal link between fracking and acute environmental threats to human health is much more direct—and therefore far harder to deny—than the causal processes driving global climate change. So there is every reason to expect even those who are skeptical about climate change to be less skeptical about the severity of immediate fracking-related environmental dangers. It should therefore be unsurprising that at least some of the grave environmental hazards involved in fracking have been recognized even in parts of the United States strongly associated with climate change skepticism—“Deep red” Oklahoma being one especially vivid example.⁴⁷ Now, a particularly trenchant critic might grant all of these points, but still insist that there is something missing in my argument. It might be true that in the absence of natural resources controlled by dictators, affluent democracies that give up on fracking on their own soil would have a serious need to develop new alternative energy sources if they are to meet existing energy demands. But I have still not proven that these new alternatives would necessarily be environmentally friendly. Barring an appeal to standard environmentalist claims regarding climate change, it is unclear what should move the environmental skeptic I am targeting to prioritize green over “anti-green” energy alternatives. This objection is misguided. Since he concedes the existence of environmental threats, and since green energy, by definition, would mitigate these threats, the skeptic in fact concedes that special reasons have to be given in order to prioritize anti-green energy. The skeptic simply believes that, in most circumstances, he can indeed offer such reasons, which outweigh the environmental benefits of green energy. What we need to ask, then, is what these reasons are, and whether they remain operative once the implications of reforming natural resource trade with dictatorships are taken into account. If they do not, then the skeptic would have to prioritize the development of green energy even when compared to all anti-green options. I believe there are two claims that the skeptic must invoke to excuse continued reliance on anti-green energy under present circumstances. First, a path-dependency claim: “Certainly,” the skeptic will admit,

⁴⁷ The correlation between fracking and earthquakes in the state was so abundantly clear, that it was only a matter of time before even climate-change-denying local politicians would be compelled by grassroots pressure to act against fracking companies’ interests, or else face the certain prospect of being voted out of office even by climate-change-skeptic voters. See Maddow, Blowout, e.g., at 344–346. Admittedly, Oklahoma might very well be a particularly extreme example, given the sheer number of serious earthquakes that appeared in the previously seismically quiet state with the advent of fracking. But it is not implausible to expect similar political patterns to emerge in other fracking centers in the United States, as the number of fracking-related environmental incidents keeps increasing and the full scale of the relevant environmental dangers becomes ever more apparent.

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green energy would have to be given priority if we were designing our energy policies ex nihilo, with little or no costs already invested in specific choices. However, our present condition is different. Rather than designing energy policies on a blank slate, our choices are already significantly affected by the past choices that have structured economies, regulation and infrastructure around oil. The sheer fact that fossil fuels have been the dominant energy basis of industrialized nations for almost a century means that a fundamental shift to any other source of energy, simply in virtue of being a fundamental shift, would require massive resources and adjustments from the private sector, from government, and from ordinary citizens. Everyone will have to endure tremendous set-up costs, extensive uncertainties, massive coordination issues, and prolonged learning processes.⁴⁸

Second, related, the skeptic will invoke a simple price claim: “So long as serious environmental threats are not yet imminent,” the skeptic will say, there is not enough reason to undertake such difficult shifts when fossil fuel prices—notwithstanding their volatility—generally remain low enough. To be sure, at some point we will have to start shifting to other forms of energy, simply because fossil fuels are finite. But that point is still quite far. At least in the medium run, the fact that fossil fuels remain cheap makes it sensible to accept the inertia of fossil fuels reliance. Until that fact changes, we have more urgent problems to prioritize.⁴⁹

Now consider how these two claims would be affected if democracies prohibited their corporations from purchasing oil and gas held by dictators, while seeking to retain the same level of energy consumption. Start with the price claim. While this claim may obtain in the existing energy market, it is very unlikely to obtain in a market in which democracies seriously limit fracking (let alone abandon it altogether), prohibit their oil and gas corporations from transacting with dictators, but retain current energy demand. Such a market would clearly see a dramatic—and, as opposed to what is currently the case, enduring rise—in the price of “legitimate” ⁴⁸ For the dominance of such considerations in path-dependence arguments in general see Paul Pierson, “Increasing Returns, Path Dependence, and the Study of Politics,” The American Political Science Review 94 (2000): 251–267. For a recent discussion of path-dependence focused on environmental reforms, see Daniel Rosenbloom, James Meadowcroft, and Benjamin Cashore, “Stability and Climate Policy? Harnessing Insights on Path Dependence, Policy Feedback, and Transition Pathways,” Energy Research and Social Science 50 (2019): 168–178. ⁴⁹ Consider Bjørn Lomborg again: “When we are told that something is a problem we need to ask how important it is in relation to other problems. We are forced to constantly prioritize our resources, and there will always be good projects we have to reject.” (Lomborg, The Skeptical Environmentalist: Measuring the Real State of the World (New York: Cambridge University Press, 2001], 9).

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fossil fuels.⁵⁰ In turn, this rise will also nullify the skeptic’s path-dependency claim concerning the significant costs of energy shifts. The reason is that once the cost of fossil fuel imports becomes prohibitive, such shifts would be necessary in any case. Thus fear of the multiple kinds of costs associated with shifts as such would become irrelevant. By triggering a steep increase in fossil fuel prices, a democratic prohibition on oil purchases from dictators therefore takes away both of the skeptic’s excuses for not prioritizing the development of green energy. Once the path dependency and the price consideration are no longer operative, the skeptic cannot explain why the development of green energy should not become a key priority, even when compared to all anti-green alternatives. This claim can also be made in more specific form, as follows. By necessitating a transformation of energy policy, reform of customary trade in oil and gas turns on its head the skeptic’s fear of the costs of energy policy shifts. Instead of justifying avoidance of green energy development, the emphasis on the costs of policy shifts becomes an argument for prioritizing the development of green energy. The reason is this. If policymakers are compelled to undertake an energy policy shift, and if they are sensitive to the aforementioned costs associated with any shift, they are likely to prioritize those present transitions that would avoid or reduce the need for additional transitions in the future. Since green energy, by definition, does not generate long-term threats that would necessitate additional changes later on, it has a crucial advantage over anti-green forms of energy that would eventually necessitate such changes, simply because of the long-term dangers they entail. With all this in view, let us consider a final objection. According to this objection, my strategic argument is unreliable, because it can only have force so long as resource-rich dictatorships do not democratize. If they did, there would be no problem with continuing to consume their natural resources, and so the argument would produce no new grounds for developing green alternatives. At this point in the book, the reader is likely to see why this objection fails. First, it portrays the existence of dictatorships in resource-rich countries as accidental (maybe even ephemeral). But the previous chapter’s discussion of the political pathologies associated with abundant nontax revenue should already show that this portrayal is misleading. Indeed, the specific case of natural resources is a particularly famous illustration of these pathologies. Despite various disagreements, both social scientists who believe that resource abundance causes political and economic maladies, and their critics who insist that natural resource endowments have no independent causal force, agree on the following key point: Once a situation exists where a dictatorship controls abundant natural resource reserves, there is a clear danger of a vicious cycle, with the regime perpetuating its hold ⁵⁰ Consider, for instance, how the removal of Saudi oil alone would impact the price of Norwegian oil.

