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? Capital Controls, Institutions, and Interactions," Journal of Development Economics, vol. 81, no. 1, pp. 163-192. De Long, J. Bradford, et al. “Noise Trader Risk in Financial Markets.” Journal of Political Economy, vol. 98, no. 4, 1990, pp. 703–738. Fama, Eugene F. “Efficient Capital Markets: A Review of Theory and Empirical Work.” The Journal of Finance, vol. 25, no. 2, 1970, pp. 383–417. French, Kenneth R., and James M. Poterba. “Investor Diversification and International Equity Markets.” The American Economic Review, vol. 81, no. 2, 1991, pp. 222–226. Li, Jie, and Rajan, Ramkishen S., “Do capital controls make gross equity flows to emerging markets less volatile?” Journal of International Money and Finance, vol. 59, pp 220-244 Morck, Randall K. and Yu, Wayne and Yeung, Bernard Yin, "The Information Content of Stock Markets: Why Do Emerging Markets Have Synchronous Stock Price Movements?" Journal of Financial Economics (JFE), vol. 58, no. 1-2, 2000 Wooldridge, Jeffrey M., 1960-. Introductory Econometrics : a Modern Approach. Mason, Ohio :South-Western Cengage Learning, 2012. Print.

Body Ethics: Moving Beyond Valid Consent Christine Chen Author Steve Nam Coco Zhu Rebecca Yang Editors There is little controversy that individuals generally have an interest against intrusion of or interference with their personal domain, which encompasses one’s person—body and mind—and property. For example, we typically think that we are entitled to moral complaint when another person pinches us, kisses us, or looks through our phone without our permission. That is to say, we have a moral right against these kinds of unauthorized interactions. Here, a right is understood as “entitlement (not) to perform certain actions, or (not) to be in certain states; or entitlements that others (not) perform certain actions or (not) be in certain states” (Weinar). This is not to say, of course, that all interpersonal interactions are impermissible. One key way in which we facilitate morally permissible interactions on a daily basis is by providing, through verbal or sometimes non-verbal communication, valid consent. Present moral theories of consent identify it as an interpersonal justification for an act upon an agent, the consent-giver, from which they would otherwise have moral protection in the form of a duty of the others not to infringe upon their personal domain. Consent releases the consent-receiver from such duty against intrusion or interference and provides an interpersonal justification for the act within the content of the consent. However, our moral intuition suggests that there is something beyond ordinary, valid consent necessary for an act to be morally permissible when the body is involved, like an invasive procedure or sexual intercourse. Indeed, patients sometimes believe that they are wronged by a medical procedure despite having given legally valid consent, which contributes to the deteriorating patient-physician relationship and growing mistrust (Nie et al.). In these cases, are the patients entitled to such complaint? In this paper, I aim to challenge Tom Dougherty’s theory of consent, presented in his book The Scope of Consent, by attempting to identify a second condition for moral permissibility in cases involving the body through a series of hypothetical cases. I posit that, besides a consent-based right against bodily intrusion or interference, agents have an additional preference-based right that entitles them to moral complaint, which is not typically present in ordinary cases of consent that do not involve the body. Defining Consent: Expression of Will View Before diving into cases, I will first define consent as it is understood in this paper. Under Dougherty’s Expression of Will View, consent is a deliberate expression of one’s will (Dougherty 2021, 111). Like forfeitures and waivers, consent provides a way for us to give up moral complaints against others for causally contributing to interference with our personal domain, namely, our bodies and property (Dougherty 2021, 102). As such, consent constitutes a justification for how others can interact with or act within the consent-giver’s personal domain. For the purpose of this paper, I accept Dougherty’s Expression of Will View as the working conception of consent that governs interpersonal interactions. As an evidential account of consent, this view emphasizes the role of available reliable evidence and enhanced reliable evidence, both of which define the validity and scope of consent according to the Due Diligence Principle, which states: Due Diligence Principle. At time t, an action A falls within the scope of the consent that X gives to Y if and only if at t, X gives consent or, prior to t, X has given consent and has not subsequently revoked this consent; at t, the available reliable evidence sufficiently supports the interpretation that X intends their consent-giving behaviour to apply to Y performing A; and at t, the enhanced reliable evidence also sufficiently supports this interpretation. (Dougherty 2021, 149) According to Dougherty, “the ‘enhanced reliable evidence’ is defined as the available reliable evidence, supplemented by any reliable evidence that the consent-receiver has a duty to acquire” (Dougherty 2021, 146); the distinction between enhanced reliable evidence (ERE) and available reliable evidence (ARE) will be explored further in this paper. Thus, for consent to be considered valid, the consent-receiver also has to fulfill their duty to acquire additional reliable evidence that is not presently readily available to confirm and clarify the veracity and scope of the consent-giver’s expression of will. Dougherty indicates in the footnote that the definition of enhanced reliable evidence “focuses on actual phenomena” and “not a counterfactual definition of evidence that someone would have” (Dougherty 2021, 146). The duty here is owed to the consent-giver regardless of what the available reliable evidence suggests or what the consent-receiver believes the additional information would indicate. In other words, the consent-receiver should obtain additional evidence even if there is reasonable belief that any additional information that could be obtained would have confirmed that the behavior falls within the scope of consent. In all of the cases I present below, we can presume that the Due Diligence Principle is fulfilled when consent is verified with a verbal or written follow-up. To bring out our moral intuition of the justifying force of consent, let’s consider the following case of ordinary consent. “Control” Case—Consent to Use of Property Landlord signs a legal contract to lease an apartment but prefers not to do so for personal, non-morally significant reasons—e.g. Landlord has a friend visiting that month and would rather use the apartment for that purpose—and presumably expresses such lack of enthusiasm, either with a verbal aside or in the tone of voice. It seems morally permissible for Tenant to move in, since the given consent is valid and deliberately expressed in the form of a legally-binding contract. In other words, Landlord’s lack of underlying preference is not sufficient to render Tenant’s act of renting the apartment morally impermissible. What about when it involves the body? According to Dougherty and US criminal law, there is no complaint if the consent is valid and freely given by an agent who is of sound mind without coercion. For example, suppose a person gives clear and passionate consent to sexual intercourse with their partner of their own volition while sober and uninfluenced. Criminal law and Dougherty’s view both recognize that she is not wronged by the partner unless the consent is undermined. The partner does not wrong her even if she does not like the intercourse during or after it happens so long as she does not indicate in any way that she withdraws consent. Neither is she considered wronged if she is under the false belief that her consent is invalid. Likewise, obtaining voluntary informed consent from a competent patient is a legal and ethical obligation of the medical practitioner as it permits the administration of the intervention in question. We generally consider valid consent to be sufficient when another agent asks to, say, borrow a pen or enter our office. We cannot successfully sue another person for trespassing after knocking and being given permission to come inside our apartment. However, we do not seem to think that it is morally permissible for the consent-receiver to act on the consent or justify their act with the given consent in some cases. To illustrate this, I present a few hypothetical examples below. Let’s consider a first case of a minimally invasive and reversible bodily intrusion. Warm-up case: People Pleaser Gets a Face Tattoo People Pleaser (PP) consents to getting a face tattoo for what we shall term here, extrinsic reasons—reasons that do not come from one’s own internal desires but rather serves to achieve an external goal like garnering praise or receiving an award such as to make Tattoo Artist (TA) think well of them. PP does this freely and not against their will, with no external social pressure like social stigma while of sound mind, and through a deliberate expression of consent, e.g. a verbal yes. In other words, the consent is unambiguously valid according to Dougherty’s Expression of Will View. However, PP has a preference not to receive a face tattoo, of which TA is somehow aware. Is it morally permissible for TA to give PP a face tattoo after consent was given? Let’s stipulate that there is minimal difference in interest for the Tattoo Artist in either outcome scenarios, other than received payment for their services. There is minimal risk of harm for PP—a tattoo is generally minimally invasive and reversible now—even though the tattoo in question is a face tattoo. Here, our moral intuition seems to suggest that it is not morally permissible for TA to proceed because, simply put, PP does not want to have the tattoos and he knows it. It seems, on first pass, that PP’s lack of underlying preference is the necessary but not sufficient condition additional to consent. Dougherty’s Objection—Consent-Centric view of Interpersonal Justification Argument TA has the obligation of Due Diligence to secure both available reliable evidence, e.g. evidence supporting that PP is very clearly sober and of sound mind – i.e. not visibly inebriated or have lost their faculties – when consenting to getting tattooed, and enhanced reliable evidence, i.e. evidence TA has a duty to actively acquire, e.g. a verbal confirmation from PP to clarify that they indeed knowingly and deliberately consent to a tattoo. If TA has sufficiently performed Due Diligence appropriately given the stake of the act—getting a face tattoo—and the cost of acquiring such evidence, the valid consent should justify this act; PP is no longer entitled to a complaint here. This would be analogous to a case in which the consent-giver, PP, falsely