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.

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A.S.E.A.N The Long Game: ASEAN, China’s Charm Offensive and the South China Sea Dispute Hisyam Takiudin Brown University Author David Golden Orwa Mohammad Sean Sullivan Editors Spring 2018 Identifying why multilateralism is weakening in Southeast Asia in the wake of the South China Sea Maritime Dispute. The South China Sea (SCS) is a 3.5 million-square-meters body of water within the rims of Southeast Asia. It contains islands, reefs, and low-tide elevations that are mainly grouped into the Spratly and the Paracel Islands. The SCS is of strategic importance as it is a trade route carrying $3.4 trillion worth of goods every year – an equivalent to 21% of global maritime trade – and boasts strategic sea lanes whose blockade could disrupt entire economies (O’Rourke, 2015). Recent studies estimated the SCS to contain 11 billion barrels of oil and 190 trillion cubic feet of natural gas (Fisher, 2016). It also accounts for over 10% of the global fishing trade. While its value is undisputed, determining who owns what in the SCS gets very complicated. There are overlapping claims between China, Japan, Taiwan, and several Southeast Asian states which has led to military standoffs, international court arbitrations, as well as disruptions to revenue-generating activities in the waters (O’Rourke, 2015). To understand the root causes and find potential solutions to the SCS dispute, this paper argues a focus on two key players: China and the Southeast Asian states. Beyond China’s lofty ambitions to become the de facto power center in the region, there needs to be a consideration of China’s modus operandi. In July 2016, the Permanent Court of Arbitration (PCA) rejected China’s ‘nine-dash claim’ in the SCS. China responded by discrediting the ruling and continuing to assert its claims by adding sediments to low-tide elevations to build artificial islands, chasing out non-Chinese vessels, and engaging in military exercises (Fisher, 2016). This is a precedent-setting behavior, and the potential for additional players to follow the same law-defying strategy should sound an alarm for increased checks on Chinese influence in the region. More explicitly, other SCS claimants should create a more united front with the collective goal of upholding international law. Secondly, Southeast Asian states technically operate within a regional bloc called the Association of Southeast Asian Nations (ASEAN). ASEAN is primarily an economic bloc, but that is precisely why it is crucial to solving the dispute. A study of the economic relationship between the claimants in the dispute reveals a two-faced nature. There is a clear pick-and-choose strategy by more developed claimants (e.g. China, Japan) towards Southeast Asian states which are largely emerging markets. Capital flows can thus be an influencing instrument by more developed claimants to steer negotiations in their favor. The Southeast Asian claimants then could benefit from a more integrated economic strategy via ASEAN to ensure a level playing field. The question that remains then, why has the status quo persisted? Why is it that seemingly logical strategies such as the above not followed? Perhaps more constructively, what incremental steps are realistic and feasible for stakeholders to take in line with these big picture strategies? The rest of this paper will expand on the contexts of these observations, use data to justify the need to change the status quo, and outline potential strategies that can maximize the long-term outcome for stakeholders. The core argument will be this: a combination of ASEAN’s flawed structure, inefficient nature of international law, and the economic-incentive dependent nature of ASEAN claimants all lead to a political scenario where free-riding on other parties’ confrontations with China while reaping China’s economic incentives will bring about the best individual outcome. This is what is called a collective action problem, a Marcus Olsen (1965) notion that stresses the inability for individual actors to achieve a goal in providing a public good – in this case, a buffer against Chinese bullying (Oatley, 2016). There is then a recognition of a larger Chinese strategy to dismantle ASEAN and to shift Member States into China’s sphere of influence. Solving the SCS conflict is then not quite the priority ASEAN Member States should be giving. ASEAN as an organization is an important medium to balance against China’s creeping influence, and its Member States will need to see past the short-term benefits of China’s handouts and consider the long-term consequences of the current free-riding strategies. This paper will reveal how following a long-term strategy focusing on building ASEAN’s internal capabilities can be instrumental to maximize individual interests while ensuring China’s actions are checked. I. ASEAN and the SCS Dispute ASEAN is a regional bloc consisting of 10 Southeast Asian states and aims to promote economic, political, and security cooperation amongst its Member States. Its biggest achievement is first and foremost its ability to rally an economically, politically, and culturally diverse group of nations. By promoting regional dialogue, ASEAN, in turn, promotes regional peace and stability, a no easy feat for a group of post-colonial states (except for Thailand). However, it is important to note that in practice, ASEAN focuses on economic cooperation more so than others. This is because ASEAN decision-making is on the basis of consensus, meaning the controversial nature of political and security cooperation is by default constrained. While ASEAN managed to eliminate significant amounts of trade tariffs, no military agreements have been signed beyond joint exercises or on matters of illegal migration between its Member States. In context of the SCS dispute, the most important fact is how ASEAN as an organization has never been mandated to resolve the dispute; this responsibility falls under the claimants themselves “through legal arbitrations or political negotiations, bilaterally or multilaterally,” (Storey, 2017). In a rare exception, however, ASEAN and China did sign the non-legally binding Declaration on the Conduct of Parties in the South China Sea (DOC) in 2002, which entails the promotion of “confidence-building measures”, engagement in “practical maritime cooperation”, and “the discussion and conclusion of a formal and binding Code of Conduct (COC).” The COC is intended to be a formal, legally binding document that would facilitate maritime engagements in the SCS. The signing of the DOC is a remarkable achievement because it also acts as a litmus test for ASEAN’s ability to act as a political unit. The decision to partake in the COC negotiations is in line with China’s current charm offensive strategy in the region –explained further in Section IV, but negotiations have been significantly delayed, so much so that even the basic provisions of non-violence and non-disruptive clauses in the DOC have not been implemented (ASEAN, 2012). The DOC also created the opposite of its intended effect: creating distrust and discouraging further cooperation. This is because the DOC lacks an enforcement mechanism, leading to rampant and unchecked interpretations, where claimants have accused each other of violating the document (Storey, 2017). China sees the Philippines’s decision to take up the case to the PCA violates Article 4 which stipulates conflict resolution “through friendly consultations and negotiations by the sovereign states directly concerned”, while other claimants see China’s sand dredging to build islands fit for military use do not exemplify an act of “self-restraint” (Storey, 2017). It was not until September 2013 – a full eleven years since the DOC was signed – when the first China-ASEAN Senior Officials’ Meeting on the COC was held (Storey, 2017). Talks remained slow until after the 2016 PCA ruling, in a move believed to be China’s way of deflecting criticisms it received from rejecting the Tribunal’s result. More strikingly, the draft contents of the COC, as of November 2017, is devoid of the term “legally binding”, raising doubts whether countries should be invested in the COC at all (Storey, 2017). Even if the final version of the COC does come with a binding clause, a few things are still worth noting. First, the insistence to take time to negotiate could mean the region remains at risk of violent escalations – there is an immediacy to have the COC passed soon considering the ongoing military installations by China and Vietnam. Secondly, the COC will not mean an end to the dispute since it will not include mechanisms aimed to do so –it will not be equipped to resolve existing conflicts. Most importantly, the DOC experience and China’s precedent-setting decision to ignore the PCA ruling calls for caution whether signatories would even honor it. Internally, cracks in ASEAN solidarity towards the SCS dispute are becoming clearer. In 2011 the ASEAN Summit failed to issue a joint statement on how to approach the dispute and in 2017, it failed to mention the dispute altogether (Hutt, 2016). President Duterte of the Philippines made the surprise move to set aside the PCA ruling – in which the Philippines was overwhelmingly favored – and strengthened ties with China through trade deals worth $13.5 billion (BBC, 2016). Malaysia held joint military exercises and signed big budget infrastructure projects with China (Permal, 2017). Vietnam, on the other hand, is in a ‘cold war’-like state with China, with both parties actively participating in reclamation efforts in the region. Vietnam has also increased strategic cooperation with the United States and Japan who both condemn China’s activities in the region, further increasing tensions (Ives, 2017). The final twist: apart from Singapore, other Southeast Asian states remained quiet on the matter altogether. The key observation here is how increasingly divergent individual ASEAN states are towards the SCS dispute. As per above, the spectrum ranges from outright confrontation to normalization and all the way to blatant disregard of the issue altogether. All things considered, it seems a balancing-against-China strategy is no longer a possibility – a clear indication of the collective action problem discussed earlier. Why then, should any stakeholder in the dispute care about ASEAN? Would it not be more productive to shift the conversation towards the maximizing the interest of an individual claimant? The following sections will peel away these questions to arrive at a two-fold argument: 1) disregarding the importance of a regional Southeast Asian strategy undermines the relevance of ASEAN as a regional bloc, and 2) ASEAN is an instrumental medium in limiting China’s questionable and precedent-setting actions in the region. II. Why Bilateralism (and Limited Multilateralism) Is Preferred To understand why and how ASEAN’s relevance could be compromised, we need to look at both internal and external factors guiding ASEAN’s current principles, and then tie these to how they play to China’s best interests instead of the ASEAN region. Internally, the baffling puzzle is why has Southeast Asian multilateralism in solving the SCS dispute been limited to the flawed DOC and COC. A good way to study this is to deep dive into why bilateralism is heavily preferred. On a surface level, the obvious explanation is because not all ASEAN states are involved in the conflict. Only five Southeast States are technically involved in the dispute – the Philippines, Vietnam, Malaysia, Brunei, and Indonesia. Others are either more involved in territorial disputes with each other or are geographically irrelevant to the dispute. As Section IV will argue, it may well be the case that there are strong incentives for individual states to maintain an amicable relationship with China. Still, what this argument does not explain, is why individual ASEAN states refuse to forgo these incentives for the greater good of the regional bloc, especially in light of China’s devious actions in the SCS. One explanation could be how bilateralism has worked to solve past disputes in the region. When oil and gas reserves were found in the 70s, the Philippines moved in first in 1976, establishing a commercial field in the Reed Bank near its Palawan Island. This received strong opposition from China, Taiwan, and the newly reunited Vietnam, who all claimed the Reed Bank to be within their territories (Muscolino, 2013). Bilateralism took center stage, with each claimant stressing the importance of a peaceful resolution. Negotiations with each claimant avoided escalations for the rest of the decade (Muscolino, 2013). More recently in 2008, Malaysia and Brunei agreed to resolve their dispute by demarcating the land and maritime boundaries, while also collaborating in the exploration of hydrocarbon resources. These became resounding evidence amongst ASEAN leaders that bilateralism could prevent escalations while still maximizing the interests of all parties involved (Roach, 2014). The preference for bilateralism is perhaps better explained by the oddest feature for a regional bloc: a non-interference policy where member states could not interfere with the affairs of another. In context of the SCS dispute, it effectively means that there are no binding mechanisms for the more confrontational Vietnam to coerce the more pro-China Malaysia into shifting its policy stances, for example. The non-interference policy is a result of a shared trauma from colonialism (9 out of 10 ASEAN states are former colonies), with the idea of self-governance becoming a centerpiece when state leaders signed the ASEAN Bangkok Declaration in 1967 (Molthof, 2012). It means there is a heavy reliance on political goodwill for any regional level cooperation to work. It is not surprising then, that the multilateral-centric strategies outlined earlier in this paper remain unrealistic under current conditions. A united front between ASEAN states on the SCS dispute will first require internal disagreements to be solved, which will require a regional supranational body that could fairly rule over the overlapping claims. Amassing enough political goodwill to do this considering the already contentious internal maritime politics is nearly impossible. The practical short-term solution then, as per evidenced by current strategies, is to rely on micro-level, government-to-government negotiations. III. The Role of International Law The second dimension that explains the Southeast Asian states’ current strategy is the complications brought about by international law. The earlier discussion on the DOC and COC was only one part of the legal dimension in the SCS dispute. The United Nations Convention on the Law of the Seas (UNCLOS), intended to mitigate disputes over maritime claims such as in the SCS, exacerbated the situation in the region. This is a two-part issue: 1) vagueness in UNCLOS language allows for different interpretations, and 2) opt-outs from arbitration processes defeat the mechanisms that could have overcome the vagueness. For there to be a universally recognized dispute settlement mechanism, there also needs to be a universally recognized set of definitions for what is being disputed. UNCLOS stipulates legal definitions for the rights of states over waters beyond their shore, most controversially the provision of Exclusive Economic Zones (EEZs). It legally gives states the right to exploit resources 200 nautical miles off their shores (The Economist, 2012). There was no practical need for this beyond an incentive for states to sign onto UNCLOS, and that short-term incentive backfires. There is a two-part implication: 1) the importance of owning physical features in the SCS becomes of a strategic importance since EEZs establish a sizable control over a revenue-generating region, and 2) signatories regardless of size and military strength are now able to join in the conversation, which is good, but convolutes the already messy conflict by adding more players to the mix. Note also that Southeast Asian states are primarily emerging markets, and the opportunity to reap benefits from riches of SCS can be vital growth drivers. There is also a more patriotic perspective to this; states could also be pursuing purely nationalistic campaigns to enforce historical claims. The Singapore-Malaysia dispute over Pedra Branca and China-Japan dispute over the Senkaku Islands are prime examples. Irrespective of what motivates the states to enter the dispute, the demarcation process would be delicate as the SCS outlines the shores of at least nine states. Even so, a fair and peaceful delimitation of boundaries would be possible if the arbitration process is thorough all the way to the enforcement stage. This is unfortunately not the case with UNCLOS. Article 298 in UNCLOS gives signatories the option to be excluded from arbitrations of “sea boundary delimitations”, “military activities”, and those within the allowable functions of the Security Council (United Nations, 1982). This clause is effectively an ‘opt-out’ from the very legal proceedings UNCLOS was built for. It allows UNCLOS signatories to circumvent the accountabilities that come with violating the document. China, as expected, opted out of Article 298, giving it the legal backing to not have to act on the 2016 PCA ruling. Consider Section II’s discussion on ASEAN states’ preference towards bilateralism. Government-to-government negotiations can be effective if and only if both sides agree to make themselves accountable to the outcome of those negotiations. Once this accountability becomes optional, it begs the question whether it is still wise for ASEAN to rely heavily on bilateral talks. Another way to put it, what are the consequences of ignoring the apparent systemic flaws in the way ASEAN operates? IV. China’s Golden Paradise A good way to understand the full consequences of the systemic flaw referred in the previous section is to study how that flaw has been used against ASEAN. Again, China is a key player here. With ASEAN preferring bilateralism over multilateralism, there is an opportunity for China to tailor its strategy to individual ASEAN countries. Furthermore, with non-interference policy in full effect, any bilateral relationship an ASEAN country builds with China cannot be questioned even if that relationship adversely affects ASEAN as an organization. While this may not necessarily be the case, it will be argued that China’ current strategy suggests it may be pursuing a Southeast Asian political realignment to Beijing. On ASEAN’s part, with its Member States focusing on building a closer relationship with China, there exist trade-offs in capacity building an already fragile ASEAN, whose social, economic, and political linkages remain underdeveloped. In context of the SCS dispute, this could mean a chipping away of the very foundation of ASEAN as a potential balancing power. A grimmer picture could be that, in the long term, the very existence of ASEAN may be endangered, should its weak organizing power falter under a Chinese realignment. To capture how this can play out, one needs to first understand how China specifically has come to hold the bargaining chip it currently has. The obvious is China’s economic strength; with a gross domestic product (GDP) of $11.2 trillion (2016), China dwarfs even the that of a combined ASEAN at $2.6 trillion (2016) (Asian Development Bank, 2017). As primarily developing markets, Southeast Asian countries are right to leverage on larger economies such as China or the United States, where injections of investments can help speed up their development process. Nonetheless, China’s economic strength does not explain why Southeast Asian governments are leaning heavily towards China more so than the region’s traditional hegemon, the United States (US). A traumatic colonial experience for most ASEAN Member States towards the West, in general, could partially explain this (Wilson, 2017). More