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on power, through its control of oil wealth, at the population’s expense, countered not by democratization, but by civil wars or coups to capture the oil wealth.⁵¹ This cycle means that, so long as customary trade in natural resources continues, the prospects for democratization in many resource-rich dictatorships are at best limited. Second, as Chapter 5 already pointed out, prohibiting democracies’ corporations from transacting with resource-rich dictators might very well be necessary (even if not sufficient) for breaking this vicious cycle. Yet if this prohibition, in turn, effectively depends on the availability of green alternatives to fossil fuels (given the preceding assumptions), then the objection gets the sequence of events wrong. The sequence of changes does not begin with dictators democratizing, thus taking away the need to develop green alternatives to the natural resources they control. Rather, the sequence begins with the development of green alternatives that will make it possible to reform customary trade with dictators.

6.5 Conclusion This closing chapter sought to construct a strategic argument for green energy. Focused on negative duties to respect the property rights of present people(s) over their oil and gas, this argument, I suggested, can appeal—especially in the American context—even to those who are moderately skeptical of climate change. I wish to reiterate that this strategic argument is meant to supplement, rather than replace, familiar environmentalist arguments for green policies. Nothing in what I have said here is meant to suggest that environmentalists should forsake their principled opposition to many (normative and empirical) claims made by environmental skeptics. My argument is intended as an additional, distinctive way to justify a policy that environmentalists themselves deem vital.

⁵¹ See for example Kevin Morrison, “Oil, Nontax Revenue, and the Redistributional Foundations of Regime Stability,” International Organization 63 (2009): 107–138; Stephen Haber and Victor Menaldo, “Do Natural Resources Fuel Authoritarianism? A Reappraisal of the Resource Curse,” American Political Science Review 105 (2011): 1–26.

Conclusion One-Handed Philosophers

The movie The Imitation Game tells the story of Alan Turing, the gifted mathematician who played a key role in the British effort, during World War II, to decipher the Enigma machine codes used by the German military. In one of the movie’s early scenes, Turing is interviewed by a senior officer. After noting Turing’s remarkable academic achievements, the officer is eager to confirm Turing’s commitment to use his academic skills in service of the battle against the Nazis. Turing, however, infuriates the officer by making clear that he is interested in intellectual conundrums rather than political problems. Asked whether he is not concerned about “this nasty chap named Hitler who’s looking to engulf Europe in tyranny,” Turing retorts, “politics is not my area of expertise,” almost leading to a premature end to the interview.¹ This scene is fictional.² But it illustrates a deep divide which can be often be quite real—between the practically inclined and those of academic temperament. Another facet of this divide was on full display a few years after the war, in an actual, much more high-profile rebuke of academic predilections. U.S. President Harry Truman, seeking to retain and expand New Deal reforms, was said to be fed up with hearing “on the one hand but on the other hand” from his economic advisors. In response, Truman famously yearned for a “one-handed economist.”³ As this book makes clear, I believe that we have strong reasons to empathize with both the Trumans and the Turings of the world. There are very good reasons for why the practically inclined want academic experts to provide obtain actionable items and unequivocal “bottom lines.” But, at the same time, there are often also good reasons for academics to fear that a focus on practical problem-solving and on clear “bottom lines” takes them away from what they do best, and from what is most intellectually stimulating. Clearly, there are many problems that can be of tremendous practical consequence but are nonetheless devoid, in the eyes of the

¹ See The Imitation Game script at https://subslikescript.com/movie/The_Imitation_Game2084970, accessed July 26, 2023, pp. 10–11. ² See, e.g., Christian Caryl, “A poor imitation of Alan Turing,” The New York Review of Books, December 19, 2014, at http://www.nybooks.com/daily/2014/12/19/poor-imitation-alan-turing/ ³ This remark of Truman’s has been widely quoted. See, e.g., “The one-handed economist: Paul Krugman and the controversial art of popularising economics,” The Economist, Nov. 13, 2003, at https://www.economist.com/business/2003/11/13/the-one-handed-economist

Philosophizing the Indefensible. Shmuel Nili, Oxford University Press. © Shmuel Nili (2023). DOI: 10.1093/oso/9780198872160.003.0008

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overwhelming majority of academics, of any real intellectual interest. Conversely, there are many problems that various academics regard as theoretically fascinating, but that have no discernible impact on the practical world, and are therefore not even intelligible—let alone interesting—to non-academics who are far more concerned with practical life. In this book, I have tried to construct a new kind of middle ground between the theoretically and the practically inclined. More precisely, I have sought to show how political philosophy can retain its theoretical character, while also striving to make a distinctive contribution to grappling with urgent political problems that may appear to lack any significant theoretical dimension. As the preceding pages make clear, this middle ground is not easy to identify or sustain. Perhaps the most important reason is that, just like Truman’s economists, moral and political philosophy does poorly with one-handed subjects. Where there is no normative uncertainty—where we feel not the pull of conflicting moral intuitions, but only certainty regarding the obvious wrongness of some political choice—it seems like philosophers, qua philosophers, have very little to contribute. Of course, that may very well be philosophers’ predicament regarding too much of real-world politics. But if that is so, then it seems natural to suspect that the best response is for more philosophers to be politically active citizens, rather than for philosophers to adjust the topics on which they write in their professional capacity, or to adjust the kinds of arguments that they construct in that capacity. Yet, natural as this response might be, I have argued here that there is also another path that political philosophers might take. This path—the path of strategic political theory—calls on philosophers to cast certain indefensible policy positions in their strongest possible light, before proceeding to show why even when thus strengthened, such policies still do not withstand critical scrutiny. I argued that this intellectual effort can be worthwhile even when it requires going beyond the proponents of indefensible policies themselves in constructing the most compelling justification that could be offered in defense of these policies, and even when such justifications involve far more theoretical depth than what one commonly finds in actual public discourse. I do not want to test the reader’s patience by rehearsing the specific arguments that I have offered in favor of the strategic method in the lengthy opening chapter. Nor do I want to rehearse the details of the multiple illustrations of this method laid out in the other chapters. But, in closing, I do want to say something about a familiar kind of critique that philosophers often level at one another, and that has an unusual relationship to this book’s ideas. The critique that I have in mind is the “strawman” accusation. Political philosophers (like the members of many other academic disciplines and subdisciplines) not only disagree with one another about which topics or arguments are worth exploring or defending. Philosophers can similarly disagree—sometimes, quite vehemently—on which objections are worth taking seriously. After all, if