believes that their consent is invalid. Dougherty can agree that it is wrong in this case for TA to give PP a face tattoo. However, he would object that, rather than there being something else that makes tattooing PP morally impermissible, it is because the consent is actually not valid. How can that be? Dougherty asserts that consent is invalid when it is given under unjust social pressure like a misogynistic culture that demands unconditional sex from wives (Dougherty 2022). He could appeal that, in this case, PP experiences social pressure, which is “the exertion of influence on a person or group by another person or group” (American Psychology Association). People generally have a right to be free from this kind of pressure or external influence when making decisions, according to Kant’s Principle of Autonomy (Kant G4: 440). Consent is thus invalid in the Dougherty sense when social pressure is present because, like coercion, it denies the agent one or more options that they are entitled to have. Therefore, PP’s consent to receiving a face tattoo is invalid and TA has wronged PP by tattooing them. However, not all cases of consent for extrinsic reasons involve this unfair denial of options. Here, we would be mistaken to frame PP’s extrinsic reason—people pleasing—as coercion because coercion, by definition, is imposed upon the consenting agent by another agent, which is not present. PP’s “pressure” to consent is self-imposed, which means that this consent is still valid, ceteris paribus. Case 2—Intimate Relations with the Asexual Partner Two individuals, Ace and Bee, initiate a sexual encounter. Ace expresses consent to engage in sexual intercourse with Bee deliberately and freely while sober and of sound mind. However, Ace is asexual and would prefer not to have sex with Bee (or anyone, for that matter). Say, Ace would not mind if the fire alarm goes off as Ace and Bee are about to begin intercourse and interrupts it. Ace simply consents because she prefers not to make Bee think negatively of her. Like in previous cases, Ace’s consent is valid, though there is no underlying preference for the token act. Bee performs Due Diligence to interpret consent based on available reliable evidence and enhanced reliable evidence, which Bee acquires by asking Ace whether she is feeling pressured to consent to sex, to which Ace answers decisively, “No.” Assume that Bee is aware both generally and in this instance that Ace is asexual and prefers not to have sex. Bee proceeds to have sex with Ace because the consent is present and valid. Can we blame Bee for having sex with Ace? Can Ace make a complaint to Bee for acting against her preference? There seems to be something morally unsavory about Bee engaging in sexual intercourse with Ace despite knowing that Ace prefers not to do so even though there is valid, deliberate consent from Ace. Again, valid consent here, though necessary, does not seem sufficient to justify an act of bodily intrusion. So far, our cases have featured minimal interest and risk of harm on both sides. If underlying preference is indeed a necessary but not sufficient condition for the moral permissibility of acts of bodily intrusion, how would increasing the interest for one or both parties interact with the preference condition? Here, I understand interest as the stakes or concern one has in acting or withholding from acting in a given situation or to achieve a given outcome. For example, a student has an interest in maintaining a good grade point average because it is beneficial for future career or academic opportunities. Case 3—Obedient Patient’s Minimally Invasive Elective Surgery Obedient Patient (OP) is advised to undergo laser vision correction—a minimally invasive elective procedure otherwise known as LASIK—by their ophthalmologist. The operation has relatively low risk and marginal benefit for the patient. Let’s assume that the ophthalmologist, while board-certified and knowledgeable, does not exert an overwhelming epistemic authority over OP during the treatment process, i.e., OP does not feel epistemically pressured to follow the doctor’s orders. OP, obedient by nature, signs an informed consent form after the ophthalmologist provides a detailed explanation of what the procedure would entail, along with the potential benefits, risks, and side effects. However, OP disprefers to undergo this surgical intervention, all things considered; OP only consents because they do not want to disappoint the ophthalmologist. For OP, the best-case scenario would be if, after consenting, the ophthalmologist informs OP that LASIK would no longer be recommended or is generally canceled. Having obtained verbal confirmation in addition to written consent, the ophthalmologist performs LASIK surgery. Is this surgery morally permissible? Can OP make a complaint against their ophthalmologist? If valid—and verified—consent were necessary and sufficient for moral permissibility, then the ophthalmologist would have been perfectly justified to perform LASIK, which is not the case. Once again, the violation of the consent-giver’s underlying preference presents a weighty challenge to the moral significance of consent in a case involving bodily intrusion. If the elective surgery case yields ambiguous conclusions, consider the following similar but necessary procedure instead. Case 4—Required Surgery Suppose, now, our Obedient Patient instead consents to cataract surgery, which is required for their health, as they risk losing their vision if they forego the surgery. The procedure is the current standard of care for cataracts, a non-life-threatening but nonetheless serious condition, and OP has been adequately informed of the benefits, potential risks, and side effects such that the Due Diligence principle is fulfilled by the ophthalmologist, the consent-receiver. There is certainly now more interest for OP to comply with medical advice; like any reasonable individual, OP has an interest in preserving—or, in this case, restoring—their vision. However, OP would prefer not to undergo the surgery, all things considered, just like in the elective surgery case. Nonetheless, OP consents to avoid disappointing the ophthalmologist. Given valid and verified consent, and considering the necessity of the procedure to OP’s health and wellbeing, the ophthalmologist proceeds to perform cataract surgery on OP. Is this cataract surgery morally permissible? Can OP now make a complaint against their ophthalmologist? I concede that, to a bystander, OP has every reason to want the surgery, given the overwhelming interest and relatively low risk. Consequentialist theorists would argue that the moral calculus alone is enough to justify the surgery, and consent-centric theorists like Dougherty would cite the valid consent—verified by available reliable evidence and enhanced reliable evidence—to be sufficient for moral permissibility. However, I argue that there is something morally unsavory about disrespecting OP’s underlying preference not to be operated on despite these reasons, as intuitively, we want our preferences to be respected. Simply put, it would be wrong to proceed with the surgery when OP, who is getting the surgery, disprefers the surgery, and OP’s preference should be respected. Here, valid consent is still insufficient to justify this act of bodily intrusion. If this still does not demonstrate that consent alone is insufficient, consider the post-operation scenario. Case 4.5—Post-Operation Suppose OP finds the surgery unpleasant and is angry afterwards. They say to the surgeon, “You knew I didn’t want that. How could you do that to me? You could easily have said, ‘I know you are only consenting to please me; so, although that consent you gave is valid, I won’t go forward.’ Why didn’t you do that?” The surgeon—who has read up on Dougherty and the legal literature—could respond, “valid consent is all I needed to operate on you. Since I fulfilled my duty to acquire consent as well as additional evidence that your consent was valid while acting in your best interest, I did nothing wrong. I did not wrong you.” If the Due Diligence Principle only cares about available reliable evidence and enhanced reliable evidence for consent, and both indicate that the consent is valid and the procedure is within its scope, then, in the Dougherty sense, there is no moral wrong here. However, does it not feel wrong for the ophthalmologist to insist that no wrong was committed? While the ophthalmologist dutifully obtained and verified OP’s consent, something is missing here: namely, they did not act according to OP’s underlying preferences, which I identify as the other necessary condition for moral permissibility in this case. Note that preference seems to play a weightier role in our intuitive moral judgment of the ophthalmologist’s actions than case 3, where the operation is elective. It would seem that the higher stakes that the patient has in the bodily intrusion they consent to is reflected in a weightier consideration of the preferences of the consent-giver. To further illustrate this second condition of agent preference in cases of bodily intrusion, I invite the reader to consider the case of Unenthused Organ Donor (UOD). Case 5—Unenthused Organ Donor UOD is a match for a kidney transplant for a patient with end stage renal disease (ESRD). Upon being contacted for the match, UOD is sufficiently informed of the relevant details of the organ donation procedure and understands that there would be little to no risk or harm to their long-term quality of life. UOD understands that there is a great interest for the ESRD patient to receive the transplant and signs the consent form to undergo the procedure. When prompted, they confirm that they indeed consent freely and without external pressure. However, as the name implies, UOD prefers not to have a kidney removed. UOD consents only because it would look bad to refuse to donate. This is not a case of defective consent in Dougherty’s sense because the reason UOD consents—not wanting to look bad—is not an unjust pressure, as it is self-imposed. The consent is still considered valid. Would it be morally permissible for the doctor on the case to remove UOD’s kidney? I don’t think so. UOD’s preferences are clearly violated, so although they gave valid consent, the doctor is not justified to remove UOD’s kidney. Once again, preference clearly matters for the consent-giver, just as I have illustrated in the series of cases involving the body above. For the People Pleaser, preference mattered when a face tattoo was administered. It mattered for Ace, who consented to sexual relations with their partner. It no doubt mattered for Obedient Patient, who really did not want to undergo surgery despite its necessity. This moral significance of preference persists across the spectrum of interest weightings, from a reversible face tattoo to an organ donation operation, meaning that it is not the weight of the interest that matters in addition to the consent but the preference