recently in 1997, the International Monetary Fund (IMF)’s unpopular austerity policies in Thailand and Indonesia lead to disastrous results. This tattooed skepticism among Southeast Asians on long-term relationship building with the West, chiefly the US which holds the IMF’s largest voting power. An even more recent development is unrelated to ASEAN public sentiment at all; the United States is seeing a wave of populism that is pressuring both ends of the political spectrum to be more inward-looking. The election of conservative populist Donald Trump as president further solidified that the US may no longer focus on Southeast Asia. The final confirmation was in Trump’s decision to pull the US out of the Trans-Pacific Partnership (TPP), history’s largest regional trade accord (Granville, 2016). The vacuum created by a receding US adds to the already favorable conditions for Chinese dominance in Southeast Asia. All that is left is an execution plan that avoids painting China as another superpower taking advantage of weaker nations. In a 2004 speech, China’s Prime Minister Wen Jiabao made a compelling remark, stating that China’s rise “will not come at the cost of any other country, will not stand in the way of any other country, nor pose a threat to any other country” (Kurlantzick, 2007). This was in the wake of China’s Peaceful Rise strategy, when it realized that its aggressive, military-centric and coercive tactics backfired badly (Kurlantzick, 2007). This is what is called a charm offensive. The strategy draws from a concept political scientist Joseph Nye calls ‘soft power’, “the ability to shape the preferences of others...It is leading by example and attracting others to do what you want,” (Kurlantzick, 2007). To exercise its soft power, China needs to first change the rhetoric surrounding China’s position in Southeast Asia. The turning point was the 1997 Asian financial crisis, where China made the smart move to lessen the devaluations of the Thai baht and the Indonesian rupiah by refusing to devalue its own currency. The decision was publicized as an Asian solidarity measure, which reframed the conversation on China in the region. China’s charm offensive was then timely; it quickly moved to establish relationships with each Southeast Asian country through cooperation in cultural, educational, and business spheres. China invested heavily to improve its diplomatic outreach, visiting its Southeast Asian neighbors twice as many times as its US counterparts (Kurlantzick, 2007). China has also integrated Southeast Asia into its larger plan to create “the world’s largest platform for economic cooperation”, the Belt and Road Initiative (BRI). BRI is an ambitious modern iteration of the Silk Road trade route, and it aims to promote physical, economic, and social connectivity (Jinchen, 2017). China’s $113 billion pledge in infrastructure building along the proposed trade route is a catnip for ASEAN states who, according to The McKinsey Global Institute, need over $2 trillion investments between 2016-2030 “in road, rail, port, airport, power, water, and telecommunications infrastructure across ASEAN to maintain economic growth,” (McKinsey Global Institute, 2016). This is the key dilemma created by China’s charm offensive: there is a clear need to address its questionable actions in the SCS dispute, yet the allure of Chinese economic incentives is at the same time too good to ignore. While China continued to deny any geopolitical agenda behind BRI, two observations seem to imply otherwise: 1) the timing of BRI coincides with China’s increasingly aggressive position in the SCS, and 2) selective awarding of valuable economic packages to pro-China ASEAN Member States, most evidently the Philippines $13.5 billion pledge upon President Duterte's U-turn from the PCA ruling. The latter observation is further supported by a tripling of Chinese investment value in Malaysia between 2014 and 2015, curiously coinciding with Malaysia’s refusal to answer calls by the Philippines’ then-President Benigno Aquino III to stand up to China. This sparks speculation that the fluctuating Chinese investment value in Vietnam is a means of Chinese retaliation towards Vietnamese reclamation efforts in the SCS (Cheok, 2017). Therefore, ASEAN states tiptoe the line between maintaining their sovereignty in the SCS and appearing favorable to China to exploit its generous handouts. On the one hand, maintaining control over geographical features in the Spratlys and Paracels could come with additional revenues through EEZs, but cost-benefit analyses could prove economic ties with China to potentially bring in much higher revenues. At the core of this argument is the fact that the commodities at stake in the SCS are primarily in oil and fishing stocks. Consider the difficulty of extracting oil, its price volatilities, and its grim long-term prospects: in 2016 BP estimated that the global oil reserves will last only for the next 53.3 years. A recent study by the OceanAsia project estimates depletions of up to 59% in key fishery stocks by 2045, putting the value of controlling fishery areas at stake (Sumalia and Cheung, 2015). Even in the potential unsustainability of income streams in the SCS, nationalism is such a big part of ASEAN – evidenced by an earlier discussed non-interference policy– that it begs a closer study on whether economic incentives are all it takes for China to assume a winning position in the SCS dispute. Earlier, it was argued that ASEAN’s non-interference policy creates a collective action problem where strong forms of multilateralism are hindered. This argument is also applicable to ASEAN’s inability to achieve the level of market integration required for a seamless intra-ASEAN trade and capital flows. ASEAN’s single market initiative, the ASEAN Economic Community (AEC), has made way for tariff reductions of 99.2% in ASEAN-6 (Brunei Darussalam, Indonesia, Malaysia, Philippines, Singapore, and Thailand) and 97.52% of tariff have been reduced to 0-5% in others (ASEAN Economic Community, 2015). Albeit slow, this is a remarkable achievement and signals a strong ASEAN solidarity in spite of its shortcomings. However, a closer look reveals a different story: there is almost a four-fold increase in non-tariff barriers and measures (NTB/NTM) from 1,634 measures to 5,975 leading up to AEC’s launch in 2015 (Zulfakar, 2017). Essentially, while ASEAN Member States markets their tariff reductions as proof of their commitment to ASEAN, the apparent shifting of potential loss of income to NTB/NTM suggests a collection of countries focused on individual economic gains more than Southeast Asia’s collective wellbeing. And by virtue of non-interference policy, ASEAN Member States cannot pressure each other to change their policies, at least not within the ASEAN framework. The inference is that yes, China may have struck gold through its charm offensive strategy. V. A Chinese Takeover – Blessing or Curse? As each ASEAN Member States form a closer bilateral relationship with China, it effectively means China will compete with ASEAN to become the common denominator in the Southeast Asian region. Should it succeed, it theoretically would put the entire region under its sphere of influence. The key puzzle this section will answer is whether a pivot to China would be detrimental to the development of ASEAN. Measuring this will first require a modeling of what a Chinese ‘takeover’ of the region would look like. One way to do that is to look at Member States who are now already highly dependent on China; a good example is Cambodia whose Chinese FDI amounts to 61% of its total FDI inflows. The fascinating aspect of the Cambodian example is that its Prime Minister, Hun Sen, has not always been friendly to China, once calling the country “the root of everything that is evil”. Within twelve years, Hun Sen altered the description to “Cambodia’s most trustworthy friend”. China covered Cambodia’s shortages in aid during a 1997 coup. This has led to an over-reliance on Chinese aid, which in turn prevents Cambodia from doing anything that may irk China. One expert describes Cambodia “as an extension of China’s foreign policy,” (Hutt, 2016). This is proven by the country’s constant blocking of official ASEAN statements on the SCS dispute, all while using the term ‘neutrality’ to justify its position. Drawing a parallel to ASEAN, the Cambodia model could very well be China’s vision for the whole Southeast Asian region. Unlike the European Union (EU), ASEAN’s highest decision-making power remains at the state level, hence the logic should follow that individual Member States’ interests precede regional goals. Therefore, consider the endgame following a Chinese takeover as the region’s de facto common denominator. China’s ability and willingness to fill in investment gaps, the considerations towards ASEAN’s inherent flaws, and the realization that resources in the SCS are unsustainable all points to the perspective that China may be an ASEAN alternative Southeast Asia needs. Beyond the push and pull of power play between China and its Western counterparts, what then, is wrong with Southeast Asia embracing China? For one, several red flags exist in the Chinese brand of regionalism. Firstly, China’s ignorance of the PCA ruling – a rejection of its ‘nine-dash’ claim in the SCS – sets a precedent of disrespect towards the international law. Secondly, there are contradictions in China’s narrative to create a harmonious cooperative environment while at the same time aggressively building up military capacity in the SCS, creating an environment of skepticism and distrust. Last and perhaps most dangerously, China’s support of authoritarian regimes such as in Cambodia and Laos does not bode well for human rights improvements. A Chinese sphere of influence appears to promote norms contrasting to that of ASEAN Member States at large. Should the consensus model remain a feature of Chinese-led regionalism – which it realistically will – the aforementioned norms would not promote healthy intergovernmental relationships. To prove this point, it is appropriate to use game theory to compare Southeast Asian cooperation between ASEAN’s framework and a Chinese-led regionalism. This is because Southeast Asian regional cooperation much resembles cartels seeking oligopolistic profits; the consensus model mirrors a similar decision-making process in a cartel where each firm’s decision could not be questioned by another. Collusion returns a higher producer surplus than a market competition would. In Southeast Asia’s case, economic benefits from free trade agreements (FTA) outweigh trade without barriers eliminated. However, cartels are generally unstable due to strong incentives to deviate. Without going too much into the underlying mathematics, the price or quantities set in a cartel, while bringing overall higher profits to the market, do not follow the best response possible for each firm. This is already happening in Southeast Asia: the AEC’s effort to eliminate trade barriers. Section IV outlined that while ASEAN Member States made significant inroads to eliminate tariff barriers, it was found that non-tariff measures and barriers (NTB/NTM) had in fact increased, signaling a mere shift income stream rather than a thorough elimination. This increase in NTB/NTM is a form of deviation, following obvious calculations that Member States stand to enjoy above average benefits through NTB/NTM while still reaping from the advantages of an FTA. Game theory states that for collusion to be sustainable, it requires for there to be: 1) only a few actors in the cartel, 2) a multi-market competition, 3) a transparent market for detection of deviations, and 4) symmetry between the firms (Policonomics). ASEAN Member States violate three of these conditions. With ten players, an often-opaque regulatory framework that makes detection of NTB/NTM difficult, and diverse economic strengths, from a game theory perspective it makes perfect sense that multilateralism is weak within ASEAN. However, at least within the ASEAN framework, there is a conscious effort – a strong political goodwill – to address the issue of NTB/NTM, so much so that the AEC Blueprint 2025, a 10-year action plan for the area, includes a focused and detailed effort to tackle this very issue (ASEAN, 2015). Consider this case in a Chinese-led regionalism, with the norms of disrespect towards international law and untrustworthy narratives coming into play. In a framework that relies so much on political goodwill, an air of distrust not only discourages cooperation to solve the underlying issue, but it further incentivizes deviations in a cartel-like arrangement. There is the true danger of a Chinese realignment in Southeast Asia. While the short-term economic incentives may be attractive and essential to fill in Southeast Asia’s infrastructure gap, there may be significant losses in economic benefits of an integrated Southeast Asian region compared to a bilateral-focused, Chinese-led model. VI. Moving Forward The previous section provides a strong case for there to be check and balances in China’s charm offensive in Southeast Asia. Analyzing the root causes of the SCS dispute’s prolongation revealed China’s apparent strategy to engulf the Southeast Asian sphere of influence into its own. Any strategy moving forward then must go beyond the SCS dispute; it also needs to address China’s long-term strategy in the region. In a way, China’s charm offensive has been a blessing because it also revealed what needs to be done to counter China’s rise. The crux of the strategy should be to look for economic-incentive driven strategies to encourage multilateralism in ASEAN, thus balancing against China. There are three ways to do this: 1) diversifying FDIs, 2) creating an ASEAN investment distribution mechanism, and 3) capitalizing on state strength to engage in less lucrative, intra-ASEAN investments. For starters, there needs to be a paradigm shift from the hunt of immediate gains that appeals to voters. This refers to China’s hefty financial investments, which, as shown, in states like Cambodia, Malaysia, and the Philippines, had apparent geopolitical agenda behind them. Cambodia especially, perhaps because it has no conflicting interests in the SCS as a landlocked country, is now practically a proxy for China in the region. It was the reason behind the failure for ASEAN to issue joint statements in recent years. With the Cambodian case in mind, the logical step would be for individual ASEAN Member States to be careful not to let China be in a dominant position in any form of monetary assistance. The guiding strategy here is then to diversify the pool of incoming capital, be it in terms of FDI, aid, or trade. There are two ways ASEAN Member States can diversity, by increasing their extra-ASEAN and/or intra-ASEAN sources. In the extra-ASEAN strategy, the impending puzzle would be to find other partners as able and as willing as China in handing out economic incentives. The best alternative is perhaps Japan, another Asian economic power which, despite stagnating FDI contribution to ASEAN, remains the Chinese amount in net terms ($17.6 billion compared to China’s $8.2 billion in net inflows at 2015 levels). What needs to change in Japan’s strategy is the distribution of its investments in the region. Japan’s investments are focused on manufacturing, the largest in the region by far, which does imply that it is playing a role in filling in the infrastructure gap required by the industry. However, Japan’s factories are highly concentrated in Thailand and Indonesia, and are highly insignificant in the CLMV (Cambodia, Laos, Myanmar, Vietnam) countries, with FDI shares in the single digits (ASEAN, 2017). The CLMV countries are key because their low-income status creates an easier path for China to supplant its influence. Apart for Vietnam’s historical adversity towards China, the country holds a giant’s share of FDI inflow into Cambodia and Laos – 22% and 66% respectively – and is currently Myanmar’s largest trade partner at a third of its total (ASEAN, 2017). The key difference between China and Japan is their motivation behind investing heavily in Southeast Asia. While both seek to balance each other out with regards to the SCS dispute, Japan does not have an apparent geopolitical agenda comparable to that of China. At least from an investment perspective, it appears Japanese companies are flocking for its economic incentives, and not for any Japanese-government mandated charm offensive. CLMV states will need to provide better economic incentives to Japan than the ASEAN-6 (Malaysia, Thailand, Singapore, Brunei, Indonesia, the Philippines). At the moment, this is unrealistic because even with their high growth rates –averaging at 6.1% compared to 4.1% in ASEAN-6 in 2016, GDP per capita in CLMV remains 2.7 times lower than the ASEAN-6. Should ASEAN Member States fail to find a suitable substitute for China’s inflowing capital, an alternative proposal could instead be to create a regional-level capital distributing mechanism. The idea is to have all capital inflows to ASEAN to first go through a central collecting agency, which will then distribute them to areas of the highest need. An advantage of this strategy is in eliminating the ‘carrots and sticks’ strategy China currently employs in the region. China can then no longer reward obedience and punish confrontations. The strategy also encourages a more equitable development within the region, which, as stated previously, remains disparate between CLMV and the ASEAN-6. As compelling as this idea may be, it faces several challenges. First, it will face an uphill battle from ASEAN Member States because a centralized collection agency essentially implies a violation of the non-interference policy. Given ASEAN’s diverse economies with varying returns to investments, a central collecting agency may deter potential investors since they will not be able to control where their investments go. The final caveat is that the political feasibility of this strategy, given China’s charm offensive, nears impossibility. China will likely use its leverage in Cambodia and Laos to veto any binding decisions on the strategy. Taking such roadblocks into consideration, perhaps a modification of this idea can work. Instead of a centralized collection agency that becomes the middleman for foreign investments, ASEAN Member States can opt to create their own version of the ASEAN Infrastructure Fund (AIF), an initiative under the Asian Development Bank (ADB) that gives financial assistance for infrastructure building. AIF on its own is insufficient because it remains capped at $300 million a year, far below the what is needed by the region. Indonesia, for example, needs $358 billion worth of investments in infrastructure spending by 2019 to keep pace with its targets (ASEAN, 2017). More tellingly, AIF funds are tied to projects endorsed by the ADB, in which China holds the largest voting share amongst Asia-Pacific shareholders. The proposed ASEAN Regional Fund (ARF) ought to be within the full jurisdiction of ASEAN, where it can dispense funds without having to answer to China or other superpowers. It will become obvious that ASEAN governments will not be able to gather the funds necessary on their own. One possible model to follow is to engage in a public-private partnership (PPP), only instead of a single company doing a joint venture with a particular ASEAN Member State, the proposed ARF will be responsible to pool money by their relevant sectors. Any infrastructure building projects will then be on a shared value basis. That way, state-owned companies cannot exert any geopolitical agenda behind proposed projects. In 2016, intra-ASEAN investments accounted for a quarter of FDI flows in the region ($24 billion), a 500% increase from 2003 levels where an upward trend has been observed since. What is more compelling is how intra-ASEAN investments in CLMV are also getting the lion’s share of total investments (ASEAN, 2017). These