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a proponent of an important view has developed a surprising way to defeat what everyone concurs is a powerful objection (or rival view), then clearly something of philosophical consequence has been achieved. But developing a new way to defeat an objection that no one ever took seriously to begin with is not an achievement: It is merely a new way to beat an imaginary monster. Therefore, somewhat paradoxically, many philosophers (myself included) often worry that the rival views they put center stage will be treated as too weak by their colleagues: Only if the views that one targets are appreciated by one’s intellectual community as serious contenders, then the fact that one provides fresh challenges to these views is likely to be regarded as a meaningful contribution. I mention all this here, because the very nature of this book ironically brings to the fore the opposite worry. After all, I explicitly assumed at the outset that the policies which I criticize are patently indefensible, and, as such, that their wrongness lies beyond the scope of reasonable disagreement. Otherwise, these policies would not be an appropriate target for strategic theorizing. But then, what might I say to a reader who feels the force of my arguments against these policies, but who also thinks that the policies in question have far more pre-theoretical plausibility than I have allowed? As I acknowledged already in the book’s introduction, I do not have a decisive rebuttal to this worry. But I do wish to end with three responses. First, I doubt that, having worked through any normative argument in detail, we can always retain a clear distinction between what we regarded as pre-theoretically plausible, and what the argument itself has rendered more plausible to us. After all, we are often drawn to normative theorizing precisely because our pre-theoretical intuitions are too inchoate and unsystematic for us to be able to pinpoint them with much clarity or confidence. Viewed this way, it may very well be a good thing that some of the indefensible policies I have taken up here strike some readers as ones that even reasonable people can sympathize with. Such an impression might represent its own vindication of the strategic method—showing how the method itself can render more serious and respectable policy positions which one would otherwise be inclined to dismiss as neither. My second response is to note a point that is less distinctive to strategic theorizing, but that is also important. Readers who are at least somewhat convinced by any of critiques I have offered in this book against particular policies, but who also regard these policies as far more worthy of standard rather than “strategic” consideration than I have allowed, might still benefit from the arguments that I have developed here. For these readers, thinking through the political issues that I have examined may be valuable not because of “strategic” considerations, but at least partly because (to their eyes, at least) these issues pose genuine theoretical challenges. From this vantage point, the book’s arguments would still have value, but simply as standard exercises in normative political theory. This kind of takeaway,

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to be sure, clearly differs from my primary intent. Still, it is not the worst fallback option to have. The final point, however, may very well be the most significant. It could very well be that, even after having read the previous pages, some readers will remain convinced that the wrongness of certain policies which I treat as clearly beyond the pale is not nearly as obvious or overdetermined as I have assumed. The possibility of this enduring disagreement reinforces political philosophy’s need to engage in further meta-reflections—this time, on how to work through meta-disagreement. As I acknowledged in the beginning of the book, I do not presently have any good solutions to offer in the face of such disagreements. But deepening our grasp of these disagreements seems to me an extremely worthwhile theoretical endeavor, even for philosophers of eminently practical intent.

Index For the benefit of digital users, indexed terms that span two pages (e.g., 52–53) may, on occasion, appear on only one of those pages. Introductory Note References such as ‘178–9’ indicate (not necessarily continuous) discussion of a topic across a range of pages. Wherever possible in the case of topics with many references, these have either been divided into sub-topics or only the most significant discussions of the topic are listed. Because the entire work is about ‘philosophy’, the use of this term (and certain others which occur constantly throughout the book) as an entry point has been restricted. Information will be found under the corresponding detailed topics. abortion 8–9, 46–47, 76 anti-abortion Trump vote 80 consequentialist justification for anti-abortion laws 84 criminalization 85, 95, 96 debate 47, 49, 86 expressive justification for anti-abortion laws 8–9, 90 law 86, 94–95 outlawing 76–77, 82, 91–92 pro-choice camp 46–47, 86 pro-lifers 77–78, 86, 89–92, 95 rates 80, 85, 86–88 rights 86 Abu Dhabi 158–159 act consequentialism 135–136 activism, political 1, 41, 42–43 activist philosophy 14 actors 3–4, 36, 37, 97, 118, 139, 152, 167 foreign 132–133, 147 private 9–10, 105, 113, 120, 121 actual policy discourse 104–106, 112–113 actual public discourse 42, 96, 193 affluent democracies 5, 10–11, 132–134, 170, 182–185, 188 agents 43, 177–179 Al Nahyan, Sheikh Issa bin Zayed 158 Al Nahyan, Sheikh Mansour bin Zayed 158 Alberta, Tim 80, 83 alien projects 149 alien spending 156 seeking proof of 148 alienation 56–57 Allen, Kate 158–159 Al-Mubarak, Khaldoon 162 Al-Thani family 149–152

American politics 46, 99, 103 American skeptics 182–183 Americans 10–11, 77–78, 102, 129, 176–177, 187 amoralism 9, 16, 97 Anderson, Ryan 88–89 anti-abortion laws 8–9, 79, 84, 86, 91–92 consequentialist justification 84 anti-abortion movements 80, 96 anti-abortion Trump vote 80 anti-abortion voters 8–9, 79, 84 anti-green energy 187–188 anti-laundering measures 106, 115–116 anti-Netanyahu forces, see Nitanyahu, Binyamin anti-Zionist parties 8, 54, 55–56, 66, 71–74 anti-Zionist votes 7–8, 64, 72–73, 75 anti-Zionists 60, 64, 67, 72–74 Arab citizens 56, 58–61, 63, 71, 75 Arab Palestinian electorate 56 Arab parties 52 anti-Zionist 55, 61, 66, 71, 72–73 nationalist 75 Arab politicians 60, 62, 64–65 Arab Spring 160 Arab turnout 56 assumptions 3, 5, 23–24, 42, 100, 102–103, 121, 180 authoritarian regimes 131, 142 authoritarian soccer spending 163 authoritarianism 34, 167 soft 10, 131–132, 144, 146–149, 163 Ayatollahs 139–140 Azerbaijan 149 Bank of America 123–124 banks 106–107, 110, 114–116, 121–126, 128; see also individual banks