regarding one’s body itself. Objection—Weightier Interests? So far, I have shown that in cases involving property, like the Landlord case, valid consent suffices for moral permissibility. However, in cases involving the body, it does not. The cases I present posit that underlying preference is the necessary—though not sufficient—condition that makes the difference. One alternative explanation for this difference in the permissibility of consensual interference is that there simply is a weightier interest for the agent when an interaction involves their body. Dougherty would argue that bodily intrusion is more costly for an agent because the body is necessary for survival. It would be intuitive, then, that we should be more prudent when acting on consent that involves the body given the higher stakes for the consenting person. By that logic, individuals may have a similar interest when it comes to their property: there would be a weighty interest in having a large proportion or absolute sum of one’s property interfered with only when they prefer it. If this were true, we would expect to observe an apparent reverse correlation between the cost to the consent-giver and the justifying power of the consent. In minimally intrusive and reversible cases of bodily interference like the face tattoo case, there is minimal interest or harm for People Pleaser to get a face tattoo—it is not too painful, financially costly, does not affect present or future physical or emotional health, assuming we now live in a world where a face tattoo is not deemed socially unacceptable. We would expect that the consent to be asymptotically sufficient for the act’s moral permissibility, which contradicts our initial conclusion. In other words, since interest is low for PP in the tattoo case, we would expect consent-power to be high. Meanwhile, cases of higher-stake bodily intrusion like sexual intercourse or surgery do not minimize the role of valid consent. For example, in the second case of intimate relations, we can generally agree that the stakes are higher than in the face tattoo case, but ultimately, there is still, presumably, little or no risk of physical harm to the consent-giver, Ace. For Bee, there is more interest than in the last case for TA, assuming that allosexual—non-asexual—individuals have some interest in having sexual intercourse with others. The difference in the level of interest for the consent-giver is not reflected in a difference in consent-power in the moral permissibility of the act. Indeed, as the consent-giver’s interest increases, we continually see a restraint on consent’s moral weight in justifying the bodily intrusion. In the LASIK case, OP has a considerable interest in improving their vision, which contributes to their health and well-being. This interest further increases in the cataract surgery case, as delayed intervention could lead to permanent vision damage or even blindness, which OP, like any rational, seeing individual, would want to avoid. On the other hand, while we can acknowledge that the increased interest for the consenting Obedient Patient restricts the justifying force of consent, it does not drown out its role underlying the moral permissibility of the surgery either. OP would not have won a lawsuit, for instance, if they were to sue the surgeon for operating on them with valid consent. OP could only make the case to undermine the validity of the consent on the grounds that their obedience poses a type of pressure akin to coercion, which I have previously shown in the tattoo case to be unsubstantiated. According to Dougherty’s Expression of Will View, OP would have been under the false belief that they gave invalid consent, which does not itself invalidate the consent. If weightier interest were a sufficiently robust explanation for the restriction on consent’s justifying force, we should expect a similar conclusion from the above bodily intrusion cases in a property case. To investigate this hypothesis, I propose a test case involving property in which an agent has weighty interest and compare our moral intuition to the violation of preference with our intuitions regarding previous cases involving the body. Weighty Property Test Case—Stubborn but Conflict-Avoidant Private Company Owner Suppose an agent J owns a one-person private company. As the only employee and owner, J has sole ownership of this firm, so the company is akin to another form of property. J has a weighty interest in this firm because it is J’s only source of income—it generates present cash flow—and has the potential to continue generating monetary value. Now suppose a local chain offers to acquire J’s firm with attractive conditions: J would not only keep the job but also gain the opportunity to reach more clients, make more money, and potentially take over other departments of this future parent company. J signs the contract and verbally confirms this agreement with the legal representative of the chain company. In other words, in the eyes of the law and according to Dougherty, the acquisition of J’s company is justified. Yet, J is very stubborn and disprefers selling the company. J only consents to avoid conflict with the chain legal representative. The chain company executes the signed and verified contract and acquires J’s firm. It would be utterly absurd for J to make a public complaint against the local chain or the legal presentative and say, “you knew I didn’t want to sign the contract! You have wronged me by executing it and acquiring my company!” If the weight of interest for the consent-giver is the only thing that matters, we would not expect to find J’s complaint absurd. After all, J’s company financially supports J and therefore matters a lot to J! Recall that in the cataract surgery case, it was reasonable for the patient to insist that a wrong had been committed when the surgeon proceeded with the operation with valid consent but no underlying preference. This difference suggests that heightened interest does not sufficiently explain why consent alone is not enough when an agent’s body is interfered with while simultaneously being sufficient in property cases like the case of J’s company. This test case suggests that, when it comes to the body, something else has to be present, namely, preference. Objection—Preference as Consent Revocation? Another possible objection would be to assert that consent is preference-based. The lack of underlying preference would be equivalent to the absence of consent or its revocation, which would render the act no longer justified according to the first condition in Dougherty’s Due Diligence Principle (Dougherty 2021, 149). If the consent is revoked, then performing the token act that the consent is meant to permit would be, again, an intrusion of one’s personal domain. Since preference is a subjective, comparative evaluation (Hansson and Grüne-Yanoff), a conception of consent grounded in or functionally equivalent to preference would be categorized as a mental account, which recognizes that consent consists of a certain mental attitude (Dougherty 2021, 23). In other words, an agent’s mental content determines the scope of the consent. An agent can thus alter the scope of their consent or revoke it simply by changing their mind (Dougherty 2021, 33). Since preference is a kind of mental attitude, changing one’s preference thereby effectively either alters the scope of one’s consent or withdraws it entirely. Therefore, the proponent of the preference account would appeal to the lack of underlying preference as either the absence of consent in the first place or a revocation of consent. There are a few flaws with this objection. Firstly, Dougherty himself rejects the Mental View: in The Scope of Consent, he presents four arguments in favor of the Behavioral View over the Mental View, partly by relating consent to promise, which we generally agree requires public behavior (Dougherty 2021, 56). The Behavioral View thus holds that like promises, consent requires behavior to express the intention to release another individual from the duty not to act in such a way that intrudes in someone’s personal domain (Dougherty 2021, 61). Dougherty points out the asymmetry between promises and the mental account of consent. The latter can create, reimpose, and eliminate duties with mere intention. The former, by contrast, requires an act that publicly acknowledges the change in duties and how the two or more agents involved relate to each other (Dougherty 2021, 56). Though I in no way assert that consent is a kind of promise, we can nonetheless intuit from their shared moral currency and role in guiding interpersonal relationships that mere mental attitudes like intentions or preferences are insufficient in creating valid consent between individuals. Indeed, Dougherty’s own conception of consent—the Expression of Will view—rejects the moral or epistemic equivalence between preference and the expression of will; to equivocate these two entirely different concepts would render this objection unsound. Rather, there is something fundamentally different between consent, which, according to Dougherty, is a deliberate expression of will, and preference. The former, while a more undemanding version, remains a Behavior View of consent. The expression of will is a deliberate behavior that authorizes the intrusion of one’s personal domain. It may reflect an underlying preference or it may not. For consent to be valid under this view, preference is not mandatory but behavior is required. Even if we grant the Mental View, the preference account is still problematic. Dougherty argues that only certain kinds of mental attitudes can ground consent (Dougherty 2021, 27). We can find the motivation behind this view in the Autonomy Argument, which “appeals to the idea that consent is an exercise of an individual’s autonomy” (Dougherty 2021, 25). This is initially attractive given that much of consent literature, at least within the clinical world, arose in the aftermath of inhumane human trials in which subject autonomy was grotesquely violated. Since autonomy is partly reflected in an ability to consciously control our moral boundaries (Dougherty 2021, 25), a mental view of consent, conceptualized to maximize the protection of autonomy, should also be “under our intentional control” (Dougherty 2021, 27). However, preferences, like desires, are not necessarily under our intentional control. An agent can be born with a preference against injection needles without ever being subject to one, which supports the intuition that preferences are not always intentional. Therefore, preferences do not inherently generate a mental account of consent, so we should reject the worry that the lack of underlying preferences would somehow have the same moral significance as the absence or revocation of consent. Upshots Granted, in many cases in real life, the consent-receiver will not be in a position to know whether the preference is present. Indeed, sometimes the consent-giver would not even