figures show an increasing regionality of ASEAN businesses, and that an ASEAN-led ARF may not be far from reality. In terms of feasibility, it is to be expected that ARF’s implementation will take a long time since there remains the issue that ASEAN Member States possess varying regulatory frameworks. It would require some minimal level of harmonization to avoid issues such as double taxations. As far as short-term strategies go, ASEAN Member States are fairly limited by the constraints echoed throughout this paper. A viable short-term strategy has to navigate through the inability to legally coerce other ASEAN Member States, an international law framework that does not have a real enforcement power, and high reliance on economic incentives. Therefore, it can be argued that a state-level solution remains the most viable option. The explicit suggestion here is for Member States to individually forgo trade deals with China, and signing less lucrative deals with other external partners or other ASEAN Member States. What the strategy aims to do is to capitalize on ASEAN Member States’ incentive-driven nature to promote multilateralism. How is this politically viable on a local level? Intuitively speaking, foregoing valuable financial assistance may paint incompetence to local voters, thus potentially costing elections. ASEAN Member States, however, are ‘strong states’, where “policymakers are highly insulated from [domestic interest-group pressures]” (Oatley, 2016). It suggests that ASEAN governments have significant room to follow policies that the public may not agree with, which includes the proposed strategy above. The core logic of the strategy is the following: increasing intra-ASEAN trade and capital flow to facilitate capacity building in ASEAN. These intra-ASEAN investments will help to create formal and informal linkages that intertwine Member States’ interests beyond their own geographical border. These newfound linkages may pressure Member States to also think about their regional investments on top of China’s investments, especially as China becomes more fearless in exercising its ‘carrots and sticks’. In the long run, this could mean a greater need to align policies, hence promoting more multilateral dialogues. In context of the SCS dispute, this could also encourage the option of joint explorations in the waters, solving the dispute at least between ASEAN Member States. The three strategies outlined above focus heavily on trying to balance against China’s creeping charm offensive, but it requires a closer look to determine whether they would automatically solve the SCS dispute. On the one hand, each of these strategies seeks to cripple China’s ability to use money to pressure its ASEAN dependents to respect its interests. On the other, a decaying Chinese influence is not an easy solve; it merely equates to a leveling of the playing field. Another dimension remains unsolvable: the failure of current legal frameworks to fairly arbitrate the dispute. Unless China submits itself to the binding mechanisms under UNCLOS, or voluntarily respects the original PCA ruling, the SCS will remain a contentious issue. A further argument could be made on the possibility that the SCS is not a fight worth fighting. This is in consideration of an earlier cost-benefit analysis of maintaining EEZs in the SCS. The natural resources, namely oil and fish, are unsustainable and are expected to deplete in the near future. Beyond the pretense of sovereignty, it seems clear cut for ASEAN Member States to abandon an unwinnable battle to focus on more actionable strategies. VII. Conclusion A study of the South China Sea maritime dispute requires focus on two key players: China and ASEAN. A surface level observation sees China engaging in questionable behavior in the SCS through its aggressive militarization, island building, and blocking of fishing activities. As for ASEAN, it is striking why there is not a strong multilateral opposition against China, given the high-stakes nature of the disputed areas. A preliminary analysis of how China and ASEAN have approached this dispute so far reveals an insufficient Code of Conduct, where recent negotiations indicated China’s unwillingness to succumb to rule of law at its own expense. There is also the observation that an increasingly diverging ASEAN Member States position also weakens multilateral approaches to solve the dispute. On reasons why the boundary delimitation process has been slow, the argument is two-fold. First, the preference for bilateral process stems from a historical success of such dialogues in the past. Digging deeper, ASEAN’s own structure appears to be at fault. By having a consensus model, and a non-interference policy towards Member States, ASEAN lacks a punishment or coercion mechanism. It means that any regional-level initiatives will require the political goodwill of all Member States. A second dimension that explains the SCS dispute’s prolongation is in the role of international law. UNCLOS, designed to mitigate disputes such as in the SCS, is found to be inherently flawed in two ways. First, UNCLOS’s legal definitions for what states can claim complicates the SCS dispute; the unnecessary inclusion of EEZs contributed towards increasing competition to take control of features in the SCS. Secondly, the use of opt-out clauses from certain parts of the arbitration process defeats the whole purpose of the arbitration process altogether. Another catalyst for Chinese domination in the region is in a receding US trend, at least in terms of its soft power. China recognizes the weakness of its hard power; hence, it exercises its soft power through a charm offensive strategy. This entails changing China’s rhetoric among ASEAN Member States as well as handing out generous economic incentives. The observation that China channels capital to Member States that protect its interests, and pulls out of those who do not, showcases the country’s ‘carrots and sticks’ gameplay to become the region’s new common denominator. Between the fight for sovereignty and economic incentives, it was shown that fighting for sovereignty in the SCS may not be the best strategy after all. Depleting fisheries and oil reserves does not amount to the same long term economic benefits of a Chinese infrastructure splurge. Also, the increase in non-tariff measures and barriers (NTM/NTB) upon the launch of the AEC in 2015 shows that ASEAN Member States are inherently incentive driven. Therefore, a Chinese-led regionalism is clearly the profit-maximizing outcome. In exploring the downsides of a Chinese-led regionalism, comparing the operation of ASEAN to a cartel, leads to the equilibria where Member States are strongly incentivized to deviate from a cartel-like arrangement. The difference from an ASEAN-led regionalism is in the norms China practices. China’s rejection of the PCA, for example, shows brazen disrespect for international law. Norms practiced by China does not promote healthy intergovernmental relationships moving forward. There is now a recognition that the SCS maritime dispute is only a small part of a larger, more existential threat towards ASEAN. Strategies moving forward should not then be short-sighted to any single aspect such as the SCS dispute alone. The first recommendation would be to diversify the sources of foreign investments in the region. Japan was given a suitable alternative, but a balancing against China can only happen here if Japan invests in the same sectors and locations, which is unfortunately not the case in such a segmented region. The second strategy is to create a capital distribution mechanism to promote equitable development hence reducing the ability of external powers such as China to influence the foreign policies of any Member State. A central collecting agency may prove to be too intrusive, hence a modified version centered on pooling money through public-private partnerships (PPP) may be a good way to do this. The only downside of this strategy is that it requires significant advances in ASEAN’s regional regulatory framework. One potential short-term solution to the existential threat posed by China would be to capitalize on ASEAN Member States’ ability to pursue sometimes unpopular policies in their respective countries to encourage intra-ASEAN investments. The whole point of this strategy is to further intertwine Member States’ interests within the region, but beyond their own national borders. These will create formal and informal linkages which will pressure governments to protect their now far-reaching investments. This is a form of an economic incentive-led way of encouraging multilateralism. All in all, as the strategies proposed show, ASEAN remains an essential medium in managing internal and external threats to Southeast Asian nations. ASEAN’s flaws are being used against it, but it also exposes where it can improve on moving forward. That is good progress. Endnotes 9To meet its energy demands, China imports 54 percent of its oil from the Middle East, 80 percent of which passes through the southern SCS passage. 10 Southeast Asia technically consists of 11 countries, with Timor-Leste remaining as an observer of the bloc 11 Cambodia, widely considered as China’s “most faithful client state”, has been behind the blockade of at least two post-summit statements; their position could be because China remains Cambodia’s largest aid provider, an incentive the low-income state sorely needs to catch-up with other ASEAN Member States. 12 Malaysia’s military exercise is part of a growing bilateral military cooperation between the two countries. It has grown from cooperation in disaster relief towards sea lane protections in Straits of Malacca. China also signed a ~$13.5 billion contract to build a rail link that will cut cargo shipping by 30 hours. 13 Vietnam began dredging its military-controlled Ladd Reef in 2016, and signed a gas-drilling venture with ExxonMobil due to be in full operation by 2023. 14 Singapore is in an ongoing dispute with Malaysia over Pedra Branca and South Ledge; Thailand and Cambodia both dispute overlapping claims over Koh Kut; Myanmar does not have shore in the SCS; and Laos is a landlocked country. 15 “In the mid-1990s, China had tried to use military strength to intimidate other countries in Asia, by aggressive moves like sending ships to unoccupied, disputed reefs in the South China Sea. At the same time, Beijing called on other nations in the region to abandon their alliances, mostly with the United States, arguing that these had been made obsolete by the Cold War. This strategy backfired. Countries across the region condemned Beijing’s aggressive behavior and solidified their military links with the United States, drawing the US armed forces closer into the region, and closer to China—exactly what Beijing did not want.” 16 The FDI is on a net basis, and computed as follows: Net FDI = Equity + Net Inter-company Loans + Reinvested Earnings. The net basis concept implies that the followings should be deducted from the FDI gross flows: (1) reverse investment (made by a foreign affiliate in a host country to its parent company/direct investor; (2) loans given by a foreign affiliate to its parent company; and (3) repayments of intra-company loan (paid by a foreign affiliate to its parent company). As such, FDI net inflows can be negative. 17 Japan’s FDI share in 2016 are as follows: Vietnam, 10%; Myanmar, insignificant (collapse into Others; Lao PDR, 4%; Cambodia, 9%. 18 In 2016, intra-ASEAN investments account for: Cambodia, 28%; Laos, 18%; Myanmar, 58%; Vietnam, 18%. 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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.

*Feature* Jorge O. Elorza Jorge O. Elorza Mayor of Providence, RI Spring 2018 The strength of a society is a function of how equally its members share in its growth and progress. In a time when people throughout the country feel as though they are being left behind, Providence has invested in a full cradle-to-career approach to help all of our residents reach middle class by middle age. There is no single intervention that is either necessary or sufficient. Instead, what makes the difference is two fundamental beliefs: first, the understanding that a comprehensive infrastructure of support is required in this work, and second, that the community itself must be involved in designing the system. The City is taking a holistic approach to our economic revitalization process by hosting hundreds of community conversations across the City to help inform decisions around major projects. After hearing from our residents, we’ve prioritized investing in innovative educational programming to address historic inequities; creating dynamic workforce programs more suitable for an inclusive new economy; and leveraging our inherent strengths to produce more sustainable growth. One of our City’s greatest strengths is our diversity – nearly 60 percent of our public-school students come from homes where English is not the primary language spoken. Combined, students and their families speak 31 different languages and hail from 52 countries of origin. As mayor, one of my priorities has been to invest in innovative cradle-to-career programming to give all our students a competitive advantage in their education and eventually, in their future careers. The City has hired school culture coordinators for all middle schools who will serve as role models and provide support to students. To answer calls for better facilities, the Administration also announced a plan to invest up to $400 million in school infrastructure throughout the next 10 years. A yearlong public visioning process for school repairs, in which hundreds have already participated, was launched for a five-year plan that will later be submitted to the State. Here in Providence, only one out of three kindergarten registrants enter the classroom at the appropriate literary benchmark. Through Providence Talks, a nationally recognized program that aims to close the 30 million-word gap that separates children who grow up in less affluent homes from their peers who are raised in middle- and high-income households, we are working to ensure that every child enters kindergarten ready to succeed. By providing free or low-cost innovative programming and initiatives, we are making sure that students will continue to build upon the strides they make all school year long. Our Eat, Play, Learn summer initiative ensures that our youth are spending their summers participating in outdoor, educational and thoughtful programming. Last year, we served over 188,000 free summer meals and distributed 15,000 summer reading passports where students could track their reading progress. Providing students with tools and resources needed to succeed in the 21st century is also among the highest priorities. That’s why we’ve set an ambitious goal of providing every Providence student with access to a tablet, laptop or computer in the classroom by the end of this summer. To close the digital divide, the City launched a partnership with Sprint, which has committed to providing 600 kids from all ten high schools with free 24/7 access to high speed internet throughout their high school careers. We’re also helping adults adapt their skills to the changing demands of our economy. With the launch of the Office of Economic Opportunity in July 2017, the City undertook critical work to provide training, support and resources to residents, particularly those unemployed or underemployed, to connect them to employment or prepare them to launch their own business. The City also supported Amos House’s A Hand Up program, which has offered over 350 people experiencing homelessness daily work opportunities. Through the Providence Business Loan Fund (PBLF), we’re helping existing businesses launch, scale and innovate, promoting economic dynamism and productivity. Under my administration, the PBLF has been restructured and rebranded and now has a board knowledgeable in lending practices with upgraded loan underwriting and record-keeping standards. Over the last three years, the PBLF has issued nearly $2 million in loans to help local businesses expand and create new employment opportunities. As the City is working to couple students, residents and entrepreneurs with better opportunities, we must also improve connectivity between our world-renowned public and private organizations to create new prospects for collaboration. Providence is an educational powerhouse – we are home to eight colleges and universities including Brown University, Rhode Island School of Design and the culinary arts institute Johnson & Wales University. In addition to these assets, we also possess eminent healthcare and cultural institutions. The City of Providence is teaming up with these institutions to expand employment opportunities and reinvent our Downtown. Partnering with Brown University, the University of Rhode Island College of Nursing and Rhode Island College and the state, the City could redevelop a century-old power station – one of its most iconic and beautiful buildings – to produce one of Providence’s greatest historic preservation success stories. This project is a perfect example of what is possible when the private sector joins with ‘Anchor Institutions’ to make something meaningful happen. Preserving and reusing our historic former industrial spaces is creating new energy in our Downtown Jewelry District, catalyzing development in the I-195 land, and promoting the new knowledge and innovation-based economy. When I-195 was relocated and 20 acres of Downtown land was suddenly made available for redevelopment, we were able to capitalize on this momentum to attract the interest of distinguished organizations such as Wexford Science & Technology and Cambridge Innovation Center. Providence is utilizing our inherent strengths and new tools to leverage rapid growth in ‘New Economy’ sectors such as food and biotechnology. In addition to having some of the most critically acclaimed restaurants in the country, Providence is growing as a food hub. As consumers are increasingly focused on healthier, locally-sourced and sustainably-produced foods, Providence is strategically positioned to take advantage of this economic trend. Food production, processing and other commercial industries can provide light manufacturing jobs to Providence residents as locally-sourced foods become more popular. Take, for instance, the case of Farm Fresh RI – Farm Fresh began in 2004 as a student project at Brown University to develop a direct connection between local farmers and residents. The nonprofit now operates 11 farmers markets, coordinates the distribution of more than $2.2 million in locally-grown food to more than 80 vendors and 200 customers annually and operates two Harvest Kitchen programs that have trained more than 300 young people who were directed into the job-training program through the state’s juvenile justice system. This model represents a paradigm shift in the way that we think about – and support businesses. Farm Fresh was recently awarded an $850,000 loan through the PBLF to relocate from Pawtucket to a 60,000-square-foot building it plans to construct on 3.2 acres in our Valley neighborhood. An attractive factor of the national trend is that when investments are made in local food, those dollars are reinvested in creating jobs and spurring the local economy. That’s why it’s particularly a growth area that we want to emphasize. In Providence, we’re preparing our talent and organizing our assets to produce long-term sustainable growth that is both inclusive and equitable. By making long-term investments in our schools and students, we’re inspiring the next generation to learn and empowering them to succeed. Through innovative workforce development programs and public-private partnerships, we’re catalyzing economic growth and attracting significant investments while creating sustainable employment opportunities for all of our residents.

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.

