A More Perfect Union Inclusive Norms and the Future of Liberal Unity Benjamin Seymour Brown University Author Ginevra Bulgari Vance Kelley Julia Rock Jakob Wells Editors Spring 2018 This essay analyzes the most dire threats to political unity today b y critiquing historical approaches to this subject. Given the sprawling apparatus of the modern state, it’s easy to wonder how such an entity—one that requires the complex and cumbersome coordination of complete strangers every day—exists and persists at all. Indeed, endless tomes of regulations guide this bureaucratic behemoth’s daily affairs; and yet, these volumes seem inadequate to address the philosophical question of what motivates humanity to come together despite differences and form a project directed toward mutual advantage and a common good. An answer to this question would need to identify a more essential aspect of our constitution as persons, a continuity that underlies the diverse interests and identities that coexist in a state. Generations of political theorists have grappled with the problem of national unity and, through their attempts to theorize this fundamental impulse, realized that unity is the sine qua non condition of possibility for the state; therefore, upholding this unity is of vital importance for national stability and longevity. The German political theorist Carl Schmitt, who was an active member of the Nazi party, virulent anti-Semite, and chief architect of the Third Reich’s justificatory underpinnings, was chiefly concerned with national unity. He uses his principle of national unity as homogeneity and exclusion to challenge the inclusive liberal notion of unity through shared values, by arguing that the liberal approach poses an existential threat to the survival of the state. Despite the clarity and thoroughness of Schmitt’s critique of liberalism, liberal political thinkers such as John Rawls and Jürgen Habermas remain unconvinced by Schmitt’s account and instead defend the liberal conception of unity, which avoids the drastic conclusions and totalitarian implications of Schmitt’s thought. While Rawls’ responses to Schmitt’s normative arguments prove compelling, Habermas, by recognizing the central importance of identity in Schmitt’s critique, lays the groundwork for a new defense of liberal unity that retains a substantive interest in questions of national identity. To reformulate and reaffirm the liberal notion of unity, this paper will: (I) explore Schmitt’s notion of national unity through enmity as a critique of liberal inclusivity; (II) examine Rawls’ account of overlapping consensus as a foundation for social unity that resists Schmitt’s most problematic commitments; (III) clarify how Habermas’ preoccupation with identity further strengthens the Rawlsian notion of liberal unity against Schmittian ethno-nationalism; and finally (IV) realize Habermas’ conception of inclusive unity by, counter-intuitively, embracing the very fragmentation of social identities that appears to be the greatest threat to national unity today. Rooted in radical exclusion and the constant threat of violence, Schmitt’s conception of the political situates unity in a homogenous populace’s allegiance against a common enemy. As an inheritor of German existentialist thought, Schmitt analyzes political life with a systematic approach that emphasizes an ontological and philosophical hierarchy, wherein certain concepts are metaphysically prior to higher-order notions. The absolute foundation of this hierarchy, from which all political entities ultimately derive, is Schmitt’s conception of the political. Indeed, the first sentence of his treatise, The Concept of the Political, confirms this hierarchical approach: “The concept of the state presupposes the concept of the political” (Schmitt, The Concept of the Political, 19). For Schmitt, a concept only derives its meaning by referring to a concrete reality in the world. While the referent of the more intuitive concept of the state is the state’s sprawling apparatus and daily operations, Schmitt believes that his more fundamental notion of the political denotes an equally tangible reality. Schmitt’s famous friend-enemy distinction instantiates the concept of the political within his system. As a theorist whose philosophy is defined by its political principle of radical negation and exclusivity, Schmitt believes that every discourse is defined by an insoluble antithesis or distinction. Like the contrasts between good and evil in ethics, beautiful and ugly in aesthetics, and profitable and unprofitable in economics, Schmitt contends that the political is defined by the antithesis between friend and enemy. Such a reductionist analysis establishes the political as independent from moral questions and postulates the friend-enemy distinction as ontologically irreducible: The political enemy need not be morally evil or aesthetically ugly; he need not appear as an economic competitor, and it may even be advantageous to engage with him in business transactions. But he is, nevertheless, the other, the stranger; and it is sufficient for his nature that he is, in a specially intense way, existentially something different and alien, so that in the extreme case conflicts with him are possible (Schmitt, The Concept of the Political, 27). The dehumanizing and fascistic possibilities of a conception of politics based on a distinction that treats another person as existentially alien marks Schmitt’s philosophy as a clear antipode to liberal notions of equality and intuitive morality. But Schmitt’s existentialist conception of meaning imbues his notion of the political with a dangerous urgency, as the concrete referent of the friend-enemy distinction, and thus the very concept of the political itself, is the constant and real possibility of physical violence with the enemy. By establishing a principle of difference, negation, and enmity as the foundation of his conception of politics, Schmitt makes his principle of unity the ontological epicenter of his philosophical project. Fully aware of the power of the fear and hostility on which his notion of the political is founded, Schmitt contends that only the sheer force of the friend-enemy distinction is sufficient to fuse a collection of individuals into a genuine social unit. Schmitt’s emphasis on collectivity is likewise essential to his understanding of the political. The friend and enemy of Schmitt’s antithesis necessarily refer to collectives, transforming these enemies into public enemies and these friends into the other members of one’s political group. Thus, the concept of the political only becomes efficacious by virtue of the shared quality of the friend-enemy distinction. But when a group of individuals is united, through a common and homogenous sense of who the friends and the enemies are, it partakes in the sublime force of the political, which transfigures this collective into an entirely new kind of entity—a people. In Schmitt’s ontological hierarchy of politics, a people are second only to the political antithesis that defines and unites them. Yet a new property emerges at the higher metaphysical order of a people that both allows for the possibility of an organized state and proves significant to another dimension of Schmitt’s critique of liberalism: “If such an entity [of a people] exists at all, it is always the decisive entity, and it is sovereign in the sense that the decision about the critical situation, even if it is the exception, must always necessarily reside there” (Schmitt, The Concept of the Political, 38). By virtue of its sovereignty, which Schmitt equates with an ability to make certain decisions, a homogenous people becomes capable of forming the institutions and norms of a state. Like his conception of political unity through radical exclusion, Schmitt’s formulation of sovereignty similarly challenges another fundamental liberal tenet: the commitment to norms exemplified by the rule of law. As set forth in his collection of essays, Political Theology, Schmitt’s notion of sovereignty receives a succinct expression in the book’s famous first sentence: “Sovereign is he who decides on the exception” (Carl Schmitt, Political Theology: Four Chapters on the Concept of Sovereignty, 5). Related to the idea of a state of emergency, the exception refers to an abnormal situation in which the Schmittian sovereign decides that the general rules do not apply. In this exceptional situation, the sovereign then suspends the general norms and acts by virtue of its own authority. Thus, for Schmitt, a law or norm is only legitimate when it is recognized by the ontologically prior sovereign power, yet this recognition consists precisely in the sovereign acknowledging its own authority to suspend or violate this rule in exceptional cases. By arguing that norms are only defined by their exceptions and limits, Schmitt undermines the liberal commitment to the rule of law, which insists that sovereign powers are not exempt from their own laws and norms. Schmitt’s critique of liberalism thereby rejects a normative approach to politics that extends back to the Magna Carta and inscribes authority within definite bounds. An even more disturbing feature of Schmitt’s notion of sovereignty, however, is that the ambiguous phrase “on the exception,” means not only that the sovereign decides in exceptional cases, but also that the sovereign decides which cases are to be treated as exceptional. As Schmitt writes: “He [the sovereign] decides whether there is an extreme emergency as well as what must be done to eliminate it. Although he stands outside the normally valid legal system, he nevertheless belongs to it, for it is he who must decide whether the constitution needs to be suspended in its entirety” (Carl Schmitt, Political Theology: Four Chapters on the Concept of Sovereignty, 7). The sublime and even transcendent authority that Schmitt attributes to the sovereign is problematic beyond merely challenging the rule of law, which forms the very foundation of the liberal constitutional state—since sovereign authority ontologically derives from the political, Schmitt argues that the unchecked power of the sovereign must therefore serve to maintain and strengthen this antagonistic principle of unity. Thus, according to Schmitt, the state must act in such a way that most promotes the homogenous unity of the political, upon which the very possibility of a state depends. Schmitt’s ontological hierarchy, by exalting his notion of the political as the unity of a sovereign people, imbues political entities with a telos. The political, as the foundation of all public associations and institutions, also becomes their vital principle and their ultimate purpose. In Constitutional Theory, Schmitt’s most influential legal text, the sinister principle of national unity assumes a more concrete and recognizable form. Fundamental liberties, as established in this text, are usually non-political in the sense that they attach to individuals in their private lives or in a non-social manner. For example, freedom of worship is a basic liberty that, according to Schmitt, should be respected by the state as long as one’s religious views or practices merely affect one’s private behavior. This right could be suspended if members of a certain religion used their faith as a vehicle for political change, as in the case of the Civil Rights Movement or the Indian Independence Movement. While Schmitt recognizes that there are often de facto limits to the political in a state, there is no limiting principle to stop the intrusive expansion of the political. Thus, the reach of the political can and even should expand if it serves to strengthen national unity. To pursue our example, the sovereign could decide to suspend even the right to privately believe in a certain religious doctrine if the sovereign decides that this doctrine is affiliated with its Schmittian enemy. This expansion of the realm of the political, if continued, culminates in what Schmitt celebrates as the ideal of the “total state,” in which all aspects of life are re-politicized and thereby subsumed into an all encompassing friend-enemy distinction: “Every religious, moral, economic, ethical, or other antithesis transforms into a political one if it is sufficiently strong to group human beings effectively according to friend and enemy” Schmitt, The Concept of the Political, 37). The total state in which everything reflects and strengthens the friend-enemy distinction would, for Schmitt, possess the highest possible degree of political unity, as its people would have a completely homogeneous sense of friend and enemy. It requires no small leap of the imagination to see how Schmitt’s ideal of the total state coincided with Nazism, which attempted to build an empire based on an ethnic friend-enemy distinction that indeed encompassed all aspects of life. Yet despite this repulsive extremism, Schmitt’s model is a considerable challenge to liberalism—one that requires a liberal response that can defend an inclusive account of national unity and a norm-based approach to politics that leaves the rule of law intact. Rawls provides a liberal antidote to Schmitt by formulating an inclusive conception of national unity based on shared norms. John Rawls proved to be a preeminent liberal philosopher by offering analyses of the principles underlying modern constitutional democracies, distinguished by Rawls’ interest in promoting the just and fair treatment of all members of these societies. Indeed, Rawls’ background in Kantian moral philosophy is evident in his persistent belief in the equal dignity of persons—a liberal tenet that Schmitt rejects through the ontological inequality imbedded in his friend-enemy distinction. In place of the exclusion and homogeneity that suffuse Schmitt’s conception of the political, Rawls affirms an inclusive principle of unity that is woven into the very fabric of his philosophical system as a crucial background assumption. In Political Liberalism, Rawls describes how he assumes a plurality of different worldviews to be a fundamental feature of liberal democracies: “the diversity of reasonable comprehensive religious, philosophical, and moral doctrines found in modern democratic societies is not a mere historical condition that may soon pass away; it is a permanent feature of the public culture of democracy” John Rawls, Political Liberalism, 36). Rawls defines comprehensive doctrines as complete and fully realized normative worldviews. In his assumption, Rawls flatly rejects the homogeneity that Schmitt argues is the essence of political unity. Though this assumption appears to be a factual claim about the nature of liberal democratic societies, Rawls gives this claim normative weight by distinguishing between the notion of mere pluralism—wherein members of a society subscribe to different comprehensive doctrines—and that of reasonable pluralism. For Rawls, reasonable pluralism refers to the idea that free institutions actually promote a diversity of comprehensive doctrines that a reasonable person could subscribe to. As a radically pluralistic and inclusive notion, reasonable pluralism, as a fundamental feature of liberal democracies, creates the space in which democratic deliberation and debate can occur. As a vital condition for the proper functioning of a democratic and liberal society, reasonable pluralism ensures that inclusivity and diversity occupy a fundamental position in Rawlsian liberal society. But this rebuke of Schmitt’s notion of the political, as defined by the friend-enemy distinction, does not yet provide an alternative account of national unity. Through his notion of overlapping consensus, Rawls proposes a theory of national unity grounded in shared norms and similarity across difference. Given the profound diversity of individuals’ values within a liberal society that reasonable pluralism implies, national unity, at least from the perspective of Schmitt’s critique, appears precarious. Yet Rawls denies that national unity is unattainable in liberal democracies, by exploring the distinction between an individual’s comprehensive doctrine and their non-comprehensive political views. Along these lines, two individuals—for example a Christian fundamentalist and a socialist atheist—could deeply disagree over many issues by virtue of their conflicting comprehensive doctrines; however, they might also hold some political views in common, like a commitment to the right to free speech. Thus, despite the radical heterogeneity and diversity of worldviews in a multicultural liberal society, there are certain principles that Rawls argues would be shared amongst opposing but reasonable comprehensive doctrines. These shared principles, to which any reasonable person would assent, constitute Rawls’ notion of the overlapping consensus, which unites individuals whose comprehensive doctrines may nonetheless be extraordinarily different. As establishing a common national commitment to certain principles, the overlapping consensus serves to unite a reasonably pluralistic society around inclusive norms. Rawls also frames his discussion of the overlapping consensus in explicitly normative terms, beyond the mere fact that the overlapping consensus is a collection of normative principles, by relating the overlapping consensus to liberal notions of legitimacy and autonomy: Since political power is the coercive power of free and equal citizens as a corporate body, this power should be exercised, when constitutional essentials and basic questions of justice are at stake, only in ways that all citizens can reasonably be expected to endorse in the light of their common human reason (Rawls, Political Liberalism, 139-140). Rawls’ insistence on certain limiting conditions under which coercive political power should be employed reveals a striking divergence from Schmitt’s unlimited notion of sovereign authority. Only authority exercised within these limits is legitimate in the Rawlsian sense. Furthermore, Rawls’ particular formulation of legitimacy is intimately related to the notion of autonomy, which literally means self-lawgiving. Since political coercion is only legitimate when any reasonable individual would assent to it, the state’s sovereign authority is strictly limited by the overlapping consensus, i.e. what reasonable citizens would mutually agree to. In stark contrast to Schmitt’s unlimited notion of sovereignty as rooted in a unifying principle of profound exclusion and homogeneity, Rawls outlines a liberal notion of unity through an overlapping consensus that emphasizes shared norms across reasonable differences and inscribes the state’s coercive authority within determinate limits. Rawls’ insistence on the rule of law and an inclusive notion of national unity becomes even more apparent through the concrete and realized form it assumes in Rawls’ reflections on the importance of constitutions for liberal societies. For Rawls, constitutions perform the essential function of codifying certain shared and fundamental values—aspects of the overlapping consensus—to ensure that they are consistently respected. In contrast to Schmitt, Rawls is an adamant supporter of the rule of law, who affirms the importance of consistently and impartially upholding rules. In A Theory of Justice, Rawls devotes a section to the rule of law, wherein he provides a simple and intuitive counter-argument to Schmitt’s contention that a rule is essentially defined by its ability to be suspended in exceptional cases: “The rule of law also implies the precept that similar cases be treated similarly. Men could not regulate their actions by means of rules if this precept were not followed” (Rawls, A Theory of Justice, 237). Indeed, under a regime whose laws are frequently suspended or changed by the sacrosanct power of the sovereign, it would be prohibitively difficult to follow laws at all, given their constant mutability. Like Schmitt, however, Rawls argues that constitutions should and do reinforce his notion of national unity in important ways. First, the constitution provides specific procedures for conflict resolution that diffuse intra-societal tensions, instead of merely redirecting these antagonistic energies toward a common enemy. Second, Rawls claims that a state’s constitution, when successful, can reinforce reasonable pluralism and foster a positive feedback loop that stabilizes and unites the diverse members of a liberal society under their shared values and institutions: The basic political institutions incorporating these principles and the form of public reason shown in applying them when working effectively and successfully for a sustained period of time (as I am here assuming)—tend to encourage the cooperative virtues of political life: the virtue of reasonableness and a sense of fairness, a spirit of compromise, and a readiness to meet others halfway, all of which are connected with the willingness to cooperate with others on political terms that everyone can politically accept (Rawls, Political Liberalism, 163). In a gesture similar to Schmitt’s claim that the constitution must serve the telos of his exclusive conception of national unity, Rawls maintains that the constitution can be an important component in securing unity in a pluralistic liberal society by strengthening certain common virtues that promote inclusivity. Rawls therefore formulates a liberal conception of national unity that offers an attractive alternative to Schmitt’s vision of unity through a mutual enemy. Indeed, Rawls’ response to Schmitt also seems far better equipped to handle the multicultural realities of an increasingly globalized world, whose largest and most prominent states are and continue to become ever more pluralistic. While Rawls’ responses to Schmitt fail to explicitly address the problematic role of identity in Schmitt’s critique of liberal unity, Habermas addresses this issue from a liberal perspective similar to Rawls’. Although educated in different philosophical traditions, Rawls and Habermas share commitments to many fundamental liberal values. Like Rawls, Habermas begins with the factual assumption that contemporary liberal democracies are defined by their multiculturalism and plurality of worldviews. Given this diversity, Habermas likewise claims that these disparate groups can be brought together through shared norms and an inclusive attitude that rejects the radical homogeneity of the Schmittian political. Despite these shared preoccupations between Rawls and Habermas, their divergent emphases reveal crucial aspects of their philosophical vantage points. For example, Habermas imbues the question of national unity with an urgency and importance comparable to Schmitt. Although Rawls undeniably thought about and wrote on the question of national unity with acuity and insight, Schmitt and Habermas examine the threat of political fragmentation as fundamental because of their shared German inheritance of a national history marked by perennial partition and disunity. In contrast to both Schmitt and Rawls, however, Habermas turns to a nation’s constitution to provide—not merely a supportive element in fostering a unified national community—but a veritable foundation for a unified and inclusive liberal state. Referring to this political model as “constitutional patriotism,” Habermas proposes an alternative liberal principle of unity, one highly related to and coherent with Rawls’ liberal project, that Habermas argues can challenge Schmitt’s claim that liberal inclusivity cannot provide a substantive identity to the members of a society. Habermas’ groundbreaking essay, “The Postnational Constellation and the Future of Democracy,” explores how globalizing forces have fundamentally altered identity-forming processes in a way that renders unity through nationalist identities no longer viable. By reflecting on the contemporary prevalence of immigration, the complex ways in which localities interact with globalized mass media, and the ease of communication across national and cultural lines, Habermas arrives at the conclusion that people have adapted a new sense of identity in response to these multifarious forces. Because ‘traditional’ modes of identity, in the nineteenth century for example, were more stable and consistent across localities, identifying with a particular town, religion, nation, and worldview was a more socially unifying and coherent process. Habermas contends that today, however, a single individual might identify with multiple hometowns, two or more national heritages, and a familial as well as a personal religious identity. Habermas vividly describes: [T]he dynamic image of an ongoing construction of new modes of belonging; new subcultures and lifestyles, a process kept in motion through intercultural contact and multiethnic connections. This strengthens a trend toward individualization and the emergence of ‘cosmopolitan identities,’ already evident in postindustrial societies Habermas, "The Postnational Constellation and the Future of Democracy," 76). This process, whereby interaction with global forces leads individuals to adopt layered identities, simultaneously threatens traditional models of national unity and underscores the need for a more inclusive and norm-based model of political unity. Undoubtedly, Schmitt’s conception of political unity would qualify as a ‘traditional,’ model of national belonging, whose unqualified insistence on the importance of national homogeneity does not seem capable of prevailing under these new conditions. Indeed, Habermas writes that Schmitt’s friend-enemy distinction most often appears along ethnic lines, as in the case of National Socialism, although for Habermas this is a historically contingent fact. Regardless, Habermas considers Schmitt’s notion of the political a reflection of the ethnonationalist conception of national identity whose unity is predicated on a sense of belonging to a shared heritage: “‘ethnonationalism’ blurs the traditional distinction between ‘ethnos’ and ‘demos.’ This expression emphasizes the proximity between an ‘ethnos,’ a pre-political community of shared descent organized around kinship ties, on the one hand, and a nation constituted as a state that at least aspires to political independence on the other” (Habermas, "On the Relation between the Nation, the Rule of Law and Democracy," 130). The absolute nature of Schmittian homogeneity, especially when considered along ethnic lines, appears all the more reactionary and unviable in light of Habermas’ account of contemporary, complex identity formation. Thus, Habermas proposes constitutional patriotism as an inclusive way of identifying with the national community that opposes Schmittian ethnonationalism. Like the liberal commitment to shared norms and inclusive pluralism outlined by Rawls, Habermas’ constitutional patriotism entails a national culture that identifies with the values embodied by that nation’s constitution. Since liberal democratic constitutions use highly generalized language in order to encompass as many situations as possible, constitutional norms embrace the tolerance and equality that Habermas sees as vital to ensuring national unity in the contemporary, globalized world. In contrast to constitutional patriotism, Habermas characterizes ethnonationalism as entailing a pathological and exclusive fusing of the national culture with mere majority culture. Consider the case of Germany, wherein a conception of German identity that relies on a certain ethnic, religious, or even linguistic affiliation would exclude significant portions of the populace. For Habermas, the immediate gains of the Schmittian exclusionary approach will in fact undermine national unity on the long run, due to the unstoppable process of global connections forging complex identities within societies whose homogenous histories are quickly becoming relics of the past. Habermas therefore arrives at a normative claim intended to provide a solution to the problem of achieving unity through identity in a contemporary liberal state: “the majority culture must detach itself from its fusion with the general political culture in which all citizens share equally; otherwise it dictates the parameters of political discourses from the outset” (Habermas, "The Postnational Constellation and the Future of Democracy," 146). Constitutional patriotism is realized in this very act of uncoupling majority culture from national culture, wherein the national culture transforms into the identification with the shared norms and inclusive equality of constitutional values. Only then can national unity be achieved without resorting to Schmittian ethnonationalism, which Habermas argues excludes vast communities within contemporary liberal democracies. Although Habermas himself acknowledges that constitutional patriotism is more abstract than the primitive power of Schmitt’s friend-enemy distinction, he embraces it as a normative necessity that citizens of liberal democracies should undertake, to ensure the stability and longevity of their nation’s political culture. By arriving at a moral injunction, Habermas fails to provide an adequate incentive for the majority to adopt constitutional patriotism; however, a Habermasian approach that more fully embraces the aforementioned fragmentary identity-forming processes solves this issue by pointing the way towards the dissolution of majority culture itself. The prospect of uncoupling national from majority culture is undeniably daunting, as the widespread introduction of constitutional patriotism as a national identity would involve the loss of significant privilege, status, and power for those who are current members of this majority culture. The roots of ethnonationalism continue to grip the political foundations of ostensibly liberal democratic societies, less because the public is convinced by the ideas of thinkers like Schmitt—although segments of these populations undoubtedly are, as the so called “alt-right” has recently demonstrated in the US—but rather because the majority gains an elevated status through exclusionary forms of national unity. The ethical cost of this exaltation of the majority culture on a national scale is the demeaning alienation of minority communities and, while Habermas is right to advocate for a more inclusive national identity that would remain faithful to liberal values, it seems unlikely that the majority would freely give up its status by adopting constitutional patriotism only to benefit the greater good. If one believes that people tend to act out of self-interest instead of morality, then the incentive to preserve the connection between majority and national culture itself must be nullified before constitutional patriotism can prevail. The tools for solving this problem are present in Habermas. To take Habermasian thought a step beyond Habermas himself, one can imagine what the process of complex identity fragmentation and formation would look like in the long term. In this scenario, the majority of people would no longer subscribe to a singular or even predominant identity. On the contrary, the very fragmentation that Habermas argues unsettles national unity would transform the populace of a liberal democracy into a vast network of many small communities, whose individual members would each belong to a great multitude of them. Such a nation would be so deeply fragmented that any given aspect of one’s identity would not provide a sufficiently large community to establish a majority. Instead, majority decisions would be made entirely by heterogeneous coalitions whose interest overlap for the time being, but who remain fragmentary constellations of various communities without a single or cohesive identity. Under such conditions of extreme fragmentation and individualization, Schmitt would argue that the nation itself has ceased to exist, even if its political institutions persist. From a Habermasian perspective, however, everyone would finally have an incentive to adopt constitutional patriotism, as the majority culture itself has dissolved. To some, this thought experiment may appear extreme, unfounded, or idealistic; but, by revealing a path to constitutional patriotism that does not rely on the mere moral goodness of an entire population, it offers a compelling reason to embrace the fragmentation that Habermas himself ambivalently describes. In doing so, the positive potential of fragmentation provides the possibility of a more hopeful future, in which liberal unity can be fully realized through the widespread adoption of identities as malleable, personal, and idiosyncratic as their individual subscribers. Thus, the future of liberal unity can only be attained through a confrontation and embrace of the very fragmentation that political theorists have feared for far too long. A Habermasian solution to the problem of national identity’s role in fostering political unity thereby completes the liberal project, developed by Rawls and Habermas, of formulating an adequate response and alternative to Schmitt’s critique of liberalism. As the nation-state continues to assert its relevance in the global consciousness of the 21st century, the naïve question to ask would be when the nation-state will fall into obsoleteness and thereby cease to exist. On the contrary, the deep political impulse in humanity and the social need for some form of unifying structure mean that the future of the liberal state will entail a transformation instead of an extinction. But the new political arrangement awaiting humanity at the end of this metamorphosis is yet undecided—making the path to be pursued all the more crucial. By recognizing that national unity as we know it will need to be radically reshaped and may even appear in the guise of what we now perceive as fragmentation, a new path toward this future emerges that rejects neither globalizing fragmentation nor the national community. Only through such affirmation can the enduring negativity of exclusion and perpetual violence someday be overcome. Endnotes 1 Readers may question the philosophical value of engaging with a theorist as reprehensible and repulsive as Carl Schmitt; however, I remain convinced that vigilant opponents of fascism must constantly challenge its foundations, not only to demonstrate the intellectual illegitimacy of totalitarianism, but also to better discern the fascistic modes of thought insidiously purveyed by alleged proponents of liberalis 2 This empirical claim is disputable, but simply assumed in this paper. I ask that skeptical readers grant it arguendo. References Böckenförde, Ernst-Wolfgang. “The Concept of the Political: A Key to Understanding Carl Schmitt's Constitutional Theory.” Law as Politics: Carl Schmitt's Critique of Liberalism. Ed. David Dyzenhaus. Durham: Duke UP, 1998. Print. Habermas, Jürgen. “On the Relation between the Nation, the Rule of Law and Democracy.” The Inclusion of the Other: Studies in Political Theory. Ed. Ciaran Cronin and Pablo De Greiff. Cambridge, MA: MIT, 1998. Print. Habermas, Jürgen. “The Postnational Constellation and the Future of Democracy.” The Postnational Constellation: Political Essays. Trans. Max Pensky. Cambridge, MA: MIT, 2001. Print. Müller, Jan-Werner. Constitutional Patriotism. Princeton, NJ: Princeton UP, 2007. Print. Rawls, John. Political Liberalism. New York: Columbia UP, 2005. Print. Rawls, John. A Theory of Justice. Cambridge, MA: Belknap of Harvard UP, 1971. Print. Schmitt, Carl. The Concept of the Political. Trans. George Schwab. Chicago: U of Chicago, 2007. Print. Schmitt, Carl. Constitutional Theory. Trans. Jeffrey Seitzer. Durham: Duke UP, 2008. Print. Schmitt, Carl. Political Theology: Four Chapters on the Concept of Sovereignty. Trans. George Schwab. Chicago: U of Chicago, 2005. Print.