INDE X guilty 116, 120 major 9–10, 104, 105, 115–118, 123–126, 128–129 private 121–123, 128 Bayern Munich 155, 160 behavior 18, 24–25, 48–49, 90, 113, 123, 142, 178–179 beliefs 1, 12–13, 15, 59–60, 175 Bennet, Naftali 71–72, 74 Bentham, Jeremy 39 Berlusconi-style schemes 55–57 Biden, Joe 93, 171–174 binational state 61, 64 BJU (Bob Jones University) 122–123 Black, Derek 25–26 black students 122 Blair, Tony 161 Blankenship, Donald 109–110 BNP Paribas 123–124 Bob Jones University, see BJU boycott 7–8, 53–54, 67, 69–71, 74, 75 de facto 56, 74 as scalar notion 71 Brannagan, Paul Michael 156–157 Breuer, Lanny 108 Brexit campaign 38 Britain 38, 63, 139, 161–163 governments 138, 161–162 Buell, Samuel 110–111 burdens of politics 6–7, 9, 13–14, 29, 32, 34, 36–37, 98 illustrations 30 Bush presidency 83, 184 “business as usual” 48, 133 Cameron, David 162 campaign rallies 92–94 candidates 52, 79, 84, 93, 94, 96–97 Capitol insurrections 93 cartels 106, 115–116, 123–124, 126 Carter, Jimmy 83 CDC (Centers for Disease Control and Prevention) 114–115 Centers for Disease Control and Prevention (CDC) 114–115 Champions League 160 Charlottesville 93 Chechnya 149 chemical industries 4 China 85, 139–140, 142, 149, 165–167 Christian right 76 Christians, white 80 Churchill, Winston 16–17, 72 Citigroup 123–124

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citizens Arab 58–61, 71 fellow 6–7, 13, 16–18, 23–24, 51, 176 politically active 193 citizenship, equal 68 civic equality 67, 70–71 civic friendship, bonds and bounds 21 civic rights 8, 68–71 climate change 10–11, 169, 170–177, 188, 191 anthropogenic 175 facts 169, 173, 174 global 187–188 skepticism 10–11, 170, 175, 187, 188 Clinton, Bill 82 Clinton, Hillary 80–81 clout, political 9, 73, 98, 102 clubs 152–155, 158 ownership 152 coalition government 57, 64, 75 coalitions 8, 32, 54, 56 co-citizens 6–7, 17, 22–23 Cold War 72, 140 collateral damage 104, 107–109, 144, 164 and individual innocence 106 collective action argument 133–134, 136 collective ethos 23 collective rights 64, 74 collective self-determination 68 commercial engagement 144–146, 164 commercial ties, customary 10–11, 130, 131–133, 136–137, 164, 166–167, 170 reform 10, 131–132 commercial transactions 133, 141 commitments 14, 16–17, 44, 72–74, 96 policy 14, 83 professed 8, 17, 65–67, 70–71 common-sense morality 133–135 Communism 72 companies 99–100, 108–110, 124–125, 127–128, 137, 139; see also corporate crime; corporations ethical 71–72 complexity 9–10, 100, 108–109, 170 consequentialism 95, 112, 113–114, 116, 117–118, 142–144 act 135–136 consequentialist arithmetic 95, 116 consequentialist justification for anti-abortion laws 84 contractualism 112, 117, 118–120, 143 convictions 2, 18, 54–55, 59–60, 83, 91, 109–111 criminal 64–65, 110–111 convicts 15, 120 cooperation as scalar notion 71

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corporate crime 98 collateral damage, see collateral damage consequentialist response 113 contractualist approach 117 defence of both corporations and executives 111 financial crime 103 objections to reasoning 126 public/private distinction 9–10, 105, 120–121, 125–127 self-reinforcing corporate clout and corporate policy premises 99 “too big to jail” 106, 114, 117–119, 127–128, 141 “too innocent to jail” 104–105, 108 corporate executives 104–105, 108–111, 113–114, 124–125 corporate premises 98, 129 corporate wrongdoing 103–104; see also corporate crime corporations 9, 100–105, 111–112, 118–119, 133–134, 167–168; see also corporate crime culpable 117–120 deontological argument for reforming customary ties with dictatorships 132 large/major 5, 9–10, 36, 98, 100–102, 104, 111 Costa, Antonio Maria 115 cost–benefit analysis 54, 61, 66, 158–159 costs 53–54, 61–62, 118, 189–190 environmental 185, 187 courts 46, 55, 76, 80–82, 104, 108–109 COVID pandemic 35, 62 COVID vaccines, Russian 34 Credit Suisse 123–124 Crimea 166–167 crimes 4–5, 110–111, 113–116, 120, 134 corporate, see corporate crime financial 103 criminal charges 9–10, 103–104, 107, 123–124 criminal indictments 107, 113–114, 118–120 criminal law 9–10, 104, 110–112, 116, 120, 125–126 criminal offenses 103–104, 121–122 criminal procedures 104, 108–111 criminal proceedings 56–57, 63, 108 criminal prosecution 103–105, 108–112, 115–118, 120 criminal punishment 105, 112 criminal sanctions 9–10, 88, 104–105 criminalization of abortion 95–96 criminals 71–72, 115–116, 137–139, 146 crises 102–104, 114, 123–124, 161

financial 98, 102, 103–104, 109, 111, 123–124, 129, 167–168 political 55, 59, 63, 66 culpable corporations 117–120 customary commercial transactions 133–134, 144 customary ties with dictatorships 10, 183 deontological argument for reforming 132 and vulnerable innocents argument 136 customary trade 164–165, 167, 168, 190–191 customary transactions 134, 141–143, 183 cyberattacks 137–138, 141, 146 cyberransoms 139 Dannenfelser, Marjorie 81 de facto boycott 56, 74 de facto governments 130, 145, 147 de facto hostages 139 de facto rulers 10, 131–132, 141 De Shalit, Avner 171–172 “death warrant” 119–120 deaths 80, 84, 91–92, 103, 114–115 debts 118, 130–131, 152, 154 decent people 6–7, 13–14, 29–31 deferred prosecution agreements 103–104, 106–107, 115–116, 118–119 Deighton, Paul 161 Deloitte & Touche 153–154 democracy 15–17, 63, 64, 133–134, 141–142, 165, 189–190 affluent democracies 5, 10–11, 132–134, 170, 182–185, 188 liberal 52–53, 56–57, 60, 62, 129, 152, 171–172 democratic governments 6, 138, 168, 185 democratic majorities 2, 69 Democratic Party 52, 95 deontological argument for reforming customary ties with dictatorships 132 deontological theories 90–91 Department of Justice 103–104, 106–109, 111, 125–126, 129 desert 105, 112, 113, 158 deterrence 115–116, 121–122 enhanced 113–114 long-term 113–114 Dewey, John 15–17 dictators 10–11, 170–171, 182–183, 185–190 to green energy 185 and strategic theorizing 130 dictatorships 132–134, 136–137, 142–144, 146–148, 163–165, 167–168 deontological argument for reforming customary ties with 132