Vermont Act 46 Implications for School Choice Quinn Bornstein Brown University Author Danai Benopoulou Mike Danello Phillip Squires Editors Fall 2018 This paper analyzes Vermont Act 46, an education policy passed by the state legislature in 2015 that seeks to reduce rising public education costs by consolidating the state’s many small, rural school districts into larger unified districts Introduction Vermont is the second-smallest state in the United States, with a 2014 population of around 626,500. Compared to the country as a whole, Vermont has a smaller percentage of residents under the age of 18: 19.4% compared to the 23.1% nationwide average (US Census Bureau, 2014). Even though this number might appear to be trivial, the difference illustrates a dire issue that the state is facing. The number of children in the state’s K-12 public school system has declined from 103,000 students in 1997 to 78,300 in 2015 without a significant reduction in school sites or personnel. This, in turn, has led to a sharp increase in education spending. Since 2009, Vermont’s per-pupil expenditure has been among the highest nationwide.[1] The budgetary expansion is exacerbated by the changing demographics of students who are enrolled in the school system, including a 47% increase in the number of students who qualify for free and reduced lunches through the Supplemental Nutrition Assistance Program.[2] A heavy burden of this spending increase is placed on residents’ income taxes. Vermont’s school-aged population decline and the accompanying spending hikes are not expected to improve in the coming years. Therefore, state lawmakers have been searching for a way to provide the best opportunities to students while simultaneously decreasing the educational budget. A possible policy solution is Vermont Act 46, which was signed into law in June 2015 by former Governor Peter Shumlin. The act provides three school district consolidation styles and offers tax incentives to towns that merge to create districts that contain at least 900 students.[3] If successful, the act aims to increase educational opportunities through the curricular and extracurricular programs offered by larger districts, and decrease budgetary inefficiencies caused by Vermont’s underutilized school facilities and personnel. But what will guarantee Act 46’s success in implementation? As written, the law is poised for success in its high-visibility and symbolic appeal to community unity as well as its use of monetary inducements as a policy tool to increase district cooperation. In addition, its mixed top-down and bottom-up structure appeals politically to a wide range of constituencies including conservatives, liberals, the governor, and school board members. However, Act 46’s success is threatened by the controversy surrounding whether districts that merge will have to give up their school choice rights. Leading education policy analyst Rick Hess argues that one of the biggest impediments to policy implementation is political controversy around the topic.[4] School choice is a longstanding attribute of the Vermont public education system. Because of the state’s mainly rural population, 82 out of 97 school districts do not have the capacity to operate their own high school.[5] Thus, inhabitants of those districts are free to choose a high school, rather than be assigned one. The ability to attend a school outside of the district is highly valued among Vermont communities as it allows for local control, parental freedom, and increased educational opportunity. Due to the community’s investment in school choice, the implementation of Act 46 will only be successful if it is revised and clarified by the Vermont legislature in order to preserve school choice. Vermont Act 46 Explained Vermont Act 46 operates on two axes: budgetary efficiency and increasing student opportunity. Legislators and the governor believe that both policy issues can be addressed through school district consolidation. Currently, the state contains 13 different types of school district structures. This diversity has resulted in a lack of cohesion and flexibility to share curricular resources, administrative models, and extra-curricular opportunities.[6] Because of Vermont’s low population density—an average of 68 residents per square mile—the smallest Vermont elementary school contains 15 students, and the smallest high school a mere 55.[7] These schools are not anomalies: out of the state’s 300 public schools, 205 enroll fewer than 300 students.[8] On the one hand, small classroom sizes and low student to teacher ratios offer many benefits, such as individualized attention. However, small schools often do not have the ability to offer a diverse range of educational opportunities and have higher per-pupil costs than larger schools. Research on economies of scale by Bruce Baker of Rutgers University and Wendy Geller of the Vermont State Agency of Education finds that nationwide, “district-level per pupil costs tend to level off as district enrollments approach 2000 pupils.” This means that moderately sized districts, those enrolling 2,000-4,000 students, can have an efficient per-pupil expenditure without sacrificing individualized teaching practices that result in optimal student performance. However, only four out of the 97 Vermont districts contain over 2,000 students.[9] To feasibly balance the optimal district population (according to national literature) with Vermont’s rural demographics, legislators compromised and decided on 900 students as the optimal district size under Act 46. On the side of economic efficiency, Act 46 seeks to rein in educational spending by setting allowable spending increases per district; citizens are taxed doubly for every dollar amount exceeding this limit. This sanction is balanced by the positive tax incentives to induce districts to consolidate. Act 46 outlines three paths to consolidation with varying deadlines, with the inducements being higher the sooner a district consolidates. Districts who follow the first path and merge by the 2017 deadline receive a 10-cent tax break per $100 of residential property within the district. This amount decreases by two cents annually over the next five years, greatly incentivizing districts to merge before 2022.[10] Inducements are a powerful policy tool for implementing rapid change, for districts will want to maximize their tax break potential. This method operates under the assumption that monetary measures are the best way to prompt change.[11] Since the main goal of Act 46 is to counter the heavy spending pressures that districts face, the use of inducements is well founded. Districts will be fiscally motivated to consolidate as they face the opportunity to save money in the short term while implementing a policy that will also help them save money in the long run. However, this policy tool presents a controversy because the allowable spending increases, tax benefits, and sanctions are top-down inducements. Stowe Representative Heidi Scheuermann, who staunchly opposes Act 46, argues that the law erodes the traditional power of local policymakers and school board members, impeding their ability to monitor their districts’ educational budgets. She states that the consolidation of budgetary power in the hands of legislators in the state’s capital moves the schooling system further away from providing for the diverse needs of individual students in Vermont’s varied districts.[12] It is natural for Scheuermann, as a Republican member of the state legislature, to be wary of increased state power over traditionally local matters. However, Act 46 is “designed to encourage and support local decisions and actions.”[13] The legislation balances the top-down economic inducements by providing district autonomy over which of the three phases of consolidation to enact. It also allows the districts autonomy on how to undergo the actual restructuring process. Furthermore, consolidation is neither mandated nor does the Act require districts to have over 900 students. The language merely states that the “state’s educational goals are best served” by this number.[14] The top-down voluntary size standards and fiscal inducements coupled with the bottom-up local control on how to meet these standards is reminiscent of President George W. Bush’s No Child Left Behind Act (NCLB). This 2001 policy operated on a “horse-trade” structure of a federal call for state authority on setting certain standards and designing teaching and testing practices to meet them.[15] Act 46 follows this federalism-preserving structure, but differs from NCLB in its focus on restructuring as the key to educational reform, instead of altering student and teacher standards. The restructuring movement, which emphasizes individual school-level administrative practices such as site-based-management (SBM), is popular with local school administrators and school board members, for it returns power to the local level. Often, school board members are proponents of the status quo in education policy; that is, they want to maintain the current policy monopoly that the majority of school districts nationwide have their budgets and administrative processes decided by a democratically elected school board.[16] School redistricting clearly differs from Vermont’s status quo, and the decreased number of districts will result in fewer school board positions and therefore a lower number of Vermonters who will have control over the educational system. However, because of the bottom-up autonomy that districts retain under Act 46, the Vermont School Board Association director, Nicole Mace, supports the law.[17] On the other hand, the Act’s top-down aspects appeal to powerful individuals in Montpelier, the state’s capital, who benefit from the increased state control. These individuals, such as Jeff Francis, who is the head of the Vermont Superintendents’ Association (VSA), are crucial to the law’s implementation. They have access to the media and can thus raise public awareness of the law. They also have leadership roles with state bureaucratic agencies such as the Department of Education and authority over local superintendents.[18] The VSA is also a proponent of Act 46 because superintendents statewide are expected to receive increased public approval for taking initiative in implementing a reform that touts both fiscal responsibility and educational opportunity. However, Act 46 could contribute to what Hess calls “policy churn” due to its support from the VSA. Since superintendents often have short tenures, averaging around three years, the results of the reforms they put in place but are often reaped once they out of office.[19] Even before the first phase of district consolidation goes into effect in 2017, the next governor or legislative body could decide that merging would not solve the state’s education budget concerns. Therefore, to ensure its full implementation over time, it is important that Act 46 is supported by the public, not just the policymakers and bureaucrats. The latter individuals could be more concerned with furthering their own personal political agendas rather than ensuring student welfare. The law is successful at garnering bipartisan support among Vermont voters and taxpayers. Although conservatives like Rep. Scheuermann are concerned with the increase in state power that comes with implementation, others would support the law’s primary aim of fiscal responsibility. On the other side of the aisle, liberals would tout the possibilities for increased student opportunity that comes with redistricting, especially for those on free and reduced lunch who may otherwise not have access to extracurricular enrichment opportunities. In 2015, a student had to turn down the opportunity to attend the University of Vermont under its full-ride Green & Gold merit scholarship because her high school did not offer the curriculum required for her to apply to the university.[20] Under Act 46, larger districts would be able to offer more specialized instruction, such as Advanced Placement, vocational education, and arts courses. This means that all Vermont students would have a more level playing field; achievement will not be limited to those who happen to live in districts with large high schools. Act 46 also succeeds in gaining widespread public support because of what Hess calls high visibility. Community awareness of the law is important because it impacts not just families with school-aged children, but every Vermonter due to the effect that the law has on their property taxes. The act’s high profile on the state agenda is evident in the community forums that supervisory unions have held across the state in the past year to explain the law’s contents. St. Johnsbury Academy, a high school in Caledonia County that serves students from more than 14 local districts, explained to taxpayers, through its community forum, that the school’s allowable tuition increase would be 1.95% (which is the average of all the sending towns’).[21] These opportunities for resident input and learning are important to foster support for a complicated economic bill that could have appeared to be the product of disassociated Montpelier politicians. Hess explains that another aspect of increasing visibility is symbolism: this new law gives the impression of grand change.[22] Even if residents do not fully understand the intricacies of the three phases of consolidation or the economic inducements, they can support the act’s ideals of opportunity, equality, local authority, fiscal responsibility, and unity despite geographic isolation. The Issue of School Choice Despite the law’s many benefits, one deeply-rooted Vermont ideal does not have a place in Act 46: school choice. In other areas, Act 46 is poised for success in implementation: it addresses an important fiscal issue, utilizes inducements as a policy tool, provides opportunities for student achievement, garners wide-ranging bipartisan support, and is highly visible. Yet Hess argues that successfully implemented policies should not only have high visibility, but also low controversy.[23] Granted, there is some disagreement as to Act 46’s success in the aforementioned areas. The conservative interest group Campaign for Vermont argues that the tax write-offs for residents in districts that merge will actually lead to higher educational spending, not lower.[24] Conservatives like Rep. Scheuermann are also concerned with the possible erosion of local control. However, the larger danger of losing local control does not come from Montpelier’s top-down mandates and inducements. The major source of controversy is the legislation’s unclear language about whether former choice towns that merge with non-choice towns will still provide tuition to allow families to send their children to schools outside the new district. Act 46, as currently written, states it will not change the way a district pays students’ tuition.[25] Many legislators and schools, such as St. Johnsbury Academy, interpreted this to mean that choice is only given up if the school board of a sending town chooses to mandate that all their resident students attend the new district schools.[26] However, the State Board of Education ruled that school choice towns cannot maintain their choice if they merge with a district with schools that offer those grades.[27] Therefore, there is a vast gulf between how the law was written and envisioned, and how it would be implemented. Act 46’s chances of success are greatly reduced if school choice is not maintained and the Vermont state legislature does not revise and clarify the law’s language to overturn the State Board of Education’s ruling. The preservation of this 140-year-old Vermont educational practice is essential because of its bipartisan support, symbolism, and educational opportunity. Vermont’s school choice system is designed so that school boards in towns that do not offer all K-12 grade levels must pay tuition for students to attend a public or approved secular, independent school outside of the town or district for those absent grades. It could be the case that a town has such a designated “sending school,” but a child is better served by attending a different school, for geographic or curricular reasons. In this situation, the parents can petition the school board to have the child’s tuition follow them to the other school.[28] This flexibility for students to move across districts is important because many schools are too small to offer a wide range of Advanced Placement or language courses.[29] Furthermore, Vermont is practically exempt from the provision of the federal No Child Left Behind act, that allows students to attend another school in the same district if their designated school does not meet the standards of adequate yearly progress toward excellence for two years. There are very few school districts in Vermont containing more than one school offering the same grade levels.[30] Without school choice, parents would have to change their place of residence to save their child from attending a failing school, putting families in a difficult situation. Choice also promotes community control; school boards are in charge of allotting tuition to the various sending schools and deciding if a town has a designated high school. Finally, choice connotes freedom and individualism; this symbolism appeals to both conservatives who value local government and family values, and liberals who want to provide equal opportunities. During the 2016 gubernatorial race, in the first debate between Republican Phil Scott and Democrat Sue Minter, both candidates expressed support for school choice, despite their differing views on Act 46 and the necessary steps needed to enhance the state’s public education system. Minter stood by the existing school choice system, but would counter its expansion. Scott, on the other hand, promised to expand school choice and lamented the fact that Act 46 curtailed a key Vermont value.