Can You Rationally Disagree with a Prediction Market? Nick Whitaker Brown University April 2021 This paper brings together two literatures: That of the efficient market hypothesis in economics and the relatively recent literature on disagreement in epistemology. In economics, there has been a substantial discussion of how markets aggregate knowledge through prices. In the philosophy of disagreement literature, there is significant agreement that you should defer to those with more knowledge and better judgments than you. I argue that, given these two conclusions, we are epistemically bound to defer to prediction markets in most situations, though I discuss possible exceptions. On the website PredictIt, one can find betting markets for a number of future political events like “Who will be the 2020 Democratic nominee?”, “Will Maduro be in office at the end of 2019?”, and “Will Trump be impeached in his first term?” Shares can be bought at and sold at floating prices between $.01 and $.99, and pay out a dollar if the bet wins. Share prices can be converted into probabilities, i.e. a $0.25 share represents a P(.25). I pose the question of how a rational person must change their credence when they encounter a prediction market like those on PredictIt. I will argue that under almost all normal circumstances, it is not rational to disagree with a well-functioning market. In fact, one should adopt the credence suggested by the prediction market. As I argue, a well-functioning prediction market is, on a given issue, almost always one’s epistemic superior with regard to that issue because it tends to incorporate all available information and aggregate that information effectively in its suggested credence. Given that you are likely not incorporating all available information nor aggregating that information into your credence, you are in a worse epistemic position about a given issue than its prediction market is. Thus, upon encountering a prediction market, you are rationally bound to adopt the credence suggested by it. I see this conclusion as emerging naturally from the efficient market hypothesis (EMH) literature in financial economics and the burgeoning disagreement literature in epistemology, but I think the combined implications have been underappreciated. For example, together they imply that things which normally guide our credence on a given issue – like pundits’ predictions or our interpretations of poll data – ought to hold little influence, if any, over our credence relative to the credence suggested by a prediction market. In many cases, the suggested credence of a prediction market will be surprising. Often, one is inclined to reject it. After looking at enough prediction markets, on will almost certainly find a suggested credence that he or she is convinced is wildly wrong. Nevertheless, I will argue that we should adopt the credence implied by markets, despite how reluctant we may feel. Finally, as I will argue, if one refuses to adopt the credence implied by a betting market and they are not averse to betting, the most rational course of action would be to bet on that market. The Market as an Epistemic Tool: A Short History Markets are efficient. This is suggested by basic economic theory: Given competitive markets and free entry, if people knew the price of an asset would rise or fall, they would buy or sell the asset until the market price of the asset reflected that information. This obviously cannot be exactly the case in reality; no markets are perfectly competitive, and entry is never completely free. Yet just how efficient markets are has been surprising to many, as this fact has been established by over half a century of economic theory and empirical evidence. There are important outstanding questions about how strong a claim “efficiency” should imply, and whether there are times when markets are not efficient, referred to as market anomalies. But, let us begin by reviewing the history of the theory. Efficient Markets Hypothesis was popularized by University of Chicago economist Eugene Fama. The idea began as an outgrowth of his dissertation, published in The Journal of Business in 1965 as “The Behavior of Stock Prices.” The paper argues that stock prices are essentially a “random walk” in that the “patterns” perceived in the past performance of a stock in no way indicate the stock’s future performance. Thus, for asset price movement to be a random walk, the future price needs to be independent of past prices. As Fama writes: In statistical terms independence means that the probability distribution for the price change during time period t is independent of the sequence of price changes during previous time periods. That is, knowledge of the sequence of price changes leading up to time period t is of no help in assessing the probability distribution for the price change during time period t. (35) Given that future prices are independent from past ones, no amount of study of the past performance of a stock will allow one to predict future performance. To the extent that the future is known, we should expect that information to be already incorporated into the asset price. Thus, the question becomes: Why are future prices independent of past prices? It is this question that led Fama to his work on EMH. Roughly speaking, if markets are efficient, only what is truly unknown is not incorporated into an asset’s price, and thus future movements in that price are random. As investors with information about the future buy and sell a given asset, the price of that asset would come to reflect all available information about the future. In 1970, Fama published his most cited paper, “Efficient Capital Markets: A Review of Theory and Empirical Work” in The Journal of Finance. In the paper, Fama clearly defined the terms on which a market can be considered efficient: “A market in which prices always ‘fully reflect’ available information is called ‘efficient.’” As this cannot be exactly true, Fama proposes it rather as a null hypothesis in the paper. To test efficiency more precisely, Fama delineates three versions of the hypothesis: The weak form, the semi-strong form, and the strong form. The weak form states that markets are efficient if future performance cannot be predicted from past prices. The semi-strong form states that markets are efficient if future performance cannot be predicted based on any publicly available information. The strong form states that the future performance cannot be predicted even with insider information. As the title of the paper suggests, Fama discusses the theoretical and empirical foundations for our beliefs. The theoretical work is interesting, but perhaps not worth exploring here. Essentially, there are different mathematical models which are able to test different versions (weak, semi-strong, strong) of the hypothesis. As Fama explains, early studies mostly focused on the weak version, essentially testing for the independence of new prices from historic prices. As the weak version gradually became established, research turned to the semi-strong version, which can be thought of as the question of how quickly newly public information is incorporated into market prices. Fama finds that tests of the semi-strong EMH lend “considerable support” to the hypothesis (408). The strong hypothesis had not been extensively studied at the time, but limited evidence did show that insiders were able to generate super-normal returns, and thus asset markets are likely not strong-form efficient. As Fama concludes, “For the purposes of most investors the efficient markets model seems a good first (and second) approximation to reality” (416). Since its publication, Fama’s account of EMH has faced decades of empirical scrutiny and has become a major topic of debate in finance. This is especially true as EMH challenges the value proposition of active money managers, who charge their clients fees to supposedly “beat the market.” According to EMH, their ability to do this is essentially as good as anyone else’s. Thus, many have sought to demonstrate market inefficiencies of which savvy investors could take advantage. There is a certain irony to this process, as whenever an inefficiency becomes known it becomes accounted for in the market prices and thus the prices cease to be inefficient. Conversely, in the event that everyone believed markets were efficient and invested passively, markets would become inefficient. A major meta-analysis of EMH literature was conducted in 2002 by Burton G. Malkiel, one of Fama’s coauthors. As Malkiel writes, if market anomalies were abound, we would expect that actively managed funds would be able to capitalize on these anomalies and consistently make supernormal returns. Thus, we can test market efficiency by looking at whether actively managed funds have been able to outperform diversified index funds. When fees charged by actively managed funds are considered, investment firms have actually underperformed relative to the market (Malkiel 2002). This suggest that even to the extent markets are inefficient, we are bad at consistently identifying these inefficiencies. Beyond Finance: Prediction Markets The key insight of EMH is an epistemic one: Markets tend to reflect all publicly available information. Though the theory has been traditionally framed as a theory of asset pricing, research was quickly done as to what information about the future could be gleaned from asset prices. In 1975, Fama published a paper on “Short-Term Interest Rates as Predictors of Inflation” to do just that. Since then, the idea has been taken further, to structure assets for the explicit purpose of efficiently aggregating information about the likelihood of future events. Economist Robin Hanson has been a major proponent of this, proposing that we develop “prediction markets,” sometimes referred to as “idea futures” or “information markets”. Typically, a prediction market is structured as a binary option that pays out either 0% or 100%. Thus, the price of bets can be converted into credence. If the prediction market is quickly incorporating all publicly available information, as EMH would suggest, then we can expect the credences suggested by the prediction market to be maximally informed. Relative Epistemic Positioning Given the epistemic power of prediction markets, we may ask how we should respond when we disagree with the credence suggested by the prediction market. Perhaps the initial question in any disagreement scenario should be: “Are you in a better position to judge B than your interlocutor is?” This question can be answered by considering a number of factors. Bryan Frances, in his book Disagreement, enumerates a number of considerations for epistemic positioning. Some of his main criteria are: • Cognitive ability had while answering the question • Evidence brought to bear in answering the question • Relevant background knowledge • Relevant biases After these factors, we can follow the disagreement literature in categorizing our interlocutor as being an epistemic peer, superior, or inferior on the given issue B. With this in mind, we can ask a central question: Given the efficiency of prediction markets, what is their epistemic positioning relative to us? If prediction markets are approximately semi-strong efficient, then, by definition, they are incorporating all public information into their implied credence. In most circumstances, one’s credence is formed with less information than all publicly available information. Depending on the topic, the difference in information between you and a given prediction market may be small or vast, but regardless, the prediction market is likely your epistemic superior in this regard. Additionally, a prediction market is almost certainly has better judgment than you do. We can think of good judgment as aggregating information in an accurate way. Implicit in any bet is the bettor’s weighting of his or her evidence. Just as a bettor would have an opportunity to profit on unique evidence they possessed, so to could they profit from weighting the evidence in a more accurate way than others. For example, we can imagine a prediction market on a mayoral race for a town. Let us assume that all of the relevant information about the race was comprised of three polls, and everyone betting in the market was aware of this information. Though there is no disparity between the bettors this information, a bettor could gain an edge by having the best sense of which of the polls were more accurate than others. By making these bets, he would push the betting market towards aggregating the poll results in the most accurate way. A better would be incentivized to do this, as they could profit off of a correct opinion until it was fully represented in the market price. Indeed, we could think of good judgement (or accurately aggregating information) as another type of information, higher-order information. So, we should expect a prediction market to not only to be incorporating more information, but also to be incorporating more higher order information leading to prediction markets aggregating that information more accurately. Thus, we can classify prediction markets as epistemic superiors on their relevant proposition under normal circumstances. Disagreeing with Epistemic Superiors In his paper “Reflection and Disagreement,” Adam Elga discusses how we should be guided by our epistemic superiors. He gives the example of the weather person, to whom we defer completely. If the weather person says there is a 60% chance of rain today, my credence that there will be rain today becomes 60%. Elga calls this treating the weather person as an “expert.” When someone is an expert with regard to weather, “Conditional on her having probability x in any weather-proposition, my probability in that proposition is also x” (2). As Elga writes, this means deferring to the expert on two accounts: Information and judgement. By deferring to the weather person with respect to information, we admit that she has more information (regarding weather) than we have. By deferring to the weather person with respect to judgement, we admit that she has a better manner of forming opinions (regarding weather) than us. Presumably, some people or things should be treated as experts and some people or things should not be. If a person or thing does deserve to be treated as an expert on a given domain, we should defer to their credence. If a person or thing does not deserve expert treatment, perhaps they or it should play some other role in our credence formulation. As Elga points out, there are two obvious ways the forecaster could cease to be an expert, either by failing to have more information or in failing to have better judgement. If I knew that the weather person’s radar was broken, and thus her information was corrupted, she would cease to be an expert. Similarly, if she were very drunk such that her weather judgment was inhibited, she would also cease to be an expert. Given the previous discussion of EMH and prediction markets, I will assume that they are, in general, incorporating more information and better judgment into their suggested credence than a given individual is. Thus, a prediction market is an expert with regard to its topic, and one should normally defer to it. However, just as there are situations in which a weather person fails to be an expert with regard to weather, we might expect that there are situations in which prediction markets cease to be experts. Let’s discuss a few potential situations. Information Errors For any market to function, it must be sufficiently thick, as opposed to being a thin market, one with few buyers and sellers. If I set up a prediction market on a subject and only allow three of my friends to bet on it, the market would have only as much information as the three of my friends have, and thus could not be considered an expert. For my purposes, I will limit the following discussion to thick, functioning prediction markets, though thin markets would constitute exceptions to my arguments here. One initial first information error is that you might be privy to important insider information that has not been incorporated into prediction market prices. If that were the case, the prediction market would cease being an expert to you on account of it lacking knowledge you have. However, whether there is insider information that has not been incorporated into the price is a question of whether prediction markets are efficient in the semi-strong sense or strong sense. As has been discussed, stock markets have not been found to be efficient in the strong sense. However, in the stock market, buying and selling stocks based on insider information is illegal under insider trading laws. In many prediction markets, which are not regulated by the US Securities and Exchange Commission, this is not the case. So, one might expect more insider information is incorporated. Indeed, there is a substantial question of whether the insider information you possess is not already part of the price. If it is, your disagreement with the suggested credence of the prediction market may not be justified. So, there is a substantial question of whether your “insider information” has not already been incorporated into the suggested credence of the prediction market. However, let’s assume that the information is actually something only you possess. How then, should the prediction market be treated? In this case, Elga argues that we can treat the prediction market as a “guru.” In guru cases, rather than accepting a credence unconditionally as we do with an expert, we can accept their credence conditionally. We can formalize this following Elga. Let H represent a given proposition and P’ represent the prediction market’s probability function. In the expert prediction market case: P (H| Prediction Market has P’) = P’ (H) In the guru prediction market case where “X” is your insider information: P(H|Prediction Market has P’) = P’ (H| X) Thus, Elga advises we conditionalize the guru’s probability on our unique information. So we truly have unique information, we can conditionalize the prediction market’s implied credence on it to form our optimal credence. How exactly this conditionalization should work could be simple or complex. If you were the doctor of a presidential candidate and, after an appointment with the candidate, you came to the conclusion that the candidate had a terminal illness and would die before the election, P’(H | X) would be near zero, as we would obviously expect the prediction market to suggest something similar if the information was known. However, if you were a friend of a presidential candidate, and the candidate told you: “I have just decided that tomorrow I will be announcing new policy X. I have not told anyone besides you.” How could you conditionalize a prediction market’s suggested credence on this information? It is hard to say. Perhaps you could see if any other candidate had announced a similar policy, or look at how the policy was polling, to try to get a sense of whether your candidate friend more or less likely to be elected after he or she announces the policy. Yet, this will always require some degree of guesswork and judgement. At the same time, this problem is common to conditionalizing on other types of evidence. Let us assume that your P(raintomorrow)=.5, and your friend said, “What would your credence be if I told you my Dad guaranteed it would rain tomorrow?” You might have some sense of this depending on what you knew about your friend’s father, but some degree of fuzziness here seems inevitable. Another possibility the market might have anomalies or biases which would allow for a rational disagreement with its suggested credence. The most commonly discussed bias in prediction markets is called “Favorite-Long-Shot Bias.” The bias is an empirical phenomenon; bettors have been known to over-value “long-shot” bets relative to favored ones. For example, the 1/50 horse at the horse race might actually perform closer to 1/100. Both rational expectations and behavioral explanations have been proposed to explain this phenomenon as it violates EMH. The nature of the explanations themselves is not relevant to the current discussion, but the existence of favorite-longshot bias does suggest that if a prediction market is suspected to be manifesting the bias, one should treat the market as a guru and conditionalize the market’s implied credence on the bias: P (Long-Shot | Prediction Market has P’) = P’ (Long-Shot | Long-Shot Bias) We may not be able to conditionalize perfectly, but we could look to the typical effect size of long-shot bias in similar prediction markets, and try to work towards the conditional probability from there. Thus, the bias can at least be mitigated. A final information error might be that a prediction market is being fed bad information by a manipulating bettor, who, knowing that people were using the prediction market inform their view about the future, seeks to manipulate the prediction market. Hanson discusses this potential problem in 2007 paper, “A Manipulator Can Aid Prediction Market Accuracy.” As the title implies, Hanson comes to the surprising conclusion that manipulators not only do not impede the functioning of a prediction market, they make it more accurate. As Hanson suggests, we can think of a potential manipulator as adding “noise” into the market. Because of this noise, the expected return on accurate information increases, thereby attracting more investors. With more investors, more information comes into the market, making it more accurate. However, if you did suspected that other investors were not capitalizing on the manipulator and correcting the market, you could also conditionalize on the suggested credence of the market towards what the suggested credence would look like without a manipulator. Though there are potential information related risks, they seem to be sufficiently uncommon that one should not expect them in normal circumstances. Insider information is possible, though may not actually be truly non-public. Prediction market biases may exist, but can be accounted for. Market manipulation seems counterproductive. Information related errors should be looked for, but they are not able to diminish the established informative power of prediction markets. Judgment Errors The second type of errors, judgment errors, relate to the ways in which information is aggregated. Markets are one way of aggregating information, but there are others, like deliberation. What if you came to your credence as part of a deliberating group, incorporating the knowledge of many into your credence? Let us even assume, for the sake of argument, that your deliberating group had access to all the same information as all of the bettors in a given prediction market. If your credence differs from the credence suggested from the betting market, would it be rational to conciliate? Cass Sunstein takes on this issue in a 2006 paper, “Deliberating Groups Versus Prediction Markets.” Sunstein points out that this is a particularly important case, as many of our decisions and credences come about through deliberation with others. Why should we expect this deliberative process to be desirable, especially relative to prediction markets? Indeed, as Sunstein argues, we should not expect deliberation to work better. We should actually expect it to be a less efficient way to aggregate information. Sunstein focuses primarily on two reasons: Group members failing to disclose what they know out of deference to the public information announced by others and social pressures leading members to not dissent from the group. As Sunstein writes, “Groups often amplify rather than correct individual errors; emphasize shared information at the expense of unshared information; fall victim to cascade effects; and tend to end up in more extreme positions in line with the predeliberation tendencies of their members” (192-3). On the other hand, prediction markets provide potential financial reward for individually held information and contrarian opinions, succeeding exactly where deliberation fails. Indeed, the profit motives makes uncommon knowledge especially profitable, where social, deliberative situations make group approved, desirable information most valuable. Thus, deliberation is, on average, a worse method of aggregation. One still ought to defer to the judgment of the prediction market. What about if you create another information aggregating mechanism to inform your credence on a given issue that you think may outperform a prediction market? There have been two notable recent attempts at this: Nate Silver in his elections forecasting and Philip Tetlock’s Good Judgement Project. In 2008, Nate Silver rose to prominence by using Bayesian statistical techniques to aggregate poll results, leading to highly accurate electoral predictions. Silver’s work provides a case study in whether advanced statistical techniques can aggregate information more effectively a prediction market. In 2009, economist David Rothschild tested Silver’s prediction against those suggested by a leading prediction market at the time, Entrade. He concludes, “I demonstrate that early in the cycle and in not-certain races debiased prediction market-based forecasts provide more accurate probabilities of victory and more information than debiased poll-based forecasts” (895). Rothschild’s technique is interesting. When he debiases Silver’s results, they become more accurate than the raw prediction market results. But, when he accounts for the favorite-longshot bias discussed earlier in the prediction market results, the debiased prediction market becomes most accurate. To put this into Elga’s framework, the prediction market makes for a better guru than Silver. Silver addresses the study directly in his book, The Signal and the Noise. He takes some issues with Rothschild’s methodology, that he debiases the prediction market results, and, more importantly, that the prediction markets move in response to Silver’s poll aggregation. Yet nevertheless, as Silver writes, “Over the long run, however, the aggregate forecast has often beaten even the very best individual forecast.” Silver is skeptical of the current state of prediction markets, thinking that there is not yet enough competition and the markets are still relatively thin, but is open to their potential superiority. Thus, Silver asserts the earlier caveat, that the current set of prediction markets, given the current legal restrictions on them, may suffer from the market thinness discussed. Philip Tetlock’s work on forecasting has also become an interesting potential challenge to prediction markets. In Tetlock’s Good Judgement Project, he sought out people who were outstanding at predicting the future over a number if years. He called this group “superforecasters.” In his book on the subject, Superforcasting, Tetlock describes testing the results of teams of superforecasters against prediction markets. His results: “Teams of ordinary forecasters beat the wisdom of the crowd by about 10%. Prediction markets beat ordinary teams by about 20%. And superteams beat prediction markets by 15% to 30%” (207). The result is fairly surprising, given the power of prediction markets. But, it is perhaps not entirely fair. As Tetlock admits, “I can already hear the protests from my colleagues in finance that the only reason the superteams beat the prediction markets was that our markets lacked liquidity: real money wasn’t at stake and we didn’t have a critical mass of traders. They may be right” (207). Interestingly, the argument is very similar to that of Silver, that the relatively small scale of current prediction markets suggests they are not operating as well as they could be. So, if you are a superforecaster working with a team of other superforecasters, perhaps your group’s combined judgement is sufficiently better than current prediction markets that you need not defer to them. But, this may cease to be true if better prediction markets were developed. So even between the narrow cases of Silver and Tetlock, the practitioners themselves are skeptical of their own ability to beat more robust prediction markets. And, this makes sense. As soon as a strategy develops an edge on prediction markets, they are incentivized to bet on that information until their information is fully incorporated into the betting market’s price. Indeed, a betting market can, as is actually encouraged, to subsume all other deliberation mechanisms into it until it obtains maximal accuracy. Staying Steadfast Against Your Superiors Let us assume you do not adopt the credence suggested by a prediction market because you wish to remain steadfast and think the credence suggested by the prediction market is incorrect. Bryan Frances discusses a similar epistemic situation in his piece, “Philosophical Renegades,” where an amateur astronomer retains her belief that Jupiter has fewer than 10 moons even after the vast majority of professional astronomers have come to believe the planet has over 200 moons. The astronomer has no concrete reason to reject the opinions of the expert astronomer community, but perhaps would say she expects that the others are making a mistake. This is not unlike the situation one is in disagreeing with a prediction market, as the prediction market is likely aggregating all available evidence in an effective manner. To some extent, the rationality of retaining one’s credence in the face of this disagreement depends upon how much one knows about prediction markets. If he or she were unaware of their epistemic virtues, the disagreement may be justified. But, if he or she understood prediction markets, their disagreement may be blatantly irrational. There is another interesting dimension to disagreeing with prediction markets, whether that be because you remained steadfast or because you have conditionalized on the suggested credence of the prediction market. In either of these situations, you should see yourself as having the opportunity to arbitrage. Let us assume, for example, that a prediction market suggests that the chance of Donald Trump being elected is P(.42), as PredictIt suggests at the time of writing. Let us also assume that your credence in Donald Trump being reelected is (.1). Given your credence of (.1), you would be rational to take a bet at 9/1 odds or better that Trump is not reelected. A prediction market at P(.42) would offer odds at 11/8. Indeed, if you really believe your credence is (.1), this should be seen as a profitable strategy over the long run. If you do not have an adversity to betting, then you should bet. Even if you treat the prediction market as a guru and conditionalize against its suggested probability, rationality would still suggest you bet against the market, as it would have positive expected value. Conclusion The disagreement literature discusses the different ways in which we should engage with our epistemic peers, inferiors, and superiors. As I have shown, we should look to prediction markets as our epistemic superiors, and as experts or gurus in Elga’s sense. I see this as being action guiding in a number of ways. First, if we wish to have more accurate credences about future events, we should create larger scale prediction markets. Second, when we have access to sufficiently thick prediction markets, we should defer to their suggested credences. To the extent one disagrees with a prediction market suggested credence, they should bet in the market as they would have a positive expected return. Works Cited Christensen, David Phiroze, and Jennifer Lackey. The Epistemology of Disagreement: New Essays. Oxford University Press, 2016. Elga, Adam. “Reflection and Disagreement.” Nous, vol. 41, no. 3, Sept. 2007, pp. 478–502., doi:10.1111/j.1468-0068.2007.00656.x. Fama, Eugene F. “Short-Term Interest Rates as Predictors of Inflation.” The American Economic Review, vol. 65, no. 3, June 1975, pp. 269–282., doi:10.1787/157052064225. Fama, Eugene F. “The Behavior of Stock-Market Prices.” The Journal of Business, vol. 38, no. 1, 1965, pp. 34–105., doi:10.1086/294743. Fama, Eugene F., and Burton G Malkiel. “Efficient Capital Markets: A Review of Theory and Empirical Work.” The Journal of Finance, vol. 25, no. 2, May 1970, pp. 383–417., doi:10.2307/2325486. Frances, Bryan. Disagreement. Polity, 2014. Hanson, Robin, and Ryan Oprea. “A Manipulator Can Aid Prediction Market Accuracy.” Economica, vol. 76, no. 302, 2009, pp. 304–314., doi:10.1111/j.1468-0335.2008.00734.x. Hanson, Robin. “Decision Markets.” IEEE Intelligent Systems, vol. 14, no. 3, 1999, pp. 16–20. Malkiel, Burton G. “The Efficient Market Hypothesis and Its Critics.” Journal of Economic Perspectives, vol. 17, no. 1, 2003, pp. 59–82., doi:10.1257/089533003321164958. Rothschild, David. “Forecasting Elections.” Public Opinion Quarterly, vol. 73, no. 5, 2009, pp. 895–916., doi:10.1093/poq/nfp082. Silver, Nate. The Signal and the Noise. Penguin, 2013. Sunstein, Cass R. “Deliberating Groups versus Prediction Markets (or Hayek's Challenge to Habermas).” Episteme, vol. 3, no. 3, 2006, pp. 192–213., doi:10.3366/epi.2006.3.3.192. Tetlock, Philip E., and Dan Gardner. Superforecasting: The Art and Science of Prediction. Random House, 2016.