be aware or certain of their own lack of underlying preference until after the act has begun, as many preferences are nuanced, weak, or unconscious. In such cases, the ignorance of such underlying preference—or the lack thereof—would constitute a blameless ignorance of a morally-relevant fact, which would render the violation of the consent-giver’s personal domain blameless. As Gideon Rosen argues in “Culpability and Ignorance”, an agent is not culpable for an act done from moral ignorance if and only if such ignorance itself is not culpable (Rosen 61). I endorse this view and apply it to what would otherwise be culpable acts of bodily intrusions and concede that they, too, are inculpable if and only if the upstream ignorance of the consent-giver’s preference is not culpable. Moreover, there are cases where the consent-receiver fails to realize that the consent-giver has been wronged. For instance, calling back to our earlier case of LASIK surgery, our patient OP consents to be operated on by the ophthalmologist P. In this case, P has fulfilled Due Diligence, having obtained enhanced reliable evidence, and has OP’s patient profile, which indicates that he disprefers surgery, especially ones that do not involve general anesthesia. Yet, through no fault of P’s own, P fails to connect the dots and realize that OP’s aversions to surgery without general anesthesia would make it wrong for P to proceed with the consent. Again, Rosen would take this case as a kind of inculpable ignorance, which renders P’s intrusion blameless. Even theorists who deny that moral ignorance is exculpatory, like Elizabeth Harman, acknowledge that the failure to realize that the wrong-making features of an action make it morally wrong could sometimes exculpate the offending agent (Harman 2017, 117). Dougherty, too, would excuse this kind of intrusion. Since the Expression of Will View is an undemanding version of the Behavioral View, it does not require successful interpretation or communication for the consent to be considered valid (Dougherty 2021, 32); in fact, Dougherty rejects the Uptake Condition, which states that: An action A falls within the scope of the consent that X gives to Y only if Y successfully interprets X’s behaviour as motivated by an intention to release Y from their duty not to perform A. (Dougherty 2021, 78) Therefore, the consent is considered valid even if the consent-receiver is not aware as long as the conditions for validity are met (Dougherty 2021, 79). Nonetheless, even in these bodily intrusion cases where the preference is unknown or misinterpreted, there is still an issue of objective rightness to which the individual being wronged is entitled. We can concede that the consent-receiver acts blamelessly, but nevertheless unjustifiably. After all, we acknowledge that the consent-giver is still wronged insofar as their preferences are disrespected. Yet, since it is done from inculpable ignorance, as I have established, it is blameless. Such acts, according to Rosen, would call for “agent regret” but not moral blame (Rosen 69). Another account of such unwitting violations of the consenting agent’s preference comes from Elizabeth Harman, who proposes a moral category called morally permissible moral mistake (Harman 2016, 366). According to Harman’s conception, there are acts that one should do, all things considered, for moral reasons, but is not morally obligated to do, such that in failing to do them, one makes a moral mistake that is nonetheless permissible (Harman 2016, 373-374). The failure to perform such an act is a moral mistake because there are moral reasons for the agent to not fail to do it. Meanwhile, failing to perform the act is permissible because one is not obligated to perform it; not performing it is not morally impermissible. If we accept that morally permissible moral mistakes as Harman conceives exist, does proceeding with valid consent for bodily intrusion without the consent-giver’s preference fall under this category? Since I accept that valid consent releases the consent-receiver from the duty not to interfere with the consent-giver’s body, acting on valid consent would be morally permissible like in cases involving property, regardless of whether preference is present. Yet, the absence of preference makes it a moral mistake when it involves the body because, all things considered, there are moral reasons why the consent-receiver should respect the consent-giver’s bodily preferences. For the ophthalmologist, for example, to perform LASIK surgery on the Obedient Patient, would be a morally permissible moral mistake. On the other hand, we cannot say that it is a moral mistake for the Tenant to disrespect Landlord’s preferences against leasing in light of the contract, which makes Tenant’s use of Landlord's Apartment morally permissible. Acting with valid consent but without preference in property cases is not a moral mistake and is simply morally permissible. In either account, we can acknowledge that the consenting individual is still wronged despite the sanction of their valid consent without blaming the consent-receiving actor. In cases of bodily intrusion, we should not be in the business of blame but rather focus on protecting and respecting the moral boundaries and dignity of individuals, which is reflected by their preferences. The Due Diligence Principle, Revisited So what does this mean for Dougherty’s conception of consent? Should we abandon the Due Diligence Principle altogether? Of course not. These cases above have revealed that there is something beyond consent—namely, an agent’s underlying preferences—that should also guide and justify the actions of other individuals interacting with or acting within their personal domain alongside consent, not in place of it. One way to remedy Dougherty’s Due Diligence Principle is to acknowledge that, in cases involving the body, from a reversible tattoo to an invasive medical procedure, there is a further question about the consent-giver’s preference. Such preference should be clearly understood as an additional enhanced reliable evidence that the consent-receiver has a duty to obtain, though not a component of consent itself, such that knowing violations of underlying preference about the body are avoided and inadvertent intrusions are minimized. Note that, since Dougherty rejects the Mental View, and I have established that preference is a kind of mental attitude separate from consent, we can presume that Dougherty’s present conception of the Due Diligence Principle does not include information about preference as a kind of enhanced reliable evidence as I propose. Dougherty’s Expression of Will View does not care about preference. Therefore, my account here is a revision of Dougherty’s Due Diligence Principle, rather than a more generous interpretation.Whether an agent has sufficiently obtained such evidence is, of course, a matter of what is epistemically possible in a given situation, and should be evaluated on a case by case basis, as the Enhanced Reliable Evidence Principle suggests. A helpful metric remains the Reasonable Agent Standard common in the legal literature on intimate relations and medical practice, or Dougherty’s suggestion that it be appropriate given the stakes of the consented act and the cost of acquiring the relevant evidence (Dougherty 2021, 144). The important thing is that such due diligence to obtain evidence for the consenting individual’s underlying preference is carried out before the bodily intrusion is consummated. Conclusion In this paper, I have argued that valid consent alone is not fully dispositive in cases involving the body. Instead, a second preference-based right is another necessary condition for the moral permissibility of the intrusion. I have demonstrated through a series of cases that preference, rather than merely the cost to the agent, matters in addition to valid consent and should be respected. I then addressed the upshots relating to epistemic challenges, including ignorance and the failure to realize certain facts. I also outlined two moral accounts of consensual bodily intrusion without preference: a morally impermissible but blameless account under Rosen’s framework and a morally permissible moral mistake account under Harman’s conception. Lastly, I proposed an addendum to Dougherty’s Due Diligence Principle of consent to include one’s underlying preference. Future work should expand upon the moral significance of preference and provide a more conclusive account of what motivates its relevance in cases involving the body. Acknowledgements I would like to thank my advisor, Professor Gideon Rosen, for his guidance and feedback throughout the junior independent work process. I also want to thank family and friends, especially John Wallar, for providing comments and unrelenting support. References “Cataract Surgery.” National Eye Institute. Accessed December 2, 2024. http://www.nei.nih.gov/learn-about-eye-health/eye-conditions-and-diseases/cataracts/cataract-surgery#:~:text=What%20happens%20during%20cataract%20surgery,be%20awake%20du ring%20cataract%20surgery. Dougherty, Tom. “Social Constraints on Sexual Consent.” Politics, Philosophy & Economics 21, no. 4 (July 26, 2022): 393–414. https://doi.org/10.1177/1470594x221114620. Dougherty, Tom. The scope of consent. Oxford: Oxford University Press, 2021. Hansson, Sven Ove, and Till Grüne-Yanoff. “Preferences.” Stanford Encyclopedia of Philosophy, October 4, 2006. https://plato.stanford.edu/archivES/FALL2017/Entries/preferences/. Harman, Elizabeth. “Morally Permissible Moral Mistakes.” Ethics 126, no. 2 (January 2016): 366–93. https://doi.org/10.1086/683539. Harman, Elizabeth. “When Is Failure to Realize Something Exculpatory?” Oxford Scholarship Online, July 20, 2017. https://doi.org/10.1093/oso/9780198779667.003.0006. Kant, Immanuel. Groundwork of the Metaphysics of Morals. Cambridge: University Press, 2012 “Kidney Transplant.” Kidney Transplant | Johns Hopkins Medicine, May 24, 2024. http://www.hopkinsmedicine.org/health/treatment-tests-and-therapies/kidney-transplant#:~:text=You%20may%20need%20a%20kidney,other%20substances%20from% 20the%20blood. “LASIK.” Wikipedia, November 21, 2024. https://en.wikipedia.org/wiki/LASIK. Nie, Jing‐Bao, Yu Cheng, Xiang Zou, Ni Gong, Joseph D. Tucker, Bonnie Wong, and Arthur Kleinman. “The Vicious Circle of Patient–Physician Mistrust in China: Health Professionals’ Perspectives, Institutional Conflict of Interest, and Building Trust through Medical Professionalism.” Developing World Bioethics 18, no. 1 (September 18, 2017): 26–36. https://doi.org/10.1111/dewb.12170. Rosen, Gideon. “IV-Culpability and Ignorance.” Proceedings of the Aristotelian Society (Hardback) 103, no. 1 (June 2003): 61–84. https://doi.org/10.1111/j.0066-7372.2003.00064.x. “Social Pressure.” APA Dictionary of Psychology. Accessed December 2, 2024. https://dictionary.apa.org/social-pressure. Wenar, Leif. “Rights.” Stanford Encyclopedia of Philosophy, February 24, 2020. https://plato.stanford.edu/entries/rights/.