[31] In the first year of implementation, residents of 55 school districts voted on merging into larger districts. The results varied, with several districts on the western side of the state in Chittenden County touting successful merger votes. John Castle, superintendent of the North Country Supervisory Union, explained that this success, which came from the most densely populated section of Vermont, is due to its “different ethos and cultural disparities” compared to other, rural areas of the state. He cites a fear among residents of rural districts like Orleans Central and Franklin Northeast, a particularly isolated district along the Canadian border, that a merger will bring with it a sense of loss of community identity and history.[32] Three districts have defeated the proposal entirely. However, the majority of districts remain at an irresolute intermediary stage, while merger study and exploratory committees try to decide how best to balance the needs of taxpayers and students with the district’s budget.[33] The unification study committee report for the Franklin Northeast Supervisory Union, a district that ultimately failed to pass the Act, outlines the changes to school choice that the merger would entail. Students from the three districts who are currently enrolled in grades 9-12 for the 2016-17 school year would be “grandfathered”: their tuition dollars would follow them and allow them the choice to attend their current school, even if it is out of district. However, successful passage of Act 46 would bring an end to choice at the close of the 2019-20 school year.[34] Including those in Franklin Northeast, four out of fifteen towns that have rejected merger proposals offer school choice.[35] Members of the State GOP, led by House Minority Leader Don Turner, have called for a reconsideration of the bill to permit “communities the ability to keep their school choice and still merge with non-school choice towns.” While this would be the best solution for constituent support and educational opportunity, not all actors find this feasible. Nicole Mace of the Vermont School Boards Association and Jess Francis of the Vermont Superintendents Association argue that the state will face an added cost by providing tuition for choice while also operating all K-12 grade levels within the same district.[36] They believe this will exacerbate the problems of the high education budget that Act 46 seeks to repair. Apart from the argument to not amend Act 46 as currently written, skeptics could also look to test scores to argue in favor of rescinding the law entirely. Vermont’s scores on the 2015 National Assessment of Educational Progress (NAEP) test continue to rank among those of the top 10 states in the country. The only state higher in 4th grade reading is Massachusetts (with no state topping Vermont in 8th grade reading) and the achievement gap between students on Free and Reduced Lunch and those who are not is much lower in Vermont than the national average.[37] One of the main goals of Act 46 is to enhance student achievement. However, students are already successful. So, why change the system? However, school district consolidation under Act 46 is concerned with a different kind of success - not the kind that can be measured through standardized test scores. The law allows for districts to provide extra-curricular and advanced curricular opportunities—the arts, sports, foreign language, Advanced Placement courses—to isolated, rural students who may not otherwise have access to academic enrichment. While Act 46 is an economic policy and its main goal is to rein in the education budget, lawmakers and constituents must not forget that the primary aim of any policy affecting schoolchildren and their families is to provide students with the best educational experiences and opportunities for success. School choice is an essential component of widening rural children’s academic and social experiences. Milton Friedman writes that school choice promotes a “healthy intermingling” of students from varied racial and socioeconomic backgrounds.[38] At St. Johnsbury Academy, students from the more than 14 sending districts in Vermont and New Hampshire[39] attend classes with hundreds of domestic and international boarding students. If Act 46 were to discontinue school choice, local students from one town could be arbitrarily designated to attend an inferior or less diverse secondary school, merely because of the way the redistricting lines were drawn. While the Vermonters arguing for school choice are mainly fueled by tradition and desire for educational opportunity, Secretary of Education Betsy DeVos supports school choice as a way to limit federal involvement in education.[40] The Trump administration’s position on school choice differs from that of the Obama and Bush administrations. The former sees it as a way to flee struggling public schools while the latter focus on increasing accountability and raising test scores for public schools. This past concentration on improving public schools is logical—even though 37% of students in 2012 had school choice available to them, the vast majority of parents (77%) reported that the public school assigned to their neighborhood or school district was their first choice of school.[41] Despite the fact that the majority of Americans favor their local public school, Vermont’s low population density, history of school choice and disparity in classes and programs offered, places the state in a very different position. This highlights the importance of maintaining school choice in Vermont, even if the majority of Americans don’t utilize the option. As the VBSA and VSA debate the fiscal difficulties of the mutual coexistence of choice and district merging, they must remember that the success of Act 46 depends on its low controversy among its constituencies. If parents cannot preserve choice for their children, Act 46 will be nearly impossible to implement statewide. Endnotes [1] Baker, Bruce D. and Wendy I. Geller. 2015. “When is Small Too Small? Efficiency, Equity & the Organization of Vermont Public Schools.” Vermont Agency of Education & Rutgers University. Retrieved from http://education.vermont.gov/documents/EDU-bbaker-vtconsolidation-march2_20152.pdf . [2] St. Johnsbury Academy. 2015. SJA and Act 46. Retrieved from http://www.stjacademy.org/page.cfm?p=238&newsid=2773&ncat=11,10,9,4,7,12 [3] Vermont Agency of Education. 2015a. Act 46 of 2015 Fact Sheet. Retrieved from http://education.vermont.gov/documents/edu-act46-fact-sheet.pdf . [4] Hess, Frederick M. 1999. “A Political Explanation of Policy Selection: The Case of Urban School Reform.” Policy Studies Journal, 27 (3), 459-473. [5] Vermont Department of Education. 2013. Town and Unified Union School Districts Tuitioning One or more Grades. Retrieved from http://education.vermont.gov/documents/EDU-Town_and_Unified_School_Districts_Tuitioning_One_or_More_Grades.pdf [6] St. Johnsbury Academy. 2015. SJA and Act 46. Retrieved from http://www.stjacademy.org/page.cfm?p=238&newsid=2773&ncat=11,10,9,4,7,12 [7] United States Census Bureau. 2014. Vermont Quickfacts. Retrieved from http://quickfacts.census.gov/qfd/states/50000.html . [8] St. Johnsbury Academy. 2015. SJA and Act 46. Retrieved from http://www.stjacademy.org/page.cfm?p=238&newsid=2773&ncat=11,10,9,4,7,12 [9] Baker, Bruce D. and Wendy I. Geller. 2015. “When is Small Too Small? Efficiency, Equity & the Organization of Vermont Public Schools.” Vermont Agency of Education & Rutgers University. Retrieved from http://education.vermont.gov/documents/EDU-bbaker-vtconsolidation-march2_20152.pdf . [10] Danitz Pache, Tiffany. 2015a. “Campaign for Vermont Calls for Repeal of Act 46.” Vermont Digger. Retrieved from http://vtdigger.org/2015/09/07/campaign-for-vermont-calls-for-repeal-of-act-46/ . [11] McDonnell, Lorraine M., and Richard F. Elmore 1987. Getting the Job Done: Alternative Policy Instruments. Educational Evaluation and Policy Analysis, Vol. 9, No. 2 (Summer, 1987), pp. 133-152. [12] Kinzel, Bob and Rick Cengeri. 2015. Getting Act 46 Together. Vermont Edition [Radio Broadcast]. Montpelier, VT: Vermont Public Radio. [13] Vermont Agency of Education. 2015a. Act 46 of 2015 Fact Sheet. Retrieved from http://education.vermont.gov/documents/edu-act46-fact-sheet.pdf . [14] Vermont Agency of Education. 2015b. Clarification on Act 46 Size Requirements. Retrieved from http://education.vermont.gov/documents/edu-act46-size-requirement-clarification.pdf . [15] Fuhrman, Susan H. 2003. Ridings Waves, Trading Horses: The Twenty-Year Effort to Reform Education. In Gordon, David T. & Graham, Patricia A., A Nation Reformed: American Education 20 Years After A Nation at Risk. (pp. 7-22). Cambridge, Ma: Harvard Education Press. [16] Papay, John. 2015. The Role of Research in Educational Politics and Policymaking [PowerPoint slides]. Retrieved from https://canvas.brown.edu/courses/1018282/files/folder/Class%2520Slides?preview=53833383 . [17] Danitz Pache, Tiffany 2015b. “State GOP Leaders Call for Clarification of Act 46 Impact on Private Schools.” Vermont Digger. Retrieved from http://vtdigger.org/2015/10/26/state-gop-leaders-call-for-clarification-of-act-46-impact-on-private-schools/ . [18] Danitz Pache, Tiffany. 2015a. “Campaign for Vermont Calls for Repeal of Act 46.” Vermont Digger. Retrieved from http://vtdigger.org/2015/09/07/campaign-for-vermont-calls-for-repeal-of-act-46/ . [19] Hess, Frederick M. 1999. “A Political Explanation of Policy Selection: The Case of Urban School Reform.” Policy Studies Journal, 27 (3), 459-473. [20] Kinzel, Bob and Rick Cengeri. 2015. Getting Act 46 Together. Vermont Edition [Radio Broadcast]. Montpelier, VT: Vermont Public Radio. [21] St. Johnsbury Academy. 2015. SJA and Act 46. Retrieved from http://www.stjacademy.org/page.cfm?p=238&newsid=2773&ncat=11,10,9,4,7,12 [22] Hess, Frederick M. 1999. “A Political Explanation of Policy Selection: The Case of Urban School Reform.” Policy Studies Journal, 27 (3), 459-473. [23] Ibid. [24] Danitz Pache, Tiffany 2015b. “State GOP Leaders Call for Clarification of Act 46 Impact on Private Schools.” Vermont Digger. Retrieved from http://vtdigger.org/2015/10/26/state-gop-leaders-call-for-clarification-of-act-46-impact-on-private-schools/ . [25] Vermont Agency of Education. 2015a. Act 46 of 2015 Fact Sheet. Retrieved from http://education.vermont.gov/documents/edu-act46-fact-sheet.pdf . [26] St. Johnsbury Academy. 2015. SJA and Act 46. Retrieved from http://www.stjacademy.org/page.cfm?p=238&newsid=2773&ncat=11,10,9,4,7,12 [27] Danitz Pache, Tiffany 2015b. “State GOP Leaders Call for Clarification of Act 46 Impact on Private Schools.” Vermont Digger. Retrieved from http://vtdigger.org/2015/10/26/state-gop-leaders-call-for-clarification-of-act-46-impact-on-private-schools/ . [28] School Choice Vermont. 2015. Tuitioning and School Choice, and Access to Independent Schools in VT. The Legal Basics. Retrieved from http://www.schoolchoicevermont.com/choice-in-vt.html . [29] Kinzel, Bob and Rick Cengeri. 2015. Getting Act 46 Together. Vermont Edition [Radio Broadcast]. Montpelier, VT: Vermont Public Radio. [30] School Choice Vermont. 2015. Tuitioning and School Choice, and Access to Independent Schools in VT. The Legal Basics. Retrieved from http://www.schoolchoicevermont.com/choice-in-vt.html . [31] Danitz Pache, Tiffany. 2016a. “In First Debate, Minter, Scott Clash on Act 46 and School Choice.” Vermont Digger. Retrieved from http://vtdigger.org/2016/08/23/in-first-debate-minter-scott-clash-on-act-46-and-school-choice/ . [32] Danitz Pache, Tiffany. 2016b. “Act 46 by the Numbers: Merger Votes are In.” Vermont Digger. Retrieved from http://vtdigger.org/2016/08/14/act-46-by-the-numbers-merger-votes-are-in/ . [33] Vermont School Boards Association. 2016. Act 46 Map. Retrieved from http://www.vtvsba.org/act-46-map . [34] Franklin Northeast Supervisory Union Study Committee. 2016. Study Committee Report Franklin Northeast. Vermont Agency of Education. Retrieved from http://education.vermont.gov/sites/aoe/files/documents/edu-study-committee-report-franklin-northeast.pdf . [35] Danitz Pache, Tiffany. 2016b. “Act 46 by the Numbers: Merger Votes are In.” Vermont Digger. Retrieved from http://vtdigger.org/2016/08/14/act-46-by-the-numbers-merger-votes-are-in/ . [36] Danitz Pache, Tiffany 2015b. “State GOP Leaders Call for Clarification of Act 46 Impact on Private Schools.” Vermont Digger. Retrieved from http://vtdigger.org/2015/10/26/state-gop-leaders-call-for-clarification-of-act-46-impact-on-private-schools/ . [37] Vermont Agency of Education. 2015c. Reading and Math Scores Remain Among Best in the Nation. Retrieved from http://education.vermont.gov/documents/edu-press-release-naep-scores-2015.pdf . [38] Friedman, Milton. 1962. Capitalism and Freedom. Chicago, IL: University of Chicago Press. [39] St. Johnsbury Academy. 2015. SJA and Act 46. Retrieved from http://www.stjacademy.org/page.cfm?p=238&newsid=2773&ncat=11,10,9,4,7,12 [40] Strauss, Valerie. 2017. “What ‘school choice’ means in the era of Trump and DeVos. The Washington Post. Retrieved from https://www.washingtonpost.com/news/answer-sheet/wp/2017/05/22/what-school-choice-means-in-the-era-of-trump-and-devos/?utm_term=.b998a14bff38 [41] U.S. Department of Education, National Center for Education Statistics. (2018). Digest of Education Statistics, 2016 (NCES 2017-094), Table 206.40 . Works Cited Baker, Bruce D. and Wendy I. Geller. 2015. “When is Small Too Small? Efficiency, Equity & the Organization of Vermont Public Schools.” Vermont Agency of Education & Rutgers University. Retrieved from http://education.vermont.gov/documents/EDU-bbaker-vtconsolidation-march2_20152.pdf . Danitz Pache, Tiffany. 2015a. “Campaign for Vermont Calls for Repeal of Act 46.” Vermont Digger. Retrieved from http://vtdigger.org/2015/09/07/campaign-for-vermont-calls-for-repeal-of-act-46/ . Danitz Pache, Tiffany 2015b. “State GOP Leaders Call for Clarification of Act 46 Impact on Private Schools.” Vermont Digger. Retrieved from http://vtdigger.org/2015/10/26/state-gop-leaders-call-for-clarification-of-act-46-impact-on-private-schools/ . Danitz Pache, Tiffany. 2016a. “In First Debate, Minter, Scott Clash on Act 46 and School Choice.” Vermont Digger. Retrieved from http://vtdigger.org/2016/08/23/in-first-debate-minter-scott-clash-on-act-46-and-school-choice/ . Danitz Pache, Tiffany. 2016b. “Act 46 by the Numbers: Merger Votes are In.” Vermont Digger. Retrieved from http://vtdigger.org/2016/08/14/act-46-by-the-numbers-merger-votes-are-in/ . Franklin Northeast Supervisory Union Study Committee. 2016. Study Committee Report Franklin Northeast. Vermont Agency of Education. Retrieved from http://education.vermont.gov/sites/aoe/files/documents/edu-study-committee-report-franklin-northeast.pdf . Friedman, Milton. 1962. Capitalism and Freedom. Chicago, IL: University of Chicago Press. Hess, Frederick M. 1999. “A Political Explanation of Policy Selection: The Case of Urban School Reform.” Policy Studies Journal, 27 (3), 459-473. Fuhrman, Susan H. 2003. Ridings Waves, Trading Horses: The Twenty-Year Effort to Reform Education. In Gordon, David T. & Graham, Patricia A., A Nation Reformed: American Education 20 Years After A Nation at Risk. (pp. 7-22). Cambridge, Ma: Harvard Education Press. Kinzel, Bob and Rick Cengeri. 2015. Getting Act 46 Together. Vermont Edition [Radio Broadcast]. Montpelier, VT: Vermont Public Radio. McDonnell, Lorraine M., and Richard F. Elmore 1987. Getting the Job Done: Alternative Policy Instruments. Educational Evaluation and Policy Analysis, Vol. 9, No. 2 (Summer, 1987), pp. 133-152. Papay, John. 2015. The Role of Research in Educational Politics and Policymaking [PowerPoint slides]. Retrieved from https://canvas.brown.edu/courses/1018282/files/folder/Class%2520Slides?preview=53833383 . School Choice Vermont. 2015. Tuitioning and School Choice, and Access to Independent Schools in VT. The Legal Basics. Retrieved from http://www.schoolchoicevermont.com/choice-in-vt.html . Strauss, Valerie. 2017. “What ‘school choice’ means in the era of Trump and DeVos. The Washington Post. Retrieved from https://www.washingtonpost.com/news/answer-sheet/wp/2017/05/22/what-school-choice-means-in-the-era-of-trump-and-devos/?utm_term=.b998a14bff38 . St. Johnsbury Academy. 2015. SJA and Act 46. Retrieved from http://www.stjacademy.org/page.cfm?p=238&newsid=2773&ncat=11,10,9,4,7,12 Vermont Act No. 46: An act relating to making amendments to education funding, education spending, and education governance. Vt. Gen. Assemb. B. 46 (2015). Vermont Agency of Education. 2015a. Act 46 of 2015 Fact Sheet. Retrieved from http://education.vermont.gov/documents/edu-act46-fact-sheet.pdf . Vermont Agency of Education. 2015b. Clarification on Act 46 Size Requirements. Retrieved from http://education.vermont.gov/documents/edu-act46-size-requirement-clarification.pdf . Vermont Agency of Education. 2015c. Reading and Math Scores Remain Among Best in the Nation. Retrieved from http://education.vermont.gov/documents/edu-press-release-naep-scores-2015.pdf . Vermont Department of Education. 2013. Town and Unified Union School Districts Tuitioning One or more Grades. Retrieved from http://education.vermont.gov/documents/EDU-Town_and_Unified_School_Districts_Tuitioning_One_or_More_Grades.pdf . Vermont School Boards Association. 2016. Act 46 Map. Retrieved from http://www.vtvsba.org/act-46-map . United States Census Bureau. 2014. Vermont Quickfacts. Retrieved from http://quickfacts.census.gov/qfd/states/50000.html . U.S. Department of Education, National Center for Education Statistics. (2018). Digest of Education Statistics, 2016 (NCES 2017-094), Table 206.40 .