Partisan Gerrymandering: Re-Establishing the Political Question Doctrine in Gill v. Whitford Partisan Gerrymandering Re-Establishing the Political Question Doctrine in Gill v. Whitford Connor Maag UCLA School of Law Author Filippo Zinni William Gomberg Harry Xie Editors Spring 2019 Download full text PDF (24 pages) Abstract American politics is more divided and more contentious than ever, and the Supreme Court recently published a decision that will define the nation’s political landscape. In Gill v. Whitford , the Wisconsin Elections Commission asked the Supreme Court to overturn a divided three-judge district court decision striking down a Wisconsin voter redistricting plan as an unconstitutional partisan gerrymander. But the court has yet to clearly define the constitutional boundaries of partisan gerrymandering, having provided contradictory holdings and reasoning for decades. In its June 2018 decision, the court held that the plaintiffs lacked standing to sue, but never reached the merits of partisan gerrymandering, leaving the justiciability of that issue unresolved. This paper finds that partisan gerrymandering is correctly viewed as a non-justiciable political question, due to a lack of judicially-manageable standards, the proper role of the judiciary, and judicial hyperpartisanship. Furthermore, alternatives under the First and Fourteenth Amendments carry implications that inevitably circle back to the rationale for invoking the political question doctrine in the first place. While the court is not bound by ethical rules, general ethical principles should guide the Justices’ own moral compass towards the political question doctrine. American politics is more divided and more contentious than ever, and the Supreme Court recently published a decision that will define the nation’s political landscape.[1] The Wisconsin Elections Commission petitioned the Supreme Court to overturn a divided three-judge district court decision striking down a voter redistricting plan for the Wisconsin state assembly as an unconstitutional partisan gerrymander.[2] However, the Supreme Court has not clearly defined the constitutional boundaries of partisan gerrymandering. In Gill v. Whitford in 2018, the Supreme Court held that the plaintiffs lacked standing—that is, the ability to even bring the lawsuit in court.[3] The court did not decide the merits of the case, and the court made the unusual decision to remand the case back to the district court to afford the plaintiffs an opportunity to properly bring their claim and litigate its merits in the future.[4] Notably, the court did not decide whether partisan gerrymandering is justiciable, leaving the issue unresolved.[5] This piece analyzes the judicial process of deciding the politically-charged Gill v. Whitford case, a decision which will inevitably shift the balance of the nation’s political power towards either the Republican or Democratic party. “Gerrymandering” is a pejorative term, referring to “the dividing of a state, county, etc., into election districts so as to give one political party a majority in many districts while concentrating the voting strength of the other party into as few districts as possible.”[6] It comes from former Massachusetts Governor Elbridge Gerry, who, in 1812, designed convoluted voting districts resembling the shape of a salamander.[7] More than two hundred years later, gerrymandering continues in Wisconsin and throughout the nation.[8] However, the judiciary is not the appropriate forum to address partisan gerrymandering grievances. This piece argues that the plaintiff’s partisan gerrymandering claims in Gill v. Whitford presents a non-justiciable political question, due to a lack of judicially-manageable standards for resolving the claim, the proper role of the judiciary within the government, and judicial hyper-partisanship that renders adjudication on the merits inappropriate. Part I of this piece provides background on the Gill v. Whitford case. Part II outlines the law of partisan gerrymandering leading up to Gill, demonstrating that the time was ripe for clarification from the court. Part III explains why the partisan gerrymandering claim in Gill presents a non-justiciable political question. Part IV considers alternative resolutions on the merits of First and Fourteenth Amendment claims, but finds that they inevitably circle back to the rationale for invoking the political question doctrine in the first place. Finally, Part V explores whether judicial ethics provide any useful guidance for the court, finding persuasive support for invoking the political question doctrine. I. Gill v. Whitford In Gill v. Whitford , a group of Democratic voters sued members of the Wisconsin Elections Commission, claiming that invidious and “aggressive partisan gerrymandering” violates their Fourteenth and First Amendment rights.[9] The Fourteenth Amendment claim alleges that Wisconsin’s redistricting “purposely distributed the predicted Republican vote share with greater efficiency so that it translated into a greater number of seats, while purposely distributing the Democratic vote share with less efficiency so that it would translate into fewer seats.”[10] The argument is supported by seemingly irreconcilable statistics of voters’ current partisan allegiances and the corresponding election results. Specifically, Republicans received 48.6 percent of the two-party statewide vote in 2012 but won 61 percent of the assembly seats; they also received 53 percent of the statewide vote in 2014 but won 64 percent of the assembly seats.[11] Plaintiffs believe a new mathematical test called the “efficiency gap” provides a judicially-manageable standard for the court to determine unconstitutional partisan gerrymandering by measuring the proportion of votes “wasted” by gerrymandering.[12] The First Amendment claim further alleges these wasted votes suffocate voters’ freedom of association with the political party of their choosing, as well as the freedom of expression for their political views.[13] The Western District of Wisconsin agreed with the plaintiffs, holding that partisan gerrymandering was unconstitutional.[14] The Wisconsin Elections Commission then appealed, but the Supreme Court vacated the district court’s decision and remanded it, “so that the plaintiffs may have an opportunity to prove concrete and particularized injuries using evidence...that would tend to demonstrate a burden on their individual votes.” The court’s determination and adjudication of partisan gerrymandering claims significantly impacts the American political landscape.[15] Partisan gerrymandering is a widespread issue not limited to Wisconsin,[16] and a Supreme Court decision striking down electoral maps for partisan gerrymandering can open the floodgates for challenges to district maps across the country.[17] Make no mistake, “Gill isn’t being overhyped: a ruling against extreme gerrymanders could re-jig American politics at the state and national levels for the coming decade and beyond.”[18] II. The Time Remains Ripe for the Supreme Court to Clarify Whether Partisan Gerrymandering is Justiciable For decades, American jurisprudence has debated whether gerrymandering involves a “non-justiciable political question”––which is, broadly, an issue inappropriate for resolution in the judiciary.[19] Currently there is no clear answer, even after the Supreme Court’s 2018 decision in Gill. The political question doctrine can be traced as far back as 1803 in Marbury v. Madison ,[20] but the modern doctrine has its roots in the 1960s, when gerrymandering claims fought against discrimination and racial redistricting. In 1962, Baker v. Carr held that racial gerrymandering claims are justiciable, reasoning that “if ‘discrimination is sufficiently shown, the right to relief under the equal protection clause is not diminished by the fact that the discrimination relates to political rights.’”[21] However, Gill v. Whitford is about partisan gerrymandering rather than racial gerrymandering, a concept first alluded to in Gaffney v. Cummings (1973). Gaffney suggested that political gerrymandering might be unconstitutional if it correlates strongly enough to racial demographics as to constitute racial discrimination.[22] The court reasoned that: What is done in so arranging for elections, or to achieve political ends or allocate political power, is not wholly exempt from judicial scrutiny under the Fourteenth Amendment...For example, multimember districts may be vulnerable, if racial or political groups have been fenced out of the political process and their voting strength invidiously minimized.[23] The court still limited its reasoning to racial discrimination though, noting the “impossible task of extirpating politics from what are the essentially political processes of the sovereign States.”[24] In 1986, the court directly addressed partisan gerrymandering for the first time in Davis v. Bandemer. A plurality held that “political gerrymandering cases are properly justiciable under the Equal Protection Clause.”[25] The court generally analogized the rationale prohibiting racial gerrymandering to political gerrymandering, explaining “that the claim is submitted by a political group, rather than a racial group, does not distinguish it in terms of justiciability. That the characteristics of the complaining group are not immutable or that the group has not been subject to the same historical stigma…[does] not justify a refusal to entertain such a case.”[26] Dissenting, Justice O’Connor instead felt that “members of the Democratic and Republican Parties cannot claim that they are a discrete and insular group vulnerable to exclusion from the political process by some dominant group: these political parties are the dominant groups, and the court has offered no reason to believe that they are incapable of fending for themselves through the political process.”[27] In 2004, the court changed course when a plurality held political gerrymandering is a non-justiciable political question in Vieth v. Jubelirer . The court reasoned that “no judicially discernible and manageable standards for adjudicating political gerrymandering claims have emerged (since Davis). Lacking them, we must conclude that political gerrymandering claims are non-justiciable and that Davis was wrongly decided.”[28] But this justiciability holding failed to achieve majority agreement.[29] In 2006, the court failed to clarify the conflicting Davis and Vieth pluralities. Then, in League of United Latin Am. Citizens v. Perry (2006), the court merely noted that “disagreement persists” as to whether political gerrymandering is justiciable and analyzed the merits because justiciability was not disputed by the parties.[30] The court held that “[they] do not revisit the justiciability holding but do proceed to examine whether appellants’ claims offer the court a manageable, reliable measure of fairness for determining whether a partisan gerrymander violates the Constitution.”[31] The court reasoned that partisan gerrymandering was inconsistent with both the Fourteenth Amendment’s prohibition against invidious discrimination and the First Amendment’s protection from retaliation based on political affiliation.[32] Ostensibly, League of United Latin Am. Citizens (LULAC) left Davis intact, but only because the parties did not dispute justiciability. The Davis and Vieth pluralities provide conflicting answers for whether partisan gerrymandering is justiciable. The Supreme Court’s considerable efforts in Gaffney, Bandemer, Vieth, and LULAC do not resolve whether such claims may be brought in cases involving allegations of partisan gerrymandering.[33] Gill thus presented the court with an opportunity to finally clarify the irreconcilable case law, but it remanded the case back to the district court on standing grounds before it could reach the merits.[34] Currently, the justiciability of partisan gerrymandering claims remains unclear. III. The Political Question Doctrine Must Apply to Partisan Gerrymandering Claims As a threshold issue in any partisan gerrymandering claim, the court must decide whether partisan gerrymandering is a non-justiciable political question before it proceeds with the rest of the case. The contours of the political question doctrine are poorly defined,[35] but the Supreme Court has explained that “sometimes...the law is that the judicial department has no business entertaining [a] claim...[where] the question is entrusted to one of the political branches or involves no judicially enforceable rights...Such questions are said to be ‘nonjusticiable,’ or ‘political questions.’”[36] The court has outlined six non-exhaustive, independent factors to identify such non-justiciable political questions: [1] a textually demonstrable constitutional commitment of the issue to a coordinate political department; [2] a lack of judicially discoverable and manageable standards for resolving it; [3] the impossibility of deciding without an initial policy determination of a kind clearly for nonjudicial discretion; [4] the impossibility of a court’s undertaking independent resolution without expressing lack of the respect due coordinate branches of government; [5] an unusual need for unquestioning adherence to a political decision already made; [6] the potentiality of embarrassment from multifarious pronouncements by various departments on one question. The doctrine is rooted in both “constitutional and prudential considerations,”[37] as well as “respect for the separation of powers, including the ‘proper—and properly limited—role of the courts in a democratic society.’”[38] Case law has also proscribed a nuanced distinction between non-justiciable political questions and cases with political ramifications, the latter of which remains justiciable.[39] As an initial matter, most cases are not decided by political ideology, but as a matter of law. Justices of different ideologies routinely agree with each other irrespective of political agenda. But this paper explores the “5 percent of cases that are truly difficult,”[40] rather than the 95 percent of run-of-the-mill decisions. Gerrymandering claims are often among those difficult cases because they necessarily involve issues that impact the balance of partisan power in the legislature. It has been said that for federal judges, “political elections are the devil’s domain,” and the court should remain cautious when deciding partisan gerrymandering claims.[41] The court should have held in Gill—or should hold in the future—that partisan gerrymandering is a non-justiciable political question due to (1) a lack of judicially-manageable standards for resolving the claim, (2) the proper role of the judiciary within the government, and (3) judicial hyperpartisanship that renders adjudication on the merits inappropriate. A. Partisan Gerrymandering Claims Lack Judicially-Manageable Standards The partisan gerrymandering claim in Gill presents a non-justiciable political question because the claim satisfies Baker’s second factor of “a lack of judicially discoverable and manageable standards for resolving it,”[42] and because there are “no judicially enforceable rights.”[43] First, the proposed “efficiency gap” solution is not a judicially-manageable standard. It fails to clearly identify the impact of partisan gerrymandering and is a rough approximation at best—Chief Justice Roberts calls it “sociological gobbledygook.”[44] Most notably, it fails to distinguish between so-called wasted votes caused by gerrymandering and natural causes.[45] For example, geography is a major cause of wasted votes.[46] Many urban districts overwhelmingly vote Democrat, causing wasted votes that are not the result of partisan gerrymandering.[47] Another problem is that “the efficiency gap is very noisy. It can shift back and forth from cycle to cycle” because voters can simply change their minds and side with a different political party.[48] In Gill, Judge Greisbach’s district court dissent pointed out that efficiency gaps measure “change every election based on a number of factors, including the issues raised, quality of local candidates, [waves], turnout, and other natural phenomena such as shifts in demographics.”[49] It is not hard to imagine a scenario in which voters’ partisan preferences change day-to-day if, say, a candidate receives negative publicity. Such a district might then fail the efficiency gap test because of that publicity, not the map. Second, the claim in Gill does not involve judicially-enforceable rights. Plaintiff-Appellees claim violations of the First and Fourteenth Amendments, which guarantee the rights of an individual, but the district court incorrectly focused on injuries to the Democratic Party as a group.[50] The Supreme Court correctly explained that “the associational harm of a partisan gerrymander is distinct from vote dilution.”[51] In one amicus brief, several states[52] pointed out that “the district court’s reliance on vote-dilution cases fundamentally misunderstands the difference between those claims regarding individual rights versus the novel group-based right recognized here.”[53] Justice Burger also pointed out in Davis that those who believe partisan gerrymandering is justiciable improperly “focus...not on access to the political process as a whole, but entirely on statewide electoral success...[and] whether the complaining political party could be expected to regain control of the state legislature.”[54] Many commentators and amici seem to transparently view Gill as a tool for political ends, even advocating to erode Republican power and “regain” Democratic control.[55] The logic has drifted quite far from claims about individual rights. The district court committed a logical leap from protecting individual rights to granting the Democratic party rights as a group and as a result, allowed for judicial manipulation of the balance of political power in the Wisconsin state legislature. On the other hand, the district court, Plaintiff-Appellees, and some commentators agree that judicially-manageable standards exist. The “efficiency gap” at least provides some sort of metric for courts to apply,[56] unlike previous partisan gerrymandering cases. This test also reduces the analysis to a narrow set of analytical factors, which courts should be able to handle.[57]And big-data computing can provide cutting-edge measurements that did not exist when Vieth suggested that partisan gerrymandering claims lack judicially-manageable standards.[58] Other commentators believe there are numerous alternatives that are also judicially-manageable.[59] Although the “efficiency gap” is better than any other test to date, its flaws still render it insufficient. Even if the measurement is considered reliable, the logical solution to eliminate “wasted votes” is a political system of proportional representation.[60] But the court held there is no constitutional requirement for proportional representation, and “equating a party’s statewide share of the vote with its portion of the congressional delegation is a rough measure at best.”[61] In Davis, the court held that a lack of proportional representation is not enough to prove unconstitutional discrimination.[62] Moreover, hyperefficient “partisan symmetry” erodes the concept of voting districts altogether. The district court in Gill keenly foresaw this criticism by acknowledging the potential extremes of partisan gerrymandering, explaining that “to say that the Constitution does not require proportional representation is not to say that highly dis proportional representation may not be evidence of a discriminatory effect.”[63] Appellees instead claim they argue for “partisan symmetry” rather than proportional representation.[64] However, Chief Justice Roberts quipped that it “[sounded] exactly like proportional representation to [him].”[65] While Justice Kennedy expressed a more open mind, asking whether the most egregious instance of partisan gerrymandering might be unconstitutional,[66] the court would still be required to enforce––or at least approach––a system of proportional representation under the “efficiency gap” standard. This leads to another reason for holding that partisan gerrymandering is a non-justiciable political question: it is not the court’s place to make such structural changes to the government. B. The Supreme Court Should Not Overstep Its Proper Role Prudential considerations also suggest that court should have invoked the political question doctrine in Gill or should invoke it for future partisan gerrymandering claims. Satisfying Baker’s fourth element, it would be impossible to reach an “independent resolution without expressing lack of the respect [towards other] branches of government.”[67] The political question doctrine defines the court’s proper role within the federal government.[68] The framers of the United States Constitution did not design the judiciary as a political body;[69] they intended the court to be “insulated from the chaotic politics that consume the executive and legislative branches of government.”[70] Congress, not the court, should maintain “complete control over the amendment process,” and court decisions should not function as constitutional amendments.[71] Deciding Gill on its merits would fall outside of the court’s appropriate place within the government structure. Thirteen of the fifteen states with voting districts that fail the “efficiency gap” standard in 2018 are Republican states.[72] Implementing that standard thus reflects a willingness for the judiciary to actively reshape the nation’s balance of political power towards one party in particular. This plainly falls beyond the proper role of the judiciary—even the district court, which felt it had standing to hear the case, acknowledged that “state legislative apportionment is the prerogative and therefore a duty of the state government.”[73] Instead, the legislature is the proper forum to address partisan gerrymandering. By answering political questions such as partisan gerrymandering claims, the court would discourage the proper legislative process, almost enabling legislative dysfunction. In addition, adjudicating partisan gerrymandering claims falls outside of the framers’ designed role for the court. In the American two-party political system, partisan gerrymandering claims are inherently political, because revoking political power from one party automatically shifts power to the other party. In this respect, affirming the district court would be an undemocratic fix to a democratic problem, where judges determine the outcome of politically-divided elections—therefore creating “appointed” or “unelected” congressmembers. In Gill, the Supreme Court said it must apply a standard that “ensures that [they] act as judges, and do not engage in policymaking properly left to elected representatives.”[74] Then, in Davis, Justice Burger said “the Court offers not a shred of evidence to suggest, that the Framers of the Constitution intended the judicial power to encompass the making of such fundamental choices about how this Nation is to be governed.”[75] To the contrary, Alexander Hamilton in Federalist No. 78 wanted the judiciary to be the “least dangerous” political branch, whereby judges would act with “neither force nor will.”[76] And James Madison in Federalist No. 51 explained that “legislative authority necessarily predominates” the judiciary,[77] suggesting that legislative resolution to partisan gerrymandering is more appropriate than judicial resolution. But there is another possibility: maybe the court is the perfect place to address partisan gerrymandering. It’s not hard to imagine that voters and the legislature cannot properly fix the issue themselves. Citizens may not be able to vote the gerrymandering party out of office if the maps are too heavily skewed.[78] Their votes cannot fix partisan gerrymandering; their votes are defined by partisan gerrymandering. In that sense, court intervention seems appropriate because although the issue falls outside of the court’s role, the other branches either cannot or will not fix the problem. Political gerrymandering may also exacerbate partisan gridlock throughout the nation,[79] so court intervention appears appropriate to surpass a paralyzed legislature. Others are also concerned that the negative effects of partisan gerrymandering will worsen if not reversed, given the precision and influence of big data technology.[80] Although these are important considerations, they operate on the assumption that the Constitution grants a right to protection from another political party, and, even if it does, the court is able to proscribe manageable standards to protect that right. In Gill, the Supreme Court explained that its “power as judges to ‘say what the law is’...rests not on the default of politically accountable officers.”[81] On balance, it is simply improper and unworkable “to inject the courts into the most heated partisan issues.”[82] C. Judicial HyperPartisanship Renders Adjudication on the Merits Inappropriate There are legitimate concerns that the court cannot prevent its own bias and achieve an “independent resolution,” again satisfying Baker’s fourth factor.[83] Failing to invoke the political question doctrine would demonstrate a “lack of respect” for the Wisconsin state legislature, because the Justices could not redesign Wisconsin’s legislature without imposing their own ideologies. Alternatively, this piece proposes that “judicial hyper-partisanship rendering adjudication inappropriate” functions as a new factor for determining non-justiciable political questions. This proposed factor would (1) be consistent with the Baker factors, (2) function as a “prudential consideration” which is one aspect of the political question doctrine,[84] and (3) fit seamlessly into the political question doctrine’s overall purpose to ensure the proper role of the court. While this proposition deserves full discussion at another time, it highlights the fact that the court could proffer an entirely new justification for invoking the political question doctrine, since the six Baker factors are non-exhaustive.[85] Irrespective of which “factor” applies, partisan polarization is increasing at all levels of government.[86] A highly-politicized Supreme Court is relatively new, though: “before 2010, the Court never had clear ideological blocs that coincided with party lines.”[87] Authorities like Richard Posner now believe “the Supreme Court is not an ordinary court but a political court...strongly influenced in making its decisions by the political beliefs of the judges.”[88] And empirical evidence proves this. Justices now vote along party lines more frequently in politically-charged cases. Less than two percent of the court’s decisions were 5-4 between 1801 and 1940, but in 2005, this rate topped 20 percent[89] and even spiked to 30 percent in 2006 and 2008.[90] The Senate’s Supreme Court confirmation process is another indicator: the four most senior Justices on the court received less than 21 negative votes on average, while the five newest Justices received more than 40 negative votes on average.[91] The recent cases of Judge Garland, Justice Gorsuch, and Justice Kavanaugh likewise illustrate how judicial office now seems defined by partisanship from the start.[92] Hyperpartisan judicial decisions are detrimental to a well-functioning judiciary. Chief Justice Roberts has expressed concern that the increase in 5-4 decisions erodes the public’s confidence in the court “as a partisan institution,” threatening its credibility and legitimacy.[93] Lawyers have also started preying on the Justices’ partisanship, as “more and more appellate litigators have come to appreciate that the federal ‘courts are a sort of untapped resource for pursuing [a political party’s] agenda.’”[94] On the other hand, maybe the court could have decided Gill on the merits without the bias seen in recent decades.[95] For example, the National Association for the Advancement of Colored People (NAACP) asserts that “gerrymandering isn’t just a political fight between the parties...‘both Democratic and Republican legislatures have used the power of the state to enact extreme partisan gerrymanders.’”[96] At least one poll shows bipartisan voter consensus against partisan gerrymandering.[97] And several Republicans—not just Democrats—publicly advocate against it.[98] For example, a group of Republicans including Arnold Schwarzenegger, John Kasich, and Bob Dole filed an amicus brief asserting that if the “Court does not stop partisan gerrymanders, partisan politicians will be emboldened to enact ever more egregious gerrymanders...That result would be devastating for our democracy.”[99] Alternatively, maybe adjudicating the merits would not have displayed a lack of respect for Wisconsin’s legislature because the current Justices are not to blame for hyper-partisanship. Decades ago, the court said that “politics and political considerations are inseparable from districting and apportionment...The reality is that districting inevitably has and is intended to have substantial political consequences.”[100] Others assert that judicial impartiality is a myth[101] and that law is unavoidably political.[102] Yet more argue that “judges are inevitably political actors, and hence their decisions are ultimately based on their ideological convictions.”[103] If partisanship is unavoidable, maybe the court should have decided Gill on its merits anyway. It is also unclear that invoking the political question doctrine actually eliminates the negative effects of a political decision. Just as adjudication on the merits favors the plaintiff’s political party and disfavors the defendant’s party, not ruling on the merits favors the defendant’s party and disfavors the plaintiff’s party. In other words, evading the merits of Gill—perhaps under the guise of the political question doctrine—is still a political maneuver.[104] Some case law demonstrates that declining to rule still yields a victor and shapes policy.[105] Nevertheless, passive political maneuvers are at least more palatable than active political maneuvers. Even if the political question doctrine is invoked as a political tool, it cannot be completely arbitrary, because Justices are constrained to provide coherent legal reasoning behind their decisions.[106] On balance, the court should have held in Gill, or should hold in the future, that partisan gerrymandering is a non-justiciable political question, because judicial hyperpartisanship renders the issue inappropriate for judicial resolution—even though there is bipartisan support, hyperpartisanship is not the court’s fault, and the political question doctrine itself resembles a political maneuver. The best advice comes from Justice O’Connor, who, looking back on Bush v. Gore, expressed regret for not invoking the political question doctrine, explaining that “maybe the Court should have said, ‘We’re not going to take it, goodbye’” and that the case “‘stirred up the public’ and ‘gave the Court a less than perfect reputation.’”[107] IV. Refuting the Alternative of Ruling on the Merits Two rationales might support the decision to ignore the political question doctrine and address the merits in Gill, neither of which were reached because the court remanded the case on standing grounds.[108] First, Gill might not involve a political question at all. The court could have held that the “efficiency gap” analysis provides a judicially manageable standard, prudential considerations are irrelevant, and hyperpartisanship will not affect the outcome. Some even argue the political question doctrine does not exist at all.[109] Second, Gill might involve a political question that the court should have addressed anyway––akin to a “justiciable political question.” The court has confronted contentious political questions before.[110] Bush v. Gore (2000) is perhaps most analogous, because it determined the outcome of a political election under the Equal Protection and Due Process clauses. There, the court ignored the political question doctrine, even though the case had high-profile and partisan implications.[111] Others argue this case taught judges the art of political manipulation under the guise of apolitical judiciousness.”[112] Thus, cases like Bush v. Gore may have set precedent for the court to ignore the political question doctrine in Gill. Regardless of the rationale for ignoring the political question doctrine, the merits of Gill implicate the Fourteenth and First Amendments. V. The Fourteenth Amendment Claim Plaintiff-Appellants claimed that partisan gerrymandering violates their Fourteenth Amendment rights.[113] The Equal Protection Clause of the Fourteenth Amendment[114] “guarantees the opportunity for equal participation by all voters in the election of state legislators.”[115] In the context of voting districts, it requires that “seats in both houses of a bicameral state legislature must be apportioned on a population basis.”[116] This protects the “one-person, one-vote” principle enshrined in the Equal Protection Clause.[117] More specifically, partisan gerrymandering “may” create unconstitutional districts if political groups (1) have been “fenced out of the political process,” and (2) have had their voting strength “invidiously minimized.”[118] The purpose is to achieve “fair and effective representation” for all citizens.[119] First, there are credible arguments that voters have been fenced out of the political process, and the alleged “wasted votes” seem to violate the “one-person, one-vote” standard. At oral argument, Justice Ginsburg focused on partisan gerrymandering’s effect of denying individuals of “the precious right to vote,”[120] expressing concern that “if you can stack a legislature in this way, what incentive is there for a voter to exercise his vote?...The result is preordained in most of the districts. Isn’t that -- what becomes of the precious right to vote?” On the other hand, it is more persuasive that partisan gerrymandering does not violate the “one person, one vote” principle, because Plaintiff-Appellants unavoidably seek damages to the Democratic party as a whole,[121] not to “one person.” Unlike the constitutional right to protection from racial gerrymandering, which specifically targets and harms individuals based on their human identity, regardless of who they vote for, partisan gerrymandering is inextricably intertwined with the outcome of a political party rather than individuals who can change their voting preference at any time. Second, Wisconsin’s map seems to satisfy Gaffney’s “invidious” requirement, because it was designed to fix future elections and “the goal of the map...was to ‘determine who’s here 10 years from now.’”[122] This “invidious” trend seems to occur in districts nationwide too, generally hurting Democrats more than Republicans.[123] Commentators note that “the Supreme Court has also picked up on the widespread agreement and has often assumed, at least implicitly, that the drawing of majority-minority districts comes at a cost for the Democratic Party.”[124] Even if partisan gerrymandering seems “invidious” towards Democrats, it is not unconstitutional unless shown to have fenced voters out of the political process. As discussed in Section III, these claims present a lack of judicially-manageable standards to make such a determination. Even if such measurements like the “efficiency gap” are accepted, their use falls outside of the court’s proper role in the government, and even if it falls within the court’s proper role, judicial hyperpartisanship makes such a determination inappropriate. Thus, adjudicating Gill under the Fourteenth Amendment inevitably circles back to the rationale for invoking the political question doctrine in the first place. A. The First Amendment Claim The plaintiffs also argued that partisan gerrymandering caused “wasted votes” and diluted voting power, “unreasonably burden[ing] their First Amendment rights of association and free speech.”[125] The First Amendment states that “Congress shall make no law...abridging the freedom of speech...or the right of the people peaceably to assemble,”[126] and protects individuals from infringement by the states.[127] The court has held that “in the context of partisan gerrymandering...First Amendment concerns arise where an apportionment has the purpose and effect of burdening a group of voters’ representational rights,”[128] bearing resemblance to the Fourteenth Amendment’s “invidious” and “fencing out” elements. A First Amendment analysis at least semantically alleviates problems associated with the Fourteenth Amendment analysis—particularly with respect to prudential considerations and judicial hyperpartisanship. Under a First Amendment analysis, the court would ensure the voting process is fair for all voters, rather than directly comparing the “equality” of two political parties at large. Thus, the court would not have purported to analyze or manipulate the balance of partisan power in Wisconsin’s legislature. By extension, risks associated with judicial hyperpartisanship seem to disappear as well. However, the outcome would have remained the same under the First Amendment—one party wins and one party loses. Justices who wish to manipulate the balance of partisan power could still do so, just under the guise of another constitutional provision. Still, the First Amendment analysis is more appealing than the Fourteenth, because even if the court alters the balance of power, at least it will not be blatant, mitigating concerns about the court’s public reputation and the appearance of bias.[129] Most significantly, the First Amendment would not alleviate the lack of judicially-manageable standards. Measuring the effect of partisan gerrymandering under the First Amendment still requires calculations like the “efficiency gap.” Like the Fourteenth Amendment analysis, the First Amendment analysis inevitably circles back to the rationale for holding that partisan gerrymandering is a non-justiciable political question. V. The Supreme Court’s Ethical Obligations in Gill v. Whitford There aren’t any – at least, not prescribed by law. All federal judges, except Supreme Court Justices, are bound by the Code of Conduct for United States Judges,[130] which provides pertinent guidance in Gill: Canon 1 states “[a] Judge Should Uphold the Integrity and Independence of the Judiciary,” Canon 2 states “[a] Judge Should Avoid Impropriety and the Appearance of Impropriety in all Activities...A judge should not allow...political...relationships to influence judicial conduct or judgment,” and Canon 5 states “[a] Judge Should Refrain from Political Activity.”[131] The Code is further buttressed by sections of the non-binding American Bar Association (ABA) Model Code of Judicial Conduct, such as Rule 2.3, which provides that “[a] judge shall not, in the performance of judicial duties, by words or conduct manifest bias or prejudice...including but not limited to...political affiliation.”[132] And Rule 2.4 further complements that “[a] judge shall not permit...political...interests or relationships to influence the judge’s judicial conduct or judgment.”[133] The ABA Code of Judicial Conduct does not apply to the Supreme Court, however.[134] Several Justices have stated they follow it regardless,[135] and all Justices take the Judicial Oath of Office, swearing to “faithfully and impartially discharge and perform all the duties incumbent upon [them].”