INDE X distributive 147–151, 163 majority of 146–147 ransom demands and separateness of persons 137 resource-rich 190–191 thuggish 130–131 what should we do? 163 dignity 8–9, 79, 90–92, 94, 95 equal 8–9, 79, 94 of women 94 disabilities 92, 94 disagreement 2, 6, 190–191, 195 reasonable 2, 4–6, 12, 194 discourse policy 9, 20, 30, 98, 101–102, 138 public 6–7, 14, 15, 28, 42, 45, 46 disempowerment, soft 157 disengagement 27–28, 164 disputes 6, 12, 46–47, 63, 128 political 39, 54–55 distinctions 20, 71–74, 120–122, 126–127, 143–144 public/private 9–10, 105, 120–122, 125–127 qualitative 105, 121 distributive dictatorships 147–151, 163 Dobbs 46, 78 Douthat, Ross 46–47, 86–88 doux commerce 166–167 drugs cartels, see cartels heroin 114–116 Institute on Drug Abuse 114–115 trade 115–116 wars 115–116 Drutman, Lee 99–100 Dubai 149–150, 160 Duterte, Rodrigo 91, 127 duties 123, 129, 168, 170, 177–178, 180–184 moral 24–25, 123, 133–134, 177–178 negative 10–11, 170, 177–180, 182–184, 191 positive 164, 177–178, 181 Dworkin, Ronald 18, 42–43 economic growth 165, 178, 180 economic harm 133 economic impoverishment 36, 146 economic sanctions 136, 140, 143–144 Economist 111–112, 124–125, 129, 153 economy 61, 145, 165, 184 global 102, 104, 140–141 national 107, 149–150 education 37, 58–59, 70–71, 122, 149–151 elections 54–59, 62, 75, 80 free and fair 149–150, 163–164

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national 7–8, 54–56, 61, 67 new 55–57 elites 38, 43, 129, 138, 159–160 political 34, 80, 161 ruling 133, 136, 138, 148, 159–160, 163 Emirates 149–152, 155, 156, 159–163 ruling elites 159 empirical evidence/work 8–9, 80, 84, 86, 140–141, 147, 148–149, 159 employment 58–59, 100–101, 145, 150–151 energy 175, 185–186, 188–190 anti-green 187–188 consumption 183–184, 189–190 green, see green energy policies 188, 190 Enoch, David 3, 38, 43 environmental costs 185, 187 environmental degradation 172, 181 environmental goals 100–101, 179 environmental issues 10–11, 176 environmental philosophy and political engagement 171 environmental reforms 10–11 environmental skeptics 10–11, 170, 171–172, 188, 191 environmental threats 176–177, 187–189 environmentalism, see strategic environmentalism equal citizenship 68 equal dignity 8–9, 79, 94 equal rights 22–23, 71 equality 18–19, 58–59, 68–69, 129 civic 67, 70–71 universal human 20–21, 29 evangelicals 79–80, 82; see also Christian right evidence 8–9, 38, 77, 84, 85, 88, 108–110 empirical 8–9, 80, 84, 86, 140–141, 147, 148–149, 159 executives 103–105, 110–112, 124–126 individual 9–10, 112, 113 senior/top 9–10, 104–105, 109, 110 expectations 82, 134, 145 stable 145–147 experts 108, 167, 175 expressive rationales 8–9, 80, 84, 121–122, 127 expressivist position 90–92 external shocks 102 Faith and Freedom Coalition 83 Family Research Council 83 fanatics, intellectual 7–9, 97 FBI 138, 184 fellow citizens 6–7, 13, 16–18, 23–24, 51, 176 financial crime 103

200

INDE X

financial crisis 98, 102, 103–104, 109, 111, 123–124, 129, 167–168 financial support 32, 127–128 Finnis, John 46–47 flawed premises 10, 131–132, 147–148 football 153, 158–159; see also soccer Forbes 124–125, 154 foreign actors 132–133, 147 fossil fuels 10–11, 170, 172–174, 185, 188–189, 191; see also gas; oil prices 189–190 foundational argumentation 45–46 fracking 185, 187, 188–190 fraud 55, 103–104, 110–111, 114, 123–124 friends 21–25 civic 22–24 friendship 21–22, 24–25, 72 civic 21 fundamental principles 44–46 future generations 10–11, 23, 118, 170–171, 176–182 gas 182–186, 189–191; see also fossil fuels plants 186 trade 10–11, 170–171 General Electric 99 General Motors 103 Germany 86–87 glasnost 72 global economy 102, 104, 140–141 global reform proposals 100–102 globalization 149–150, 153, 154 Goldberg, Michelle 46–47, 86 Gorsuch, Neil 81 government entities 127–128 governments 1, 5–6, 57, 60–61, 64–65, 75, 109–110, 113, 127–128 de facto 130, 145, 147 democratic 6, 138, 168, 185 support 118–119, 126, 127–128 gravity of risks 53, 146–147 green alternatives 170, 183–184, 186, 191 green energy 10–11, 170–171, 182–184, 187–188, 190 customary trade reform argument 182 development 10–11, 170, 176–178, 182, 184, 188, 190 from dictators to 185 policies 173, 182–183 green policies 169, 181, 183, 191 growth, economic 165, 178, 180 Guardian 158–163 Gulf States 156, 161–162 Guttamacher Institute 84–85, 88

harm, economic 133 Hauser, Zvi 57, 59–66, 71, 74 hawkish premises 28, 31–32, 66 hawks 7–8, 31–32, 71, 72–75 secular 54, 58, 66–73 health 4, 67, 84, 101, 108, 114–115 basic 20, 187–188 healthcare 36, 58, 86, 150–151 Hendel, Yoaz 57, 59–66, 71, 74 heroin 114–116 Holder, Eric 107, 109 holistic perspective 44, 62, 142 hostages 137, 141, 142–143, 146 de facto 139 hostage-takers 10, 132, 137, 145, 146–147, 164, 168 HSBC 106–107, 115 human dignity, see dignity human rights 44, 157, 164 organizations 158–159 Hungary 52 Hussein, Saddam 140, 184 hypocrisy 8–9, 79, 82–84 ignorance 33, 38, 175 illegitimate vendors 163–164, 183 illicit weapons 70–71 Imitation Game 192 immunity 7–8, 55, 62, 118, 177–178 government 55–56, 62 impoverishment, economic 36, 146 indefensible, the 3; see also Introductory Note indefensible policies 1–6, 19–20, 44, 193 India 85, 182–183 indictments, criminal 107, 113–114, 118–120 individual executives 9–10, 112, 113 infringements 67–71, 135–136 rights 66–67, 69 innocence 112–113, 118 innocents 10, 132, 135, 137, 143–144 vulnerable, see vulnerable innocents innovation 100–101, 178, 181 pharmaceutical 100–101 institutions 41–42, 61, 107–109, 117 financial 106, 108 integrity 17–18, 176 intellectual fanatics 7–9, 97 intellectualism 42–43, 59–60 intentions 123, 127 inter-bank loans 115 interlocutors 14, 16, 17–19, 25, 44 unreasonable 9, 20 internal differences 52–53 intuition 19, 21, 180