The Duty to Use Drones The Duty to Use Drones In Cases of National Self-Defense Lina Dayem University of Chicago Author Ginevra Bulgari Vance Kelley Galen Hall Naima Okami Editors Spring 2019 Download full text PDF (14 pages) Introduction Since the tactic was first implemented, targeted killing by drones has been associated with political secrecy, dubious legality, and unsavory practices, and has thus garnered a negative reputation. In this essay, I endeavor to vindicate the use of drones, if only under the constrained circumstances of national self-defense. I argue the following: If a state can permissibly carry out targeted killings for the purpose of national self-defense, then it ought to do so with drones because of the minimized risks to soldiers and civilians. To argue this position, I first demonstrate that we should think of targeted killing as fitting into the self-defense paradigm, rather than military or law enforcement paradigms. I explain that states may permissibly engage in targeted killing when it is justified in terms of national self-defense. Next I explain how drones minimize risk to both soldiers and civilians. By combining the logic of self-defense with the principle of risk minimization, I arrive at the conclusion that in circumstances where targeted killing is necessary for national self-defense, states have a duty to use drones. Finally, I respond to potential objections about the use of drones, all of which can be addressed by improved drone policy. Military and Law Enforcement Paradigms Provide Inadequate Justification for Targeted Killing Targeted killing is a practice in which many governments engage. To justify targeted killings, theorists and politicians generally invoke one of two paradigms that permit the use of deadly force: the military paradigm and the law enforcement paradigm. These paradigms act to orient government policy—they direct how we may morally and legally behave towards our enemy. Targeted killing remains controversial because it cannot be clearly endorsed by either paradigm. The Military Paradigm The military paradigm activates the laws and conventions of war. Enemy combatants are the only parties liable to death. According to the jus in bello[1] convention, combatants can permissibly be killed during wartime without punishment (with some exceptions). Hostile treatment towards a combatant is permissible simply by virtue of combatant status, rather than any actions taken by the individual in question. In other words, a combatant’s liability to death derives precisely from assumption of the role of a soldier. In this paradigm, identifying an enemy terrorist as a combatant engaged in acts of war could enable the state to justify permissibly killing him without a trial. So, the fact that targeted killings of terrorists occur without trial suggests potential use of the logic of the military paradigm. Furthermore, in the case of the United States’ conflict with Al-Qaeda, we notice that the military paradigm seems to underlies the operative language of both parties, although it does not fully account for the conflict’s operative logic. Declaring a “War on Terror” and Jihad (Holy War)[2], respectively, implies at least nominally that each side considers the other’s fighters to be enemy combatants. The problem, of course, is that under international law a private citizen (such as Osama bin Laden) cannot declare war as that is a right granted only to sovereign states.[3] Conversely, under international law, a state cannot declare war against a non-state actor.[4] We may doubt the applicability of the military paradigm to targeted killings for several other reasons. First, terrorists willingly forgo the conventions that govern combatant status. The convention states that combatants wear the insignia of their country and carry their weapons openly.[5] Terrorists, however, do not wear uniforms, and hide amongst civilians. Of course, the main tactic of terrorists—targeting civilians—violates the jus in bello convention of noncombatant immunity. It is not only the status of the terrorists that is unclear; the status of those who carry out targeted killing is equally blurry, as civilian leaders often order targeted killings. In the United States, the Central Intelligence Agency (CIA), a civilian organization, has the authority to command drone strikes.[6] CIA control over drone strikes blurs the line between combatant and civilian, since civilians do actively engage in hostile conduct. This further complicates traditional boundaries of warfare with respect to justice and permissibility. Finally, naming someone in advance to be placed on a hit list runs counter to the very idea of status-based liability. In war, individual soldiers on the battlefield are not identified by the enemy and specifically targeted. Rather, a soldier is attacked by another soldier as part of a relationship of hostility qua soldier.[7] In other words, a soldier is liable to be killed due to his status as a soldier, rather than because of his actions. The practice of naming a target in advance singles him out qua individual. Therefore, the naming practice is fundamentally at odds with the status-based logic of legitimate military hostility. The Law Enforcement Paradigm Political theorists and governments have also justified targeted killing under a law enforcement paradigm. These parties maintain that terrorists should be considered criminals, rather than combatants. However, the goal of law enforcement is to arrest—not kill—the criminal. By the law enforcement paradigm, it is wrong to deprive a suspected criminal of due process by killing him before a trial. Indeed, the instances where law enforcement officers can permissibly kill are restricted to cases wherein a criminal resists arrest by putting the life of officers or others at risk. In this situation, liability to death is action-based rather than status-based. In other words, the criminal has effectively forfeited their right to life by initiating an attack. Liability to death may also come after the trial as retributive justice. So in certain cases, certain crimes may be punishable by death. While the death penalty is controversial, in cases where it is legal, it also represents an instance of action-based liability as punishment for a past action. However, by its very nature, targeted killing skips the fundamental steps of arrest and trial. Placing a name on a hit-list presumes guilt, and the individual listed becomes liable to instantaneous death by drone strike without being afforded due process. Under the law enforcement paradigm, this would be considered an extrajudicial execution, tantamount to murder.[8] Invoking the Principle of Self-Defense to Justify Targeted Killings The Self-Defense Paradigm In this discussion, I will draw from the work of several authors, such as McMahan, Gross, and Finkelstein, who analyze targeted killing as an act of self-defense. The self-defense paradigm better addresses the conceptual lacunae in the military and law enforcement paradigms as they concern targeted killing, and thus maps more clearly onto the practice of targeted killing. The basic premise of the self-defense paradigm is that when there is a threat to national security, a state has a right to protect itself. Self-defense can be considered a special offshoot of the law enforcement paradigm because, as described above, it is sometimes permissible for law enforcement officers to engage in certain self-defensive practices involving lethal force.[9] This paradigm deals with the threats that terrorists pose to national security and so is preemptive in nature. In this way, the killing of a terrorist should not be conceived of as punishment or retributive justice, since the paradigm does not deal with past actions. Instead, under the self-defense paradigm, someone who has never committed an attack could be just as liable as someone who has already committed several, provided that they pose the same current threat. Indeed, under this framework, a terrorist’s past crimes only serve as an epistemic gauge for predicting the likelihood that the individual will strike again.[10] The self-defense paradigm bypasses the military paradigm’s murky combatant-noncombatant distinctions because its liability criterion centers on action rather than status. If someone poses a threat to a state, the actions a state may take against the individual are not constrained by their status. Rather, the individual’s status is irrelevant both to their liability to death as well as our ability to retaliate. The self-defense paradigm also circumvents the law-enforcement paradigm’s crucial steps of arrest and trial because it operates on the logic of preemptive justice rather than retributive justice. Like the law enforcement paradigm, the self-defense paradigm uses the logic of action-based liability to death, but in a less evident manner. A terrorist’s liability to death derives from the notion that in planning an attack, a terrorist wrongs innocent people by increasing their likelihood of harm.[11] Thus, the harm caused by the terrorist’s death would need to be proportional to the harm prevented by protecting innocents from the attack. In other words, if their death would not disrupt realization of that harm, the targeted killing is not justified. Finally, it must also be considered whether or not the targeted killing could result in dangerous unintended consequences.When these criteria are met under the self-defense paradigm, the result would be that targeted killing is permissible as an act of self-defense. In the next sections, I argue that in the cases where targeted killing is permissible, states have a duty to use drones to carry them out because drones reduce risk to both civilians and soldiers. The Duty to Minimize Risk in Cases of Self-Defense: Individual Cases To demonstrate the duty to minimize risk to civilians and soldiers in cases of national self-defense, I will employ an analogy involving individual self-defense. Imagine that an individual is attacked in a way that threatens their life. It is uncontroversial that they have the right to defend themselves against the attack. By initiating the attack, the attacker has forfeited their right not to be harmed. Because the victim’s life is threatened, responding proportionally to the attack means that they may permissibly kill the attacker, if that is the only way to thwart the attack. However, imagine that the attack occurs in a crowded location. While the victim still has the right to defend themselves, they would wrong bystanders by inflicting harm on them, or risking their harm. The bystanders, detached from the conflict, have done nothing to make themselves liable to harm. Consequently, they must minimize the harm to which bystanders are exposed. Therefore, the means by which one may defend themselves in this crowded location are constrained. For instance, while the victim may shoot the attacker in the open, the victim many not shoot indiscriminately into the crowd in order to scare the attacker away. Similarly, if the attacker hides within the crowd, it would be wrong to simply aim at the group of people if there existed high likelihood that a bystander would be harmed. Furthermore, imagine the victim had the choice between two weapons that each afford equal capabilities to thwart or end the attack. One of the weapons is more precise than the other. For example, consider a handgun in comparison to a large vehicle (to be used as a deadly weapon). By aiming a gun at the attacker, they have a lower chance of accidentally hitting a bystander than if they were to drive the vehicle into the crowd. Because the victim has the choice between the two weapons, it would be wrong to choose the car, because it poses higher risk to bystanders. These two examples demonstrate that even in the presence of bystanders the victim retains the right to self-defense, yet has a duty to minimize the risk they pose to the innocent. For the bystanders simply have the misfortune of being in the wrong place at the wrong time, and have done nothing to make themselves liable to harm. The duty to minimize risk even when acting in self-defense is not only a consideration which must be undertaken with respect to bystanders, but at the state level also stretches to the defensive capabilities afforded by the state to its soldiers. Consider an analogy offered by Bradley Strawser. He imagines a commander who orders their troops to take off their bullet-proof vests and run at the enemy, and concludes that the commander wrongs the troops by ordering them into a dangerous situation without the normally available protection.[12] In doing so, the commander unjustly increases their risk to harm. While there may exist important moral differences between denying defensive capability to soldiers and aiming a weapon at a crowd of bystanders, Strawser’s analogy highlights the fundamental idea that it would be wrong to increase the possibility of harm to a soldier, or civilian, through deprival of defensive capability. Applying a Duty to Minimize Risk to Cases of Self-Defense: State-Level The duty to minimize harm to bystanders in the individual case can be extended to situations of state-level self-defense as a duty to minimize the risk of harm to civilians and soldiers. If under reliable intelligence a state discovers an imminent threat to its national security, the state has a right to defend itself against that threat. But at the same time, the means available to the state for the purpose of self-defense must be bound by a duty to minimize risk to civilians and to soldiers. If a state can justifiably respond to an imminent threat of a terrorist attack, it does not have a carte blanche to employ any weapon in its arsenal. For instance, a state could launch a nuclear bomb on the city where the attacker is hiding. While this would certainly be an effective method to kill the attacker, it is a grossly disproportionate and as such obviously unjust. Instead, the state might instead choose a “boots on the ground” mission to find the individual, or any number of other more precise strategies. Any kind of armed engagement involves risk to both civilians and to the soldiers involved. As in the case of individual self-defense, it is the state’s duty to employ a strategy that offers the least risk to all parties involved. I will now explain how drone technology seems to be the obvious choice for risk reduction in such a scenario. Risk Reduction Through Use of Drones Undertaking targeted killing with drones reduces the risk of harm to a state’s own soldiers, as well as foreign civilians, in several ways. For pilots, the remote operation of unmanned weapons dramatically reduces chance of harm: drone pilots can operate from a base thousands of miles away from the conflict zone. They personally face no threat of harm, retaliation, or retribution. In contrast, engaging in a “boots on the ground” mission puts the soldiers involved at an increased risk because they are directly exposed to the hazards of a hostile territory, which leaves them open to the possibility of attack. The remote aspect of drone strikes may also reduce harm to civilians in the conflict zone. Journalist Michael Lewis perceptively reasons that because drone pilots feel secure, they are surprisingly less likely to initiate a strike out of fear or anxiety for their personal safety.[13] What Lewis articulates is that the mistakes frequently made by soldiers in the “fog of war” can be minimized by drones.[14] Moreover, drones themselves can act as intelligence-gathering machines. A target may be surveyed for months before an attack is carried out. This has several benefits. First, it confirms that the target is actually involved in terrorist activities, reducing the chance of targeting an innocent person. If the suspect is the right person, then the extensive intelligence allows the pilot to identify a pattern in the subject’s daily life so that the subject may be targeted at times when they are more likely to be alone. Furthermore, when operated with due care, drones are precise, capable of striking only a single person. As journalist Mark Bowden notes, “[A drone’s] extraordinary precision makes it an advance in humanitarian warfare. In theory, when used with principled restraint, it is the perfect counterterrorism weapon. It targets indiscriminate killers with exquisite discrimination.”[15] To ensure that its deployment is as precise as possible, operators have adopted measures to minimize civilian risk. For example, a recent review of drone procedures by the International Security Assistance Force in Afghanistan recommended that strikes occur while the target is in a vehicle, rather than in a compound. This is because it is easier to keep track of those entering and exiting vehicles than those entering and exiting compounds, reducing the likelihood that a target’s family member or close associate will also be hit. In addition, the strike could take place on an isolated road, further reducing the risk to bystanders.[16] Even under unideal operation conditions, drone strikes are generally less deadly to civilians than other available means, such as ground strikes or piloted airstrikes.[17] Finally, the practice of targeted killings itself can reduce a conflict’s escalation and thus its casualties. Targeted killing, when justified as preemptive action as described above, functions to avoid prolonged engagement or full-scale war. Comparing the civilian casualties of war to drone strikes demonstrates clearly that conventional warfare is the deadlier of the two.[18] Thus, for the aforementioned reasons, when states can permissibly carry out targeted killing for the purpose of national self-defense, they have a duty to do so with drones because they minimize risk of harm for civilians and soldiers alike.This duty to employ drones should be understood as prima facie, a strategy that should be adopted unless specific circumstances require the use of other measures. In other words, the duty stands as long as using drone technology will minimize risk to bystanders and soldiers involved in the operation. If in a given operation, certain material limitations, geographical specificities, or procedural carelessness will cause an elevated risk of harm, the duty no longer stands. Objections Many critics object to drones on the grounds that civilians sometimes are killed in drone strikes—because of this unjust risk to civilians, they argue that the use of drones cannot be justified. I will first respond by emphasizing that my argument deals with minimizing risk, not eliminating risk altogether. To eliminate risk completely would be to advocate for pacifism. We need to compare the risk that drones pose to civilians to the risk that other weapons and armed operations pose to civilians. Recent figures indicate that in comparison to conventional measures, drone strikes have ranged from slightly to far less lethal in producing collateral damage.[19] The above objection can take on a more nuanced character, deserving a different response. Perhaps critics feel an intuitive discord between the very precise capability of the drone and the fact that it nevertheless produces civilian collateral, damage which seems to imply carelessness in drone operations. To respond to these critics, I argue that their concern has more to do with mishandling and reckless use of the technology than with a problem with the technology itself. This kind of criticism is not unique to drones; any weapon can be used well or poorly. However, I contend that because drones are known for their precision, concern over rates of collateral damage may be even more relevant than in the case of use of other weapons. As such, elevated numbers of civilian casualties may be an indication of faulty intelligence or careless policy. I reiterate that the duty to use drones is only prima facie: if drones cause or exacerbate harm—either as a result of material factors or policy faults—then the duty to use them is dissolved. Indeed, I would agree with critics that these cases call for rigorous reassessment of policy and procedure. However, I would highlight that by focusing on drone technology in discussing this problem we misplace responsibility by blaming the weapon for the faults of its operators. In his 2006 essay “Terrorism and Just War,” Michael Walzer advocates for targeted killing as a counterterrorism measure. He acknowledges that counterterrorism occurs in the grey area between war and law enforcement, and usually away from active war zones. In his view, to keep the effects of counterterrorism from resembling the effects of terrorism, it is the duty of counterterrorist fighters to take extensive measures to prevent civilian casualties. For it is the care and protection of civilians that distinguishes legitimate counterterrorist activities from the illegitimate engagement of terrorists, as terrorists do not operate with similar notions of “collateral damage.” Walzer believes this care for civilians should be upheld even more so in the case of targeted killings because they are activities outside of wartime. He concludes that “what justice demands is that the army take positive measures, accept risks to its own soldiers, in order to avoid harm to civilians.”