[136] But the Code remains non-binding and the Oath of Office does not create an enforcement mechanism once Justices take office. The Code thus provides persuasive support for invoking the political question doctrine in Gill. Manipulating the balance of political power in a state legislature would erode the integrity and independence of the judiciary,[137] violating Canon 1. Adjudicating the merits of the claims to propel political agendas would be neither independent nor impartial, violating Canons 2 and 5. Allowing such political bias to influence the decision-making process also stands in the face of ABA Rules 2.3 and 2.4. And under Canon 5, this all would apply whether or not political agendas are the underlying motivation, simply because it would appear improper. Although the Code does not apply to the Supreme Court, the existence of scribed rules isn’t the point of ethics. As Judge Alex Kozinski puts it, “we’d all be better off in a world with fewer rules and a more clear-cut understanding that impartiality and diligence are obligations that permeate every aspect of judicial life—obligations that each judge has the unflagging responsibility to police for himself.”[138] Justices should be held to the highest moral and ethical standards, guided by their own moral compass, even if not required by rule. It’s true that if determined to do so, the Justices can find a way to apply or not apply the political question doctrine to further their political agenda in partisan gerrymandering cases––if that is their goal.[139] But if they wish to invoke the political question doctrine, ethical principles support them. Conclusion After decades of debate and contradictory Supreme Court decisions, Gill v. Whitford presented an opportunity for the Supreme Court to clarify whether partisan gerrymandering is justiciable. The court should have held that partisan gerrymandering is a non-justiciable political question, due to a lack of judicially-manageable standards, the proper role of the judiciary, and judicial hyper-partisanship. Furthermore, alternatives under the First and Fourteenth Amendments carry implications that inevitably circle back to the rationale for invoking the political question doctrine in the first place. While the court is not bound by ethical rules, general ethical principles should have guided the Justices’ own moral compass towards the political question doctrine. Partisan gerrymandering claims, like those presented in Gill v. Whitford , can be analyzed under both the political question doctrine or the First and Fourteenth Amendments. Those analyses lead to drastically different consequences for American politics: adopting the political question analysis would ultimately favor the Republican party, while adopting the First Amendment analysis would ultimately favor the Democratic party. The prevailing analysis has the power to permanently alter the American political landscape. Endnotes [1] Gill v. Whitford , No. 16-1161 (U.S. July 2017): (“Gill isn’t being overhyped: a ruling against extreme gerrymanders could re-jig American politics at the state and national levels for the coming decade and beyond.”); S.M., “Justice Kennedy Will Take Centre Stage during the Supreme Court’s Upcoming Term,” The Economist, August 15, 2017, https://www.economist.com/democracy-in-america/2017/08/15/justice-kennedy-will-takecentre-stage-during-the-supreme-courts-upcoming-term. [2] See Brief for Appellants, Gill v. Whitford , No. 16-1161 (U.S. July 2017). [3] Gill, 138 S. Ct. 1916. [4] Gill, 138 S. Ct. 1916. [5] Gill, 138 S. Ct. 1916. [6] “Gerrymander,” Www.Dictionary.Com , accessed January 5, 2019, https://www.dictionary.com/browse/ gerrymander. [7] Erick Trickey, “Where Did the Term ‘Gerrymander’ Come From?,” Smithsonian, accessed January 5, 2019, https://www.smithsonianmag.com/history/where-did-term-gerrymander-come-180964118/. [8] See Thomas Wolf, “What the Briefs Say About Extreme Gerrymandering | Brennan Center for Justice,” Brennan Center for Justice, September 6, 2017, https://www.brennancenter.org/blog/what-briefs-say-aboutextreme-gerrymandering. [9] Whitford v. Gill, 218 F. Supp. 3d 837, 854 (W.D. Wis. 2016). [10] Whitford, 218 F. Supp. 3d at 854. [11] Whitford, 218 F. Supp. 3d at 853. See also Michael Li and Thomas Wolf, “5 Things to Know About the Wisconsin Partisan Gerrymandering Case,” Brennan Center for Justice, June 19, 2017, https://www.brennancenter.org/blog/5-things-know-about-wisconsin-partisan-gerrymandering-case. [12] Complaint, 14–16, Whitford, 218 F. Supp. 3d 837. [13] Complaint, p. 27–28, Whitford, 218 F. Supp. 3d 837. [14] Whitford, 218 F. Supp. 3d at 910; as amended by Amended Judgment, Whitford v. Gill, No. 15-cv-421-bbc (W.D. Wis. Feb. 22, 2017). [15] Erwin Chemerinsky discussed Gill v. Whitford at a Federalist Society event the author attended in Los Angeles. See also Azam Nizamuddin, John Pcolinski, and Tim Klein, eds., “Supreme Court Review,” DCBA Brief | The Journal of The DuPage County Bar Association 30 (October 2017), https://www.dcba.org/mpage/vol301017art3. (“According to Erwin Chemerinsky...‘There is really no issue more important than whether partisan gerrymandering should continue.’”). [16] Nizamuddin et al, “Supreme Court Review.” (“Gill v. Whitford is a case which may have implications far beyond Wisconsin.”). [17] See, e.g., Wolf, “What the Briefs Say About Extreme Gerrymandering”; Gill, 138 S. Ct. at 1934. [18] S.M., “Justice Kennedy Will Take Centre Stage”; Gill, 138 S. Ct. 1916. [19] See Gwynne Skinner, “Misunderstood, Misconstrued, and Now Clearly Dead: The ‘Political Question Doctrine’ as a Justiciability Doctrine,” Journal of Law and Politics 29 (May 28, 2014): 427. [20] See Marbury v. Madison, 5 U.S. 137 (1803). [21] Baker v. Carr, 369 U.S. 186, 209–10 (1962). [22] Gaffney v. Cummings, 412 U.S. 735, 754 (1973). [23] Gaffney v. Cummings, 412 U.S. at 754 (emphasis added). [24] Gaffney v. Cummings, 412 U.S. at 754. [25] Davis v. Bandemer, 478 U.S. 109, 143 (1986). [26] Davis v. Bandemer, 478 U.S. at 125. [27] Davis v. Bandemer, 478 U.S. at 152 (1986). (O’Connor, J., concurring). [28] Vieth v. Jubelirer, 541 U.S. 267, 281 (2004). [29] See Vieth v. Jubelirer, 541 U.S. at 306 (Kennedy, J., concurring); at 317 (Stevens, J., dissenting); at 343 (Souter, J., dissenting); at 355 (Breyer, J., dissenting). [30] League of United Latin Am. Citizens v. Perry, 548 U.S. 399, 414–15 (2006). [31] League of United Latin Am. Citizens v. Perry, 548 U.S. at 414. [32] League of United Latin Am. Citizens v. Perry, 548 U.S. at 461. (Stevens, J., concurring in part and dissenting in part). [33] Gill, 138 S. Ct. at 1929. [34] Gill, 138 S. Ct. at 1931. (“We leave for another day consideration of other possible theories of harm not presented here and whether those theories might present justiciable claims giving rise to statewide remedies.”) [35] See generally Chris Michel, “There’s No Such Thing as a Political Question of Statutory Interpretation: The Implications of Zivotofsky v. Clinton,” The Yale Law Journal 123, no. 1 (October 2013), https://www.yalelawjournal.org/comment/theres-no-such-thing-as-a-political-question-of-statutory-interpretation-theimplications-of-zivotofsky-v-clinton; Louis Michael Seidman, “‘The Secret Life of the Political Question Doctrine’ by Louis Michael Seidman,” 37 J. Marshall L. Rev. 441-480 (2004), accessed January 5, 2019, https://scholarship.law.georgetown.edu/facpub/563/. [36] Vieth v. Jubelirer, 541 U.S. 267, at 277. (Internal citations omitted). [37] Though unclear, some argue the political question doctrine has evolved to “eliminate judicial consideration of the prudential aspects of the political question doctrine or severely limit the application of Baker’s second factor—a lack of judicial standards.” Jared Cole, “The Political Question Doctrine: Justiciability and the Separation of Powers,” CRS Report (Congressional Research Service, December 23, 2014), https://fas.org/sgp/crs/misc/R43834.pdf, 24. [38] Cole, “The Political Question Doctrine,” 1. See also Charles A. Wright and Arthur M. Miller et al., “§3534.1 Political Questions—Political Issues and Separation of Powers,” in Federal Practice and Procedure, 3rd ed., vol. 13C, 2015. (The political question doctrine is derived from “the conclusion that in the separation of federal powers, certain matters are confined to the political branches”). [39] Baker v. Carr, 369 U.S. 186, at 217. (“The doctrine of which we treat is one of ‘political questions,’ not one of ‘political cases.’”). See also Cole, “The Political Question Doctrine”; Gill, 138 S. Ct. at 1931. (“It is important to distinguish the political question doctrine from cases presenting political issues. Courts adjudicate controversies with political ramifications on a regular basis...The political question doctrine applies to issues thatcourts determine are best resolved within the politically accountable branches of government—Congress or the executive branch.”). [40] Neal Devins and Lawrence Baum, “Split Definitive: How Party Polarization Turned the Supreme Court into a Partisan Court,” Supreme Court Review 2016 (January 30, 2017), https://papers.ssrn.com/abstract=2432111. (Citing Nomination of John Roberts, 109th Cong, 1st Sess. (Sept 22, 2005), in 151 Cong. Rec. 21032 (remarks of Senator Obama)). [41] Ronald K.L. Collins and David K. Skover, The Judge: 26 Machiavellian Lessons (Oxford, New York: Oxford University Press, 2017), 94. [42] Baker v. Carr, 369 U.S. 186, at 217. [43] Vieth v. Jubelirer, 541 U.S. 267, at 277. [44] Oral Argument Tr. at 40, Gill v. Whitford, No. 16-1161. (Questioning by Chief Justice Roberts). [45] Nate Cohn and Quoctrung Bui, “How the New Math of Gerrymandering Works,” The New York Times, October 3, 2017, sec. The Upshot, https://www.nytimes.com/interactive/2017/10/03/upshot/how-the-new-mathof-gerrymandering-works-supreme-court.html, https://www.nytimes.com/interactive/2017/10/03/upshot/howthe-new-math-of-gerrymandering-works-supreme-court.html. [46] Cohn and Bui, “How the New Math of Gerrymandering Works.” [47] Cohn and Bui, “How the New Math of Gerrymandering Works.” [48] Cohn and Bui, “How the New Math of Gerrymandering Works.” [49] See Whitford v. Gill, 218 F. Supp. 3d at 964. (Greisbach, J., dissenting). [50] Whitford v. Gill, 218 F. Supp. 3d at 853. [51] Gill, 138 S. Ct. at 1938. [52] Note that all of these states except Nevada voted Republican in the 2017 presidential election. See Brief for the States of Texas, Arizona, Arkansas, Indiana, Kansas, Louisiana, Michigan, Missouri, Nevada, Oklahoma, South Carolina, and Utah as Amici Curiae in Support of Appellants, Gill v. Whitford, No. 16-1161, 3. [53] Brief for the States of Texas et al., Gill v. Whitford, No. 16-1161, 2. [54] Davis v. Bandemer, 478 U.S. at 158. (Burger, J., concurring). [55] Michael Li and Thomas P. Wolf, “Supreme Court Has Historic Chance to End Extreme Gerrymandering,” The American Prospect, June 21, 2017, https://prospect.org/article/supreme-court-has-historic-chance-endextreme-gerrymandering. (“Extreme [political gerrymandering] maps...account for at least 16 and maybe 17 seats in the Republican majority in the House of Representatives. That’s a sizeable chunk of the 24 seats Democrats would need to regain control of the House in 2018.”). [56] Whitford v. Gill, 218 F. Supp. 3d at 944. [57] Wolf, “What the Briefs Say About Extreme Gerrymandering.” [58] See Wolf, “What the Briefs Say About Extreme Gerrymandering.” (Stating there are “two factors [that] would narrow down the range of potentially unconstitutional maps to just a handful this cycle”). [59] Wolf, “What the Briefs Say About Extreme Gerrymandering.” [60] Whitford v. Gill, 218 F. Supp. 3d at 904. (“In a purely proportional representation system, a party would be expected to pick up votes and seats at a one-to-one ratio.”). [61] See Oral Argument Tr. at 41, Gill v. Whitford, No. 16-1161. (Questioning by Chief Justice Roberts) (“Proportional representation . . . has never been accepted as a political principle in the history of this country.”). See also League of United Latin Am. Citizens v. Perry, 548 U.S. at 419. [62] Davis v. Bandemer, 478 U.S. at 132. [63] Whitford v. Gill, 218 F. Supp. 3d at 906. [64] Oral Argument Tr. at 41, Gill v. Whitford, No. 16-1161. [65] Oral Argument Tr. at 41, Gill v. Whitford, No. 16-1161. [66] Oral Argument Tr. at 26, Gill v. Whitford, No. 16-1161. [67] See Baker v. Carr, 369 U.S. at 217. [68] See Baker v. Carr, 369 U.S. at 278. [69] See, e.g., Alexander Hamilton, “Federalist No. 78: The Judiciary Department,” May 28, 1788, http://avalon.law.yale.edu/18th_century/fed78.asp. [70] Lucas Rodriguez, “The Troubling Partisanship of the Supreme Court,” Stanford Politics (blog), January 7, 2016, https://stanfordpolitics.org/2016/01/07/troubling-partisanship-supreme-court/. [71] Wright and Miller et al., “§ 3534.1 Political Questions—Political Issues and Separation of Powers.” [72] Cohn and Bui, “How the New Math of Gerrymandering Works.” [73] Whitford v. Gill, 218 F. Supp. 3d at 883. [74] Gill v. Whitford, 138 S. Ct. at 1923. (Emphasis in original). [75] Davis v. Bandemer, 478 U.S. at 145. (Burger, J., concurring). [76] Hamilton, Oral Argument Tr. at 41, Gill v. Whitford, No. 16-1161. (“The legislature not only commands the purse, but prescribes the rules by which the duties and rights of every citizen are to be regulated. The judiciary, on the contrary, has no influence over either the sword or the purse; no direction either of the strength or of the wealth of the society; and can take no active resolution whatever.”). See also Collins & Skover, The Judge. [77] James Madison, “The Federalist #51,” February 6, 1788, http://constitution.org/fed/federa51.htm. [78] Li & Wolf, “5 Things to Know About the Wisconsin Partisan Gerrymandering Case.” [79] A bipartisan group of 36 members of Congress, “have decried partisan gerrymandering as ‘a substantial cause of the dysfunction of contemporary politics.’” “Bipartisan Support for Whitford | Brennan Center for Justice,” Brennan Center for Justice, accessed January 6, 2019, https://www.brennancenter.org/bipartisansupport-whitford. [80] Wolf, “What the Briefs Say About Extreme Gerrymandering.” [81] Gill v. Whitford, 138 S. Ct. at 1929. [82] Davis v. Bandemer, 478 U.S. at 145. (O’Connor, J., dissenting), (emphasis added). [83] Baker v. Carr, 369 U.S. at 217. [84] See Zachary Baron Shemtob, “The Political Question Doctrines: Zivotofsky v. Clinton and Getting Beyond the Textual–Prudential Paradigm,” The Georgetown Law Journal 4 (2016): 1013-7. [85] See Baker v. Carr, 369 U.S. at 217. [86] Rodriguez, “The Troubling Partisanship of the Supreme Court.” [87] Devins and Baum, “Split Definitive,” 301. [88] Richard Posner, “The Supreme Court Is a Political Court. Republicans’ Actions Are Proof.,” Washington Post, March 9, 2016, https://www.washingtonpost.com/opinions/the-supreme-court-is-a-political-courtrepublicans-actions-are-proof/2016/03/09/4c851860-e142-11e5-8d98-4b3d9215ade1_story.html. (Discussing Republicans senators’ decision to not consider President Obama’s nominations to the Supreme Court). [89] Rodriguez, “The Troubling Partisanship of the Supreme Court”; David Paul Kuhn, “The Incredible Polarization and Politicization of the Supreme Court,” The Atlantic, June 29, 2012, https://www.theatlantic.com/politics/archive/2012/06/the-incredible-polarization-and-politicization-of-the-supreme-court/259155/. [90] Kuhn, “The Incredible Polarization and Politicization of the Supreme Court.” [91] Rodriguez, “The Troubling Partisanship of the Supreme Court.” [92] Jessica Yarvin and Daniel Bush, “Is the Hyper-Partisan Supreme Court Confirmation Process ‘the New Normal’?” PBS NewsHour, September 13, 2018, https://www.pbs.org/newshour/nation/is-the-hyper-partisansupreme-court-confirmation-process-the-new-normal. [93] Jeffrey Rosen, “The Supreme Court Has a Legitimacy Crisis, But Not For the Reason You Think |,” New Republic, June 11, 2012, https://newrepublic.com/article/103987/the-supreme-court-has-legitimacy-crisisnot-the-reason-you-think. But other studies suggest Justice Roberts may be wrong on this point, because most Americans don’t know or understand the political allegiances of the Justices. [94] Collins & Skover, The Judge, xiii. [95] See Devins & Baum, Devins and Baum, “Split Definitive,” 314. [96] Wolf, “What the Briefs Say About Extreme Gerrymandering.” Note also, this is not completely correct. See Cohn & Bui, “How the New Math of Gerrymandering Works,” (showing that nearly all maps violating the “efficiency gap” are Republican districts). [97] Li & Wolf, “Supreme Court has Historic Chance to End Extreme Gerrymandering.” (“The most recent Harris poll shows that 74 percent of Republicans, 73 percent of Democrats, and 71 percent of independents believe that politicians shouldn’t have a hand in drawing lines that benefit them.”). [98] See generally Brief of Republican Statewide Officials as Amici Curiae in Support of Appellees, Gill v. Whitford, No. 16-1161. See also Wolf, “What the Briefs Say About Extreme Gerrymandering.” [99] Brief of Republican Statewide Officials as Amici Curiae in Support of Appellees, Gill v. Whitford, No. 16-1161. See also Wolf, “What the Briefs Say About Extreme Gerrymandering. [100] Gaffney v. Cummings, 412 U.S. at 753. [101] Collins & Skover, The Judge, 15. [102] Collins & Skover, The Judge, xii–xiii. (“Law is political. . . . Whatever the political stripes, the charge is always the same: Judge-made law has become politicized.”). [103] Cass R. Sunstein, “Moneyball for Judges,” The New Republic, April 10, 2013, https://newrepublic.com/article/112683/moneyball-judges. [104] See Shemtob, “The Political Question Doctrines”; Madison, “The Federalist #51.” [105] Collins & Skover, The Judge, 33. [106] Shemtob, “The Political Question Doctrines,” 1027. [107] Jeffrey Toobin, “Justice O’Connor Regrets,” The New Yorker, May 6, 2013, https://www.newyorker.com/news/daily-comment/justice-oconnor-regrets. [108] Gill v. Whitford, 138 S. Ct. at 1937–38. [109] See Michel, “There’s No Such Thing as a Political Question of Statutory Interpretation,” 143–44. [110] See D.C. v. Heller, 554 U.S. 570, 603 (2008). See also Collins & Skover, The Judge, 71: (“Originalism, textualism, historicism—they were all isms perfectly suited to Justice Scalia’s conservative constitutional jurisprudence.”). [111] Collins & Skover, The Judge; Cole, “The Political Question Doctrine,” 94. [112] Collins & Skover, The Judge, 102. [113] Complaint, p. 24–27, Whitford v. Gill, 218 F. Supp. 3d 837. [114] “Constitution of the United States - Amendment XIV” (United States Senate), accessed January 6, 2019, https://www.senate.gov/civics/constitution_item/constitution.htm#amendments. [115] Reynolds v. Sims, 377 U.S. 533, 565–66 (1964). [116] Reynolds v. Sims, 377 U.S. at 568. [117] Whitford v. Gill, 218 F. Supp. 3d at 844. See also Reynolds v. Sims, 377 U.S. at 558. [118] Gaffney v. Cummings, 412 U.S. at 754 (emphasis added). [119] Reynolds v. Sims, 377 U.S. at 565–66. [120] Oral Argument Tr. at 24, Gill v. Whitford, No. 16-1161. (Questioning by Justice Ginsburg). [121] See, e.g., Complaint, p. 2, Whitford v. Gill, 218 F. Supp. 3d 837. (“Extreme partisan gerrymandering is also contrary to core democratic values because it enables a political party to win more legislative districts.”) (emphasis added). [122] Whitford v. Gill, 218 F. Supp. 3d at 853. [123] See Cohn & Bui, “How the New Math of Gerrymandering Works.” [124] Adam B. Cox and Richard T. Holden, “Reconsidering Racial and Partisan Gerrymandering,” The University of Chicago Law Review 78, no. 2 (2011): 560. [125] Complaint, p. 2, Whitford v. Gill, 218 F. Supp. 3d 837. [126] “Constitution of the United States - Amendment I” (United States Senate), accessed January 6, 2019, https://www.senate.gov/civics/constitution_item/constitution.htm#amendments. [127] Williams v. Rhodes, 393 U.S. 23, 30–31 (1968). [128] Vieth v. Jubelirer, 541 U.S. at 314. [129] See Kuhn, “The Incredible Polarization and Politicization of the Supreme Court.” [130] The Code omits the Supreme Court from coverage. See “Code of Conduct for United States Judges | 69 F.R.D. 273,” United States Courts, 1973, https://www.uscourts.gov/judges-judgeships/code-conduct-unitedstates-judges. (“This Code applies to United States circuit judges, district judges, Court of International Trade judges, Court of Federal Claims judges, bankruptcy judges, and magistrate judges.”). [131] “Code of Conduct for United States Judges | 69 F.R.D. 273,” United States Courts. [132] American Bar Association, “Model Code of Judicial Conduct,” August 16, 2018, https://www.americanbar.org/groups/professional_responsibility/publications/model_code_of_judicial_conduct/. [133] American Bar Association, “Model Code of Judicial Conduct.” [134] See “Code of Conduct for United States Judges | 69 F.R.D. 273,” United States Courts. [135] “Supreme Court Justices and the Code of Conduct,” Judicature 95, no. 4 (2011). [136] “Text of the Oaths of Office for Supreme Court Justices,” supremecourt.gov, accessed January 6, 2019, https://www.supremecourt.gov/about/oath/textoftheoathsofoffice2009.aspx. [137] See discussion supra Part III.C. [138] Alex Kozinski, “The Real Issues of Judicial Ethics,” Hofstra Law Review 32, no. 4 (January 1, 2004), https://scholarlycommons.law.hofstra.edu/hlr/vol32/iss4/1, 1106. [139] Kozinski, “The Real Issues of Judicial Ethics,” 1105. (“A judge can appear to act ethically and still betray his responsibility in essential respects, and in ways that no one will ever know about.”). Bibliography Adam B. Cox, and Richard T. Holden. “Reconsidering Racial and Partisan Gerrymandering.” The University of Chicago Law Review 78, no. 2 (2011): 553. 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The Brown University Journal of Philosophy, Politics, and Economics (JPPE) is a peer reviewed academic journal for undergraduate and graduate students that is sponsored by the Political Theory Project and the Philosophy, Politics, and Economics Society Program at Brown University. The Brown University Journal of Philosophy, Politics & Economics *FEATURES * FROM Nicola Sturgeon, MSP First Minister of Scotland Gen. John R. Allen President of the Brookings Institution Editorial board forward Volume I Issue II Introducing the second issue of JPPE Click to flip through the journal and see previous JPPE issues Philosophy Moral Manipulation Politics Transparency and Compliance A Kantian Take on Advertising and Campaigning The Strength of EU Lobbying Regulations By Sylvia Gunn By Abigail Borges Philosophy Health/Disease Distinction And Its Normative Uses Economics Vermont Act 46 Implications for School Choice By Margot S. Witte By Quinn Bornstein Politics Georgian-South Ossetian Conflict Philosophy Statelessness Is Secession a Viable Solution? A Contradiction in International Law with Asymmetrical Regional Solutions By Tathyana Mello Amaral By Samantha Altschuler Politics Imagined Isle Economics Public Funds, Private Interest The Role of Private Companies in Shaping US Cybersecurity Policy Irish Catholic Identity in the Restoration Era By Nathan Mainster By Justin Katz

The Life Cycle of the Responsibility to Protect The Ongoing Emergence of R2P as a Norm in the International Community Maxine Dehavenon Brown University Author Fabienne Tarrant Tathyana Mello Amaral Harry Xie Editors Fall 2019 Download full text PDF (10 pages) Introduction The “life cycle of a norm,” as presented by Martha Finnemore and Kathryn Sikkink, holds that for a norm to become fully accepted and internalized as the rational action in a certain situation, it must travel through three phases of existence: norm emergence, norm cascade, and norm internalization. At this point in time, there is a norm of a responsibility to protect, referred to as R2P, manifesting itself in the international community. However, it is currently stuck in the second phase of its evolution. While the actions taken by the Security Council in Bosnia represent R2P’s emergence as a norm championed by “entrepreneurs,” and the US-led NATO intervention in Libya, as well as the passing of Resolution 1764 in 2005 prove R2P’s successful passage beyond the “tipping point” into the stage of “norm cascade,” the current inaction on the part of the international community in the case of the Syrian genocide reflects the fact that the responsibility to protect has not yet become a fully realized norm to the point where it is universally recognized as the appropriate response to all human rights violations. This is due in part simply to the precedent set by the “failure” in the eyes of the international community of past invocations of R2P – a fact which is not a shortcoming of the strength of the norm, but rather of its application - but also to the structural challenges associated with allowing the application and trial of a norm to be dictated by a body as politicized as the Security Council. As reflected in the case of Syria, the veto power accorded to the P5 on the Security Council provides outliers to the acceptance of R2P, such as Russia, to hijack its trial process and stagnate its chance to become fully internalized. This paper begins with a discussion of the theoretical process by which a norm comes into being as described by Finnemore and Sikkink, followed by an application of such a process to the emerging norm of responsibility to protect through the framework provided by the cases of Bosnia, Libya and Syria. It then tackles the question of why the norm has yet to be fully internalized in the international sphere, presenting an argument for the fact that this is due to the undue power over its application given to the permanent members of the Security Council, and finally in the conclusion, it goes on to make an argument for how to overcome the incommensurate, politicized sway of the Security Council over R2P’s evolution as a norm. Theoretical Framework A norm in international relations is most commonly defined by Martha Finnemore and Kathryn Sikkink in their article “International Norm Dynamics and Political Change” as a “standard of appropriate behavior for actors with a given identity.” Such a definition provides a succinct, yet comprehensive inclusion of the major characteristics of norms, namely, their status as an ideational standard of conduct given a particular circumstance, and the universality of acceptance on the part of a certain group with respect said conduct’s legitimacy and necessity. It is also important to note, that for a standard to be considered a fully formed norm, it can’t only be acted upon physically or rhetorically by states, it must essentially be a “foregone conclusion” in the eyes of those party to it as the appropriate behavior. This distinction, though subtle, is crucial, in that it separates an emerging norm from a fully formed one; while an emerging norm is represented as such by conspicuous, conscious efforts to fulfill a standard set forward by norm entrepreneurs, an absolute norm is such because “[it is] internalized by actors and achieve[s] a “taken for granted” quality that makes conformance with the norm almost automatic.” This distinction is what separates a norm from something like a law, or a resolution; states do not just comply with it because of a positive duty to a legally or politically binding force, they comply with it as part of a negative duty to follow a principle so embedded in code of behavior as correct, that no thought goes into its action whatsoever. Finnemore and Sikkink outline in their article what has come to be known as the “life cycle” of the emergence of such a norm, or the evolution of a standard of behavior must follow in order to become a fully formed norm within the international community. This cycle has three phases. Phase one, titled “norm emergence,” is characterized by the promotion of a certain standard by what Sikkink and Finnemore call “norm entrepreneurs,” or those within the international community who could be considered “thought leaders” with respect to normative formation, through “organizational platforms” such as international institutions, NGO’s or transnational advocacy networks. The goal of such entrepreneurs during this stage is to persuade the most powerful states within the international community to accept and promote the norms they set forth, a process that is characterized by their calling attention to issues “using language that names, interprets, and dramatizes them.” The second stage in this process is characterized as the “norm cascade,” and is catalyzed by a “tipping point” when “norm entrepreneurs have persuaded a critical mass of states to become norm leaders and adopt new norms.” After this point, all other states will follow in the footsteps of those that set precedents within the international community, and a norm’s legitimacy and reputation as a standard of behavior is strengthened through socialization, institutionalization and demonstration. As mentioned above, while this stage may appear to produce fully formed norms, the limiting factor of the complete integration of norms is the fact that many countries accept or act upon it not because they feel they must from an internalized need, but rather as a way to either extend their own legitimacy, or please the great powers. The full internalization of a norm is what distinguishes stage three, or the idea that at this point, a norm has acquired a “taken-for-granted quality, and [is] no longer a matter of broad public debate.” This phase is somewhat paradoxical, in that if a norm has reached this point, it has been so intrinsically embedded in the rational behavior of a state, that in many cases, it is not even considered a point of discussion when states engage in decision-making; it has been so imbued in the framework of the international community, that its employment is no longer even up for debate. Such a theory has elements of both constructivist and realist strains of thought. The idea that international norms dictate the proper (in both moral and legitimate terms) behavior of states is one rooted in constructivist ideology – namely that states act based on the “logic of appropriateness” rather than the “logic of consequences.” Such a difference holds that norms represent an international system of social construction in which states make choices based on how appropriately their actions will fit within the framework of legitimacy of the international system. This paradigm supports the concept of the “life cycle of the norm” through the idea that a norm is created not by one individual state or organization which imposes it on others, but rather by an engaged process through which all states (and independent actors) have at least some level of agency. However, the notion that in phase two of the process, much of the universal acceptance of a norm (the “tipping point”) is based on its acceptance by the most powerful state actors holds some of its roots in realist theory, predominantly in the idea that the most powerful states hold sway over the actions of other states given their belief that it is rational to cooperate with the global powers. In this sense, the constructivist paradigm of norms as presented by Fennimore and Sikkink exists atop a realist foundation, still based on the whims of the hegemon. The Norm of R2P in Action – Its Life Cycle Through Cases The emergence of the norm of the responsibility of the international community to protect the human rights of all citizens holds its origins in the program of transitional justice implemented following the horrors of the Holocaust and the Second World War. This feeling has evolved over time from one based in the allocation of aid and peacekeeping forces to civilians in conflict zones to the legitimation of military intervention as a method of quelling human rights violations, through the manifestation of the Responsibility to Protect (R2P) in 2005. This document - signed into action unanimously by all member states - outlined a radical program of duty on the part of the international community to place human rights at the utmost level of importance and gave them the rhetorical allowance to supersede the Westphalian tradition of state sovereignty in cases of mass atrocities. However, while this represented a theoretical acceptance on the part of the international community – a sort of “tipping point” - with regards to the potential for military intervention in defense of human rights, it can merely be regarded as a singular step in R2P’s process to become a fully formed norm, a process which is recognized to have been in phase one during the Bosnian War, phase two during the Libyan intervention, and is currently showing its inability to pass into phase three as evidenced in its lack of invocation with regards to the current human rights crisis in Syria. Through these three cases, R2P can clearly be seen to be in the midst of Sikkink and Fennimore’s norm life cycle. The case of UN intervention in the war in Yugoslavia represents R2P’s status as a norm in the first stage of internalization. Widely considered to be “too little too late,” the actions of the United Nations through the UNPROFOR did not adequately serve their purpose as a force defending the human rights of all citizens; rather, their lack of decisive action – especially in the case of the Srebrenica massacre – highlights how an international standard of responsibility to protect had not yet fully emerged on the global stage; its proponents were weak, and its application half-hearted and timid. It is true that peacekeeping forces were allocated by the United Nations protect Bosniak civilians, however, their inaction speaks to the fact that the United Nations, and the states controlling it, were not under the impression that the responsibility to protect civilians extended all the way to military intervention to the point that they felt obligated to break the norm of state sovereignty and engage directly with the Bosniak Serbs. As stated by Sikkink and Fennimore, norms “never enter a normative vacuum but instead emerge in a highly contested normative space where they must compete with other norms and perceptions of interest;” in this case, the norm in competition was state sovereignty. There were motions on the part of individuals who could be seen as “norm entrepreneurs,” like Shashi Tharoore, who is the US-based leader for peacekeeping operations in Yugoslavia. These motions called for more expanded intervention, “even if such actions entailed calling in NATO airstrikes.” However, the majority of those with the capabilities to pressure the UNSC to engage more directly in the conflict on behalf of the citizens being slaughtered had not yet been convinced that R2P should override the sovereignty of Bosnia. As stated by David Rieff in his article damning the inaction of the UN, the “firm and long-standing United Nations tradition of peacekeeping rooted in international law, impartiality and procedural objectivity,” turned out to be a tradition of peacekeeping so apolitical, it failed to uphold the key tenets of the UN Charter. Luckily, this disaster proved to hold some positive implications for the promotion of the norm of R2P. As part of the post-conflict reconciliation process, the UN itself released a report questioning if it could not have done more to protect the innocent civilians killed in Bosnia. They state “it is true that UNPROFOR troops in Srebrenica never fired at the attacking Serbs. Had they engaged the attacking Serbs directly it is possible that the events would have unfolded differently.” Here, an example of a shift in the position of a leading influence such as the UN with regards to a specific norm can be seen. The cries of outrage on the part of many in the international community serve to show how norm entrepreneurs were able to effectively re-characterize the UN’s action as an “inappropriate” response to the issue at hand and sow the seeds for a more comprehensive acceptance of the suppression of state sovereignty in the name of peacekeeping operations. This report, written in 1999, can be seen as something of a “first draft” of the “Responsibility to Protect” doctrine, signed unanimously by all UN member states in 2005. As stated by Sikkink and Fennimore, “in most cases, for an emergent norm to reach a threshold and move toward the second stage, it must become institutionalized in specific sets of rules and organizations,” and the R2P doctrine was just that. The fact that this document, in which state sovereignty was challenged for the first time as a conditional privilege, was signed unanimously proves it to be the symbolic, as well as rhetorical “tipping point” for the norm of R2P into its second phase: norm cascade. The first case that truly represented an attempt to implement the norm of responsibility to protect, as laid out in the 2005 doctrine, and was universally supported (at least at first) by much of the legitimized international community, was the case of Libya in 2011. As stated by Roland Paris, this effort to intervene “provided the first major test of R2P’s most coercive policy instrument: large-scale military intervention, against the wishes of the target state, in order to protect civilians from the threat of mass atrocities.” In March of 2011, after months of less invasive measures were attempted, the UN Security Council adopted Resolution 1793, calling for airstrikes to be carried out by NATO under the justification provided by R2P. Finally, the norm of R2P had reached the second phase of its life cycle: it’s application as supported by all members of the international community as a way to test out, legitimize, and institutionalize its status as a norm. However, as the mission quickly expanded into one more clearly resembling “regime-change” than humanitarian intervention, many important countries, namely China and Russia who had both abstained to vote on the Resolution, pulled their support, condemning NATO’s actions as “overreach.” While this mission may have been something of a failure on the part of the international community to successfully invoke R2P, it is not so much a failure of the inherent characteristics of the norm of R2P, but rather of its application. As stated above, a norm in phase two of its life cycle is still recognized for its potential to account legitimacy in the eyes of the global powers; at this time, “state leaders conform to norms in order to avoid the disapproval aroused by norm violation and thus enhance national self-esteem.” As it has not quite been internalized as a standard that must be followed in all circumstances – it is still a tool for states to mold and apply selectively as they see fit. Once its application no longer fits with their own interests (as was the case here), states still feel as though they are able to pull their support for it without receiving backlash from the international community for directly violating the norm themselves. Had R2P been in stage three of its normative life cycle, the states who withdrew support, regardless of whether that withdrawal was reasonable or not, would have been ostracized, maybe even punished, for going against what all states thought to be an inherent, morally incorruptible norm. Secondly, as stated above, in order to become a fully formed norm, R2P must supersede the other theories in its way. The fact that R2P must overcome the strength of the norm of state sovereignty – one that has existed for almost 500 years – posits a great challenge towards its success, and while states may have signed a doctrine labeling its status superior, in the same way that such a doctrine does not immediately represent the creation of a fully formed norm of R2P, it does not immediately confirm the collapse of the norm of sovereignty. According to Sikkink and Fennimore, “to challenge existing logics of appropriateness, activists may need to be explicitly “inappropriate.” While