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*Feature* JPPE INTERVIEWS, STEVEN PINKER: Free Speech, Protests, the “Alt-Right”, and Jordan Peterson Steven Pinker is an experimental psychologist who conducts research in visual cognition, psycholinguistics, and social relations. He grew up in Montreal and earned his BA from McGill and his PhD from Harvard. Currently Johnstone Professor of Psychology at Harvard, he has also taught at Stanford and MIT. He has won numerous prizes for his research, his teaching, and his nine books, including The Language Instinct, How the Mind Works, The Blank Slate, The Better Angels of Our Nature, and The Sense of Style. Fall 2019 JPPE : There’s considerable debate over the distinction between free speech and hate speech. How do we know when one meets the other? Is there a responsibility of college campuses or their students to help provide definitions or guidelines for these ideas and which views we believe are of academic merit? Pinker : There are limits on free speech that are recognized in all societies—even in the most libertarian societies when it comes to free speech—such as the incitement of imminent lawless activity, libel, extortion, and some cases of obscenity. There can be restrictions on the place, time, and manner in which speech is expressed. This is all contained in free speech jurisprudence. Nevertheless, those limits are pretty expansive in the United States, and I think laudably the “default” is the notion that speech is free except for very circumscribed exceptions. And that pertains to government strictures on free speech, which is not the same as the discretion that any outlet or platform has regarding who they give a voice to. And of course, a university is not going to invite any drunk on a soapbox in a public park or any ranter on Facebook. There are certain standards of scholarly accuracy and attention to academic literature. So I think the issue doesn’t arise in terms of whether a university ought to invite some provocateur who is just not part of the community of scholarly discourse and intellectual argumentation; but rather it arises when there are scholars who clearly do meet that standard but whose opinions just happen to be controversial, yet they can back up what they say with generally accepted academic standards. Of course, protests too are a legitimate form of free speech, so there can’t be any objections to protests. Although, there is jurisprudence; there are guidelines among defenders of free speech that you may protest but that you may not shut someone down. That is, there is no heckler’s veto, even though there can be of course protests that don’t disrupt the ability of heterodox views to be expressed. JPPE : From what you have observed, do you believe that students are keener to protest speakers than when you were an undergraduate? Pinker : I think there is a narrowing. It’s been going on for some time. It was certainly true when I was an undergraduate and that was a long time ago. And so despite some commentary, which blames it on the millennial generation or on generation z, there was plenty of this in my day. There is the Foundation for Individual Rights in Education (FIRE), which monitors disinvitations and speech codes, and it found that things have gotten a little bit better in 2018 compared to previous years. They’ve only been monitoring it for, I think, 10 or 15 years. Things definitely got worse until last year, but there have been ups and downs. FIRE also monitors de-platforming, which is a disruptive attempt to prevent speakers from speaking once they’re there; they monitor speech codes. My sense is it’s gotten worse, although it definitely existed when I was a student. JPPE : Did you participate in these kinds of protests? Pinker : No (laughs). JPPE : It seems somewhat arbitrary to determine who is of “scholarly merit”. Pinker : It’s kind of what academics do all the time. We referee one another’s grant proposals, manuscripts, and tenure cases. There are disputes. There are unclear cases. But there is definitely a difference between a Richard Spencer on the one hand and a Charles Murray or a Heather Mac Donald or Jordan Peterson on the other. JPPE : That last name—Jordan Peterson—is someone speaking to a large and predominantly male audience. How do you explain the Jordan Peterson phenomenon? Pinker : I agree it’s a puzzle who he is speaking to. I think he symbolizes for young men two things: one of them is an intellectual engagement that transgresses some of the very narrow boundaries in elite universities and in media like the New York Times. While he’s not alt-right or all of the things that people lazily accuse him of, he is not New York Times or Brown University. He is clearly an erudite and intelligent person. He was a professor first at Harvard, then at the University of Toronto. He is an extremely knowledgeable political psychologist and expert on psychological personality testing. He stretches the boundaries of what you can say, however, not into the territory of white supremacists or neo-nazis and other kooks and crackpots and nutcases. The other thing is that the demographic of young men he speaks to often feel so marginalized by, on the one hand, leftist feminist discourse in universities and, on the other hand, the kind of nihilistic immature culture in advertising, extreme sports, and popular culture, which seems to glorify immaturity, hedonism, and decadence. And I think they realize that someone just saying pretty banal things like “be mature, be responsible for what you say, and clean up after yourself”; that strikes them—caught between these two worlds—as something noble and revelatory. And it can’t be a bad thing that you have a charismatic guy telling young men to be responsible, not to hurt people, and to make their bed. It’s astonishing that it has to be said. But apparently it does. JPPE : You said that there were highly literate and highly intelligent people that gravitate to the alt-right. What do you make of the blow-back you received from that statement? Pinker : The New York Times reported it under an op-ed titled "How Social Media Makes Us Stupid". That was Jesse Singal who wrote that op-ed. For one thing, many people misinterpreted that because their impression of the alt-right is tiki-torch-holding-neo-nazis, whereas the people that call themselves alt-right are not that. I think their views are often quite noxious, and I’ve argued against them. But I know, since some of them are former students that write back to me—I mean Harvard graduates—, that it is a mistake to write them off as tiki-torch-holding-skinheads and neo-nazis. Some of them are smart; they are intelligent, and they feel that there are so many topics that are forbidden in standard university settings. And they feel that mainstream scholars can’t handle the truth and that they feel privy to a kind of forbidden truth, which I argued is dangerous because it means that rather extreme views proliferate in this community without themselves being criticized by opposing views or data that bear on those views. And they can actually blossom in a kind of noxious form if they’re not expressed in an arena in which they can be criticized.

Oedipus and Ion as Outsiders: The Implications and Limitations of Genealogical Citizenship Oedipus and Ion: The Implications and Limitations of Genealogical Citizenship An Analysis of Oedipus at Colonus by Sophocles and Ion by Euripides Claire Holland University of Chicago Author Marysol Fernandez Harvey Tathyana Mello Amaral Antonio Almazan Editors Spring 2019 Download full text PDF (12 pages) Introduction In ancient Athenian society, the collective myth of autochthony[1] provided the basis for social order, determining who got the benefits of citizenship and who was excluded from the polis [2]. According to their autochthonous myth, the citizenry of Athens did not emigrate from elsewhere, but instead arose from the earth upon which ancient Athens stood. Theirs was not a city of immigrants; from their very origins, the people of Athens believed themselves to be the only population that had always belonged to Athenian soil. Thus, each true-born Athenian carried within them the essential spirit of the Athenian people, passed down from generation to generation. To determine and confirm their citizenship on an individual level, each Athenian had to demonstrate their autochthonous familial descent when they came of age in a dokimasia, an examination wherein citizen tribunals collected testimony from friends and family members in support of one’s claims to citizenship[3]. In this way, one’s lineage became the sole factor determining one’s inclusion in the polis . Once blood became the basis for citizenship, citizens who were established as autochthonous could not be excluded from the polis on the basis of class. The poorest citizens had the same right to participate in Athenian government as the elite, although in practice the higher classes enjoyed special privileges, such as training in rhetoric, which poorer citizens did not. For ancient Greek city-states, this level of inclusivity was groundbreaking; most city-states did not consider their lower- or even middle-class members to be citizens, even in democratic systems of governance. However, this is not to say that Athens was entirely without social divisions, for more than just fully-privileged citizens lived within the city walls. Overall, inhabitants were sorted into three groups: citizens, metics, and slaves. While citizens enjoyed all the rights and benefits of the polis , including the right to vote and to participate in public forums, metics were an in-between, catch-all group, not subjugated like slaves but not as privileged as citizens. They could not participate in government or vote, for example, but were still able to participate economically in Athenian society. Metics were what we today might call a migrant class, as they did not meet the full requirements for blood-based citizenship but were still free. Metics were not confined to only the lower classes; like citizens, metics existed in every economic stratum, from the poorest to the richest. However, regardless of economic class, citizens, being true-born Athenians, were more socially vaunted. While lauded by political theorists for its groundbreaking inclusivity, the Athenian genealogical grounds for inclusion, like any other such system, necessitated that some be excluded so that the polis might be defined and unified rather than indistinct and anarchic. This exclusion, at least theoretically, was to be on the grounds of blood-based requirements for citizenship[4]. However, as Oedipus at Colonus by Sophocles, the second in his trilogy about the eponymous protagonist, and Ion by Euripides make abundantly clear, this distinction did not always play out as it ought. In fact, the existence of exceptions to the rule of blood-based citizenship reveals that its apparent legitimacy was, at its core, fallacious. The tragedy of Oedipus and Ion is in that the knowledge of their parentage, which should have moved them out of their marginal social positions and into the sociopolitical centers of their respective poleis , actually prevented them from claiming their rightful places within society. This is due to the