INDE X investments 124–125, 155, 159 investors 107, 110, 124–125, 135–136, 186 Iran 106, 139–140, 142 Iraq 140, 159 ISIS 137, 139 Israel 7–8, 28–29, 33, 53–55, 57, 60–63; see also Netanyahu, Binyamin Arab citizens 56, 58–61, 63, 71, 75 Arab electorate 56–57, 60, 74 binational state 61, 64 boycott and cooperation as scalar notions 71 cost–benefit analysis 54, 61, 66, 158–159 history 34, 74 Jewish character 64, 66–67, 69, 70–71 Jewish citizens 27–28, 58–59, 67, 69 Jewish–Arab government 74 Joint List 57, 62, 63–66, 71, 74 Palestinians 8, 61, 66–71, 74 parliament 7–8 political crisis 54 politics 7–8, 53, 66, 74, 75 prerogative of Palestinian citizens 66 rights of Palestinian citizens 54, 66, 68–71, 74 society 53, 58–59, 61 Jewish citizens 27–28, 58–59, 67, 69 Jewish left 56 Jewish majority 56, 69, 70–71 Jewish settlements, see settlements Jewish state 8, 60, 61–62, 68 Jewish supremacists 64–68 Jews 28, 58–60, 63, 68–69, 71–72 Joint List 57, 62, 63–66, 71, 74 JP Morgan Chase 110–111, 123–125 justice 18, 42, 103–104, 106–107, 109, 111, 125, 126 Justice Department, see Department of Justice Kant, Immanuel 15, 38 Kapelner, Zsolt 44–46 kidnappings 138, 146 micro-level 139 kleptocracies 131, 134 landlords 69–70 Latin America 86 law 84, 88, 89–90, 94–95, 121, 147, 177–178 criminal 9–10, 104, 110–112, 116, 120, 125–126 rule of 147, 149–150, 163–164 laws, rule of law 147, 149–150, 163–164 Le Pen, Marine 52 leaders 52, 63, 82–83, 90–91, 94, 152 legal ban on abortions 8–9, 77–80, 90–91

201

legal reform 88, 102, 133 legal systems 9–10, 105, 116, 129 legislators 39, 50–51, 100, 123 legitimacy, social 34, 73 legitimate partners 54, 63, 71–73 leverage 142 Leviathan 19, 113 liberal democracy 52–53, 56–57, 60, 62, 129, 152, 171–172 liberal societies 23, 130–131 liberal-democratic values 53, 73 Lincoln, Abraham 76 loans 115, 123–124, 145 lobbying 3–4, 71–72, 99, 100 Locke, John 39 Lomborg, Bjørn 172 McConnell, Mitch 59–60, 80 McGeehan, Nicholas 155, 158–159 Macron, Emmanuel 52 Manchester City 155–156, 158, 160–162 Manchester United 154–155, 160 Manjoo, Farhad 165 markets 88, 108, 154, 165, 185, 189–190 meta-disagreement 6, 195 Mexicans 92, 106 Mexico 106, 115–116 micro-level cases 22–23, 139, 141–143 middle ground 19–20, 193 minorities 2, 20–21, 58–59, 63, 68–69 modernization thesis 165–167 money 99, 115–116, 132–133, 136, 137–138, 154–155 laundering 106, 115–116, 123–124 public 123–124 moral arguments 36, 98, 178–179 moral considerations 9, 31, 97, 178–179 moral duties 24–25, 123, 133–134, 177–178 moral factors 4–7, 29–30, 48 moral pressure 21, 23–24 moral reasoning 6–7, 13–14, 29–32, 34–36 moral reasons 3–5, 7, 26, 132, 133–134, 143, 144 moral wrongness 4–5 morality 42, 48, 82, 90–91, 135–136 common-sense 133–135 political 42, 65 murder 8–9, 77, 82, 88, 90–91, 94, 96 Muslim Brotherhood 162–163 national elections 7–8, 54–56, 61, 67 national interests 159, 163 “national” issues 74–75 national pride 34–36 nationalist Arab parties 75

202

INDE X

nations 68–69, 106, 130–131, 157, 176–177 natural resources 130, 183, 187–188, 190–191 negative duties 10–11, 170, 177–180, 182–184, 191 negative retributivism 120 neighbors 4, 31, 67, 182–183 neo-Nazism 26–27, 93 Netanyahu, Binyamin 7–8, 53, 54–57, 61–62, 75; see also Israel anti-Netanyahu forces 7–8, 53–56, 59, 60–61, 63, 74 anti-Netanyahu government 7–8, 54, 62, 74 anti-Netanyahu secular hawks 54, 74 New Deal 192–193 New York Times 35, 46–47, 86, 94, 122, 165, 173–174 “no compromise” approach 141–145 “no engagement” policy 144–145 “no payment” policy 10, 132, 145 nonconsequentialist approaches 133–135, 137, 143–146 nonconsequentialist presumptions 10–11 nontax revenue 10, 130, 190–191 Nozick, Robert 20, 42–43, 51 Obama, Barack 80 Odeh, Aymen 63–65 official approval 91–93, 123, 129 oil 170–171, 183–186, 188, 189–191; see also fossil fuels Oklahoma 188 opioid epidemic 114–115 opponents 12, 16–18, 53, 71–72, 174, 181–182 political 16, 18, 53, 72–73 options, stock 124–126 Orbán, Viktor 52–53 ordinary citizens 3–4, 20, 30, 34, 36, 39, 45, 53–54 Palestinian minority 69 Palestinians 28–29, 32, 61, 66, 67–71 Paris Saint-Germain (PSG) 151–152, 155, 156, 160 parliaments 3–4, 7–8, 54, 55–56, 59, 71–73 parties 7–8, 54, 66–68, 71, 72–75; see also individual parties anti-Zionist 8, 54, 55–56, 66, 71–74 partnership 72–73 patent system 100–101 paternalism 177–179 patronage 136, 138, 143–144, 149, 150–151 proof of 148–149 people’s property 130, 144, 163–164 perestroika 72