perhaps unethical, and extremely damaging, the drastic measures accorded by NATO in the case of Libya could be seen from one (albeit controversial) perspective, as simply a form of such “inappropriateness,” requisite to prove the extent of sacrifice made on the part of those involved to uphold the norm of R2P. In this way, although the Libya intervention is seen mostly as a failure, this is due for the most part to the fact that those critiquing it are not analyzing R2P as a norm still in its second phase, but rather as a fully formed one. That being said, the responsibility to protect does currently face a great obstacle with regards to its complete evolution into an internalized norm that again comes from the structural weaknesses that surround the norm of R2P, rather than from a failure of the norm itself. The fact that the implementation of R2P can decisively be enacted – or blocked – by the UN Security Council leaves its application up to an inherently politicized body. The veto power accorded to the permanent five (P5) members of the SC, Russia, China, UK, US and France, allows these five states an undue amount of influence over R2P’s future as a normative standard; they can choose when and where it can be executed, and have the power to block its use in cases where it does not fit with their goals. Fennimore and Sikkink define in their article what they call a critical state; “What constitutes a ‘critical state’ will vary from issue to issue, but one criterion is that critical states are those without which the achievement of the substantive norm is compromised.” In this case, the entire structure of R2P is in danger of being corrupted by the fact that all five states accorded the power to limit R2P’s applicability are critical states, and if even just one of them does not approve – for political as well as moral reasons – R2P is limited in its ability to prove itself as a norm worth internalizing to the international community. In order to cross over into the final phase of its life cycle, R2P must be free to be accepted as such by all, a process which rests on proof of its success, and any measure that puts roadblocks on such a process in the name of personal and political interests’ damages R2P’s chances of being fully accepted. Such a problem is currently being exhibited in the United Nation’s inability to invoke R2P in Syria. Although there is very clear evidence that a major violation of human rights is being executed by Bashar Al-Assad on his own citizens, the international community has yet to take any decisive action in the name of intervention, holding severe consequences not just morally in the name of the civilians being murdered, but also in R2P’s evolution towards its final phase. Since 2011, 8 draft resolutions calling for the SC to act in Syria have been vetoed; Russia and China voted no them all. Such a blatant display of politicized promotion of self-interests over the expansion of the norm of R2P underscores the problem with allowing the norm’s development to be controlled by a body that accords some states increasingly greater rights than others. Akbarzadeh and Sabah highlight how John Bellamy considers Russia’s invocation of the veto to stem from “Russia’s significant economic and strategic interests in Syria,” and that it is “these Syria-specific factors that underlie the Security Council’s paralysis over Syria, rather than more generalized concerns about R2P and the experience in Libya.” This argument supports the claim that it the Security Council, and not any structural problem with the norm of R2P itself that is preventing its invocation in Syria; Russia would block any measure putting its own interests in the region at risk, whether that is relating to R2P, or a nuclear proliferation resolution, or a trade agreement. However, while this theory takes the pressure off of R2P in terms of what is to blame, it also highlights the fact that R2P will not be able to enter its final stage until it is no longer reliant on a body such as the SC who is so greatly influenced by individual interests. While a norm is still in the norm cascade phase, critical states still have the ability to influence global perception of said norm, meaning that Russia’s continuous blockage of R2P’s use in Syria is slowly but surely convincing other states not to support it as well. In this sense, the case of Syria highlights the fact that in order for R2P to fully complete its evolution into a norm in international relations, it must separate its implementation from the politicized Security Council. Conclusion: Looking Forward Such a process of separation will be extremely difficult to complete: at this point in time, the Security Council is the only body accorded under international law with the ability to legitimately invoke the use of force, and is thus the only body in the position to spur military intervention in the name of R2P. A better solution would be not to remove R2P from the SC’s mandate altogether, but rather to nullify the P5’s veto power – at least when it comes to the responsibility to protect. While this is a drastic proposal, it is supported by the fact that if R2P were truly to become a completely internalized norm, theoretically, states would be willing to renounce their veto power in order to implement it, due to the fact that it would become such a “no-brainer” to support measures of R2P, that either they would not feel the need to have the veto power in the case of R2P, or political pressure from other countries existing within the normative framework of R2P to relinquish it would be so strong, they would have to. This would allow R2P to be invoked only in cases necessary; states would still be able to vote on it, and if it was decided R2P was unnecessary or inappropriate it would not be used, but if one state only did not support it for political reasons, they would not be able to hijack the entire process. Unfortunately, until the barrier imposed by the veto power on the Security Council is abolished, R2P will not be able to extend to its last phase of becoming a fully formed norm. As seen in the case of Syria, the power of critical states such as Russia through the veto power to hijack the ability of R2P to be implemented – and thus prove to the international community its worth as a norm – is the last major obstacle the responsibility to protect must overcome in order to complete its life cycle. Works Cited Akbarzadeh, Shahram, and Arif Saba. “UN Paralysis Over Syria: The Responsibility to Protect or Regime Change?” International Politics . 2018. Press, Associated. “Deaths of Venezuelan Protesters Appear to Be Targeted Killings, Rights Groups Say.” NBC News. February 20, 2019. www.nbcnews.com/news/latino/human-rights-groups-say-deaths-venezuelan-protesters-appear-be-targeted-n973651?icid=related Finnemore, Martha, and Kathryn Sikkink. “International Norm Dynamics and Political Change.” International Organization vol. 52, no. 4, 1998, pp. 887-917. “Nearly 900 Killed’ in DR Congo Clashes.” BBC World News, sec. Africa. December 7, 2019. www.bbc.com/news/av/embed/p06vwdrc/46896159 Paris, Roland. “The ‘Responsibility to Protect’ and the Structural Problems of Preventive Humanitarian Intervention.” International Peacekeeping , vol. 21, no. 5, 2014, pp. 569-603. Rieff, David. “The Institution That Saw No Evil.” The New Republic . 1996. UN General Assembly. “Report of the Secretary-General Pursuant to General Assembly Resolution 53/35 - The Fall of Srebrenica.” United Nations: United Nations General Assembly, 1999. “UN: Recent Myanmar Army Attack May Have Killed Dozens of Rohingya.” Al Jazeera . April 9, 2019. www.aljazeera.com/news/2019/04/myanmar-army-attack-killed-dozens-rohingya-190409062501653.html

A Gravity Model of Civic Deviance: Justice, Natural Duties, and Reparative Responsibilities Woojin Lim Harvard College Author April 2021 Abstract: This paper presents a ‘gravity model’ of civic deviance and the principle of reparative responsibilities, addressing the question of when citizens are justified in shirking their civic obligations. Provided an unjust state, I raise the proposal that principled civic deviance (CD) should be, at the very least, permissible to varying levels as determined by a gravity equation. In select cases, I argue that CD may be obligatory. The gravity model, which sets to define the degree of permissible CD, features considerations such as the unfairness of the basic social structure, the individual extent of injustice faced, and the balance of CD-enabling natural duties against CD-restricting natural duties. In responding to one’s natural duty of justice, I claim that reparative responsibilities (RR) consign varying degrees of CD obligations, depending on the individual’s stake in injustice, beneficiary and contributory status, capacity to prevent and respond. Hence, individuals affected by an unjust state may permissibly, or necessarily, shirk their civic obligations only in line with their natural duties and RR. “[O]ne has a moral responsibility to disobey unjust laws.” — Martin Luther King Jr., Letter from a Birmingham Jail What conditions justify a citizen’s deviance from their civic obligations in a constitutional democracy? And more importantly, whom does the scope of justified civic deviance encompass? A common way of justifying uncivil actions is to accept that we are only under a prima facie duty to obey particular laws (i.e. when incivility poses seriously untoward consequences or involves an act that is mala in se) and that we have no such obligation to obey all its laws. When some laws surpass a given threshold of injustice, we may be justified in disobeying those laws. On this justification, some have argued that all individuals who are subject to unjust institutions in some manner should be allowed to challenge injustice by shirking their civic norms of reciprocity. Others have argued that only those who fall beyond the scope of tolerable injustice should be allowed to shirk their civic obligations. So, where should the threshold for justified civic deviance be drawn among members bound to a scheme of reciprocity and social cooperation? Is there a way to account for the level of injustice suffered individually along some sort of tolerability gradient while also extending the scope of justified civic deviance to all those within the broader scope of unjust institutions? In this paper, I explain why an approach that selectively permits civic deviance (henceforth ‘CD’)—proposed in Tommie Shelby’s “Justice, Deviance, and the Dark Ghetto”—has to be reconsidered. I then outline the structure of what I have come to think is the correct one. My most significant response to Shelby’s argument focuses on his failure to offer details on setting thresholds as to when deviant behavior is justified or at least excused. That said, I recognize that the main aim of Shelby’s paper is only to stake out the conceptual grounds for these claims and to illustrate that these are conceptual categories worth mining. I aim to engage further in that mining process and to offer an original contribution to the debate by re-examining Shelby’s threshold account. I introduce what I call a ‘gravity model’ of CD and the principle of reparative responsibilities to permit varying degrees of CD for particular oppressed groups, while sustaining permission for all to exercise CD—provided an unjust social structure, and a positive difference of natural duties wherein CD-enabling natural duties outweigh CD-restricting natural duties. By CD-justified, I will come to mean ~ (CD-forbidden) or CD-permissible, and in select cases, CD-obligatory. This paper is organized as follows. In Part I, I draw upon Shelby’s article, “Justice, Deviance, and the Dark Ghetto” and review some of the basic building blocks of CD. In section 1, I outline Shelby’s Rawlsian justification for CD, and in section 2, I reconstruct his application of CD to the “black ghetto underclass” of the United States. Section 3 is dedicated to pinpointing the inadequacies of Shelby’s view. When only a particular subset of the population is permitted to deviate from their civic obligations, there arises an imbalance of burden-sharing. I claim that it is unfair for those who do not suffer from intolerable injustice (and those who suffer from greater levels of intolerable injustice) to continue upholding reciprocity wherewith unjust institutions, especially if continuing to do so clashes with their natural duties. In Part II, I lay out the elements of what I believe is a more adequate approach. I begin by advancing on Shelby’s conception of the natural duty of justice. In this light, I come to understand CD as that which extends to those within the limits of tolerable injustice, and the differences in the level of intolerable injustice will be accounted for through the gravity model of CD along with the principle of reparative responsibilities (RR). Provided an unjust social structure, all affected individuals are justified in shirking civic obligations but nonetheless remain bound to natural duties and reparative responsibilities. I will finally elaborate on what I take to be the guiding conditions of permissible and obligatory CD, drawing from the modern analytical political philosophy literature. Part I: Reflections on “Justice, Deviance, and the Dark Ghetto” 1. Let me begin with an explanation of the preliminary concepts underlying CD. In “Justice, Deviance, and the Dark Ghetto,” Shelby advances on Rawls’s apparatus of justice as fairness. Shelby builds his argument from the premise that within a liberal framework, justice, at least in part, is rooted in the political value of “reciprocity between persons who regard each other as equals,” bound together under a cooperative scheme for mutual advantage (p. 129, emphasis mine). The social, political, and economic institutions of the basic structure of society fix an individual’s initial position within society, more or less favoring some individuals in the distribution of benefits and burdens—of liberties, duties, opportunities, and material advantages. Given that the basic structure bears an immense and wide-ranging influence over an individual’s lifetime prospects, which are deeply shaped by a social structure each individual did not choose, Shelby argues that the social arrangement should be formed by institutions, i.e., governments, schools, firms, markets, and families, as to provide each individual with a “fair chance to flourish” (p. 130). In this grander scheme of reciprocity, each participant of the social structure has a legitimate claim to a fair chance not to have their life prospects diminished by the social scheme in ways that cannot be justified on impartial grounds. It is in virtue of this groundwork of reciprocity, or the principle of fair play, that ‘civic obligations’ have normative force. As a beneficiary of the primary goods afforded by the cooperative enterprise, each citizen is expected to shoulder an obligation to do their share as the arrangement requires, such that costs and benefits are divided in an equitable way. Citizens then have a duty to bear a share of the costs that are involved in the production of collective public goods. For example, they should pay taxes, obey the law, and so forth. This obligation is owed to those with whom one is cooperating, in order to maintain a fair basic structure. Each citizen of a democratic polity is ipso facto bound to civic obligations as required by the basic institutions. When a citizen evades or refuses to fulfill her civic obligations, she attempts to gain from or exploit the cooperative labor of others (‘free-riding’) without doing her fair share. The law-breaker acquires an unfair advantage over her fellow citizens, and this, in turn, warrants punishment to remove this advantage and re-establish a fair distribution of benefits and burdens among all members of the society. Shelby further claims that an individual’s fair chance to thrive is a necessary condition for reciprocity. Each citizen is bound to civic obligations only “when these institutions are just” (p. 145). Citizens therefore are modus tollens not obligated to submit to unjust institutions, or at least not to institutions that “exceed the limits of tolerable injustice” (p. 145). Institutions that bring about injustice that is so serious as to be intolerable allows special civic permissions for disadvantaged individuals, that is, deviance from civic obligations or—as I term it—CD. Since those who suffer from intolerable injustice have been deprived of their fair share of benefits from the social scheme, they are not bound by the civic norms of reciprocity they have as citizens. As to determine who falls beyond and beneath the radius of intolerable injustice, Shelby proposes the constitutional essentials standard, based on a loose criterion of adequacy. These include the basic rights of a liberal democratic regime, such as freedom of speech, conscience, assembly and association, political rights and other supplementary rights. For all citizens to be provided adequate exercise of these rights, Shelby adds, these rights should be impartially and effectively enforced, not merely codified in law, such that all citizens can have confidence that their rights will be respected by those with institutional power (p. 150). Consider a society wherein constitutional essentials remain unsecured for certain peoples, that is, the social structure deprives certain peoples of their fair share of benefits. Shelby contends that in such a society, those affected by intolerable injustice should not be expected to fulfill the civic obligations demanded by unjust institutions. This is not to say, however, that those affected by intolerable injustice should be released from moral duties altogether. Here, Shelby provides a clear distinction between civic obligations required by all proper citizens, versus natural duties, which unconditionally bind to all moral persons regardless of their associational or institutional ties. Thus, while an individual beyond the limits of tolerable injustice may deviate from civic obligations, at no point in time can any person permissibly abandon natural duties. One striking natural duty that Shelby highlights is the natural duty of justice. Drawing from the Rawlsian project, the two sub-principles of this natural duty are as follows: for each individual (1) to uphold and comply with just and efficient institutions when they do exist, and (2) to support the establishment of just and efficient institutions when they do not yet exist. The ‘positive’ natural duty of justice provides reason for CD, while its ‘negative’ form provides reasons for individuals not to deviate from their civic obligations. 2. Implementing these concepts into practice, Shelby pictures the plight of the black ghetto underclass in the United States. Shelby describes a widely assumed narrative about the urban poor, wherein residents live in the dark ghetto due to their self-defeating attitudes and malicious conduct, and thus violate legitimate expectations for civic reciprocity, including a duty to obey the law and support themselves through licit jobs. Under such misinformed narratives, when the ghetto poor engage in criminal activity (i.e., theft, drug-dealing, prostitution) or refuse to accept menial, low-paying, unsatisfying jobs, these actions appears to be “a failure of reciprocity on their part” (p. 146). Such attitudes call for acts of CD to be characterized as irresponsible lawbreaking and unenterprising criminality, and for such acts to be rightfully prosecuted and punished. Shelby contends that this is the wrong conclusion to draw, however, since the mere existence of the dark ghetto—with its “combination of social stigma, extreme poverty, racial segregation… and shocking incarceration rates”—proves its incompatibility with any meaningful form of reciprocity among free and equal citizens (p. 150). There is sufficient reason to believe that the constitutional essentials standard is not currently met in dark ghettos of the United States. Since the black ghetto poor live under the rule of institutions that exceeds the limits of tolerable injustice, they thereby have a legitimate claim of deviance from civic obligations. That is to say, when the ghetto poor engage in criminal activity, refuse to accept menial jobs, or bear contempt for society, disrespecting the authority of the law qua law, they do not “violate the principle of reciprocity or shirk valid civic obligations” (p. 151). If the social scheme miserably fails to embody the value of reciprocity for a certain group of peoples, those who are deprived of their fair share of benefits from social cooperation should not be required to reciprocate in civic obligations. There exist no valid civic obligations demandable from the victims of intolerable injustice, especially when the unaffected others—albeit unknowingly—profit from the unjust social structure. Again, even if a society is deeply stained by injustice, moral duties remain owed to one another in the form of natural duties. Natural duties, including the duty not to be cruel, to help the needy and the vulnerable, not to cause unnecessary suffering, to respect the moral personhood of others, to help bring about just institutions, must be satisfied in the enactment of CD. Forms of deviant behavior that are compatible with natural duties, for instance, shoplifting and petty theft, may be conceived as permissible. Other extremes of deviance—for instance, some forms of gangsterism, which involves the use of “violence, threats, and intimidation, to forcibly extract money, goods, and services from others... [maiming] and even [killing]” (p. 137)—violate natural duties, namely the duty not to be cruel, not to cause unnecessary suffering, to show respect for the moral personhood of others, etc., and thus are always morally unjustified for all people, regardless of the inequity of a social scheme. On this regard, we may rule out forms of CD that involve mala per se, while still permitting CD acts that involve mala prohibita. To briefly recapitulate, Shelby’s discussion brings into light a discussion of fairness and political obligations. Shelby’s view is that the empirical facts show that the conditions of political obligations do not hold. He proposes that in unfair, oppressive, or unjust social structures, individuals are no longer bound to a scheme of reciprocity, while nonetheless having natural duties. 3. Up to this point, my discussion—and certainly that of Shelby’s—has revolved around the implications of justifiable civic deviance for the ghetto poor, or those beyond the threshold of intolerable injustice. The question now extends to what civic obligations, permissible deviance, and natural duties are to be for those within the limits of tolerable injustice, including the benefactors of the unjust social regime. For individuals who are not themselves affected by intolerable injustice, Shelby’s understanding of CD asserts that they should nonetheless remain bound to the duties of the unjust regime, and they would not be justified in shirking their valid civic obligations. On Shelby’s account, such individuals remain bound to a cooperative reciprocal scheme to do their fair share as a beneficiary of the primary goods afforded by the social scheme, even if there are those who may not be bound to it (i.e. the ghetto poor). Let me invoke a hypothetical example to illustrate this point. Imagine a team of laborers— Dongbaek, Yongsik, and Jongryul—who sign a contract to work cooperatively under a scheme of mutual advantage in a table-lifting business. If laborer Dongbaek does not receive a fair share of benefits for the work that she performs in lifting an equivalent proportion of the table’s weight, and if this were to amount to Shelby’s standard of intolerable injustice, then Dongbaek may permissibly deviate from her civic obligations, that is, to drop her end of the table and walk away without being subject to moral criticism on this basis. Shelby’s argument continues in the implication that Dongbaek’s deviance does not render null the civic obligations (to move the table) owed by laborers Yongsik and Jongryul, who remain fairly compensated for lifting the table. Since Shelby’s standard of fairness is merely that of adequacy, let’s imagine that Yongsik well-beyond meets the fairness requirement (i.e. Yongsik receives an attractive bonus on top of his standard compensation), whereas Jongryul barely meets the adequacy threshold (i.e. Jongryul is provided with minimally adequate wage compensation for his labor). Regardless of Yongsik’s and Jongryul’s differing proximities from the threshold of tolerable injustice, insofar as they are fairly compensated—according to Shelby’s definition, not the Rawlsian standard—as beneficiaries of the (unjust) reciprocal scheme, Yongsik and Jongryul, who are not themselves affected by intolerable injustice, may not exercise CD. There seems to arise an interesting conflict here. Shelby’s initial words on what establishes civic obligation is as follows: “[E]ach citizen has an obligation to fulfill the requirements of the basic institutions… when these institutions are just” (p. 145, emphasis mine). This implies, in converse, that when these institutions are unjust, each citizen bears no obligation to fulfill the civic requirements of the basic institutions. Extending on this suggestion, perhaps the standard of appropriate CD should be set at a lower bar, more broadly, such that the mere existence of unjust institutions invalidates a baseline of civic obligations for all citizens. As to delineating precisely what set of civic obligations consists of this threshold is a subject for further study. When Yongsik and Jongryul—after Dongbaek’s departure—now must lift heavier weights of the table for the same wage, they may decide that this entire table-lifting venture is fundamentally exploitative, skewed from the ground up, since the social structure generates enormously unfair distributions. In continuing to uphold this scheme along with its unjust institutions, Yongsik and Jongryul sustain injustice, perhaps contravening on positive natural duties, notably that of justice. All the while, other negative natural duties, for instance, the duty not to cause unnecessary suffering, prevent an extended of abuse of CD for the wrong reasons. There is sufficient reason to think that those unaffected by intolerable injustice may be permitted to shirk a baseline of civic obligations given a persisting unjust social structure (defined by some standard of unfairness). On the other side of the spectrum, imagine workers Sangmi and Gyutae, who similar to Dongbaek, suffer from Shelby’s conception of intolerable injustice: the lack of constitutional essentials. Both Sangmi and Gyutae suffer from great intolerable injustice, falling far beyond adequacy conditions. Whereas Sangmi exercises CD, Gyutae does not. Here, Dongbaek’s exercise of CD, which seems to extend symmetrically for all those affected by intolerable injustice, takes advantage of Sangmi and Gyutae (and Yongsik and Jongryul), while Sangmi’s exercise of CD gains from the persisting social cooperation of Gyutae (and Yongsik and Jongryul). Imagine a case where Dongbaek steals a loaf of bread for herself, having starved for three days. For the purpose of illustration, let’s presume that the number of days starved—of one’s and one’s dependents—is the dimension by which we measure ‘unfairness.’ If Sangmi also hopes to steal a loaf of bread for himself and his entire family who have starved for seven days, but if Dongbaek’s deviance necessarily prevents Sangmi from doing so, it seems as if Dongbaek’s CD (indirectly) takes advantage of Sangmi, and wrongly so. Both Dongbaek and Sangmi would be taking advantage of Gyutae, who, having already completed one excruciating day of work, still has no purchasable food from the bakery to feed himself and his family, starving for 12 days. Given that Gyutae continues to hold onto the table while suffering from greater intolerable injustice—defined by a more pressing need for constitutional essentials—than compared to Dongbaek and Sangmi, it seems that Dongbaek harms the innocent Sangmi and Gyutae, and Sangmi takes advantage of Gyutae, and in both cases, the worst off is harmed. Thus, a CD permissibility condition of proportionality to one’s status of injustice faced appears relevant here. Given an initial baseline of permissible CD, I find it necessary that an additional permission to CD considers the level of intolerable injustice each individual suffers as a result of the unjust basic structure, establishing a gradient of tolerability. Part II: Outline of a more adequate approach The real puzzle of CD is, then, not how to draw a threshold line for the fairness of institutions and for the adequacy of constitutional essentials, but instead, how we should be accounting for the level of injustice suffered by individuals while also extending the scope of justified CD to all individuals within the broader scope of unjust structures and institutions. I thus propose a gravity model of justified CD. This model is not intended to be taken as a literal, mathematic formula that citizens can employ to meticulously calculate their degree of permissible CD. Rather, I provide this model in the spirit of opening up alternative ways to think about CD and its implications. The model (first pass), taking into account the discussion on burden-sharing (§I.3, supra) is as follows: Permissible CD (first pass) = extent of the unfairness of the basic structure (measure of unfairness of institutions) • extent of injustice faced (measure of tolerability) The first equational factor is the baseline concerning the fairness of the rules, laws, principles, and institutions that constitute the basic social structure, or the fairness of the basic structure itself. Since this first factor is more broadly applicable, Rawls’s somewhat more demanding standard of justice as fairness could be applied here. The second factor refers to the individual measure of injustice faced: those who are subject to greater forms of (intolerable) injustice may be allowed greater CD permissions. This relation is modeled in Figure 2.1. Both Rawls’s and Shelby’s standards of fairness, the FEO and DP versus constitutional essentials, are not mutually exclusive, for they may be modeled on the same gradient as follows in Figure 2.2, with steeper inclines for each threshold crossing. Other models of fairness could be introduced here (i.e. insert dimension-D along the x-axis or add in threshold-T in place of Rawls and Shelby’s standards). In Figure 2.2, Rawls’s threshold is positioned to the left of Shelby’s since it is an ideal of justice that makes it harder for unjust societies to fulfill: it is more likely for unjust institutions not to meet the requisites of Rawls’s standard of justice as FEO and DP (footnote 7, supra) than to achieve Shelby’s fairly looser standard of adequacy. Natural duties, particularly that of justice, also play a significant role as a factor regulating CD. The second sub-principle of the natural duty of justice holds that each moral agent has a duty—in helping to bring about just rules, laws, principles, and institutions—to fight against unjust rules, laws, principles, and institutions, plausibly by means of CD. These CD-enabling (positive) natural duties may also be limited by CD-restricting (negative) natural duties, for instance, to not be cruel, etc., which impose restrictions on the exercise of CD. Considerations of alternative (i.e. legal) forms of resistance to the unjust basic structure (i.e. peaceful protests, petitions, authorized public events, and other law-respecting acts of solidarity) also fall under the category of CD-restricting natural duties. On this basis, indiscriminate and unwarranted forms of ex ante violence on the innocent can be restricted. What I call the difference of natural duties (ND difference) thus permits CD if and only if the CD-enabling factors outweigh the CD-restricting factors; if the natural duty of justice to upturn severely unjust structures compels the exercise of CD over all other natural duties. If the CD-restricting factors override the CD-enabling features, then CD may, at the very least, face moral limits. If the CD-restricting factors are so great as to cancel out the extent of the unfairness of the basic structure and the extent of intolerable injustice faced, then CD may not be justified. At this point, there arises another relevant concern on whether or not CD could be, in select cases, not only permissible or encouraged but also necessary or required. Building upon the brief mention of alternative forms of action (subsumed under ND difference), I have come to believe that certain forms of CD may be morally necessary to fulfill natural duties when all other alternatives to CD and its weak forms have been completely exhausted (footnote 26, supra). When a member of the ghetto poor, having exhausted all other (i.e. legal) alternatives of securing adequate resources to feed himself and his family, decides to steal a morsel of bread from the bakery next door, he may not merely be permitted but rather obligated to do so. For if he refuses to steal bread and feed his family, he violates the natural duties of self-respect, respect for the moral personhood of others, and duty not to cause unnecessary suffering, among others. The pressing immediacy of respect and preventable suffering for his family outweighs the dues of respect for the bakery-owners. Under some circumstances, a failure to exercise CD represents a failure to do one’s own part in upholding one’s natural duty of justice: those who blindly obey, rather than those who disobey the law, may be accused of perpetuating and sustaining vehement forms of injustice, and be accused of free-riding on their fellow citizens’ cooperative moral efforts. The need for solidarity may call upon CD not merely as a supererogatory act but rather as an obligation: when Gyutae, for instance, fails to exercise CD—which incurs on his, others’, and their shared natural duties—he might be contravening valid CD obligations. By invoking familiar normative categories, we may formulate ‘CD-justified’ in the following forms: CD-permissible or ~(CD-forbidden), and CD-obligatory. At the very least, provided an unjust social structure with its set of unjust institutions and so forth, we necessarily have CD-permissible—though to varying degrees depending on the gravity model equation—and ~(CD-forbidden). In select cases, determinable by when a neglect of CD seriously contravenes on ND, we may have CD-obligatory. I propose a further original condition to CD: the principle of reparative responsibilities (RR). Provided a case of justified CD, not only do citizens retain their natural duties (i.e. to respect others’ humanity, etc.) but also come to bear a new set of obligations—in varying degrees—to restore or re-establish reciprocity, trust, and civic cooperation in the long run. This need not be immediate. Let’s return to the table-lifting example. When a member drops their portion of the table, and when others express solidarity by dropping their portion of the table in an act of radical reform, all members are still due respect to another as equal moral persons (and perhaps the table-dropping is a vehement expression that this has not been the case), and now may be tasked with another duty to work in reallocating the burdens (or benefits) so as to provide for a fairer share of benefits (or burdens). In addition, all individuals—including those who do not eventually engage in CD—now bear the responsibility to amend these damaged social bonds, restore justice, and provide closure to affected victims. RR imposes a duty on all to work towards the adjusting and redrafting of the fundamental social conventions so as to reduce unjust laws and practices in a continued process of reflective equilibrium. In carrying forth the duty of justice, individuals equipped with greater powers and benefits (as a result of unjust institutions) should be bound to a correspondingly greater set of RR to countermand injustice; individuals (i.e. Yongsik in the table-lifters case) with a greater capacity and ability to prevent or counter injustice, in a better situated position to influence change, as well as those who are greater beneficiaries of and contributors to injustices, should be held to a greater degree of responsibility in amending unjust institutions. That said, the underlying RR extends also to the victims of intolerable injustice, as they play a part, albeit small, in sustaining unjust social structures. The ghetto poor, for instance, may not be held to the same degree of RR as the uber rich, provided that RR varies depending on an individual’s relational status in the social scheme. Since justice as fairness demands an unequal distribution of primary goods, RR extends unequally depending on the individual stake in injustice, capacity for political sway, beneficiary, and contributory status until at least society is tolerably just. RR, like any obligations, compel individuals to take action. Given these additions, my gravity model of CD may be revised as follows: Justified (Permissible/Obligatory) CD = [extent of the unfairness of the basic structure • extent of (intolerable) injustice faced] • [ND difference] in line with [ND • RR] An act of CD is justified if and only if—and to the extent that—the basic structure is unjust and the individual faces an extent of intolerable injustice, or CD-enabling factors override CD-preventing factors. Acts of CD should be undertaken with natural duties of justice and reparative responsibilities in mind, which—to varying degrees—impose the normative considerations of respect for humanity and the (eventual) restoration of social cooperation. Acts of CD are obligatory, as opposed to merely permissible, provided the exhaustion of non-CD alternatives and of the least harmful forms of CD, or when unanimously called for by the natural duty of justice. Working together, the ND difference and RR ensure that CD does not arise out of cathartic or exploitative motivations or aims (supra footnote 20) but rather occurs in line with ND and RR. It is important to note that in the equation of justified CD, I preclude concerns of political effectiveness or pragmatism. Similar to Rawls’s reasoning, the effectiveness of CD does not establish the right of deviance, but once that right is independently established, CD should be shouldered with political effectiveness in mind. As Shelby declares, if street capital is to be converted into “political capital in a resistance movement” (p. 160), the oppressed should, whenever possible, publicly register dissent. The justification of CD provides an inquiry into the nature of justice, civic obligations, natural duties, and reparative responsibilities. My gravity model of CD provides a different way of thinking about questions of civic and moral agency, and the duties that individuals should carry depending on the justness of their social structure, alongside the special obligations and responsibilities that follow from their unique standing in the basic structure. Members within unjust structures who exercise CD with respect to their natural duties and reparative responsibilities should not be, echoing Shelby’s words, “demonized, stigmatized, or otherwise dehumanized, just as surely as they should not be romanticized” (p. 160). The ultimate goal is, after all, to shape meaningful bonds of solidarity, to build meaningful political alliances, and to invite the joint action needed to establish and maintain justice.