fact that in practice, blood did not stand alone in determining membership to the polis . Athenian society instead relied upon adherence to socially-codified, secondary behavioral implications of blood-based membership, as shown through a further examination of the Athenian city-state and the plays Oedipus at Colonus and Ion. What’s more, the rule of descent necessarily meant that any violations of these secondary behaviors were inheritable and thus contaminated an individual’s entire genetic line from their transgression onward. In examining the social structures as they are presented in these two works, in light of the historical context of ancient Athens, it is clear that the lineage-based autochthony myth was only the beginning of the implied social order. Literary Background Before diving into the social structure of Athens, a short summary of each play is in order, which will highlight the most relevant plot points. Thanks to Freud, most are familiar with Oedipus, or at least with his infamous acts: killing his father, marrying his mother, and fathering her children. Once he discovers all that he has unknowingly done, Oedipus blinds himself and is outcast from Thebes, his home and onetime kingdom. All of this takes place in Oedipus Rex , the first in Sophocles’ trilogy of plays about Oedipus and his family. Following these events is Oedipus at Colonus , which shows Oedipus in exile from Thebes as he approaches the Athenian acropolis. During the course of the play, Oedipus encounters a pair of Athenian citizens, who fetch Theseus, the Athenian king, to determine if Oedipus will be allowed to stay in Athens. After a lengthy debate, Theseus decides to accept him, thanks in part to the pleading of Oedipus’s daughters, who have been helping him in his blindness. At the conclusion of the play, Oedipus is led away into the forest of Athens where he dies without leaving a trace, with Theseus as his sole witness swearing not to say a word about what happened to him. The themes of Oedipus at Colonus reach their pinnacle in Antigone , the final play in Sophocles’ trilogy, wherein Oedipus’s children are all killed, save Ismene, whether it be by their own hands or those of their political rivals. Ion by Euripides centers around another family drama, although perhaps not as well known as that of Oedipus. In the play, Ion is an orphan like Oedipus, raised in the Temple of Apollo at Delphi. The play starts when Creusa, forebear and Queen of Athens, and her husband Xuthus, a war hero and metic, visit the Temple to ask for a prophecy concerning Xuthus’s prospects of having any children. There, the couple meets Ion, and the prophecy leads Xuthus to assume that the now-grown orphan is his true-born son. By the end of the play, however, Creusa and Ion discover his true parentage: that it is she who is really his mother, and that his father is actually the god Apollo, who raped her before she married Xuthus. Following council from the goddess Athena, they choose to keep this knowledge secret from Xuthus for reasons that will later be discussed, and Ion goes on to eventually found the Ionian race. The Athenian City-State With the above summaries in mind, we will begin our analysis of the Athenian city-state. Athenian democracy, while more inclusive of lower classes than any prior sociopolitical structure, necessarily imposed limits on those allowed into the privileged citizenry. Voting could only be meaningful if it were limited; absolute freedom to participate in the polis would be, as Jacques Derrida says of unconditional hospitality, “a law without imperative, without order and without duty. A law without law, for short.”[5] For order and social duty to exist, there must be a specific group to whom these imperatives apply, or else all is unordered chaos. The necessary trade-off in this collective unification is the creation of an out-group against which the citizenry can be defined and assert its exceptionalism. In this way, the social order itself creates the outlaw, the metic, the orphan, and the bastard: broad, inferior social categories designed to include those who do not adhere to the implied social code. Those considered “outside of the law” are not actually so, for they fall into categories created by the social order. The only individuals truly outside of the law are those who cannot be defined by it, which we shall see is the case for Ion and Oedipus. The social rule creates the social rulebreakers, and at the same time the rule-breakers throw the rule itself into relief. Each is the inverse of the other’s positive assertion, becoming a co-constitutive axis. They provide legitimacy by means of a relation of difference through which to define themselves, while in reality neither category exists outside of the artificial, dyadic social construction. In order for a society to function, however, it must be able to overlook the arbitrariness of social delineation and instead see it as legitimate, even inherent to its subjects. To that end, Athens turned to a system of social order that on its face seemed absolute, inherent, and infallible: blood-based citizenship dependent upon genealogical descent from an autochthonous original populace. In the way of legitimacy, autochthony appeared acceptable to its citizens because it could not be disproven, even though it was just as much of a social construct as any other conception of citizenship and justification of exceptionalism. Because the mythical original autochthonous population from which Athenians claimed citizenship was ancestral, its supposed existence could not be called into question based on facts, since there were none to confirm or deny its existence. Like the founding myth of any society, the lie at the core of Athenian structure not only persisted but, interestingly, added legitimacy to the regime. Autochthony also provides a reason to see status as inherent to the citizen, since it “grounds difference in claims of nature—specifically, in earth and blood—[which gives] these categories the appearance of an ontological status.”[6] That is, Athenian exceptionalism appeared justified since it was traceable back to inherent natural differences between people. The lie of one’s social status being inherent, especially in a system based on blood, means that both adhering to its standards and violating them are not seen as merely shifting status, but are actions sublimated into the person themself. Oedipus, answering the question the Chorus poses as to his identity, does not say, “I am in exile”—that is, inhabiting an external, imposed state—but “I am an exile” (italics added).[7] His status has become his being, since blood determines both. Just as Thomas Kuhn conceives of paradigm shifts in science as not only incorporating past scientific information, but also as proclaiming past paradigms unscientific, so too do new information and actions that cause a change in status retroactively re-write one’s entire self. Everything that previously signaled one’s status becomes a lie, and, in a world where statuses can change, passing becomes both possible and inevitable.[8] This is the unavoidable fallout of the idea of social status as inherent and blood based. While autochthony’s claims of being inherent certainly rested on shaky ground, these were not the only fallacious premises upon which Athenian self-conception depended. Because autochthony was meant to order, it centrally imposed its structure down to even the level of individual family, and in doing so, manifested itself as a myth of unity. Above all, genealogical claims were meant to be objective and clear, “largely to guard against the kind of mingling and confusion of identities that blurs discrete lines of demarcation in the social order.”[9] The ideological primacy of a clearly-ordered and unified family structure was designed to make orderly life possible, with a cohesive overall clan structure which mirrored the internal structure of the family. In this way, the polis functioned ideologically as a single entity, its uniform organization all the way down to the individual level supplementing its unifying claim to one collective heritage. This ideology is far from abstract, and is in fact visible in much of the literature Athenian citizens produced. In Pericles’ Funeral Oration, for example, “the ‘populus,’ in the general sense of the term, is not politically divided,” and, indeed, “is never divided in the works of the tragic poets.”[10] This broad claim of unity is seen in Oedipus at Colonus as well, when Theseus, reacting to Creon’s abduction of Oedipus’s daughters, proclaims, “Your [Creon’s] behavior is an affront to me, / A shame to your own people and your nation,” and that “the whole city [Athens] / Must not seem overpowered by one man.”[11] In a unified citizenry, any citizen exemplifies that citizenry, and thus the actions of one man can impact the reputation of the entire polis . In this way, the citizen is metonymic of the polis , and conflating one with the other is both an easy and powerful move in a mythically-unified city like Athens, especially by its figurehead Theseus. What this means, however, is that the broad-reaching social order determines not only social status, but behavior. One must act in accordance to its social prescriptions, or else one endangers the social ideal of collective unity. Thus, those who violate the social norms, especially those important enough to be codified into law, must either be expelled from the polis by being placed into one of the excluded classes—in extreme cases, such as with Oedipus, this meant being expelled from the city itself and branded an exile—or eliminated entirely. In a society founded on absolute, broad-reaching, inherent order, any person whose very presence defies that system of order threatens the entire conception of the polis, a conception that must be kept in place so that democracy and the state as a whole can function. In order to see why Oedipus and Ion are not able to take their rightful places, then, it is necessary to examine exactly which secondary social prescriptions they violate that threaten the order and unity of the polis .[12] The Social Implications Of Blood While the primary concern of a genealogical social organization is creating a clear order, it must also be a self-sustainable system. What this means is that in order to reproduce viable citizens, and thereby the entire social order, secondary behavioral prescriptions become necessary. A system meant merely to determine whether or not one was citizen (i.e., pure lineage) became instead a guiding social principle, dictating not only social standing but also desired social behavior. To borrow a term coined by James C. Scott, the requirement of pure lineage in a genealogical society set into motion “a process by which ‘a measure colonizes behavior’”—that is, what is meant to be descriptive becomes prescriptive.