[20] While I believe that the motivation for Walzer’s argument is noble, it rests on a false premise. For, when read carefully, we observe that Walzer takes risk as a sort of sliding scale oscillating between the two extremes of risk to soldiers or risk to civilians. Rather, it is possible to work to minimize risk for civilians without this occurring at the expense of soldiers, minimizing risks for both parties. Walzer does not seem to entertain this possibility. However, when used with due care, the drone is the most precise weapon that we have in our arsenal. Its use would minimize risk to civilians while simultaneously eliminating risks to soldiers as well. If this is truly the case, then there does not seem to be a reason that, by his criteria, Walzer would object to their use. It does not seem that acknowledging the duty to avoid harming civilians would necessarily preclude the duty to avoid harm to soldiers. Again, however, my argument for the use of drones is only a prima facie. If it is indeed the case that more civilians would be harmed by the use of drones, either due to material limitations or reckless policy, then they should not be used. Many critics argue that if drones make targeted killing easier and less risky to soldiers, states will undertake more targeted killings than they would otherwise. They worry that the easy, efficient, and asymmetric nature of drone engagement may cause operators to ignore or forget that killing is only permissible when absolutely necessary to prevent greater harm. In turn, criteria for appearing on a hit-list for such targeted killings could become weaker and weaker. Walzer expresses this concern in his essay “Targeted Killing and Drone Warfare.” He writes, “why should we think it different from the sniper’s rifle? The difference is that killing-by-drone is so much easier than other forms of targeted killing. The easiness should make us uneasy. This is a dangerously tempting technology. It makes our enemies more vulnerable than ever before, and we can get at them without any risk to our own soldiers” (italics added).[21] Therefore, he and likeminded observers assume that when there is lower risk to military personnel, the “necessity” threshold for pursuing a targeted killing would be lowered. My immediate response to such an objection is to specify that I do not argue for a blanket duty to use drones. My argument only pertains their use in justified instances of self-defense. Just because drones are tempting to overuse or abuse, it does not follow that they will definitely be misused. In a similar vein to my previous responses, I emphasize that the key is a consistent and honest drone policy, with transparency and accountability. If states consistently hold themselves to a high bar of certainty required to permissibly engage in a targeted killing, then temptation does not have to materialize into a dubious precedent. Similarly, some critics contend that the remote warfare aspect of drones will create a “video game mentality” in its operators, emboldening them to undertake even more risks. This notion, however, is simply untrue. According to a 2011 Department of Defense study, drone operators experience depression, anxiety, and PTSD at rates similar to combat pilots.[22] In the Atlantic article “The Killing Machines,” Mark Bowden, after conducting interviews with drone pilots, describes why these pilots experience such emotional distress. Combat pilots are not responsible for long-term intelligence collection, and are trained to leave the scene as soon as their missions are complete. On the other hand, a drone operator is responsible for collecting intelligence. This operator may observe the same person for months, becoming intimately familiar with the target’s daily life after seeing him with his friends and family. What’s more, the drone’s camera feed continues after a missile is launched. Drone pilots witness “the carnage close-up, in real time—the blood and severed body parts, the arrival of emergency responders, the anguish of friends and family…War by remote control turns out to be intimate and disturbing.”[23] One might also worry that justifying targeted killing with the logic of preemptive self-defense fails to address the combatant-noncombatant ambiguity previously discussed in reference to the military paradigm. For, if someone is killed before he commits a wrongful action, doesn’t that indicate that his killing could have only been status-based? I respond to this objection by reiterating that self-defense operates on the logic of action-based liability. While not immediately obvious, planning a deadly attack is a type of wrongful action severe enough to warrant liability to death, as it increases the likelihood of harm to a innocent people.[24] In this way, the assailant’s status is irrelevant; it is the nature of the threatening action that allows permissible retaliation. However, because of the preemptive nature of the response, there will always remain some uncertainty—indeed, the assailant could have had a change of heart and not followed through with the planned attack. Given this uncertainty, it is necessary to set the epistemic bar rather high when assessing the true likelihood that a suspected assailant will follow through with the threat. Indeed, extended surveillance should be used to ensure—to a degree of near certainty—that the targeted individual’s outward behaviors definitively imply intention to carry out an imminent attack. This would be possible with use of a drone, since it carries intelligence gathering capabilities. Ultimately, we should make quite certain that the assailant is truly preparing an attack for which killing them would be proportional to prevent the harm to innocents. In sum, my responses to these five objections follow a specific trend, emphasizing the need for stringent procedural constraints in use of drones, a high epistemic bar for identifying targets who pose a threat before proceeding to killing, and conducting the strikes with tremendous care for the welfare of civilians. I believe that if the policy for targeted killings was transparent, rigorously regulated, and strictly followed, the objections discussed above would be void. Conclusion In this essay, I have demonstrated that whenever targeted killing is permissible as an act of national self-defense, states have a duty to use drones to carry out the attack. In support of this argument, I have explained that the logic of self-defense is better applicable to targeted killings than either the logic of military conduct or of law enforcement. As the self-defense paradigm requires use of means which reduce risk to all parties involved, drones stand out as the obvious choice—precise, remote weapons which reduce the risk of harm to both soldiers and civilians. Finally, I responded to several objections to drone technology, ultimately concluding that strict and thoughtful procedures with regards to the technology’s use could allay critics’ overarching unease. Endnotes [1] Term of art meaning “just conduct during war.” [2] This is not to conflate the version of jihad that means “holy war” with its broader meaning: that is, a spiritual struggle within oneself against sin. [3] Jeff McMahan, “Targeted Killing: Murder, Combat or Law Enforcement?” in Targeted Killings: Law and Morality in an Asymmetrical World, eds. Claire Finkelstein, Jens David Ohlin, and Andrew Altman, (Oxford: Oxford University Press, 2012), 142. [4] McMahan, “Targeted Killing,”142. [5] This is a long-standing military convention, explicitly defined in by the United States’ “Military Commissions Act of 2006,” to respond to the lack of its explicit codification under the Geneva Convention. [6] Under the Obama administration, this power was transferred to the Pentagon, thereby placing drone strikes under military jurisdiction. However, this policy was reversed in March 2017 by the Trump administration, placing drone strikes in the jurisdiction of civilians again. See Mark Bowden, “Killing Machines,” The Atlantic, and “Trump Gives CIA Authority to Conduct Drone Strikes,” Reuters. [7] Thomas Nagel, “War and Massacre,” Philosophy & Public Affairs 15, no. 6 (July 1972): 123-44. [8] Michael L. Gross, “Assassination and Targeted Killing: Law Enforcement, Execution or Self-Defence?” Journal of Applied Philosophy 23, no. 3 (August 2006): 325. [9] McMahan, “Targeted Killing,”135; Claire Finkelstein, “Targeted Killing as Preemptive Action,” in Targeted Killings: Law and Morality in an Asymmetrical World, eds. Claire Finkelstein, Jens David Ohlin, and Andrew Altman, (Oxford: Oxford University Press, 2012), 179. [10] McMahan, “Targeted Killing,” 139. [11] McMahan, “Targeted Killing,” 139 [12] Bradley Jay Strawser, “Moral Predators: The Duty to Employ Uninhabited Aerial Vehicles,” Journal of Military Ethics 9, no. 4 (December 2010): 346-7. [13] Michael W. Lewis, “Drones: Actually the Most Humane Form of Warfare Ever,” The Atlantic, August 21, 2013, accessed November 20, 2018, https://www.theatlantic.com/international/archive/2013/08/drones-actuallythe-most-humane-form-of-warfare-ever/278746/. [14] Lewis, “Drones: Actually the Most Humane Form of Warfare Ever.” [15] Mark Bowden, “The Killing Machines,” The Atlantic, September 15, 2013, accessed November 20, 2018, https://www.theatlantic.com/magazine/archive/2013/09/the-killing-machines-how-to-think-aboutdrones/309434/. [16] Lewis, “Drones: Actually the Most Humane Form of Warfare Ever.” [17] Bowden, “Killing Machines.” [18] Daniel L. Byman, “Why Drones Work: The Case for Washington’s Weapon of Choice,” Brookings (blog), November 30, 2001, https://www.brookings.edu/articles/why-drones-work-the-case-for-washingtons-weapon-ofchoice. [19] Bowden, “Killing Machines,” The Atlantic. [20] Michael Walzer, “Terrorism and Just War,” Philosophia 34, no. 1 (2006): 9. [21] Michael Walzer, “Targeted Killing and Drone Warfare,” Dissent Magazine, January 11, 2013, accessed November 20, 2018, https://www.dissentmagazine.org/online_articles/targeted-killing-and-drone-warfare. [22] James Dao, “Drone Pilots Are Found to Get Stress Disorders Much as Those in Combat Do,” The New York Times, February 22, 2013, accessed November 20, 2018, https://www.nytimes.com/2013/02/23/us/drone-pilotsfound-to-get-stress-disorders-much-as-those-in-combat-do.html. [23] Bowden, “Killing Machines.” [24] McMahan, “Targeted Killing,” 139. References Bowden, Mark. "The Killing Machines." The Atlantic, September 15, 2013. Accessed November 20, 2018. https://www.theatlantic.com/magazine/archive/2013/09/the-killing-machines-how-to-think-about-drones/309434/ . Byman, Daniel L. “Why Drones Work: The Case for Washington’s Weapon of Choice.” Brookings (blog), November 30, 2001. https://www.brookings.edu/articles/why-drones-work-the-case-for-washingtons-weapon-of-choice/ . "Charter of the United Nations: Chapter VII." United Nations. Accessed November 20, 2018. http://www.un.org/en/sections/un-charter/chapter-vii/ . Dao, James. "Drone Pilots Are Found to Get Stress Disorders Much as Those in Combat Do." The New York Times, February 22, 2013. Accessed November 20, 2018. https://www.nytimes.com/2013/02/23/us/drone-pilots-found-to-get-stress-disorders-much-as-those-in-combat-do.html . Finkelstein, Claire. "Targeted Killing as Preemptive Action." In Targeted Killings: Law and Morality in an Asymmetrical World, edited by Claire Finkelstein, Jens David Ohlin, and Andrew Altman, 156-82. Oxford University Press, 2012. Gross, Michael L. “Assassination and Targeted Killing: Law Enforcement, Execution or Self-Defence?," Journal of Applied Philosophy 23, no. 3 (August 2006): 323-35. Lewis, Michael W. "Drones: Actually the Most Humane Form of Warfare Ever." The Atlantic, August 21, 2013. Accessed November 20, 2018. https://www.theatlantic.com/international/archive/2013/08/drones-actually-the-most-humane-form-of-warfare-ever/278746/ . McMahon, Jeff. “Targeted Killing: Murder, Combat or Law Enforcement?” In Targeted Killings: Law and Morality in an Asymmetrical World, edited by Claire Finkelstein, Jens David Ohlin, and Andrew Altman, 135-55. Oxford University Press, 2012. Nagel, Thomas. "War and Massacre." Philosophy and Public Affairs 15, no. 6 (July 1972): 123-44. Strawser, Bradley Jay. "Moral Predators: The Duty to Employ Uninhabited Aerial Vehicles." Journal of Military Ethics 9, no. 4 (December 2010): 342-68. Singh, Kanishka. "Trump Gives CIA Authority to Conduct Drone Strikes." Reuters, March 13, 2017. Accessed November 20, 2018. https://www.reuters.com/article/us-usa-trump-cia-drones-idUSKBN16K2SE . U.S. Congress, House. Military Commissions Act of 2006. HR - 6166, 109th Congr., 2nd sess. Introduced in Senate September 22, 2006. https://www.state.gov/documents/organization/150084.pdf . Walzer, Michael. "Targeted Killing and Drone Warfare." Dissent Magazine, January 11, 2013. Accessed November 20, 2018. https://www.dissentmagazine.org/online_articles/targeted-killing-and-drone-warfare . Walzer, Michael. "Terrorism and Just War." Philosophia 34, no. 1 (January 2006): 3-12.

No Place Like Home Home Bias Theory to Foreign Portfolio Investment in Emerging Markets Qiyuan Zheng Wesleyan University April 2021 Introduction: Modern technology has allowed investors, especially in developed markets, to gain access to a wealth of information about events that affect equity prices almost instantaneously, ultimately making it more difficult for investors in developed economies to ‘beat the market’. Such markets, where prices fully reflect all available information, are considered to be efficient; according to the efficient market hypothesis, opportunities for arbitrage in efficient markets are scarce, if not impossible. In this context, the typical investor could only generate higher returns by taking on greater risks. If this was the case, inefficient markets would be fundamentally more profitable for the informed investor as arbitrage opportunities are abundant and riskless profit can be made once the investor correctly identifies mispriced assets. This line of reasoning suggests that inefficiency in emerging markets might attract foreign portfolio investment (FPI) inflows, since investors in the developed world would seek to exploit the arbitrage opportunities in those inefficient markets. Market inefficiency in emerging economies is often at least partially due to poor property rights and weak institutional arrangements, such as unstable and corrupt political systems, not fully as a result of economic fundamentals, such as lack of financial development and domestic investor behavior. If inefficiency in an emerging market were to be largely a result of poor property rights and weak institutions, the ability of foreign investors to properly exploit arbitrage opportunities would be low and the institutional risk borne by investing in the market would be high, as unstable political environments foster volatile asset prices. Under such conditions, one might very well expect inefficient markets to drive away FPI. However, if the institutional quality of an investing environment is held constant and market inefficiencies are a result of economic fundamentals, then one should expect such a market to attract FPI. This paper finds evidence that, after accounting for a given level of institutional risk, potential simultaneity, and time of information absorption, there is no significant relationship between market inefficiency and FPI. To explain the inconsistency between theory and empirical evidence, I suggest an extension to the equity home bias theory. Since capital is abundant in wealthy nations where markets are efficient, investors that account for a majority of FPI inflows into emerging economies would be more familiar with and thus more optimistic about efficient markets since they more closely resemble their domestic investing environment. If a large enough number of foreign investors show a clear preference for efficient markets, the magnitude of their actions may very well offset that of unbiased investors looking to exploit arbitrage opportunities in inefficient markets. The paper proposes that, while market inefficiency should theoretically attract FPI, holding institutional risk constant, empirical evidence fails to show this relationship because foreign investors from the developed world exhibit a preference for more efficient markets that they are familiar with. A Survey of Theory and Existing Literature In documenting market efficiency among developing countries, Morck et al. found that the relationship between GDP per capita and price synchronicity can largely be explained by weak institutional arrangements and poor property rights. Their research not only provides a theoretical framework for this paper but also suggests an important measure of market inefficiency. Institutional shortcomings, especially poor property rights, discourages informed trading in the market as volatile political environments make it difficult for investors to price assets and retain their earnings (Morck 15, 16). The lack of informed investors would increase the magnitude of noise trading’s effect on the market. Since noise traders are uninformed and exhibit poor market timing (the buy high-sell low effect), their actions would not only lead to excess volatility in the market, but also push prices of different stocks to move synchronously away from their fundamental values (De Long 705, 715). Morck et al.’s paper presents empirical evidence supporting the above theory, as the observed relationship between GDP per capita and price synchronicity is rendered insignificant once property rights have been accounted for (Morck 22). This conclusion directly implies that, if protection of property rights is the only factor affecting the level of information reflected in prices, one can use price synchronicity as an appropriate proxy for market efficiency (i.e. better property rights lead to more informed traders, less price synchronicity, and a more efficient market). However, there are certainly other factors affecting the level of information reflected in stock prices. I argue that, in the absence of property rights violations, price synchronicity would remain an appropriate proxy as less synchronous prices would indicate that the market captures higher levels of firm-specific information and has a higher concentration of informed traders. Additionally, the lower prevalence and less developed nature of financial institutions in emerging markets would decrease the number of informed traders and thus increase price synchronicity while lowering market efficiency. In the subsequent analysis, I will refer to the following factors as economic fundamentals affecting market efficiency: domestic investor behavior, prevalence of financial institutions, quality of financial institutions, and technological development. This claim is particularly important, as the paper seeks to differentiate between market inefficiency caused by economic fundamentals and that caused by poor political institutions. Markets are efficient if “security prices at any time ‘fully reflect’ all available information” (Fama 383). Since efficient markets already reflect “all obviously publicly available information”, it would be very difficult for investors to obtain higher returns without undertaking greater risk (Fama 414). Rational investors who seek to increase returns while lowering risk would then be drawn to less efficient markets where arbitrage opportunities are more easily available. Thus, upon first glance, it seems that inefficient emerging markets would be more attractive to foreign investors, especially those from developed countries with efficient markets. Since most foreign portfolio investment comes from wealthier nations where capital is abundant, one could expect that less efficient markets, those with higher price synchronicity, would generate higher levels of FPI. However, this conjecture fails to consider the factors that lead to market inefficiency in developing countries and the preferences of foreign investors. The following paragraphs present two potential explanations for why emerging markets that are less efficient might fail to attract FPI. The first explanation comes directly from the work of Morck et al. on price synchronicity in emerging markets. While poor property rights decrease market efficiency, they also increase both the opportunity cost—the time spent gathering information to identify asset mispricing—and risk of arbitrage trading. Political events are also typically much harder to predict in these countries and, given the poor property rights, “risk arbitrageurs who do make correct predictions may not be allowed to keep their earnings, […] especially if the risk arbitrageurs are political outsiders” (Morck 15). Thus, if the observed market inefficiency is largely the result of poor property rights and weak institutional arrangements, the expected relationship between price synchronicity and FPI becomes more complicated. While inefficient markets still present certain arbitrage opportunities for investors, the risk of investing in an environment with poor property rights may very well drive foreign investors away. Another potential explanation comes from an extension of the equity home bias theory. The traditional equity home bias theory states that investors are more inclined to hold domestic stocks despite the potential benefits of international diversification. This phenomenon was first analyzed in 1991, when French and Poterba found that domestic investors expect returns around 300 basis points higher than foreign investors when looking at the identical market (French 4). The optimism in domestic markets would then lead investors to prefer a domestic stock over an international one, even if the economic values of the two stocks do not differ from each other. The equity home bias theory implies that investors prefer assets they feel more familiar with and such preferences can often offset the actual economic differences between any two assets. This paper argues that investors from developed countries with efficient markets would naturally prefer stocks in more efficient markets of the developing world as they more closely resemble their domestic investing environment. Since most FPI comes from wealthier nations in the developed world, even if one observes an inefficient market in a country with strong property rights and therefore higher chances of arbitrage without bearing institutional risk, such a market might not attract FPI as most foreign investors would prefer to hold assets in efficient markets with which they are more familiar. Existing literature shows that a simple analysis of FPI and price synchronicity is not enough to uncover the fundamental relationship between market efficiency and FPI inflows. To properly understand whether investors are truly drawn to inefficient markets due to opportunities of arbitrage, one must first take into account the institutional risk inherent in emerging markets. Only after accounting for the protection of property rights can one expect there to be a positive correlation between price synchronicity, essentially a measure of market efficiency, and