Aash Mukerji The Growing Incoherence of Our Higher Values Aash Mukerji Nihilism is perhaps the most commonly misunderstood notion in Friedrich Nietzsche’s writings. Not only do many wrongly believe Nietzsche to advocate for nihilistic behavior, but many also see nihilism as the loss of all value and synonymous with the belief that everything is meaningless and valueless. In reality, Nietzsche defines severe nihilism as “the conviction of the absolute untenability of existence when it comes to the highest values that are acknowledged”(1). For Nietzsche, nihilism thus does not necessarily reduce the individual to a living lump of ennui. Rather than lacking all value judgements, Nietzsche portrays nihilism as a condition characterized by the absence of justifiable higher values. This supposed depletion in justification comes from Nietzsche’s infamous assertion of the death of God; Nietzsche held that modern science has made “belief in the Christian God unbelievable” (2). Nietzsche believed that without divine reasons to cherish our higher values, we would ultimately lose them entirely. Moreover, Nietzsche characterizes nihilism primarily as a cultural phenomenon—the societal loss of higher values precedes and causes the affective individual symptoms of nihilism. Nietzsche sees this cultural wave of nihilism as a looming threat; he predicts that humanity is on the brink of succumbing, to becoming nothing more than a group of “last men” Last men are characterized by the aforementioned deficiency in higher values, effectively rendering them incapable of justifying any goals that do not immediately benefit them (3). Nietzsche makes the impending nature of nihilism clear in Zarathustra , where the titular character is confronted by a chorus of individuals who actually wish to become last men (4). Nietzsche’s assertion of the imminence of nihilism was something of great interest to me as it seems that, even in the last two hundred odd years, our higher values have not been lost entirely. Nonetheless, I was not ready to entirely discount Nietzsche’s worries concerning our higher values, and this paper discusses a different manner in which our relationship with them may be deteriorating. In the wake of the death of God, what we are losing may not be our higher values themselves, but instead the unifying principles that require consistency and soundness among them. I will argue that we are progressing towards a world where our higher values are maintained but do not necessitate coherence in order to inform and justify our actions. Indeed, some incoherent higher values evidently already enjoy primacy over other kinds of values. I will attempt to demonstrate this by showing that, though contemporary society has preserved various higher values, individuals and communities frequently act in ways that conflict with those values without recognizing any logical inconsistency. This implies that what is missing from our higher values is the necessity for harmony with our actions and the other values we hold. In this paper, I will discuss some ideologies maintained today that seem to fit the characterization of higher values but conflict with our day-to-day activities and other values. I will attempt to supply some explanation for what causes this incoherence both through a Nietzschean lens and through the analysis of media culture within the framework of Jean Baudrillard. I believe both perspectives provide valuable insight into the mechanics of what is going on. Throughout this paper, I essentially seek to prove that we have retained our higher values but are losing their coherence and structure. First and foremost, we must establish some higher values that have been preserved. In my view, the most prevalent ones seem to be the political and social ideologies we subscribe to individually and culturally. For this paper, I will primarily consider liberalism and conservatism in America as typical instances of these types of values. To distinguish higher values from other more standard values, I will make use of the criteria detailed by Katsafanas in his paper, “Fugitive Pleasure and the Meaningful Life: Nietzsche on Nihilism and Higher Values.” These criteria include demandingness, tendency to generate tragic conflicts, regular induction of strong emotions, professedly great import, exclusion of other values, and propensity for creating communities (5). As far as I can tell, political ideologies seem to instantiate all of these criteria. They are certainly demanding; liberals and conservatives both generally see their chosen credo as the “correct” way to live and believe that it is immune to any sort of compromise. For either group, their ideology does not (in theory) allow them to be frivolous with their moral and political choices or to deviate from the prescribed guidelines is often perceived as a violation of some sort of ethical code. When conflict between our political ideologies and other higher values is acknowledged, such discord is often seen as tragic. For instance, nearly everyone has heard of individuals that have experienced, or have themselves experienced, intense strife with family members due to political disagreements. Family, as a general construct, is widely treated as a higher value. Familial bonds are demanding insofar as compromising them is seen as betrayal of the highest degree, they induce powerful emotions, acting for the sake of one’s family is seen as sufficient to explain most actions, family is often presented as taking priority over all other pursuits in life (to the point of being exclusionary), and family, of course, instantiates strong communities. So, when we experience conflicts between our political ideology and our family, such conflicts are nothing short of agonizing. Is it morally permissible to cut off one’s family members because they are conservative or liberal or libertarian? Is the gap in ideology something so forceful that it ought to trump deep familial bonds? Such questions are not easy to answer (for most) and the dilemma one finds oneself in when faced with them is most definitely viewed as a tragic one. Even if one is not sold on the status of family as a higher value, there are numerous others that can be substituted to illustrate my point. Here I will include a brief clarification that will prove important further on in this paper: The conflict between higher values must be acknowledged. My characterization of political ideology as a higher value relies partially on the notion that if one identifies a conflict between one’s political ideology and another higher value, then such conflict will be viewed as tragic. However, should one have an unrecognized logical conflict between one’s ideology and another higher value for whatever reason (for instance due to growing incoherence in our higher values), then this trait does not go unfulfilled merely because such a conflict goes unnoticed. Elicitation of strong emotions when it comes to political ideology needs no lengthy justification. One merely needs to survey the landscape of almost any social media platform to witness the masses loving, hating, condemning, and worshiping political figures. Likewise, it seems obvious that we believe political ideology is more important than the vast majority of things in our lives. At their core, ideologies such as liberalism and conservatism exist to function as banners of the things we value most in life. For the strong liberal or strong conservative, the very essence of what it means to live a good life is often synonymous with their dogma. Lastly, it is needless to say that political ideology has become exclusionary in nature and is prone to instantiate powerful communities. This phenomenon is represented best by the American political system where, by being part of one community, you are by default excluded (and often even looked down upon) by rivaling groups. As people increasingly and overwhelmingly define themselves and others based on their choices in politics, one’s ideology is commonly seen as central to one’s character. The intense political polarization that has resulted from this is testament to just how exclusionary political ideology has become and how robust the coalitions formed based on such ideology can truly be. Thus far, I have endeavored to establish political ideologies as common examples of higher values that are still held by people today. From here, I aim to show that such higher values are not being lost, but rather becoming increasingly incoherent. To this end, I would invite my reader to consider how party politics works in America. Generally speaking, the Democratic Party is meant to model liberalism and represent liberal people, and, conversely, the Republican Party is supposed to model conservatism in action. But can we confidently say that those values are the basis upon which each party unerringly acts? I have instead found their condition to be best described by the ideas of Baudrillard, whose framework I will use to illustrate what is going on. Of contemporary society, Baudrillard says: “Abstraction is no longer that of the map, the double, the mirror, or the concept. Simulation is no longer that of a territory, a referential being, or a substance. It is the generation by models of a real without origin or reality: a hyperreal. The territory no longer precedes the map, nor does it survive it. It is nevertheless the map that precedes the territory - precession of simulacra” (6). In short, rather than our values and ideals informing the models we use to structure society, the models have begun to determine our values. In this case, instead of political parties typifying our liberal or conservative ideals, it seems increasingly true that the parties are influencing and warping our values. If we accept this Baudrillardian understanding, it seems evident that what retains vital importance in modern society is not our higher values themselves but the models that now precede them. This account also explains why incoherence of higher values seems to be on the rise; we still perceive our higher values to be what drives our society forward, even though this is not the case, which causes a disconnect between the individual and the weight of their own values. In addition, because our models have started to inform our values, we are no longer able to distinguish which actions we take on behalf of a higher value and which we take on behalf of a mere imitation of one. Even worse, the solution is no longer as simple as critically analyzing our values in order to discriminate between which ones are legitimate and which ones are mere simulacra; our genuine higher values have started to emulate the misshapen versions of them embodied by our models. The Baudrillardian fall from grace notably has two distinct steps: First, the models of our values (in this case our political parties) seem to operate completely independently from, and often in contradiction with, our actual values. Second, in a more sinister fashion, our values themselves are altered in a manner that breeds incoherence and an inability to grasp the inconsistencies in our beliefs. This transmutation occurs, on Baudrillard’s account, through media culture (7). This fits nicely with my argument, as it seems overwhelmingly obvious that the media is now inextricably entwined with politics, meaning our political ideology is especially susceptible to modification by mass media. For those readers who are skeptical about the weight Baudrillard and I are assigning to media culture, I will justify this further on in this paper. For now, however, I will provide some evidence that the process I have just described is in fact reflective of our society. First, consider America’s involvement in the ongoing conflict between Israel and Palestine. For the fiscal year 2021, the Trump Administration sought $3.8 billion to support Israel’s military spending (8). Theoretically, this should be a big concern for Republicans. Since the reduction of taxes and minimization of governmental scope are undoubtedly two of the main goals of conservatism, and purportedly the Republican Party, it seems as though the Party ought to support decreasing tax-funded aid to Israel. And yet, studies show that the vast majority of Republicans believe that Trump has “struck the right balance” in dealing with the Israeli-Palestinian conflict (9). As we can see, even if reducing our financial assistance to Israel is in the best interests of conservatism, self-identified conservatives consistently act contrary to this because that is what their party leaders convey to them. A Republican might object to this characterization, on the grounds that America has a responsibility to intervene in areas where it has deemed human rights violations are occurring. But if that is the case, then how can the Republican simultaneously support the construction of a border wall designed to prevent persecuted Latin Americans from fleeing for their lives? (10). The significance of all this is that the status of our higher values, in relation to their models, becomes dubious. This issue seems to mimic the first step quite clearly in our Baudrillardian process. The U.S. support of Israel is but one example of this phenomenon wherein actions resulting from our models are completely separate from the actions that would normally be dictated by our higher values. Next, let’s discuss an example of the second step of the Baudrillardian framework. Firearm legislation is another controversial issue in America at the moment, with various groups holding drastically different positions on whether one has the right to bear arms. Through this issue, I hope to demonstrate the ways in which the incoherence of higher values can lead to illogical stances on both ends of the political spectrum. When it comes to gun control, conservatives are generally in favor of fewer restrictions. This is largely consistent with core conservative beliefs, such as minimizing government input on private lives and preserving the liberties provided by the second Amendment. As a matter of fact, widespread gun ownership is not only morally permissible but even necessary , many conservatives say, in case the state ever decides to infringe on the rights of its citizens or coerce them without due cause. For the conservative, guns are thus a mode through which the individual can retain power over the state. So far, nothing seems wrong. But issues arise when other beliefs, supposedly in line with the same brand of conservatism, are added to the mix. While retaining this belief in the need, and indeed the moral right, to protect oneself from an unjust state as one sees fit , conservatives in America today are also associated with the position that it is unpatriotic and morally reprehensible to kneel during the anthem or otherwise protest the brutality and violence that occurs through the arm of the state, i.e., the police. It seems to me that simultaneously holding these two beliefs is something that is very difficult, if not impossible, to maintain. And yet, these are often considered standard conservative and Republican positions in our society. Contemporary liberals do not fare much better when their higher values are analyzed in this context. For the liberal, government institutions in America have a long history of systemic racism and oppression of minorities and lower classes. Such institutions thus ought to be overhauled or rectified, the logic goes, in order to form a society that reflects more liberal values. Yet at the same time, there is a common liberal view that guns are instruments of death and should be withheld from all except government employees who require them for their job, such as police officers and military personnel. But this view seems to remove an opportunity for the individuals oppressed by the state to gain power, and instead places that power squarely in the hands of the oppressors. The liberal cannot have their cake and eat it too; to believe that the police should be defunded because of their routine violence against the people they ought to be protecting, and simultaneously believe that the state should have full authority and exclusive control over all firearms, seems problematic at best. Even if the liberal attempts to avert this problem by going even further and asserting that nobody should own a gun, then a similar problem arises. It is still the same oppressive and racist state that takes guns away from people. It is still the same state that ultimately retains the power in this scenario. These are just some ways in which our higher values have begun to show signs of incoherence. Unlike our first step, this second step is no longer just a matter of us acting in line with our models while wrongly believing that they are reflections of what we ultimately value. If we could stop after the first step, there would still be a dim hope of redemption. If one can be shown the inconsistencies between their values and the actions of their party, it seems as though they can revise their mode of life. But the incoherence of the second step is far more deadly. Our higher values themselves are being changed; they are becoming muddled and losing intelligibility rapidly. Recommitting oneself to one’s values when faced with inconsistency is already exceptionally difficult but refashioning one’s values when faced with complete incoherence is even more demanding. Gun control is just one example of this, but these types of discussions all beg the same question: Are conservatives and liberals determining what their party stands for, or is it their parties that are deciding what the ideology stands for? It may be, in the words of Baudrillard, “no longer a question of imitation, nor duplication, nor even parody. It is a question of substituting the signs of the real for the real” (11). This Baudrillardian diagnosis of society is explained by many factors, but primary among them is the rise of media culture. Overwhelmingly, the types of media we consume has come to define what it means to be social in our culture. The interactions we have with friends, family members, significant others, strangers, all are determined by the media we absorb. Take romantic encounters, for instance. The ways in which we decide how we ought to act towards our partners, what sort of romantic gestures are considered socially acceptable, what kind of boundaries we set, are all largely, if not entirely, defined by what we have seen in social media, films, television, advertisements, and so on. One need look no further, Baudrillard says, than to observe that, “whoever is underexposed to the media is desocialized or virtually asocial” (12). Such a state of affairs would be fine, of course, if most forms of media faithfully represented and depicted our higher values, but the opposite seems to be the case. Consider the social phenomena commonly referred to as “virtue signaling” or “performative activism.” In particular, let us contemplate the cases in which one virtue signals without actually doing much to pursue that virtue. In cases like these, many remain unaware of their hypocrisy and nonetheless believe that they act virtuously when, in fact, they are merely presenting the facade of virtue. The mere posting of a black square on one’s Instagram account without any further action to support African American communities comes to mind as a relevant example of this. One might say that all individuals who engage in such signaling do so consciously—they are aware that they are “faking it” in order to achieve popularity, acceptance into a social group, or something of this nature. But this seems like an overly pessimistic claim, and I would characterize the phenomenology of such individuals differently. I would argue that most people that act in these ways genuinely believe that they are pursuing their ideal of a virtuous life. They do not recognize that their virtues (which are closely related to, if not synonymous with, their higher values) are not informing their actions. Rather, they are acting according to the media-warped model of what it means to instantiate that virtue. To make this more concrete, take the notion of equality to be a higher value or virtue that one strives towards. If equality was truly what was informing the behavior of the virtue signaling person, then such a person would seemingly recognize that their actions are not satisfying that higher value. Thus, it seems much more likely that what the virtue signaler is motivated by is not the pure higher value of equality, but rather an incoherent version of it altered by media culture. The people who post black squares on their Instagram and then go about their daily life feeling excellent about their stand against police brutality and institutionalized racism certainly feel as if they have higher values (e.g., equality, liberalism), but such values have been rendered incoherent. The proof of this incoherence is of course that their higher values are (even partially) satisfied by trivial actions that provide no substantive change in one’s way of life or the world. In addition, as referenced earlier, such people do not experience the tragic feelings that are meant to accompany conflict between higher values because they do not recognize that such conflict exists in the first place. We can perhaps judge from the outside that there seems to be an objective disconnect between these people’s purported higher values and their actions, but the growing incoherence of their values prevents the perpetrators themselves from coming to the same conclusion. At this juncture, one might object that if our higher values have become so vacuous that they can be fulfilled by such superficial action, then it is likely that they are not higher values at all anymore. In this regard, it would seem that we have ultimately returned to Nietzsche’s hypothesis and lost our higher values entirely. To this I would reply that these incoherent higher values may very well be vacuous, but they retain their status, nonetheless. Political ideology, for instance, still instantiates all the higher value criteria, as I have discussed. What this shows is that our immediate societal condition is distinct from that of the last man. We still have the capacity to cherish things in all the right ways and set goals for ourselves beyond immediate gratification, it is just that the things we cherish and the goals we set may be severely distorted. Now that we have touched on how our current situation is different from the last man, a question naturally arises: What would Nietzsche say about the state of our political ideology? When it comes to politics, Nietzsche is remarkably silent. Try as one might, it is rare to find Nietzsche discussing political ideology at great length. Though he is often found criticizing democracy as a “conspiracy of the whole herd against [its] shepherd,” this does not amount to much in the form of a distinct political structure (13). We also get some cryptic allusions to the merits of a natural order-based caste system in The Antichrist , but this discussion seems less about the desirability of the castes and more about how even this sort of ideology is preferable to the life-negating belief system that characterizes Christianity (14). Rather than focusing on political structures in service of the many, it seems like Nietzsche was more interested in particular individuals that could serve as paragons of vice or virtue. Napoleon is an oft-cited example of someone Nietzsche admired very much, going so far as to name him one of the “profound and largeminded men of [the] century” (15). But Nietzsche’s view of Napoleon as a higher man could justify an entire paper by itself, and such analysis is not particularly relevant to our discussion of higher values. Rather than present Nietzsche’s (scarce) ideas on political ideology, it seems more fruitful to examine how concepts like the death of God might have led to our current predicament. Nietzsche, of course, saw the loss of higher values as a direct result of the absence of a divine entity able to furnish our choices and goals with meaning. But what may be more potent than the loss of objective meaning is the loss of the structure installed by that divinity. Organized religion generally aims to provide a clear system concerning the fulfillment of our higher values. It lays out, for instance, what constitutes a sin, how to worship properly, and so on. Ergo, religion serves to enforce a uniformity between our actions and our values. It is fundamentally designed not to allow individuals to both violate their own higher values and escape with a morally sound conscience. But without religion, this necessity for consistency between our higher values and our behavior is damaged. There is no eternal damnation, no divine punishment, no karmic justice to threaten us to maintain such cohesion, and so we lose it. What all of these topics have in common, from virtue signaling to contradictory stances on gun control, is the apparent inconsistency in the higher values that allow such behaviors to take place. Ultimately, I would suggest that the path the individual in contemporary American society has taken is distinct from the condition of the last man that Nietzsche fears. Higher values persist, as I have endeavored to show, but the logical consistency required to fulfill them properly seems to be rapidly deteriorating. Nevertheless, if one wishes to remain compatible with Nietzsche’s theory, then we could perhaps frame the current state of society as merely one of the final steps on our inevitable trajectory to becoming last men. After all, it does seem plausible that the degeneration of the coherence of our highest values will eventually lead to the loss of them entirely. Such an understanding does raise some concerns, however, as discarding our higher values (“believing in their untenability” as Nietzsche puts it) seems to require one to be aware of their unintelligibility. Insofar as we have reached a state where our higher values no longer even need to be consistent in order for us to act on them, one can wonder whether we will ever collectively reach a position where we realize the inconsistencies exist so deeply in our higher values that they must be abandoned altogether. Still, there is certainly a Nietzschean argument to be made that there must be a limit to how incoherent our higher values can get before we rid ourselves of them in disgust. As it stands now, even though our higher values have garnered significant incoherence, they can still be said to represent us faithfully for the most part. For example, though issues like gun control demonstrate some glaring problems that require rectifying, I would argue American liberals and conservatives still tend to largely act on the values at the core of their ideology. Single-payer healthcare is a good instance of this: Liberals largely support it on the basis of their beliefs about equality and human rights, while conservatives largely do not because it would result in less individual freedom and greater taxes (16). Thus, though I have spent the majority of this paper painting quite a dismal picture, our higher values do not seem close to collapsing entirely. We may not have to resign ourselves to the fate of the fabled boiling frog, insofar as the coherence of our higher values continually gets worse without us noticing. One could certainly make a compelling case that when the incoherence gets to a stage where it overwhelms the proper functioning of our higher values, we will desert them. At such a juncture, it appears we would have no choice but to become last men. At any rate, if one is really committed to the Nietzschean hypothesis, one could call the state we are currently inhabiting that of the “penultimate man” (or better yet penultimate person, for the sake of inclusivity and alliteration). Endnotes 1 Friedrich Nietzsche, et al., Writings from the Late Notebooks , (Cambridge University Press, 2016), 205. 2 Friedrich Nietzsche and Walter Kaufmann, The Gay Science: With a Prelude in Rhymes and an Appendix of Songs: Translated, with Commentary by Walter Kaufmann, (Random: 1974), 343. 3 Friedrich Nietzsche, et al, Nietzsche: Thus Spoke Zarathustra , (Cambridge University Press, 2006), 129. 4 Ibid, 130. 5 Paul Katsafanas, “Fugitive Pleasure and the Meaningful Life: Nietzsche on Nihilism and Higher Values: Journal of the American Philosophical Association,” Cambridge Core , (Cambridge University Press, 2015), 9-11. 6 Jean Baudrillard and Sheila Faria Glaser, Simulacra and Simulation , (University of Michigan Press, 2019), 2. 7 Glenn Yeffeth, Taking the Red Pill: Science, Philosophy, and Religion in the Matrix , (Benbella Books, 2003), 74. 8 U.S. Foreign Aid to Israel , Congressional Research Service, 2020, fas.org/sgp/crs/mideast/RL33222.pdf. 9 “U.S. Public Has Favorable View of Israel's People, but Is Less Positive Toward Its Government,” Pew Research Center - U.S. Politics & Policy , 2020, www.pewresearch.org/politics/2019/04/24/u-s-public-has-favorable-view-of-israels-people-but-is-less-positive-toward-its-government/ . 10 Suzanne Gamboa, et al., “Why Are so Many Migrants Crossing the U.S. Border? It Often Starts with an Escape from Violence in Central America,” NBCNews.com , 2018, www.nbcnews.com/storyline/immigration-border-crisis/central-america-s-violence-turmoil-keeps-driving-families-u-s-n884956 . 11 Baudrillard andGlaser, Simulacra and Simulation , 2. 12 Ibid, 55. 13 Friedrich Nietzsche, The Antichrist, (Auckland, NZ: Floating Press, 2010), 67. 14 Ibid, 57. 15 Friedrich Nietzsche, Beyond Good and Evil , (New York, NY: Dover Publications, 1998), 256. 16 Bradley Jones, “Increasing Share of Americans Favor a Single Government Program to Provide Health Care Coverage,” Pew Research Center , 2020, www.pewresearch.org/fact-tank/2020/09/29/increasing-share-of-americans-favor-a-single-government-program-to-provide-health-care-coverage/ . Bibliography Baudrillard, Jean, and Sheila Faria Glaser. Simulacra and Simulation . University of Michigan Press, 2019. Gamboa, Suzanne, et al. “Why Are so Many Migrants Crossing the U.S. Border? It Often Starts with an Escape from Violence in Central America.” NBCNews.com , NBCUniversal News Group, 22 Oct. 2018, www.nbcnews.com/storyline/immigration-border-crisis/central-america-s-violence- turmoil-keeps-driving-families-u-s-n884956. Jones, Bradley. “Increasing Share of Americans Favor a Single Government Program to Provide Health Care Coverage.” Pew Research Center , Pew Research Center, 30 Sept. 2020, www.pewresearch.org/fact-tank/2020/09/29/increasing-share-of-americans-favor-a-single- government-program-to-provide-health-care-coverage/ . Katsafanas, Paul. “Fugitive Pleasure and the Meaningful Life: Nietzsche on Nihilism and Higher Values: Journal of the American Philosophical Association.” Cambridge Core , Cambridge University Press, 22 Sept. 2015, www.cambridge.org/core/journals/journal-of-the-american- philosophical-association/article/abs/fugitive-pleasure-and-the-meaningful-life-nietzsche-on- nihilism-and-higher-values/449B756CD8E5DC8139A701AC195F33F8. “Most Border Wall Opponents, Supporters Say Shutdown Concessions Are Unacceptable.” Pew Research Center - U.S. Politics & Policy , Pew Research Center, 21 Aug. 2020, www.pewresearch.org/politics/2019/01/16/most-border-wall-opponents-supporters-say- shutdown-concessions-are-unacceptable/. Nietzsche, Friedrich. Beyond Good and Evil . Dover Thrift Editions. New York, NY: Dover Publications, 1998. Nietzsche, Friedrich, and Walter Kaufmann. The Gay Science: With a Prelude in Rhymes and an Appendix of Songs: Translated, with Commentary by Walter Kaufmann . Random, 1974. Nietzsche, Friedrich, et al. Nietzsche: Thus Spoke Zarathustra . Cambridge University Press, 2006. Nietzsche, Friedrich, et al. Writings from the Late Notebooks . Cambridge University Press, 2016. Nietzsche, Friedrich Wilhelm. The Antichrist. Auckland, NZ. Floating Press, 2010. U.S. Foreign Aid to Israel . Congressional Research Service, 16 Nov. 2020, fas.org/sgp/crs/mideast/RL33222.pdf. “U.S. Public Has Favorable View of Israel's People, but Is Less Positive Toward Its Government.” Pew Research Center - U.S. Politics & Policy , Pew Research Center, 30 May 2020, www.pewresearch.org/politics/2019/04/24/u-s-public-has-favorable-view-of-israels-people-but- is-less-positive-toward-its-government/. Yeffeth, Glenn. Taking the Red Pill: Science, Philosophy, and Religion in the Matrix . Benbella Books, 2003. Previous Next

The Brown University Journal of Philosophy, Politics, and Economics (JPPE) is a peer reviewed academic journal for undergraduate and graduate students that is sponsored by the Political Theory Project and the Philosophy, Politics, and Economics Society Program at Brown University. The Brown Journal of Philosophy, Politics & Economics Volume IV, Issue II scroll to view articles current issue Philosophy From Sex to Science: The Challenges and Complexity of Consent Matthew Grady Shoring Against Our Ruin An Investigation of Profound Boredom in our Return to Normal Life Virginia Moscetti Unwitting Wrongdoing The Case of Moral Ignorance Madeline Monge Read More Politics Refuting the myth of progressive secularism An Analysis of the Legal Frameworks Surrounding Religious Practice in France and Bahrain Bridget McDonald Ronald Reagan and the role of humor in American movement conservatism Abie Rohrig Read More Economics The relationship between education and welfare dependency Aiden Cliff Against the Mainstream How Modern Monetary Theory and the Myth of Millionaire Tax Flight Challenge Conventional Wisdom Justin Lee Read More Applications for JPPE will resume in the fall! See Available Positions

Respect for the Smallest of Creatures An Analysis of Human Respect for and Protection of Insects Grace Engelman Brown University Author Nidhi Bhaskar Zoe Zacharopoulos Nicole Tsung Naima Okami Nicole Fegan Editors Fall 2019 Download full text PDF (19 pages) Abstract: Humans have a complicated relationship with insects. Fearing them, we are quick to kill spiders and stomp on ants. Benefitting from them, we raise honeybees and silkworms and use their products for our enjoyment. Depending on them, we try to save bee populations, realizing that many of our food sources would be lost if bees died out. My goal in this paper is to find ways to justify respecting and protecting insects. They have been systematically excluded from animal rights theories because we tend to believe that they lack sentience, the main criterion used to extend rights to nonhumans. As I will argue, the sentience criterion relies on anthropocentric thinking about the ways that animals experience the world. Choosing an alternative to the sentience criterion—one that does not rely on commonalities between insects and humans—is a necessary step in finding a motivation for respecting insects. I will test two approaches to respecting insects—one that involves granting them rights and another that requires thinking of them as possessing inherent worth. Then, I will use my analysis of insects to answer some broader questions in environmental political theory. Mainly, what is the basis for respecting nature even when it does not directly benefit us? Finding a way to respect the creatures that we consider the most difficult to live alongside and relate to serves as a useful test for determining the limits and scope of our respect for nature. "If all mankind were to disappear, the world would regenerate back to the rich state of equilibrium that existed ten thousand years ago. If insects were to vanish, the environment would collapse into chaos." -E.O. Wilson Insect populations have declined rapidly in the last twenty years, and no one seems to care. As we gain more knowledge about the disappearance of insect species, some scientists and media outlets have publicized the news of a climate change-driven insect decline. But the vast majority of us remain unaware of the importance and vulnerability of the insect world. Given the abundance and variety of insects, it may seem as though the loss of certain species is insignificant. And yet, the complex web of life suggests otherwise. Almost every type of insect interacts with plant and animal species, providing necessary food, pollination, or fertile soil. These small creatures maintain life. Despite their importance, insects have been systematically excluded from theories of animal rights. We often fail to recognize in insects the qualities—such as sentience or the ability to feel pain—that we use to establish the rights of other animals. Our ignorance of insect sentience stems from the practical difficulty of studying their tiny nervous systems, along with an evolutionarily ancient aversion that creates barriers to understanding and relating to them. This failure to connect with insects often leads us to think of their death and suffering as insignificant. My goal in this paper is to analyze how we should interact with insects and find ways to justify respecting and protecting them. Overcoming the instinctual fear and repulsion many of us feel for these creatures is a necessary aspect of any proposal for respecting insects. Additionally, approaches to insect protection require adopting ecocentric views of conservation. Usually, arguments for protecting insects rely on their benefit to us. Many people care about saving bees, for example, because they pollinate plants that we eat. But given some of the shortcomings of anthropocentric approaches, it is necessary to think of alternative theories that guide us to respect insects apart from their relation to us. Finally, our consideration of insects challenges some of the criteria that we often use to extend rights and consideration to nonhuman animals. As I will argue, the popular sentience criterion relies on anthropocentric thinking about the ways that animals experience the world. Choosing an alternative to the sentience criterion—one that does not depend on commonalities between insects and humans—is another necessary step in finding a motivation for respecting insects. In sum, I will argue that respecting insects requires overcoming stigma, adopting an ecocentric approach, and abandoning the sentience criterion. After describing our current relationship to insects and their importance to various ecosystems, I will test two approaches to respecting insects—one that involves granting them rights and another that entails thinking of them as possessing inherent worth. I will assess each theory in terms of its treatment of stigma, ecocentrism, and the sentience criterion. Finally, I will discuss some of the implications of our treatment of insects for broader questions in environmental political theory. I. Our Relationship With Insects We use insects for a variety of purposes. In labs, scientists experiment on fruit flies to study ageing, genetics, human disease, and countless other topics. In gardens and on farms, we depend on bees and butterflies for the pollination of crops and flowers. It would not be possible to produce silk fabric and clothing without the labor of silkworms, nor would it be possible to break down soil or compost materials without various flies and maggots. Some people eat high-protein insects such as crickets and grasshoppers, and claim that entomophagy, or bug-eating, will become a necessity in the future as other food sources run out. Despite our dependence on and benefit from a wide range of insects, we tend to respond to them with fear or repulsion. Our nicknames for bugs—"creepy-crawlies and pests"—capture this attitude. Part of our aversion may stem from our negative associations with insects and the harm they cause. Ticks, mosquitoes, and other insects carry diseases such as Lyme, the Zika virus, and malaria. Parasites, including lice and bed bugs, encroach on our personal space and threaten the sanctity of our homes and bodies. Various types of locusts, worms, and beetles damage crops, threatening the livelihoods of farmers and those who rely on them for food. In contrast, the vast majority of insects neither pose a direct threat to us nor even benefit us in some way. And yet, our aversion to harmful insects usually extends to all insects. Many people are quick to kill the ants, spiders, and flies that