performance-based compensation 124–125 Perkins, Tony 83 Perry, Samuel 76, 81 personhood 44, 47 persuasion 12–14, 76 pharmaceutical innovation 100–101 philosophers, see Introductory Note Pogge, Thomas 177–178, 182–183 Poland 39, 87 police brutality 92 policies, see Introductory Note and individual policies policy arguments 98, 102–103, 173 policy commitments 14, 83 policy conclusions 3, 28, 45, 163–164 policy discourse 9, 20, 30, 98, 101–102, 138 actual 104–106, 112–113 policy reforms 9, 30, 32, 37, 102–104 policymakers 3–4, 20, 30, 36, 100, 124–125, 190 political activism 1, 41, 42–43 political choices 1, 3–4, 63, 193 political clout 9, 73, 98, 102 political community 1–2, 16, 22–23, 90–94 political discourse 6–7, 13 political disputes 39, 54–55 political dynamics 6–7, 9, 13–14, 29–30, 32 political elites 34, 80, 161 political morality 42, 65 political opponents 16, 18, 53, 72–73 political participation 56, 63, 69–71 political parties, see parties political philosophy, see also Introductory Note practical purposes 38 political power 32, 74, 83 political theorists, strategic 13–14, 28–29, 31–32, 49–50 political theory 1, 19, 40–42, 50, 171–172, 194–195 strategic, see strategic political theory politicians 14, 28–29, 47, 53, 59–60, 83, 84, 97 Arab 60, 62, 64–65 recalcitrant 53–54, 173–174 ultra-orthodox 32–33 politics, see also Introductory Note American 46, 99, 103 burdens of 6–7, 9, 13–14, 29–30, 36–37, 98 global 130–131 poor women 88 positive duties 164, 177–178, 181 power 1–2, 5–6, 57, 61–62, 76, 162, 165, 168, 181–182 political 32, 74, 83 PR (public relations) 104, 156, 158–159, 162 soccer spending as 156

INDE X practical value 38, 40–41 pregnancy 89, 96; see also abortion premises 10, 12, 19–20, 28, 29, 37, 48–49, 66–67 flawed 10, 131–132, 147–148 problematic 3, 6–7, 13–14, 30, 53–54 relevant 12, 37, 98 repugnant, see repugnant premises sorting through 27 unreasonable 6–7, 12, 13, 21, 45, 47, 48–49, 77–78 prerogative of Israel’s Palestinian citizens 66 present generations 172–173, 178–181 presidents, see individual presidents presumptions 18–20, 25, 27–29, 37–38, 44 prices, fossil fuels 189–190 prime ministers, see individual prime ministers prioritization 44–47, 141, 182–184, 188–190 private actors 9–10, 105, 113, 120, 121 private banks 121–123, 128 private wrongdoing 120–121, 123, 126–128 pro-choice camp 46–47, 86 professed commitments 8, 17, 65–67, 70–71 profits 9–10, 105, 125–126, 145, 152, 154, 184 Project Falcon 161 pro-lifers 77–78, 86, 89–92, 95 proof 14, 50–51, 104, 113, 147–148 property 31, 58, 135, 163, 178 people’s property 130, 144, 163–164 rights 10–11, 132–133, 135–136, 170, 178, 183, 184, 191 state 10, 132–133, 184 stolen 135 prosperity 178, 183–184 “prune juice effect” 152 public authorities 9–10, 105, 120–128 public discourse 6–7, 14, 15, 28, 42, 45, 46 actual 42, 96, 193 public health 1, 57 public life 15, 41, 42, 44 public officials 3–4, 108, 123, 127 public opinion 15, 31, 47, 77–78, 174, 176–177 public policy 6–7, 13–15, 27, 177–179, 181 public relations, see PR public subsidies, see subsidies public support 9–10, 14, 105, 121–127, 172 public/private distinction 9–10, 105, 120–121, 125–127 pundits 41–42, 45, 76, 152 punishment 104–105, 112 criminal 105, 112 purchases 100–101, 106, 132–133, 149, 151–152, 156 Putin regime 34–35, 166–167

203

Qatar 149–152, 156–157, 159–160, 163 Tourism Authority 155 ransom 137–139, 146 cases 10, 132, 139–140, 145, 146 demands 10, 132, 139, 144–145 payments 137–138, 141, 144–145 smaller-scale cases 10, 132, 139, 145, 146 rape 4–5, 89, 91 Rawls, John 3, 19, 42–43, 89, 117 Reagan, Ronald 72, 122, 184 realistic utopias 39–40 reasonable disagreement 2, 4–6, 12, 194 reasonable rejection 117–118, 143–144 reasoning 3–4, 27–29, 48–49, 146, 147–148 strategic 34, 49 reasons, moral 3–5, 7, 26, 132, 133–134, 143, 144 Reed, Ralph 83 reforms 130–134, 141–142, 144, 183–184, 190 of customary commercial ties 10, 131–132 environmental 10–11 legal 88, 102, 133 policy 9, 30, 32, 37, 102–104 repeated triggering of new elections 55–57 representatives 63, 94 elected 56, 67–71, 94 legitimate 57, 71 repressive regimes 6, 10, 130–133, 138 republican front 52–55, 75 Republican Party 81–82, 96, 171–172 repugnant attitudes 37, 127 repugnant laws 94 repugnant premises 13–14, 20, 21, 27, 37–38 strategic use 37–38 resource-rich dictatorships 190–191 resources 5, 18–19, 44, 100, 106, 134, 136 natural 130, 183, 187–188, 190–191 respect, among citizens 17 retributivism, negative 120 revenues 148–155, 163–165, 168 right-bearers 66–67, 69 rights 66–67, 69–71, 76, 177–180, 182–183 civic 8, 68–71 collective 64, 74 equal 22–23, 71 human 44, 157, 164 infringements 66–67, 69 Israel’s Palestinian citizens 54, 66, 68–71, 74 national 60, 63 property 10–11, 132–133, 135–136, 170, 178, 183, 184, 191 tenants 70 rigorist policy 10, 132