[13] In the quest to create social order and obtain clarity through kinship organization, a blood-based society generated secondary regulations that helped further its own existence. No longer did it merely order society, but the desire to adhere to the blood standard now shaped the ways Athenians lived their lives. For example, the stringency of claims to autochthony biased societal perceptions of preferable marriages. Athenian-Athenian matches, or, more generally, marriages between members of the polis with clearly-defined statuses were considered more appropriate in ancient Athenian society. These biases played into the need for social order: if one was certain who one’s parents were, one’s own status was clearly defined. Conversely, if one was uncertain about their parentage, their social status was diminished due to the social order. We see this bias throughout history, with orphans and bastards historically being treated as lower-class citizens, inferior to those of straightforward lineage. With unclear parentage, one is not immediately stateless, per say, but one experiences a sort of social statelessness. As Creusa says of Ion, “It was for your good that Loxias settles into a noble house. If you were called the god’s son, you would not have had a house as your inheritance or a father’s name.”[14] Because Athenian women could not hold property, Ion must pass as the son of a metic in order to inherit a name of any meaning. Indeed, we see at the beginning of the play that Ion has no name at all until Xuthus gives it to him.[15] Naming is a familial claim, but as a bastard of Apollo, Ion has no name to claim whatsoever. While his Athenian mother ought to make him Athenian as well, revealing his true parentage would render Ion not only destitute, but without any form of social identification. To have a subordinate place in the social order is better—at least as Ion is coerced to believe by Xuthus and Athena—than to have no place at all. While his parentage is clear, Ion’s social status is not, revealing one of the major failures of a blood-based system. Inheritance can only deal with facts that it was built to incorporate for it is based on the grounds that it stems from absolute fact. While being the son of a god ought to have positive effects on his social standing, the fact that Apollo has entered the social order from a place completely external to it means that Ion and all of his progeny are also unable to fit into the social system at all. Ion cannot even be defined by one of the catch-all categories such as “orphan” that have been built into society for extreme, non-standard cases. A social order based on genetic lineage “expresses a demand to repeat (over generations) what can only happen once (the original birth).”[16] Genealogical in-grouping made both citizenship and violations of its reproductive practices iterative: if one’s ancestors made a mistake in marriage or reproduction, it would be reproduced throughout the entire genealogical line with no chance of correction, save through covering it up. Once revealed, Apollo’s original sin of impregnating Creusa—or, as it was more likely to be seen in this society, Creusa’s original sin of giving birth to Ion—would haunt Ion’s family line forever. Ion therefore must follow Athena’s advice and pass as a metic until the end of his days, his knowledge of his true parentage keeping him from fully joining the polis lest he become disenfranchised and lose his social classification of orphan, along with the protection that classification affords. While Ion’s crime against the social order is his very birth, Oedipus’s crime is more nuanced, hinging on his transition from ignorance to knowledge of his own parentage. Oedipus at Colonus thus explores what happens when that which goes against the social order is revealed, instead of staying safely hidden. While Ion confounds orderly overall social classification, Oedipus hopelessly confuses the internal family ordering upon which the whole of Athenian society was based. Oedipus not only confuses this order by killing his father, upending the proper power dynamic and sinning against the polis ’s conception of the ideal family, but also by marrying his mother and having children by her. This creates social positions untenable within Athenian society: sister-daughters, son-brothers, father-siblings, grandmother-mothers, etc. In his ignorance, Oedipus commits crimes that, upon coming to light, make both himself and his entire family socially unclassifiable, for the social order has no way of coping with the complications of incest. Just as Ion’s potential outing could contaminate the legitimacy of his entire line, Oedipus’s revelation does contaminate his entire family structure because of the supposedly inherent and unifying qualities of blood. This inherited contamination is evident in the ill fate of Oedipus’s daughters in the following play, Antigone . What brings people together in the social order can just as quickly spread social contamination. Oedipus and his family, especially his offspring, each inhabit multiple social categories, which contradict each other in their implications of exclusion and inclusion. Despite Oedipus and by extent his children being at least doubly Theban, the revelation of Oedipus’s parentage means they cannot be allowed to remain in the polis . Society has no outcast category in which to put the members of this family, so they must be expelled. They have violated the social order and thus cannot stay in the city since their continued presence threatens the myth of broader social unity. While the concept of unity was not as important in Thebes as in Athens, at least from an Athenian perspective, incest was still taboo. To some extent, Oedipus’s family had to be Theban since Thebes served as Athens’ dramatic foil, a place where scenes were allowed that couldn’t play out in Athens, even mythically.[17] Thebes was a place to explore social possibilities. If Oedipus’s stories took place within Athens’ idealized system, even in fiction, they risked exposing too directly its fragility. The slight distance between the two cities, both physically and ideologically, was what made such socially-shattering myths as Oedipus palatable. They were allowed to explore the potential effects that taboo events such as incest could have within Athens without threatening the social order with its intense emotional baggage. Conclusion The Athenian social order tolerates certain types of aberrations as long as they fall within the outcast categories it has created so that its myth of unity can persist despite inevitable anomalies. If an individual falls outside of these catch-all categories then they must be eliminated. Indeed, we see this occur through the plays as Oedipus’s children—who break no laws but whose very existence as daughter-sisters and brother-sons exposes the fragility of blood-based social order—eventually kill themselves and each other. The sin must be cut off at the source or else it will grow exponentially with every following generation. All of Oedipus’s family must end to cleanse the blood and the city. Unlike with Ion, Oedipus’s familial social transgressions are known, precluding him from the approved social order. Therefore, Oedipus faces no other socially-viable option but to be expelled from the polis . He threatens the polis ’s behavioral unity, the myth of unity that the entire polis is founded upon, and therefore, the polis itself. The mythically-unified polis, for whom all included individuals are metonymic representatives, cannot include an individual who has violated its secondary socio-familial prescriptions even if those transgressions are not intentional. Interestingly, Oedipus is asked to conditionally rejoin Thebes after his expulsion because the metonymic power the polis has over its citizens supersedes all other considerations. The claim which Athens newly asserts over Oedipus infringes upon that primary consideration, and so his secondary sins can be overlooked in favor of his primary birthright. Oedipus’s parentage is revealed, while Ion’s is not, and these revelations are what shaped their tragic fates. However, in a genealogical system that gains legitimacy based on the claim that blood is objective, inherent, and unfakeable, how is it possible that either of their lineages, at any point, not be revealed? The answer, in short, is that despite its apparent objectivity, blood does not speak for itself. One cannot look at someone and tell who their parents are, and, like Ion, individuals might be mistaken about their true parentage. This opens up the possibility of acting and passing as a citizen, even unintentionally, when one is not. This possibility threatens the autochthonous myth of blood being self-evident and inherent—thereby threatening the entire Athenian social order. As the bastard child of a god and an Athenian, Ion, while objectively an Athenian, does not fit neatly into the social narrative. Revealing his parentage may lead to questions about his autochthony. To secure his high position of power, a palatable lie must be constructed to ensure the propagation of his own line and the social order as a whole. Blood in this case is a performance, willing or not, for the sake of the social order to which his own exceptional circumstances must be subsumed. Because the autochthonous genealogical citizen myth is founded on the basis that it has no exceptions, having a questionable figurehead at one of the most important family lines might incite social crumbling from the top down. As an inevitable consequence of the need to preserve the mythical unity that this society was founded on, Ion, whose familial transgressions can be subsumed into pre-existing social categories, is able to be a metic as long as he hides his familial transgressions under a socially-acceptable genealogical narrative. Oedipus, on the other hand, who reveals his familial transgressions under extreme emotional duress[18], must necessarily be evicted from his polis for his violation of its secondary prescriptions since the assertion of his status along family lines implicates his other behavior. The tragedy of Oedipus and Ion is that the knowledge they gain of their parentage, which should shift them from their marginal social positions into the sociopolitical centers of their respective poleis , actually means that they cannot claim their rightful places in society. The knowledge of their parentage is inextricable from the knowledge that either they or their parents violated the secondary prescriptive norms of their genealogically-based society. Despite its claims to being inherent, providing clear order, and unifying the polis , (blood) autochthony failed in almost every one of these respects, as does any other basis for social organization and delineation of citizenship. In order to preserve and reproduce this order, the reproduction of individuals needed to adhere to secondary behavioral prescriptions that blood-based membership entails, lest their entire family lines be contaminated. Due to the different natures of Ion’s and Oedipus’s social crimes, as well as the secrecy of sensitive information or lack thereof, Ion is able to pass within the polis while Oedipus must be expelled in order to preserve the social myth. However, neither is able to claim what is rightfully theirs: the title of citizen. Endnotes [1] Autochthony: n., The quality, state, or condition of being autochthonous; an instance of this. Autochthonous: (of an inhabitant of a place) indigenous rather than descended from migrants or colonists. Oxford English Dictionary, “autochthony” and “autochthonous,” OED Online, December 