appear in their homes, even when these insects pose no immediate threat. The ease with which we kill these insects stems from our fear (phobias of spiders, for example, are fairly common) and from our inability to relate to them. Perhaps we fail to connect with them because of their divergence from mammalian bodies—their wings, shells, and antennae contrast with the appendages of more familiar animals. Insects' size and abundance also seem to play a role in our tendency to discount them. How could an ant—a being as small as a crumb—possibly matter, especially when there are millions more of them? Most of all, it is difficult for us to recognize sentience in insects—the main attribute used to determine the degree to which an animal can be likened to humans. Our simultaneous dependence on and inability to relate to insects merge to form our complicated relationship with them. II. The Necessity of Insects What would the world look like without insects? Not only do insects benefit us in certain ways, but they also serve a vital role in ecosystems more generally. The naturalist E.O. Wilson refers to insects as "the little things that run the natural world." Though we are often unaware of their presence and necessity, their disappearance would spark a cascade of additional extinctions. Vital to the food chain, insects serve as a food source for most bird and fish species. Plants also benefit from insects in numerous ways, mainly through enhanced soil quality and pollination. Some plants depend on specific bee species for pollination, and some bee species can only acquire food from certain types of plants. This symbiotic relationship entails that when either partner—plant or insect—becomes endangered, the other suffers as well. Climate change has caused a massive decline in insect populations that humans are only just beginning to quantify and analyze. Given the size and abundance of insect species, it is difficult to track their decline. Additionally, there are millions of species that humans have never studied or counted before. But recent experiments that involve catching and recording large quantities of insects in certain areas have demonstrated that their numbers are declining quickly. For example, researchers studied arthropod populations in Puerto Rico's Luquillo rainforest between 1976 and 2012, a period in which maximum climate temperatures increased by two degrees Celsius. The decline of the arthropods mirrored a loss of lizard, frog, and bird species in the same forest. As the authors of this study write, "climate warming is the major driver of reductions in arthropod abundance," and leads to the "collapse of the forest food web." The decline of insects has caused a similar cascading effect in other parts of the world as well. Pollinators of all types (mainly bee and butterfly species) are declining at an unprecedented rate. Many native bee species in New England have become endangered due to disease, pesticides, and a reduction in the plants they require for food. As the bee species go extinct, native plant species die as well, and this dual decline harms bird populations in return. As biologist and bee ecologist Robert Gegear explains, the resulting lack of biodiversity could cause gardens and fields to transform into endless, green lawns. Vibrant gardens full of plant and animal life will wither away without pollinators. III. Approaches to Respect How should we interact with these creatures which we depend on but cannot relate to? Broadly, there are two categories of approaches that we could take. First, there are anthropocentric approaches, or strategies, that frame motives for conservation around human interests. There are at least two forms of anthropocentrism: (1) viewing the world from the perspective of humans without considering the perspectives of other beings or the natural world as a whole or (2) prioritizing the interests of humans over everything else. An example of (1) would be failing to grant moral consideration to insects because they may lack consciousness, a trait we sometimes use to determine whether we should extend moral rights or standing to other beings. As conscious animals ourselves, we often believe that consciousness is a key feature of a being that is "advanced enough" to receive our consideration. There are multiple examples of (2) in relation to insects. Some people believe that we should protect insects because they contribute to biodiversity, making the world more aesthetically pleasing to us. On a more drastic scale, some people argue that we should protect insects because ecosystems will collapse and we will lose food sources without them. One of the main dangers of anthropocentric thinking is that it leads us to exclude from our consideration the aspects of nature that do not (as far as we know) directly benefit us. This exclusion entails that we should not attempt to avert the suffering or extinction of plant and animal species that we have not decided benefit us in some way. Ironically, this exclusion fails to achieve the goals of anthropocentrism: it is likely that, due to our limited knowledge of nature and ecosystems, we will fail to save a species that we need. Given the complex web of organisms that makes up the natural world, it is not possible to foresee all of the consequences of failing to respect and protect a particular species. Additionally, this anthropocentric approach to conservation is dangerous in the sense that it could easily lead to more environmental harm in the future. As biologist Jeffrey Lockwood acknowledges, it was an anthropocentric view that "created the environmental problems confronting us today." Even if we could successfully use anthropocentrism and our fear of human extinction to motivate ourselves to reverse the trends of climate change, our lingering dominance over nature and prioritization of our immediate interests will lead to additional environmental problems in the future. A more radical shift in our relationship with nature is necessary to ensure lasting, positive change. Anthropocentric views contrast with ecocentric approaches to conservation, or approaches that take into account the needs and interests of beings besides humans by treating nature as an end in itself. An example of an ecocentric approach to conservation is arguing for the protection of a species of bees not because that species is necessary for human food sources or enjoyment, but simply because the bees matter inherently. When considering ways to interact with insects, we should prioritize ecocentric approaches over anthropocentric approaches, given the pitfalls of anthropocentrism. An ecocentric approach to interacting with insects involves some form of respect for insects and a motive for their protection beyond their relation to us. If insects are inherently valuable, then we owe them respect and should care about their interests. Theories of respect guide our actions and the way we treat other beings. For centuries, Western political theory framed humans as the only creatures deserving of respect. For example, the Kantian theory of respect features humans as the only rational beings, and thus the only entities that we should treat as ends in themselves. But this theory of respect entails that nonhumans can be exploited for the benefit of rational beings. The theories that I will analyze call into question this assumption, and provide us with alternative grounds for respecting nonhuman animals and aspects of nature. A) Insects as Citizens, Denizens, and Sovereigns One approach to respecting insects is to grant them rights. There are many different types of rights, including moral rights, legal rights, civil rights, and political rights. It may benefit insects and elevate their standing to extend some of these rights and protections to them. In their book Zoopolis , Sue Donaldson and Will Kymlicka propose a model for animal rights that ensures that animals' "basic interests cannot be sacrificed for the greater good of others." Even though Donaldson and Kymlicka label these rights "inviolable," they also acknowledge that there are situations in which these rights are not "absolute or unconditional," including when animals harm or threaten to harm humans. By centering animal rights in political theory, Donaldson and Kymlicka demonstrate ways to integrate animals into our existing models of citizenship and sovereignty. One of their strategies is to separate animals into three broad categories based on our levels of interaction with them: domesticated, liminal, and wild animals. Domesticated animals such as dogs, pigs, and chickens are oppressed in many ways; they are held in captivity, their labor is exploited, and some of them are killed and eaten on a daily basis. Donaldson and Kymlicka argue that, because we have integrated these animals into our society, we have certain obligations to them—mainly to listen to and interpret their interests and needs. The best way to reverse their oppression and ensure that their needs are met is to grant them full citizenship rights. Using comparisons to children and mentally disabled people, Donaldson and Kymlicka argue that humans can extend assistance and representation to animals by noticing their interests and then communicating them to the rest of society. Nonhuman animals are capable of communicating to us in nonverbal ways, and with the support of human companions, these expressions of their interests can be translated into the political system. Based on this citizenship theory of the rights of domesticated animals, humans should not harm them or exploit them for food or labor. Donaldson and Kymlicka argue that liminal animals should be allowed to live near and around us without subjection to extermination or harm. Even though they are not granted the rights of full citizens, they are still guaranteed the right to not be harmed and the right to have their interests included in decision-making and urban planning. Additionally, fully wild animals are granted rights to be protected from human destruction of their habitats. As sovereign beings, they are members of their own communities that humans cannot disrupt or harm. Their needs must be taken into account any time that humans build on or otherwise disrupt the land they inhabit. According to Donaldson and Kymlicka, the basis for granting these rights to animals is their sentience, which "has distinct moral significance because it enables a subjective experience of the world." Sentient creatures possess interests and goals; in other words, they "care about how their lives go." Based on this theory of animal rights, the possession of interests differentiates certain animals from rocks or trees. Though there may be reasons to protect and care about forests, we do not need to grant forests inviolable rights because trees are not sentient. When we look at them, we do not feel as though there is "someone home," or a person there. Thus, we only have obligations towards animals with subjective experiences of the world. If we apply this animal rights model to insects, then it is necessary to determine whether insects are sentient. Donaldson and Kymlicka explicitly exclude insects from their analysis, explaining that current evidence and scientific analysis suggests that insects are not sentient. Thus, insects are not granted inviolable rights or included in our conceptions of citizens, denizens, or sovereign beings. As Lockwood proposes, however, insects are more intelligent and aware than we might think, and our tendency to think of insects as "genetically programmed robots" has contaminated our ability to consider their sentience. In contrast with the view of insect sentience that Donaldson and Kymlicka propose, there exists evidence that suggests that insects can experience pain, form relationships, and solve problems. Testing whether a being has a subjective experience of the world is not a simple task; there is no standard set of attributes that determine sentience. To solve this issue, we can rely on some of the common criteria for sentience including consciousness, awareness, the capacity to feel pain, the ability to communicate, and the potential to problem-solve. Based on many definitions of sentience, if a living being possesses one or more of these attributes, we can regard it as sentient. Many scientists suggest that, at a bare minimum, insects have interests. For example, they try to avoid painful stimuli, including dangerous temperature changes, toxic chemicals, and electrical shock. They also writhe in response to pesticides, and they try to escape if they are physically restrained. It is possible that insects do not feel pain in response to these stimuli (pain is subjective, and therefore difficult to study in other beings). However, multiple studies indicate that insects can experience some form of visceral pain. It is also possible that insects communicate with each other. For example, honeybees use "an elaborate form of symbolic communication" or the "dance language" to share information on the "distance, direction, and desirability" of food sources and nesting sites. If, as this research suggests, insects possess the capacity for language, pain, and awareness, then they meet some of the criteria for sentience. Humans, however, tend to find it difficult to accept this conclusion. Regardless of our scientific advances in studying insect behavior and nervous systems, we remain quite removed from the insect world. No matter what we learn about insects, they are still (at least for most of us) difficult to relate to. Once again, the size of insects becomes a barrier to understanding them. It is difficult to imagine that such a small creature could have a complex enough nervous system to possess any criteria for sentience. Additionally, we may find it difficult to believe that insects are sentient because we tend to study pain, consciousness, awareness, and language in vertebrate animals. Many of our tests for sentience, for example, rely on verbal language or other human-centered ways of thinking about sentience. In order to adequately study insect sentience, we need to develop ways to test for consciousness and awareness that do not depend on our understanding of language. As Gegear explains, studying insect behavior and consciousness is akin to "studying a group of people where you don't know the language." In his book How Forests Think , Eduardo Kohn presents us with ways to think about human-insect communication. Based on observations of the rainforest in Ecuador's Upper Amazon as well as the people who live there (the Runa), Kohn suggests that "seeing, representing, and perhaps knowing, even thinking, are not exclusively human affairs." Kohn develops an expanded and flexible definition of selfhood; according to him, anything that interprets or represents the world in some way possesses a form of selfhood. For example, as flying ants in the rainforest relate to the environment and the beings around them in a certain way, he would argue they possess selfhood. One feature of their selfhood is their ability to communicate with other animals and to behave in a manner dependent on factors in the external world. Humans enjoy eating these flying ants, and are able to predict when the ants will emerge from the ground by paying attention to various signs from nature. These predictions are the result of "treating ants as the intentional communicating selves they are." The humans in this example use this form of communication to interact with the insects by hunting and eating them. It would not be possible to predict the ants' flight without implicitly acknowledging the ways that they understand and react to the world. With this example, Kohn demonstrates that in paying attention to and understanding the interests of insects, communication with them is possible. If we take all of these examples to suggest that insects have some form of sentience, then we can apply the Zoopolis theory to them. There are not many domesticated insects, but honeybees and silkworms would be extended full citizenship rights. Liminal animals such as spiders and ants would be denizens, and insects that live exclusively in the wild (the vast majority of them) would be sovereign beings. The rights of each of these groups may entail that we must avoid "unnecessary or insensitive handling or restraint" and refrain from killing them. Additionally, we could not use them as a food source or exploit them for their labor. The purpose of this paper is not to compile a comprehensive list of the rights of insects under this model, but rather to suggest that we could extend to them the rights of citizens, denizens, and sovereigns. Although it is possible to use the Zoopolis model to grant rights and protections to insects, this approach has two major shortcomings. The first involves barriers to communicating with and relating to insects. Based on this theory, taking into account the interests and needs of nonhuman animals requires crossing an inter-species communication barrier. As Kohn and Gegear argue (from an anthropological and biological view, respectively), insects are capable of communication. However, learning how to predict insect flight or studying insect behavior in a lab does not necessarily entail a full understanding of insects' interests. Donaldson and Kymlicka propose relying on humans to represent their animal companions in the political sphere. But do there exist willing and adequate human translators for insects? It is useful to consider as candidates the human members of our society who appear to know the most about insects. One group of candidates includes the farmers and gardeners who rely on certain species of insects for the pollination of crops and flowers. Their intimacy with plant life includes their knowledge of insect biology and behavior. Despite their reliance on (and perhaps respect for) pollinators, earthworms, and other "beneficial insects," many farmers and gardeners also engage in a constant battle with the insects that sabotage their plants. A farmer who cares about saving bee populations may simultaneously kill potato beetles, locusts, or other insects that damage crops. Although there may exist some exceptions, it seems as though most farmers and gardeners only engage with insects so far as they benefit or hurt plants, which is not an adequate foundation to build the type of relationship or companionship required for use of the Zoopolis theory. The Runa and other people who eat insects relate to them in a similar way. While they may learn a great deal about insects in order to predict their movements or learn how to raise them, the ultimate goal of their interactions is to hunt and eat the insects. It is important to note that eating insects does not necessarily entail a lack of respect for them. It may be necessary or justifiable in some situations to use insects as a food source. However, if the only goal of one's interactions with insects is to eat them, then the insects are used as a means to assuage human hunger; in other words, the insect serves a purpose for the human. Given the nature of this interaction, a person who eats insects is not in an ideal position to advocate for the insects' interests. Another group of humans who interact with insects frequently are entomologists and other scientists who study insects. Although these scientists may possess the best understanding of the biological mechanisms behind possible insect sentience, their scientific knowledge does not entail respect or a willingness to translate the needs of insects to the rest of society. In fact, many scientists who study insects keep them confined in tanks and cages for long periods of time and expose them to painful stimuli. Analyzing these various human-insect relationships reveals that, at least at present, it would be difficult to find adequate human representatives for the insect world. Even if it is possible to find some willing and knowledgeable humans, it is doubtful that there are enough of them to sufficiently represent the vast number of insect species that we interact with. There are far fewer domesticated animals in the world than there are insects, so domesticated animals are easier to accurately represent. However, it may be possible to overcome these difficulties by focusing our attention on a few of the species that we interact with most frequently or tend to exploit for resources and labor, such as honeybees and silkworms. The most significant barrier to finding human translators is the stigma associated with insects. Donaldson and Kymlicka write that "most humans come to understand and care for animals by having a relationship with them—observing them, hanging out with them, caring for them, loving and being loved by them." But we do not tend to think of people as "loving" insects or developing caring relationships with them. Because of our difficulty relating to them, which often takes the form of fear or disgust, our relationships with insects are not comparable to our interactions with dogs, cats, and other domesticated animals. This stigma against insects may begin to fade away. It is possible that, with more research on invertebrate nervous systems, we will gain enough knowledge of insect sentience to be able to relate to them. This scientific knowledge, however, may not succeed in helping us overcome the instincts that have led us to fear insects for centuries. Additionally, even if our view of insects changes, and we find a way to relate to them, it will only be because we recognize in them something that resembles us. A major flaw with our theories of respect is that each time we grant it to other creatures, it is often only because we see ourselves and aspects of our humanity in them. Even with enough research, it is possible that insects will never be considered similar enough to us to be included in this group. Therefore, we must overcome our dependence on relatability as a necessary criterion for respect. This shift in justification is a fundamental first step towards learning how to interact with insects in a more respectful way. The version of animal rights theory that Donaldson and Kymlicka articulate offers us no way to move beyond our narrow focus on resemblance as a basis for respect. The second problem with using the Zoopolis theory as the model for our treatment of insects is that, despite the extensive rights it grants to animals, it remains a fundamentally anthropocentric approach. The citizenship and sovereignty model that Donaldson and Kymlicka propose depends on existing political structures and concepts. As Donaldson and Kymlicka explain, "for many legal and political purposes, advancing an animal rights agenda will require using the pre-existing language of persons and extending it to animals." This dependence on human-designed models means that treating animals like citizens and sovereigns entails bringing them into a political landscape that was developed with humans in mind. The categories of citizen, denizen, and sovereign reflect language and political theory that is familiar only to humans. Thus, animals might be forced into a system that they ultimately cannot consent to, and that hinges on philosophical and moral principles that are inaccessible to them. To extend the human concepts of law, rights, and citizenship to animals entails viewing our relationship with them through an anthropocentric lens. Additionally, this theory's dependence on the concept of sentience allows the exclusion of many beings, including insects (at least until more scientific research is conducted and accepted). Humans have decided that sentience is a criterion for moral considerability because a subjective experience of the world is a core feature of humanity. Thus, when we recognize sentience in other animals, we begin to care about them as well. Donaldson and Kymlicka acknowledge that moral theories often fall into this anthropocentric trap by taking "humanity as [their] standard." Based on an anthropocentric view, animals "achieve moral standing only if they can be seen as possessing or approximating some aspect of [the] essence of humanity." Donaldson and Kymlicka believe that their theory avoids this trap by focusing on the protection of vulnerable beings rather than the protection of beings that relate to humans. Possessing sentience is a form of vulnerability because a being with sentience possesses interests that can be unfulfilled or harmed. But this response fails to demonstrate why the Zoopolis theory is not anthropocentric. Instead, it replaces sentience (an anthropocentric criterion for moral considerability) with another criterion that is equally anthropocentric: vulnerability. A human understanding of vulnerability suggests that a being must be sentient to have interests or be harmed. Again, this view of vulnerability is based on our own experiences of the world and fails to take into account the experiences or perspectives of other living beings. Thus, focusing on vulnerability does not demonstrate that this version of animal rights theory avoids anthropocentrism. B) Respecting Nature Another approach to understanding the way we should interact with insects is to rely on ecocentric views of their worth. In his article "The Ethics of Respect for Nature," philosopher Paul Taylor presents us with an alternative to anthropocentric environmental ethics. Taylor argues that we have moral obligations to plants and animals to "protect or promote their good for their sake." These moral obligations include respecting the "integrity of natural ecosystems," saving endangered species, and minimizing environmental pollution. The reason we should care about the well-being and survival of plant and animal species is that each living thing possesses an "inherent worth" and a "good," or well-being. In contrast with theories that depend on sentience as a criterion, Taylor's theory relies instead on these two features of living beings. According to Taylor, "every organism, species population, and community of life has a good of its own which moral agents can intentionally further or damage by their actions." Humans, plants, insects, and other animals all possess interests that can be protected or harmed (notice that inanimate objects such as rocks do not fall into this category). Generally, these interests include staying "strong and healthy." Thus, even if a plant is not necessarily aware of being harmed or benefited, it can still be injured or helped in certain ways. The second main feature of Taylor's argument is that all living things possess inherent worth. Part of this inherent worth stems from the fact that living things deserve moral consideration as "members of the Earth's community of life." Granting all living beings moral consideration does not mean that they possess inviolable rights; it only entails that every living being must be considered when making decisions. Establishing the inherent worth of living things also involves considering it "intrinsically valuable" to protect the interests of living things whenever possible. Taylor argues that granting each living being inherent worth and moral considerability allows us to develop a certain attitude towards all of nature that he labels "respect for nature." Taylor's theory accounts for some of the shortcomings with the Zoopolis theory. The respect for nature that he articulates does not entail granting consideration to living things based on their similarities to humans. For example, consciousness is not a necessary criterion for moral considerability. Rather, we begin to respect each living thing simply because it possesses intrinsic value. This theory allows us to transition away from the sentience criterion and other human-centric criteria for respect. Additionally, and more broadly, Taylor's theory outlines an ecocentric approach to respecting nature. When applied to insects, his theory entails that we should respect them because we understand that they possess a good and inherent worth. Thus, we are obligated to respect their interests by refraining from harming them, and we need to take into account their interests when interacting with them or making decisions that influence them. C) The Limits of our Respect How might we decide which species' well-being to prioritize when those interests come into direct conflict? The main problem with Taylor's theory is that he does not articulate the limits of our respect for insects or other aspects of nature. If we adopt Taylor's theory, then we must treat all living beings with equal respect. How then, can we determine whether and how to prioritize our interests above the interests of insects? This account of respect cannot effectively guide us in situations in which insects pose a threat to our wellbeing or survival. There are many situations in which it might be necessary to harm or kill an insect (or insects) in order to protect ourselves or others. In Zoopolis , Donaldson and Kymlicka present us with a way to think about potential conflicts between our rights and those of animals. Their solution to the human-animal conflict of interests is to apply what Rawls refers to as the "circumstance of justice." This principle, based on Hume's statement that "ought implies can," suggests that "humans only owe justice to each other when they are in fact able to respect each other's rights without jeopardizing their own existence." Thus, justice only applies in certain situations—when one's life is not at stake. If a mosquito that is likely to carry a disease is biting us, we are justified in killing it given that it has the potential to kill us. Our relationships with insects may also change over time. An insect that currently poses no threat may evolve to carry a fatal disease, changing the circumstances of justice. Thus, "assessing and sustaining the circumstances of justice is...an ongoing task." Another approach to recognizing the limits of our respect for or protection of insects is to "shift the burden of proof" onto humans. Lockwood establishes the moral considerability of insects by arguing (like Taylor) that they possess certain interests that can be harmed or helped by humans. Based on this moral considerability, Lockwood proposes a minimum ethic for our treatment of insects: We ought to refrain from actions which may be reasonably expected to kill or cause nontrivial pain in insects when avoiding these actions has no, or only trivial, costs to our own welfare. Lockwood describes a circumstance of justice; so long as insects pose no threat to our well-being, we should not kill or harm them in any way. This minimum ethic places the burden on humans to demonstrate the necessity of harming an insect before acting. Notice that this minimum ethic fails to grant any positive rights or protections to insects—it does not show us how we should help or protect insects in ways that exceed simply avoiding directly harming them. Instead, it demonstrates a baseline of respect for insects: it is not morally justifiable to kill an insect for no reason. These theories give different accounts of the type of situations in which we can justifiably harm insects. Donaldson and Kymlicka measure insects' threat to human existence, while Lockwood draws our attention to insects' threat to human welfare more generally. Lockwood's articulation of the limits to our respect is a more useful and practical approach. With their theory, Donaldson and Kymlicka ignore the fact that humans possess interests other than survival. Our health and happiness, for example, are additional human interests that may weigh into our decisions about how to treat insects. Lockwood presents us with a way to integrate some of our other interests besides survival into our consideration of human-insect conflict. Although Lockwood's theory provides us with a more useful account of the limits of our respect, it also complicates our decisions. When we expand our list of relevant human interests past survival, it becomes more difficult to measure them and to use them in decision-making. Determining whether an insect will kill us is more straightforward than determining the degree to which an insect will affect our quality of life or overall health. If one has a choice between eating insects or dying of starvation, the decision they should make is clearer than deciding whether to endure hunger for a short period or eat insects. Lockwood offers us no limit on the types of interests that we can take into account when prioritizing our wellbeing. He acknowledges that "the control of insects to prevent cosmetic damage" to crops is not justified by his minimum ethic. Additionally, he explains that major threats to our health justify harming insects. But many cases, including the consumption of insects as food, do not clearly fit into the categories of cosmetic harm or serious health threat. Thus, Lockwood's minimum ethic fails to offer us guidelines for navigating these more nebulous conflicts of interest. IV. Humans and Nature The current dominant approach to protecting insects is to articulate their benefit for humans. People might rally to save honeybees because of our reliance on their labor or our enjoyment of their honey. Similarly, people might feel motivated to protect insects in order to save certain plant or bird species they like. In each situation, the desire to protect insects stems from our needs and interests. Even when humans discuss the protection of insects in the context of climate change, their goals remain anthropocentric. A negative consequence of adopting anthropocentric views is that we tend to anthropomorphize nature. It is only when we believe we have recognized a "human" aspect of an animal (or plant) that we begin to view it as deserving of our moral consideration. But this approach to respecting nature fails to extend respect and protection to multiple nonhuman animals and plants, including insects. Until recently, we have assumed that insects are mere robots without any sort of consciousness or feelings. And even with the advent of promising research into the subject, we are not confident that insects are sentient. Our requirement that “respectable” creatures must fulfill a sentience criterion has led us to invest an insufficient amount of resources and energy into protecting insect species that are now endangered or extinct. The great insect decline of the last twenty years is a sobering reminder of the consequences of that perspective. Understanding the shortcomings of the sentience criterion leads us to understand that, more broadly, we cannot pick and choose the aspects of nature we want to respect. Each individual organism, plant and animal species, and community should be afforded the same baseline respect in terms of moral consideration. Even if there are reasons to prioritize one species' interests over the interests of another species, we must, at a minimum, consider the interests of all affected creatures before acting. We should not base our moral consideration of nature on arbitrary principles such as sentience. Nor should we base our moral consideration on the degree to which we fear or avoid certain species such as insects. Fear and a lack of understanding or relatability should not entail disrespect. To gain our respect and protection, it is enough just to exist. Taylor's theory encapsulates this message and offers us an ecocentric approach to respecting insects and nature more broadly. Adopting his theory would allow us to abandon the sentience criterion and respect insects even when we cannot find an aspect of resemblance or similarity between them and us. However, Taylor's theory leaves us with unanswered questions about how to balance our interests with the interests of nature, and how to determine the situations in which we can use insects for certain purposes. It is necessary, therefore, to piece together aspects of Taylor's theory with other theories that outline methods for weighing our interests against those of insects. Using Taylor's theory, we can think of our respect for insects as independent of the sentience criterion, and we can find inherent value in their existence. If we also draw upon Lockwood's minimum ethic, we can describe some of the situations in which it may be necessary to harm or kill insects, and we can find the justification for prioritizing our interests when our welfare is at risk. This blend of theories requires us to take into account the interests of insects and consider our effect on them when acting or making decisions. V. Conclusion Drawing to a conclusion our centuries-long domination of nature will require a change in our theories and our practices. In particular, it requires abandoning anthropocentric approaches to conservation. How can we convince people to adopt a more ecocentric view of nature in place of an anthropocentric one? One strategy is to acknowledge the degree to which the two approaches converge. Although their intents differ, their results may be similar. Saving the human species probably requires finding a way to protect and respect the environment so that our habitats, ecosystems, and resources are preserved. And, as I have argued, it is not possible to protect the environment without adopting a fully ecocentric approach. Thus, adopting an ecocentric view and learning to care about the environment for its inherent worth would directly benefit us and improve our chances of survival. Unfortunately, acknowledging the convergence between the two approaches seems to require an ecocentric view in the first place. If we continue to view ourselves as separate from the rest of nature, then we will not notice the myriad ways in which we are woven together with the natural world and share the same habitat and desire for survival. In contrast, if we begin to see ourselves as more connected with nature, then a clear delineation between anthropo- and ecocentric views will fade away; all efforts to care for the environment will benefit nature (which includes us). But how can we break down this barrier that we have established? For inspiration, we can look to the pollinating bee and the pollinated flower. As Gegear explains, the two beings are not individuals—rather, they are a combination, an interdependent relationship, an assemblage. Neither one can exist without the other species. The bee and the flower represent the interconnectedness essential to all ecosystems and the strength of a relationship rooted in common interest. If we similarly begin to see our interests in survival as intertwined with the interests of nature, then it will be far easier to overcome anthropocentric barriers to respecting nature. Even if some of our interests come into conflict, our ultimate interest in preserving the natural habitat that is common to all living things. We are forced to share the same space and resources. Acknowledging the areas in which our interests merge helps us to understand that we are not separate from this network of life. Even the smallest of creatures—the ants, bees, and worms of the world—depend, like us, on the health of the environment, and thus deserve our respect. Works Cited Chittka, Lars and Catherine Wilson, "Bee-brained." Aeon . November 27, 2018. Donaldson, Sue and Will Kymlicka. Zoopolis: A Political Theory of Animal Rights . New York, Oxford University Press, 2011. Interview with Robert Gegear, November 29, 2018. Jarvis, Brook. "The Insect Apocalypse is Here." The New York Times Magazine , November 27, 2018. King, Barbara J. "The Joys and Ethics of Insect Eating." NPR, April 3, 2014. Kohn, Eduardo. How Forests Think: Toward an Anthropology Beyond the Human . Berkeley, University of California Press, 2013. Lister, Bradford C. and Andres Garcia. "Climate-driven Declines in Arthropod Abundance Restructure a Rainforest Food Web." Proceedings of the National Academy of Sciences of the USA , September 2018. Lockwood, Jeffrey A. "The Moral Standing of Insects and the Ethics of Extinction." The Florida Entomologist 70, no. 1, 1987, pp. 70-89. Smith, Jane A. "A Question of Pain in Invertebrates." ILAR Journal, vol. 33, no. 1-2, 1991, pp. 25-31. Taylor, Paul. "The Ethics of Respect for Nature." Environmental Ethics , vol. 3, 1981, pp. 197- 218. Wilson, E. O. The Creation: An Appeal to Save Life on Earth . New York, W.W. Norton, 2006.