FPI inflows. Empirical results that do not align with such expectations would be consistent with the story of equity home bias theory, where foreign investors prefer efficient markets as a result of familiarity and resemblance to their domestic markets. Constructing the Data Set The paper analyzes nine emerging markets: Brazil, Chile, China, Greece, India, Malaysia, Mexico, Thailand, and Turkey. The choice of these countries is based on their per capita GDP, the size of their domestic equity market, and data availability. The time period observed ranges roughly between 2000 and 2016. I shall note here that the somewhat arbitrary decision to characterize these countries as emerging markets through per capita GDP and choosing countries with sufficient stock listings may introduce sampling bias. A future extension of this paper may be to include a larger number of developing countries and test the robustness of this study by shifting the per capita GDP cutoff used to define emerging markets. Due to limited resources, this paper uses an approximation for its main variable of interest, price synchronicity. To obtain a price synchronicity index for each country and year, I collected weekly stock returns (between 2000 and 2016) for the companies listed on a popular index of the given country. Table 1 details the exact indexes used to construct the price synchronicity data. Given a country, the price synchronicity of year T is then constructed as follows: SyncT=w∈Tmax⁡(Upw, Downw)Upw+Downw1NT The above equation states that for every week w in year T, I calculated the number of stocks that rose in share price (if closing price was higher than opening price), the number of stocks that dropped in share price (if closing price was lower than opening price), and divided the maximum of the two numbers by the total number of stocks that experienced a change in share price. An arithmetic mean is then computed for the given NT weeks in year T. Note that this calculation is based on Morck et al.’s methods of finding price synchronicity, with the denominator constructed to include only stocks with changed share prices to avoid non-trading bias (Morck 5). Given the method of calculation, a price synchronicity of 0.5 would indicate that prices do not move together at all while high price synchronicity (such as 0.9) would indicate an inefficient market. Data for other variables were obtained through the World Bank, Transparency International, and World Integrated Trade Solutions (WITS). The following section will discuss the methodologies and rationale for including each regressor. Analytical Methodology Given the panel structure of the data, the paper will use a fixed effects model on the country level with robust standard errors to analyze the relationship between market efficiency and foreign portfolio investment. The fixed effects model would allow for the paper to account for unobserved but time-constant differences between countries, therefore yielding a less biased estimate. The fixed effects model was chosen over a random effects model on empirical grounds. The Sargan-difference test of overidentifying restrictions yielded a Sargan-Hansen statistic of 566.9 when applied to a random effects regression with robust standard errors, which indicates a significant level of overidentification in the model. Initially, I estimated a simple fixed effects model with price synchronicity as the only explanatory variable: FPIit=α+βSyncit+i+eit (1) However, the coefficient for the model is difficult to interpret and meaningless to this paper’s purpose. While the paper is primarily interested in exploring the effect of market inefficiency (caused by non-institutional factors) on FPI inflows to emerging markets, the coefficient presented in Equation 1 is theoretically biased downwards as the result of institutional risks present in emerging markets with high price synchronicity. More specifically, one can see that is subject to omitted variable bias because the level of corruption drives up price synchronicity (positive correlation) and discourages foreign investors (negative correlation with FPI). Additionally, could be affected by other confounding variables as a result of selection bias. To properly identify how FPI is affected by market inefficiency caused by economic fundamentals, one must account for the level of political risk the investor must bear to participate in the market and other confounding variables with the following fixed effects model: FPIit=α+1Syncit+2Corruptionit+3Xit+i+eit (2) Note that Corruptionit reflects the Corruption Perception Index of country i in year t, obtained from Transparency International. The author calculated Corruptionit=(100- Corruption Perception Index) so that 0 represents no corruption and 100 is the value for the most corrupt extreme. Ideally, the paper would’ve liked to use the “good government” index from Morck et al.’s work that included factors specific to property rights protection but financial constraints limited the data collection process (Morck 15). Xit is a vector of time-varying country-level characteristics that consists of the following variables: GDP per capita, inflation volatility, market capitalization of domestic companies (in current US dollars), and capital openness. Inflation volatility is calculated by taking the 5-year moving coefficient of variance of each country’s consumer price index (obtained from the World Bank). Capital openness is measured by the standardized version of the Chinn-Ito Index (Chinn). GDP per capita and inflation volatility could both be omitted variables as they both are significant indicators of an economy’s stability and development, in turn affecting confidence levels in foreign investors. Market capitalization indicates both the breadth and depth of the domestic financial markets, as a higher levels of market capitalization would provide more opportunities for foreign investors and increase FPI inflows. Although intuition suggests that capital openness would be a significant factor in affecting foreign investment, empirical evidence from existing literature suggests that capital controls on FDI and FPI have no significant impact on FPI inflows (Li 228, 230). The variable was still included in Equation 2 largely because theory implies that capital controls would increase the opportunity cost for foreign investors to invest in the domestic market and therefore decrease FPI. To test for robustness of the results, I removed the variable from the model and found no significant changes to the parameters of interest. Pre-existing theory and literature suggested that each of the variables included in the vector Xit would be correlated with FPI inflows. Thus, the model should include these variables as controls in the regression to minimize standard errors and account for any sampling bias. To account for potential information absorption time, I re-estimated Equation 1 and 2 with lagged price synchronicity, inflation volatility, and GDP per capita. If these factors were to exhibit greater cross-year variations than within-year shifts, then the incorporation of the lagged independent variables would allow for the possibility of foreign investors “reacting” to changes in their values in the next time period. I chose to not pursue a fully lagged model because market capitalization and capital controls are present constraints on the foreign investor’s choice set. Further, the corruption index remained period t as well since it measures the level of corruption perceived by the public at time t, which is a direct factor in determining the level of FPI in the same time period. Additionally, a fixed effects lagged-distributed model was also estimated as follows: FPIit=α+1Syncit+2Syncit-1+3Corruptit+5Xit+6Yit-1+νi+eit (3) Note that Syncit-1 and Yit-1 are lagged price synchronicity and lagged vector of control variables, hence they are values of country i in year t-1. The paper conducted further robustness tests by removing 2008 from the estimated models. Figure 1 shows that FPI inflows in observed countries dropped dramatically as a result of the Global Financial Crisis (GFC). Figure 2 shows the average price synchronicity among the observed countries across time and indicates that average price synchronicity varies between 75% and 70% for most of the years with no significant change during the GFC. One can see that the patterns exhibited by the data during the GFC is an aberration caused by an external shock, which could affect both the precision and accuracy of previous estimations. The paper accounts for this by re-estimating all the previous models with a smaller sample size that does not include 2008. Although doing so limits the power of the test, the removal of the outlier (2008) should offer a more accurate estimate of the effect market efficiency has on FPI. Empirical Results Before estimating the models specified in the Methodology section, one must return to examine an earlier claim: “price synchronicity would remain an appropriate proxy under [scenarios in which other factors (besides poor property rights) affect the level of information reflected in stock prices] as well, since less synchronous prices would indicate that the market captures higher levels of firm-specific information”. Table 2 Column 1 shows an estimated fixed effects model that captures the relationship between price synchronicity and institutional risk (represented by the Corruption Perception Index). As expected, the coefficient for the Corruption Index is positive, since higher levels of corruption means more institutional risk and thus higher price synchronicity. The estimated coefficient is statistically significant. Most notably, the R-squared for the estimation is only around 8%, indicating that there are certainly other factors, such as market inefficiency due to economic fundamentals and the quality of financial institutions, that affect price synchronicity. Additionally, Table 2 Column 2 shows a negative correlation between corruption and FPI inflows, as expected. Although the relationship is not statistically significant, theory suggests that it would bias the estimates of Equation 2 downwards. Tables 3, 4, and 5 show the estimated regressions specified in the Methodology section. Table 3 displays the estimates obtained by using the “present” model without any lagged variables while Table 4 shows the results after lagging the appropriate independent variables. Table 5 shows the estimates obtained from the lag distributed model (Equation 3). In Table 3, the first two columns represent Equation 1 and 2 without the lagged independent variables. The first column shows a negative and marginally significant (at the 10% threshold, p=0.054) coefficient for price synchronicity, with the point estimate show approximately $0.605 billion decrease with every 1 percentage point increase of price synchronicity. This is not surprising, as price synchronicity caused by institutional risk would most likely drive foreign investors away. The second column on Table 3 also show a negative and marginally significant coefficient for price synchronicity. Although this coefficient is greater in magnitude ($0.967 billion decrease for every 1 percentage point increase in price synchronicity), it has a larger confidence interval than that of the first model and is less statistically significant (p=0.066). Columns 3 and 4, estimates after removing 2008, exhibits a similar pattern as the coefficient for price synchronicity is negative and statistically significant (at the 5% threshold) when it’s the only regressor in the model but no longer significant once the model accounts for institutional risks and other sources of selection bias (Column 4, Table 3). Table 4 incorporates lagged price synchronicity, inflation volatility, and GDP per capita. Columns 1 and 2 show the results of Equation 1 and 2 when with the lagged independent variables replacing their non-lagged counterparts. Columns 3 and 4 show those same models estimated after removing 2008 from the sample. The results across all columns are consistent in that the coefficient for lagged price synchronicity are all positive but statistically insignificant even after accounting for the downward bias caused by institutional risks. Interpreting the results of Table 3, the paper finds that market inefficiency (proxied by price synchronicity) drives foreign investors away mostly as a result of the poor property rights that created the inefficient market in the first place. This effect is exhibited by the negative and (marginally) significant coefficient for price synchronicity in Column 1 and 3. Once the model accounts for institutional risk and potential selection bias, market inefficiency remains negatively correlated with FPI inflows but at a less significant level in Column 2 and completely insignificant when 2008 is removed from the sample, as shown in Column 4. If the level of institutional risk does not change and the market becomes more inefficient (price synchronicity rises), theory suggests that more investors would be drawn to the market as they seek to exploit arbitrage opportunities. This theory implies that a model which accounts for institutional risk should generate a positive and significant coefficient for price synchronicity. However, empirical evidence does not support this conjecture and instead illustrates that market inefficiency stemming from causes unrelated to institutional risks either does not significantly affect or decreases the level of FPI inflows, depending on whether year 2008 was included in the sample. Results obtained by the lagged models fit the theory slightly better, as the coefficient for lagged price synchronicity is positive, as shown in Table 4. Both Column 2 and 4 of Table 4 exhibit point estimates that indicate a $0.42 billion rise in FPI inflows per percentage point increase in lagged price synchronicity (decrease in market efficiency). However, this estimate is not statistically significant, which could be a result of the small sample size and thus less power / minimal detectable effect. Further, Column 2 and 4 of Table 4 showed a higher point estimate than Column 1 and 3 of the same table, respectively, fitting the theory that not including corruption as a covariate would downwardly bias our estimate. Considering the empirical results on both tables (with and without the lagged component), one can see that, once institutional risks are accounted for, changes in market efficiency does not significantly affect FPI inflows. A potential explanation for this phenomenon is an extension of the equity home bias theory, in which foreign investors from the developed world feel more familiar and are thus more optimistic about efficient markets. Hence, market inefficiency (under the same level of institutional risk) can both attract investors through opportunities of arbitrage and drive away investors through its unfamiliar nature. If those effects offset each other, one would observe no significant relationship between market inefficiency and FPI inflows after accounting for institutional risk. That said, it is more probable that Table 4 is the better model, as it lagged certain independent variables that investors would be “reacting” to in period t based on their information in period t-1. To further test this, a lag distributed model was estimated in Table 5 to show that price synchronicity in period t-1 is indeed positively correlated with FPI inflows in period t, even after account for price synchronicity in period t. However, as before, the estimate is not statistically significant, most likely due to a combination of small sample size and the potentially offsetting effect from the equity home bias theory. Robustness Tests Another potential explanation for the insignificant coefficient for price synchronicity is a reverse causality chain between FPI inflows and market efficiency. The paper argues that increased FPI inflows can lead to higher market efficiency in emerging economies. As established, a majority of FPI in emerging markets come from developed countries where capital is abundant. These developed countries also have better financial institutions, which help “foreign” investors make more informed decisions than their domestic counterparts in the developing country. If one assumes that most foreign investors in emerging markets are more informed than their domestic counterparts, then an increase in FPI inflow would mean more informed investors in the market and therefore an increase in market efficiency. Incorporating this conjecture, one can obtain three distinct factors that affect market efficiency in emerging economies: level of institutional risk, amount of foreign investment (FPI inflows), and other economic fundamentals. Since the paper is only interested in the relationship between market inefficiency caused by economic fundamentals and FPI inflows, it must account for the first two factors. Equation 2 properly accounts for the level of institutional risk but fails to address the joint relationship between market efficiency and FPI inflows. I used a three-stage least squares method to estimate the following simultaneous equations system: FPI=γ+1Sync+2X+3GDP+e2 (4) Sync=α+1FPI+2Corruption+3(HH Index)+4GDP+e1 (5) The variable HH Index, the Hirschman Herfindahl Index for exported products (obtained from WITS), was added to account for the level of economic specialization, since more specialized economies tend to experience greater price synchronicity (Morck 9). Additionally, the fixed-effects approach was replaced with a least-squares dummy variable approach by adding a dummy variable for every panel value except one. The results of this model are shown in Table 6, with the coefficients for the panel dummy variables suppressed from the output. The first two columns show the estimates for both endogenous variables (Equation 4 and 5) when using the entire sample size and the second set of columns shows the results after removing 2008 from the sample. Even after addressing the simultaneity problem in the non-lagged model, the paper fails to find a significant relationship between market efficiency and FPI. Although the coefficients for price synchronicity are positive, as shown by Column 1 and 3 in Table 6, they are statistically insignificant. Additionally, these estimates fail to provide empirical evidence in favor of the claim that FPI leads to more efficient markets in developing countries; both Column 2 and 4 show insignificant positive coefficients for FPI when it’s used as an independent variable in estimating price synchronicity. As stated previously, theory and empirical evidence (from Table 4) suggest that a model with lagged price synchronicity and corruption index would better capture the causal relationship between market efficiency and FPI. If the lagged model is a better fit and the conjecture of reverse causality remains valid, then changes in FPI inflows in time period t-1 would affect market efficiency of time period t-1, which in turn would influence the FPI inflows of time period t. To put it simply, FPI and market efficiency are two endogenous variables that are both sequentially and jointly determined. A precise and accurate estimate of the effect market inefficiency (when caused by economic fundamentals) has on FPI inflows would then require a model that allows for both sequential and simultaneous relationship between market efficiency and FPI. I estimated such relationship with the following equation: FPIit=α+1Syncit-1+2Corruptit+3Xit+4Yit-1+5FPIit-1+νi+eit (6) where FPIit-1 is the lagged FPI variable. This equation would allow us to “parse out” the reverse causality effects on market efficiency caused by changes in FPI inflows. Thus, 1 would be the unbiased estimate if such reverse causality indeed exists. Results in Table 7 show a point estimate of between $0.14 to $0.28 billions of FPI increase per percentage point increase in the lagged price synchronicity (depending on whether or not 2008 is included in the sample). However, this estimate is also not statistically significant, most likely due to the same reasons addressed earlier in the previous section. Conclusion and Avenues for Future Research: Due to the lack of available data and time constraints, there are a number of robustness tests and models I wished to estimate but was unable to do so. As mentioned earlier, the paper used an approximation for price synchronicity. Although the approximated values fall somewhat around those provided by Morck et al.’s research (provided on Table 2 of Morck’s article, for year 1995), using the actual price synchronicity of all stocks, as opposed to that of index stocks, in each given country and year would reduce sampling bias in the estimated models. I also wished to estimate the same fixed effects models but replace the Corruption Perception Index with the “good government” index constructed by Morck et al. that more closely represents the institutional risks foreign investors face in emerging markets. Ultimately, using a fixed effects model and a three-stage least squares estimation of a simultaneous equations system, this paper finds evidence consistent with an extension of the equity home bias theory. Economic theory suggests that, under the same level of institutional risks, inefficient markets should attract foreign investors and therefore increase the level of FPI inflows into an emerging market. Empirical evidence shows that there is no statistically significant relationship between market efficiency and FPI inflows once the protection of property rights has been accounted for. At “best”, empirical evidence suggests a $0.42 billion rise in FPI per percentage point increase in lagged price synchronicity, but the point estimate is statistically insignificant. This paper proposes that one can reconcile the inconsistency between theory and empirical evidence by looking at an extension of the home bias theory, where some foreign investors prefer efficient markets because they more closely represent their domestic investing environment. References Chinn, Menzie D. and Hiro Ito (2006). "What Matters for Financial Development? 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