204

INDE X

Roe v Wade 8–9, 46, 76, 78, 81, 86, 95 rule of law 147, 149–150, 163–164 rulers 147, 149–152, 162, 163, 168 de facto 10, 131–132, 141 ruling elites 133, 136, 138, 148, 159–160, 163 Russia 34–36, 139–140, 142, 149, 160, 166–167 Russian COVID vaccines 34 Russians 34–35, 166–167 Rychner, Elyashiv 57 safety violations 109–110 sales 132–133, 154, 184 sanctions 9–10, 104, 106, 136, 139–140, 143–144 criminal 9–10, 88, 104–105 economic 136, 140, 143–144 scalar notions, boycott and cooperation as 71 Scalia, Antonin 80–81 secular hawks 54, 58, 66–73 security 28, 31 rationale 31–32, 159 self-betrayal 25–27 self-determination 31, 58, 60, 68 self-taint argument 25 senior executives 9–10, 104–105, 109, 110 separateness of persons 117, 143–144, 146 separatism 61, 63 settlements 27–28, 31–32 evacuation 30 severely repressive regimes 6 shared values 22 Shell 184 single-issue voters 96–97 skepticism 7, 38, 108, 172–173 climate change 10–11, 170, 175, 187, 188 skeptics 172, 177, 178–184, 188–190 climate change 175, 187 environmental 10–11, 170, 171–172, 188, 191 extreme 176 foundations of position in American political culture 177 moderate 176–179, 181 radical 172, 176 slavery 88–89 soccer 153–154, 162; see also football clubs 152–156, 158, 162 ownership 152 foreign 149, 151–152, 159–160, 163 foreign soccer teams 149, 152 spending as PR 156 social contexts 20, 30, 175 social legitimacy 34, 73 social space 45–47 “society of peoples” 130–131 soft authoritarianism 10, 131–132, 146–149, 163

South Africa 84, 140 Soviet Union 72 space, social 45–47 sponsorship 151–152, 155 sports 149–150, 157, 162 stability 5–6, 156, 162 of government 5–6 short-term 114 stable expectations 145–147 state property 10, 132–133, 184 state resources 147, 163–164 state revenues 147–152, 163–164 status quo 30, 61, 100–102, 105, 130, 142 Stephens, Bret 76 stock options 124–126 backdating 124–125 strategic argumentation 3–4, 26–27, 33, 35–36, 98, 170, 191 does it go far enough? 36 scope 19 strategic environmentalism 170 alternative argument for green energy 182 from dictators to green energy 185 skeptical critique 178 and skeptical position in American political culture 177 strategic envitonmentalism, environmental philosophy and political engagement 171 strategic method 3–4, 7, 14, 19, 53–54, 77, 193–194 strategic political theory 3, 170, 193 as activist philospohy 14 actual pursuit of strategic theorizing 44 bonds and bounds of civic friendship 21 burdens of politics, see burdens of politics case for 12 does strategic argumentation go far enough 36 and practical purposes of political philosophy 38 scope of strategic argumentation 19 self-taint argument 25 sorting through premises 27 worldviewing and respect among citizens 17 strategic theorizing 6 actual pursuit 44 coporations and dictators 130 and practical purposes of political philosophy 38 students 19, 25–26, 41–42, 69–70 black 122 Jewish 25–26 subsidies 123–125 tax 9–10, 105, 122–123

INDE X support financial 32, 127–128 government 118–119, 126, 127–128 public 9–10, 14, 105, 121–127, 172 supremacists, Jewish 64–68 Supreme Court 8–9, 42–43, 46, 76–78, 80–82 sweatshop workers 100–101 tax 124–125, 168, 175 benefits 122 special taxes 168 subsidies 9–10, 105, 122–123 technology 139, 149–150, 165, 181–182, 184–185 tenants’ rights 70 terrorists 31–32, 137, 141 theft 130–131, 134–136, 148 Thomson, Judith Jarvis 42–43, 46–47 threats 36, 52–53, 137, 146, 159–160, 172–174, 176–177 environmental 176–177, 187–189 top executives, see senior executives torture 94, 138 Tottenham Hotspur 153–154 trade customary 164–165, 167, 168, 190–191 gas 10–11, 170–171 slave trade 88–89 trade-offs 95, 178, 179–180 transactions 133–134, 183 customary 134, 141–143, 183 Truman, Harry 192–193 Trump, Donald 8–9, 52, 53, 76 anti-abortion Trump vote 80 Christian support for 82 evangelical supporters 79, 82–83 voters 76, 80 truth 13–14, 38, 41, 138, 153 Turing, Alan 192–193 Turkish Airlines 154–155 UAE (United Arab Emirates), see Emirates Uefa 160 Ukraine 34, 166–167 ultra-orthodox community 32–34 ultra-orthodox politicians 32–33 ultra-orthodox privileges, curtailing 32 United Arab Emirates, see Emirates United Arab List 74 United Kingdom, see Britain United States 10–11, 86–87, 114, 159, 170, 171–174, 185; see also corporate crime; Trump, Donald

205

Department of Justice 103–104, 106–109, 111, 125–126, 129 opioid epidemic 114–115 Supreme Court 8–9, 42–43, 46, 76–78, 80–82 universal human equality 20–21, 29 unreasonable, the 3, 20, 97 unreasonable interlocutors 9, 20 unreasonable interpretations 30 unreasonable premises 6–7, 12, 13, 21, 45, 47, 48–49, 77–78 use of violence 31–32, 64–65, 143–144 utopias 15, 39–40, 51 vaccines 34 distribution 35 values 12, 22, 23, 94, 95–96, 173 historic 155 liberal-democratic 53, 73 shared 22 van der Vossen, Bas 12–14 veto 55–56, 65–66 vicious cycles 6–7, 13–14, 30, 31–33, 98, 102, 190–191 victims 1–2, 19, 89–90, 134, 142–147 violations 10–11, 92–93, 106, 132–133, 135–136, 170, 182–183 safety 109–110 violence 28, 31–32, 93, 132–133, 136, 139–141 active endorsement 93 use of 31–32, 64–65, 143–144 voters 76, 80, 91–92, 94, 96–97 anti-abortion Trump voters 79–80, 91–92, 94–95 single-issue 96–97 votes 3–4, 8–9, 58–61, 67, 74, 80 anti-abortion 77–78 vulnerable innocents argument 10, 131–133, 136, 138, 143, 147–148, 163 and customary ties with dictatorships 136 vulnerable people 131–132, 136, 183 Wachovia Bank 115–116, 123–124 Waldron, Jeremy 39–42, 51 wars 1, 62, 89, 159, 160, 192–193 Cold War 72, 140 Washington conversation 100 Wells Fargo 115, 123–124 Western countries 34, 139, 159 White House 76, 82, 83–84 Whitehead, Andrew 76, 81 Williams, Bernard 143–144 Wollstonecraft, Mary 37–38 women 37, 84–86, 88, 89, 91–92, 96 poor 88

206

INDE X

workers, sweatshop 100–101 World Cup 156–157 World Health Organization 84, 166–167 worldviewing 17, 22, 25, 44–45, 90 worldviews 8, 44, 176 wrongdoers 126–127, 142, 144 wrongdoing 104–105, 120, 121–123, 125–126, 128, 129

corporate 103–104 private 120–121, 123, 126–128 relevant 110, 127 wrongness 1–2, 5–6, 12, 27, 194, 195 moral 4–5 zero tolerance border policy 92 Zionism 63, 68–69