A Fair Free Lunch A Fair Free Lunch? Reconciling Freedom and Reciprocity in the Context of Universal Basic Income Olivia Martin Stanford University Author Noah Klein Christopher Lingelbach Orly Mansbach Editors Spring 2019 Download full text PDF (13 pages) A society that relies on generalized reciprocity is more efficient than a distrustful society, for the same reason that money is more efficient than barter. Honesty and trust lubricate the inevitable frictions of social life. – Robert Putnam, Bowling Alone: The Collapse and Revival of American Community Introduction In the 1970s, the Canadian federal government ran a large randomized experiment in giving citizens a basic income called “Mincome.” When Mincome participants were asked “Why wouldn’t you go on welfare, even if it would improve your income?” 37% responded that they would rather support themselves, giving explanations such as, “Welfare to me was accepting something for nothing,” or, “I feel more useful working.”[2] Similarly, in a survey of 121 working Germans, most participants rejected the provision of a basic income, because it was independent of level of need or contribution.[3] In both the scholarly discussion of basic income and in public opinion surveys, the unconditional freedom granted by universal basic income (UBI) seems to directly contradict the social norm of reciprocity. Reciprocity, most generally, is the idea that those who enjoy a share of the benefits of social cooperation owe a corresponding contribution to that society in return, as long as they are able.[4] This concept of reciprocity is central to the idea of the social contract itself: citizens owe to each other some degree of cooperation in order to receive social benefits. Is it possible to reconcile reciprocity and freedom in this context? If so, how? I argue that UBI succeeds in reconciling reciprocity and freedom by making its definition more inclusive, and by restricting our definition of freedom to a more morally defensible conception of republican freedom, all while endowing trust in participants. First, I briefly define basic income. Second, I explain the ethical conflict inherent between freedom and reciprocity as discussed by contemporary basic income scholars, primarily Stuart White and Philippe Van Parijs. Third, I argue that republican freedom deserves moral priority over real freedom in a non-ideal society. Fourth, I argue that a more egalitarian and inclusive conceptualization of reciprocity is required for justice in a non-ideal society. Finally, I compare UBI’s efficacy in achieving this reconciliation to Anthony Atkinson’s proposal of participation income. Defining Basic Income and This Paper’s Normative Framework UBI generally has five definitional features: basic income is in cash, unconditional, universal, individual, and consistent. In this way, UBI is a significant departure from most welfare benefits in the United States. Existing benefits are almost all means tested and often in-kind (e.g., food stamps) rather than cash, given on a household basis (allowing for potential domination of one spouse over another), and conditional on the performance of paid work for a period of time—as is required by the Earned Income Tax Credit, Social Security, and Unemployment Insurance. There are also features of UBI that vary dramatically across proposals: the specific cash amount given, the frequency with which it is given, how it is funded, and the package of policies it entails. The exact features of basic income greatly affect the extent of the tension between freedom and reciprocity—for example, the larger the grant is, the greater the freedom of the individual, but also the smaller the impetus to reciprocate. For the sake of this paper, I will assume a UBI as a $1,000 monthly grant, as is being tested by Y Combinator, a startup accelerator, and I will assume that UBI will be in an addition to existing welfare, save for the most redundant programs. I will limit this paper to considering UBI in the context of the United States. As this is a primarily conceptual paper, I will not construct my argument from a specific full-bodied normative framework, such as republican or libertarian political theory. Rather, I will rely on the normative framework of an egalitarian policymaker interested in the principles of justice required for a non-ideal society, and I will hold that a nonideal society is one without institutions that fully correct for unequal access to the means of production and inequalities of natural ability.[5] The United States, of course, is one such nonideal society. As such, I write from a framework that (1) recognizes the inability of current institutions to meet the basic requirements of a social contract that requires all citizens, regardless of race, gender, or class, to be treated equally, and (2) strives to evaluate policies by their success in treating all citizens as moral equals while still protecting citizens’ basic freedoms. The Conflict Between Freedom and Reciprocity While UBI offers a radical but simple proposition to provide a basic level of economic security for all regardless of one’s history of paid work, it also appears to contradict the social norm of reciprocity: the idea that those who enjoy a share of the benefits of social cooperation owe a corresponding contribution to that society in return, as long as they are able. The idea of reciprocity is often incorporated as a central tenet in theories of justice, such as in John Rawls’s theory of justice as fairness, as well as in economic theory, as in Adam Smith’s theory that reciprocity serves as a social invisible hand that allows the free market to function. On a societal level, one might say that citizens internalize the idea of reciprocity by performing paid work, paying taxes, and performing civic duties, while receiving government benefits in the form of public services, protection, and the insurance of government transfers in times of need. Stuart White, in his book The Civic Minimum, provides a useful account of justice as fair reciprocity. In society’s nonideal form where institutions are incapable of correcting for inequalities of natural ability, society must only meet the “threshold of basic fairness”—meaning that class inequality is minimized to the extent possible and that all citizens have access to jobs with above-poverty wages, opportunities for self-realization, and security against abuse and vulnerability. In a society that has met this threshold, citizens are required to reciprocate either in the form of paid labor or specific kinds of care work. One reason that White finds fair reciprocity to be essential is that it is both a product and stimulus of a society of democratic mutual regard, in which “individuals seek to justify their preferred political and economic institutions to others by appealing to shared basic interests, and to related principles that express a willingness to cooperate with their fellow citizens as equals.”[6] As such, White finds this form of reciprocity necessary to the social cooperation inherent in a functioning social contract. Justice as inextricably connected to reciprocity seems to be critically at odds with the unconditional freedom granted by UBI. It is most at odds with Philippe Van Parijs’s account in “Why Surfers Should be Fed,” in which Van Parijs argues that the most central tenet of justice is not reciprocity, but rather “real freedom.”[7] Under this conception of justice, society ought to maximize individuals’ ability to pursue their own conception of the good life, including what they might want to do in the future. This would imply that even able-bodied individuals who decide to spend all their time surfing (i.e., not concretely contributing to society) deserve a basic income just as much as those who spend time working in various ways to contribute to society and the funding of basic income. His argument centers on the following provocative thought exercise: Consider Crazy and Lazy, two identically talented but rather differently disposed characters. Crazy is keen to earn a high income and works a lot... Lazy is far less excited by the prospect of a high income and has decided to take it easy. With the Basic Income at the highest feasible level… Crazy is rather miserable because her net income falls far short of the income she would like to have. Lazy however is blissful.[8] Our traditional understanding of reciprocity would say that Crazy is being exploited by Lazy, whom we might see as free-riding off of the hard work of Crazy. Van Parijs turns this argument on its head with his Job Assets Argument, in which he asserts that jobs are an asset essential to real freedom, and that in our arguably non-Walrasian world, there will remain “morally arbitrary inequality in opportunity” between those lucky enough to be employed, and the involuntarily unemployed.[9] Thus, it might be Crazy, not Lazy, who has unsustainable preferences, and perhaps individuals like Lazy deserve to live off of their share of capital rents that have been monopolized by individuals like Crazy. Whether or not one believes Van Parijs’s Job Assets argument, Lazy is still exploiting Crazy by free-riding off of the work of Crazy, thereby violating the norm of reciprocity. Van Parijs does not try to imply that Lazy is not exploiting Crazy; rather he argues that Crazy has also exploited Lazy in an equal if not more severe way. Crazy’s exploitation of Lazy, however, is an issue that White finds to be based in the structural inequalities of society that cannot be directly solved by basic income. Regardless of whose understanding of asset distribution one believes, the debate between White and Van Parijs demonstrates that there is a clear and serious tension between reciprocity, as it has been traditionally defined, and real freedom. Real freedom, by definition, places the individual’s ability to realize their own potential above all else, including reciprocal obligations. Thus, a basic income that prioritized individuals’ real freedom could make no promise that recipients would make specific contributions in return if these contributions conflicted with the recipients’ ability to realize their real freedom. To resolve this tension, it is necessary to critically examine what definitions of reciprocity and freedom are those most necessitated by the pragmatic justice of an egalitarian policymaker. A Republican Re-Conception of Freedom In this section, I assert that real freedom is the inappropriate freedom to be juxtaposed with reciprocity, both because real freedom is nearly impossible to measure and because republican freedom deserves moral priority over real freedom in a nonideal society. Republican freedom is defined as freedom from nondomination and independence from arbitrary power. Real freedom, as defined by Van Parijs, necessitates not only the negative freedom required by republican freedom, but also the resources and capacities to carry out one’s will.[10] First, it seems nearly impossible to measure whether or not real freedom is being maximized in a society, unless one makes the assumption that income can be translated to real freedom on a one-to-one basis. How is it possible to measure the achievement of individuals being as free as possible to do what they might want to do? While there are some ways to estimate achievement of republican freedom, such as the number of workers with basic protections or changing poverty rates, it seems impossible to measure real freedom without assuming that income and real freedom share a monotonic relationship.[11] Though we cannot expect an exact measurement of whether or not a society is meeting the goal set by a theory of justice, such as equality, it does seem important to be able to at least approximate the extent to which we are meeting that goal in order to reassess and reevaluate policies. For real freedom, this process of approximation seems impossible. Second, republican freedom deserves moral priority over real freedom even under the most base egalitarian framework. Philip Petit defines republican freedom as nondomination, or the absence of unreasoned control.[12] Under a republican conception of freedom, the protection of individuals’ negative liberty (e.g., the freedom from exploitation and violation) is prioritized over the protection of individuals’ positive liberty—like the freedom to choose to spend one’s day surfing. Elizabeth Anderson critiques Van Parijs for not considering the fact that certain freedoms might deserve to be considered more worthy of defense than others. In explaining what freedoms are worth defending, Anderson says: What we owe [to each other] are not the means to generic freedom but the social conditions of the particular, concrete freedoms that are instrumental to life in relations of equality with others. We owe each other the rights, institutions, social norms [and] public goods … to exercise the capabilities necessary for functioning as equals in a democratic state.[13] In stating this, Anderson asserts that in the context of UBI, republican freedom is more morally defensible than real freedom. To an extent this seems to be true. An argument for real freedom could easily be co-opted by the wealthy asserting that any form of taxation is an affront to their real freedom, which may consist of purchasing multimillion-dollar yachts. Cases such as this would seem to erode the foundation for a social contract grounded in some idea of reciprocity, as any level of tax or contribution necessary to fund the freedom of the disadvantaged could be seen as an undeserved attack on the real freedom of the advantaged. It would seem more morally desirable to an egalitarian policymaker to first protect individuals from base levels of oppression—such as a woman who can leave an abusive relationship or an immigrant who can leave an exploitative job due to UBI—before protecting an unmeasurable freedom to do that which one might want to do. In Stuart White’s ideal world, in which all citizens already possess egalitarian social rights and in which institutions have the capacity to correct for inequalities of ability, there seems to be a reason for thoughtful debate on the relative moral priority deserved by real freedom and republican freedom. Increasing equality in individuals’ sense of real freedom constitutes a necessary later step in treating all citizens as moral equals. However, in the nonideal society of the United States, republican freedom is both the freedom most deserving of moral prioritization for anyone concerned with egalitarian values and the freedom that is most compatible with reciprocity. As demonstrated by the yacht example, real freedom will often create conflict with even the broadest definition of reciprocity. However, republican freedom will rarely create this same conflict. In fact, one might even argue that protecting people from base levels of oppression and domination empowers people to better reciprocate, rather than removing the impetus to do so. Once society moves closer to White’s ideal society, it will be appropriate to reconsider the prioritization of real freedom. Until then, there is a hierarchical order of priority in which, to meet Stuart White’s “threshold of basic fairness,” republican freedom ought to be prioritized over real freedom. An Egalitarian Re-Conception of Reciprocity Although prioritizing republican freedom over real freedom has brought us closer to reconciling freedom and reciprocity, there remains the issue of what precisely we ought to mean by reciprocity. Reciprocity, most generally, is the idea that those who enjoy a share of the benefits of social cooperation owe a corresponding contribution to that society in return, as long as they are able.[14] If we take the existing structures of welfare benefits in the US as a model of what it means to reciprocate in our society, then reciprocation largely means to have paid work, to have recently had paid work, or to actively be in search of paid work. Paid work, as valued by the current structure of policies, is elevated as the most—if not the only—legitimate form of reciprocity. This constitutes an unacceptably exclusive form of reciprocity for a theory of justice concerned with treating all individuals as moral equals. Large parts of society are excluded from a narrow definition of reciprocity that focuses on the economic contributions made through paid labor in the form of taxes. The most excluded cohort is the severely disabled, who are mostly unable to obtain paying jobs to economically contribute to society. According to Eva Kittay, to assume (as does John Rawls) that individuals are “normal” and cooperating members of society and that justice for disabled individuals can be determined at a later point is to fail to meet a standard of justice in which principles apply equally to citizens capable of fully cooperating and those unable to cooperate.[15] That standard of justice is one which treats all citizens as moral equals. A second cohort that is excluded by a narrowly-focused definition of economic reciprocity is those who perform unpaid labor in the home, primarily women. This exclusion has been noted by feminist proponents of basic income who lament the androcentric basis of the current social safety net.[16] The US welfare system is almost entirely built on such androcentric norms; a number of benefits are conditioned on whether the recipient engages in paid work outside the home, including the Earned Income Tax Credit, Unemployment Insurance, the Child Tax Credit, and to an extent, Social Security. Single mothers are particularly penalized by the system’s current structure. These women are often forced to choose between taking care of their child and not having enough to live off, or working enough to pay for child care, not seeing their child enough, and still barely having enough to live off. Unsurprisingly, the poverty rate for single-mother families in 2016 was 35.6%, or five times the rate for married-couple families.[17] A narrow definition of reciprocity that excludes the disabled, women performing unpaid labor, and others such as children and the elderly, is unacceptable under an egalitarian framework in which humans are to be treated as moral equals. To solely focus on reciprocity as an economic activity is to neglect the fact that such economic participation would be impossible without the unpaid and socially necessary caregiving work within homes. In fact, one could argue that such a narrow-minded definition of reciprocity performs the precise injustice that reciprocity seeks to avoid: exploitation, in which those performing unpaid and socially unrecognized contributions to society are exploited by those who are performing paid contributions enabled by unpaid, unrecognized care givers. Lastly, the number of people excluded from a narrow definition of reciprocity as purely economic will only grow to be more unsustainable in a future scenario in which available employment decreases and more are employed involuntarily or part time. Basic income, by definition, does not depend on a form of reciprocity that only recognizes monetary contributions. Instead, basic income recognizes a more inclusive form of reciprocity in which recipients can reciprocate in a number of ways: child care, volunteering, civic participation, accepting lower paying jobs, and more. In this way, basic income not only acknowledges that there are multiple ways to contribute to society, but also is forward-looking in recognition of the fact that access to dependable, well-paying wage employment may decrease in future scenarios of technological unemployment. Participation Income vs. Universal Basic Income: A Matter of Trust We have now clarified the moral priority of republican freedom over real freedom under the framework of a pragmatic, egalitarian policymaker, as well as the need for a more inclusive definition of reciprocity. A policy that prioritizes republican freedom over real freedom would presumably first focus on offering a basic level of income (i.e., an amount sufficient to offer citizens the ability to “say no” to oppressive environments and situations, but perhaps not enough to do all that which they might want to). A policy that rejects the current exclusive definition of reciprocity would either explicitly expand reciprocity beyond financial contributions to include specific forms of participation or be entirely value neutral in allowing for a variety of interpretations of reciprocity. At first glance, Anthony Atkinson’s participation income appears to be the version of UBI which most directly addresses the tension between freedom and reciprocity inherent in basic income. Participation income is basic, like in UBI, but is conditional on “participation,” which includes a broad range of activities ranging from employment or self-employment to education, training, care-taking, or volunteer work. The condition necessitates “neither payment nor work,” and thus greatly expands what is meant by social contribution, despite not quite being value neutral.[18] Conceptually, participation income succeeds at addressing the serious concern regarding basic income’s threat to reciprocity by making reciprocity a condition of UBI. Furthermore, Atkinson’s broad definition of participation mitigates most concerns about the groups that are arbitrarily excluded from current interpretations of reciprocity. Of course, practically enforcing the conditions of participation income would be a public administration nightmare. It would be impossible for a government to measure whether or not a citizen made their “quota” of contribution hours for a month without enacting an immense surveillance state that would deprive from citizens the very freedom that basic income is supposed to expand. Nevertheless, participation income succeeds in providing a useful framing mechanism by which UBI proponents can assuage public concerns regarding the effect of basic income on traditional reciprocity. However, there is also a normative trade-off for this improved political framing. By making income conditional on immeasurable outcomes, rather than trusting citizens’ own sense of justice to constructively contribute to society, participation income fails to endow citizens with trust. This notion is both unreasonable and undesirable. It is unreasonable to think that citizens will wholly stop constructively contributing to society if the cash amount is in fact “basic”; one would only be able to live an extremely simple life off of $12,000 per year (it should be noted that the federal poverty level income for a family of four is $24,600, or about $12,300 per adult). It is undesirable because participation income continues to rely on the norm of distrust that is a foundation for today’s conditional welfare system. If UBI is to constitute the beginnings of a new, more just social contract, that contract cannot be created without the development of trust. In his essay “How can we trust our fellow citizens?” Claus Offe defines trust as “the belief that others, through their action or inaction, will contribute to my/our well-being and refrain from inflicting damage upon me/us.”[19] Offe notes that trust is often self-stabilizing; in other words, being trusted creates within us moral obligations that make us act in a trustworthy fashion in return. There is already some degree of empirical evidence that unconditional income creates self-stabilizing trust. For example, in a World Bank report reviewing 19 global experiments in unconditional cash income, only one study showed a statistically significant increase in the purchase of temptation goods such as alcohol and tobacco. Many studies actually showed statistically significant decreases in consumption of alcohol and tobacco. This result seems to further suggest that when people are trusted, they often act according to the moral obligations that receiving that trust creates.[20] Furthermore, in the Canadian Mincome experiment, participants stated they felt greater trust in their government and in themselves, with one respondent saying that “[basic income] trusts the Canadian people and leaves a man or woman, their pride.”[21] Alaska’s Permanent Dividend program offers insights similar to those of the Canadian Mincome experiment. Due to abundant oil production and revenue, the Alaskan government has, since the 1980s, paid out an annual dividend of around $1,000 to all eligible Alaskan residents. The majority of residents in Alaska now say that that they would prefer higher taxes as opposed to ending the Alaska Permanent Dividend,[22] indicating a new trust in government and fellow citizens. Economic research has recently showed that the Alaska Permanent Dividend has had no effect on full-time employment, and has actually increased part-time work by 17%.[23] The experiments in Canada and Alaska not only show that basic income has the potential to increase trust in others and the government, but also that there is little evidence of unconditional basic income negatively affecting economic reciprocity. As early experiments in basic income are beginning to show, the statement of trust made by unconditional income may reinforce the very reciprocity that many are concerned the unconditionality in basic income will destruct. Thus, while participation income provides useful political framing that connects basic income to reciprocity and boldly expands our definition of reciprocity, it fails to constitute either a practicable policy solution or an ideal toward which we ought to strive as a society. If we truly desire to create a fairer, more inclusive social contract, it must begin with trusting our fellow citizens. UBI is precisely the policy with which to create that new standard of trust. As experiments demonstrate, that trust will likely pay off. Conclusion I have shown that, for a theory of justice striving to treat individuals as moral equals, a republican conception of freedom is more appropriate than a conception of real freedom. I have also shown that current definitions of reciprocity are inadequate in treating all individuals as moral equals. I have compared the capacity of unconditional basic income and participation income to respond to this tension, and have asserted that only unconditional basic income succeeds in rectifying an exclusionary social contract by endowing all participants with trust. As the social contract currently exists, UBI may not be the most efficient way to reduce inequality. However, only UBI provides the groundwork for a new social contract in which not only freedom and reciprocity are reconcilable, but citizens are also trusted to meaningfully contribute to society. If current experiments in basic income continue and do not significantly diverge from the findings of ones previously conducted in Africa, Alaska, and Canada, this normative conclusion will continue to be furnished with empirical evidence about the self-stabilizing nature of trust endowed by UBI. Endnotes [1] A play on Philippe Van Parijs’s book title, What’s Wrong with a Free Lunch? [2] David Calnitsky, “‘More Normal than Welfare’: The Mincome Experiment, Stigma, and Community Experience,” Canadian Sociological Association 53, no. 1 (February 2016): 54. [3] Stefan Liebig and Steffan Mau, “A Legitimate Guaranteed Minimum Income?” in Promoting Income Security as a Right: Europe and North America, ed. Guy Standing, 210-224. (London: Anthem, 2004), 210. [4] Catriona Mackenzie, The International Encyclopedia of Ethics, s.v. “Reciprocity,” Oxford: John Wiley & Sons, 2013. [5] Stuart White, The Civic Minimum: On the Rights and Obligations of Economic Citizenship, (Oxford: Oxford University Press, 2003), 17. [6] White, The Civic Minimum, 17. [7] Philippe Van Parijs, “Why Surfers Should Be Fed: The Liberal Case for an Unconditional Basic Income,”Philosophy and Public Affairs 20, no. 2 (1991): 103. [8] Van Parijs, “Why Surfers Should Be Fed,” 105. [9] White, The Civic Minimum, 156. [10] Van Parijs, “Why Surfers Should Be Fed,” 104. [11] Brian Barry, “UBI and the Work Ethic,” The Boston Review, October, 2000, http://bostonreview.net/archives/BR25.5/barry.html. [12] Philip Petit, “A Republican Right to Basic Income?” Basic Income Studies 2, no. 2 (2007): 4. [13] Elizabeth Anderson,“Forum Response: A Basic Income for All,” The Boston Review, October, 2000, http://bostonreview.net/forum/basic-income-all/elizabeth-anderson-optional-freedoms. [14] Mackenzie, The International Encyclopedia of Ethics, 1. [15] Mackenzie, The International Encyclopedia of Ethics, 7. [16] Almaz Zelleke, “Institutionalizing the Universal Caretaker Through a Basic Income?” Basic Income Studies 3, no. 3 (2008): 2. [17] Kayla Patrick, “National Snapshot: Poverty Among Women & Families, 2016,” National Women’s Law Center: Washington, D.C., 2017. [18] Anthony Atkinson, “The Case for a Participation Income,” The Political Quarterly 67, no. 1 (January 1996): 69. [19] Claus Offe, “How Can We Trust Our Fellow Citizens?” in Democracy and Trust, ed. Mark Warren (Cambridge: Cambridge University Press, 1999), 47. [20] David Evans and Anna Popova, “Cash Transfers and Temptation Goods: A Review of Global Evidence,” World Bank Policy Research Working Paper 6886, The World Bank Africa Region, Office of the Chief Economist, Washington, D.C., 2014: 23. [21] David Calnitsky, “‘More Normal than Welfare’: The Mincome Experiment, Stigma, and Community Experience,” Canadian Sociological Association 53, no. 1 (February 2016): 61. [22] Michael Coren, “Alaska Shows Even People in the Most Conservative States Prefer a Basic Income to Lower Taxes,” Quartz, June 30, 2017. [23] Damon Jones and Ioana Marinescu, “The Labor Market Impacts of Universal and Permanent Cash Transfers: Evidence from the Alaska Permanent Fund,” NBER Working Paper No. 24312, The National Bureau of Economic Research, Cambridge, MA, 2018. References Anderson, Elizabeth. “Forum Response: A Basic Income for All.” The Boston Review, October, 2000, http://bostonreview.net/forum/basic-income-all/elizabeth-anderson-optional-freedoms . Atkinson, Anthony. “The Case for a Participation Income.” The Political Quarterly 67, no. 1 (January 1996): 67-70. Barry, Brian. “UBI and the Work Ethic.” The Boston Review, October, 2000, http://bostonreview.net/archives/BR25.5/barry.html . Calnitsky, David. “’More Normal than Welfare’: The Mincome Experiment, Stigma, and Community Experience.” Canadian Sociological Association 53, no. 1 (February 2016): 26-71. Coren, Michael. “Alaska Shows Even People in the Most Conservative States Prefer a Basic Income to Lower Taxes.” Quartz, June 30, 2017. Evans, David and Anna Popova. “Cash Transfers and Temptation Goods: A Review of Global Evidence.” World Bank Policy Research Working Paper 6886, The World Bank Africa Region, Office of the Chief Economist, Washington, D.C., 2014. Jones, Damon and Ioana Marinescu. “The Labor Market Impacts of Universal and Permanent Cash Transfers: Evidence from the Alaska Permanent Fund.” NBER Working Paper No. 24312, The National Bureau of Economic Research, Cambridge, MA, 2018. Liebig, Stefan and Steffan Mau. “A Legitimate Guaranteed Minimum Income?” In Promoting Income Security as a Right: Europe and North America, edited by Guy Standing, 210-224. London: Anthem, 2004. Mackenzie, Catriona. The International Encyclopedia of Ethics, s.v. “Reciprocity.” Oxford: John Wiley & Sons, 2013. Offe, Claus. “How Can We Trust Our Fellow Citizens?” In Democracy and Trust, edited by Mark Warren, 42-87. Cambridge: Cambridge University Press, 1999. Patrick, Kayla. “National Snapshot: Poverty Among Women & Families, 2016.” National Women’s Law Center: Washington, D.C., 2017. Petit, Philip. “A Republican Right to Basic Income?” Basic Income Studies 2, no. 2 (2007): 1-8. Putnam, Robert. Bowling Alone: The Collapse and Revival of American Community. New York: Simon & Schuster, 2000. Van Parijs, Philippe. “Why Surfers Should Be Fed: The Liberal Case for an Unconditional Basic Income.” Philosophy and Public Affairs 20, no. 2 (1991): 101-131. White, Stuart. The Civic Minimum: On the Rights and Obligations of Economic Citizenship. Oxford: Oxford University Press, 2003. Zelleke, Almaz. “Institutionalizing the Universal Caretaker Through a Basic Income?” Basic Income Studies 3, no. 3 (2008): 1-9.

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