2018. [2] Polis refers to a Greek city-state. Here, more specifically, it refers to the people allowed within government in Athens, the people who constituted the voter base and who were included in all aspects of civic life. [3] Dokimasia : n, The term δοκιμασία and the related verb dokimazein were used in various Greek contexts to denote a procedure of examining or testing, and approving or validating as a result of the test. Oxford Classical Dictionary , 2016, "dokimasia." [4] At the time in which Ion is set, the requirement for citizenship was having one Athenian parent, not two, as it was after Pericles’ citizenship law. For Oedipus, the distinction is irrelevant because both of his parents are Thebans—or, in his father’s case, a naturalized Theban ruler. [5] Jacques Derrida, Of Hospitality: Anne Dufourmantelle Invites Jacques Derrida to Respond , Trans. Rachel Bowlby, (Stanford: Stanford University Press, 2000), 83. [6] Demetra Kasimis, “The Tragedy of Blood-Based Membership: Secrecy and the Politics of Immigration in Euripides’s Ion,” Political Theory 41(2):231-256 (2013), 15. [7] Sophocles, Oedipus at Colonus , trans. Robert Fitzgerald (New York: Harcourt, Brace, 1941), 92, line 9. The exact blood-based social conventions Oedipus violates that lead to his expulsion from Thebes will be explored later. [8] Passing, or being perceived and accepted as something other than what one actually is, is certainly an important part of any strictly-delineated social order. For example, in the post-Jim Crow era, certain people who would legally have been considered African American could “pass” in their daily lives as white. Passing is especially important in relation to Euripides’ Ion, but further discussion is not within the scope of this paper. [9] Kasimis, “The Tragedy of Blood-Based Membership,” 15. [10] Pierre Vidal-Naquet, “Oedipus Between Two Cities: An Essay on Oedipus at Colonus,” in Myth and Tragedy in Ancient Greece, eds. Jean-Pierre Vernant and Pierre Vidal-Naquet, trans. Janet Lloyd (New York: Zone Books, 1988), 331; 334. [11] Sophocles, 132, lines 8-9; 136, lines 14-15. [12] Ion is the son of the sun god Apollo and the Athenian princess Creusa; Oedipus is the son of two Theban monarchs. Thus, both theoretically should be included in their respective poleis on the basis of blood, especially since it is the blood of the elite. [13] James C. Scott, Two Cheers for Anarchism: Six Easy Pieces on Autonomy, Dignity, and Meaningful Work and Play (Princeton: Princeton University Press, 2014), 114. [14] Euripides, Ion , trans. H.K. Lee (Warminster, England: Aris & Phillips, 1997), 503. [15] Euripides, Ion , 403. [16] Kasimis, “The Tragedy of Blood-Based Membership,” 13. [17] Vidal-Naquet, “Oedipus Between Two Cities,” 334: “There is one place where stasis [social division] finds a special home: It is Thebes,…an anti-city.” [18] Euripides, Ion , 104, lines 17-18: “Nothing so sweet / As death, death by stoning, could have been given me.” Oedipus’s distress comes from his internalization of the prescribed external social standards, which hold so much weight as taboo that he, as a metonymic citizen, feels anguish from actively breaking these rules, even if unaware he was doing so. References Derrida, Jacques. Of Hospitality: Anne Dufourmantelle Invites Jacques Derrida to Respond. Trans. Rachel Bowlby. Stanford: Stanford University Press, 2000. Euripides. Ion . Translated by H.K. Lee. Warminster, England: Aris & Phillips, 1997. Kasimis, Demetra. “The Tragedy of Blood-Based Membership: Secrecy and the Politics of Immigration in Euripides’s Ion.” Political Theory 41(2):231-256 (2013). Scott, James C. Two Cheers for Anarchism: Six Easy Pieces on Autonomy, Dignity, and Meaningful Work and Play. Princeton University Press, 2014. Sophocles. Oedipus at Colonus . Translated by Robert Fitzgerald. New York: Harcourt, Brace, 1941. Vidal-Naquet, Pierre. “Oedipus Between Two Cities: An Essay on Oedipus at Colonus.” In Myth and Tragedy in Ancient Greece. Edited by Vernant, Jean-Pierre, and Pierre Vidal-Naquet. Translated by Janet Lloyd. New York: Zone Books, 1988. Vernant, Jean-Pierre, and Pierre Vidal-Naquet. Myth and Tragedy in Ancient Greece. Translated by Janet Lloyd. New York: Zone Books, 1988.

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The Brown University Journal of Philosophy, Politics, and Economics (JPPE) is a peer reviewed academic journal for undergraduate and graduate students that is sponsored by the Political Theory Project and the Philosophy, Politics, and Economics Society Program at Brown University. The Brown Journal of Philosophy, Politics & Economics Volume IV, Issue I scroll to view articles Volume IV Issue I Philosophy Authenticating Authenticity Authenticity as Commitment, Temporally Extended Agency, and Practical Identity Kimberly Ramos Can Pascal Convert the Libertine? An Analysis of the Evaluative Commitment Entailed by Pascal’s Wager Neti Linzer The Growing Incoherence of Our Higher Values Aash Mukerji The Necessity of Perspective A Nietzschean Critique of Historical Materialism and Political Meta-Narratives Oliver Hicks Read More Politics The Unchurching of Black Lives Matter The Evolving Role of Faith in The Fight for Racial Justice Anna Savo-Matthews From Bowers to Obergefell The US Supreme Court’s Erratic, Yet Correct, Jurisprudence on Gay Rights Sydney White Predictive Algorithms in the Criminal Justice System Evaluating the Racial Bias Objection Rebecca Berman Read More Economics God Save the Fish The Abyss of Electoral Politics in Trade Talks––a Brexit Case Study Eleanor Ruscitti The Black Bourgeoisie The Chief Propagators of “Buy Black” and Black Capitalism Noah Tesfaye Breaking Big Ag Examining the Non-Consolidation of China’s Farms Noah Cohen Read More Applications for JPPE Now open! See Available Positions

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

A 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.

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.

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.

Ezekiel Vergara Punishment: Human Nature, Order, and Power Ezekiel Vergara Legal punishment has become a pervasive phenomenon in society, affecting millions of individuals worldwide and encompassing police practices, prison systems, and medical professionals. However, the practice of punishment often overshadows its theoretical goals. This paper attempts to highlight the theoretical aims of punishment through a genealogy of punishment as it relates to human nature. The theory of punishment demonstrates the primacy of order as tied to human nature. In addition to order, punishment is shown to have secondary aims, such as moral desert, rehabilitation, and revenge. These primary and secondary goals of punishment are then compared to the modern practice of legal punishment. Unsurprisingly, punishment in theory differs greatly from punishment in praxis. Instead of fulfilling its theoretical aims, punishment functions as a locus of power that strips agency from the offenders. In an attempt to ameliorate this theoretical-practical difference, various solutions are provided to make practical punishment more congruent with the adopted theory. In the analysis and critique of punishment, authors from various fields are cited, ranging from seminal works by Michel Foucault to modern works by William Connolly and Didier Fassin. While the first instance of punishment remains unknown, punishment has permeated all aspects of life — in prisons, schools, and at homes. However, this paper will be limited only to “legal punishment,” or the activities of punishment that are conducted by states, courts, and police (1). To examine punishment, this paper will theoretically examine the institution and nature of punishment. The first section of the paper will seek to answer the question “what is punishment?” A brief genealogy of punishment and human nature will be presented. Proceeding from this analysis, the second portion of this pa- per will juxtapose the theoretical outline of punishment—as derived from human nature—with the actuality of modern punishment. Notably, it will be argued that the presence of asymmetric power relations distinguishes theoretical punishment from actual punishment. In response to the discrepancy between theoretical and practical punishment, a possible improvement to punishment will be proposed: al- lowing offenders to propose their own punishment. Finally, the paper will consider challenges to this proposal. In order to present a thorough and convincing analysis, each section of this paper will refer to a variety of authors, mainly political theorists and jurisprudential scholars, while also referencing some empirical data. Likewise, this paper will operate within the paradigm of the current debate on punishment and focus on punishment in the United States (2). I. Human Nature and Punishment Punishment is related to human nature; it seems impossible to divorce the two. Through a genealogy of punishment, it will be shown that these two concepts are heavily intertwined, with the human desire for order serving as the impetus for punishment. “Punishment,” then, refers to “an attempt to reestablish order through sanction on the offender, in accordance with human nature.” A few clarifying statements should be made before this relation is demonstrated via genealogy and analysis. First, the term “human nature” is an amorphous concept. Among theorists, there is debate on whether a unique “human nature” exists (3). Moreover, even if a human nature does exist, there is no consensus on the nature of this concept (4). Hence, this paper will present a thorough analysis of human nature that draws upon various authors. However, it is recognized that other conceptions of human nature may lead to the same conception of punishment. Second, the fact that punishment is related to human nature does not mean that human nature involves punishing. This paper does not preclude the hypothesis that human nature itself desires punishment, yet the link between punishment and human nature supported by this paper is more derivative, in that punishment arises from the human want of order (5). Presently, this paper will provide a genealogy of punishment that begins with human inequality (6). This inequality, which is natural to man, leads to conflict over similar wants. Namely, some individuals are better suited to achieve their wants, while others are less capable. When two or more individuals want a good that cannot be divided, the most capable is able to acquire the good. Oftentimes, this zero-sum game leads to conflict as the weaker party seeks retribution (7). In the face of this conflict, man desires order, which is the primary impetus for punishment. Because of this conflict, man seeks to establish a type of order, an order that can allow individuals to pursue their ends without the threat of violence (8). Ultimately, this order is established by a superior individual, family, tribe, or group that exerts control and establishes rules in a certain region. Originally, these rules are simply based on custom—or the norms of fair expectations in common-life. Due to their historical underpinnings, these customs are obeyed by the people (9). Over time, though, customs become binding in a certain area or jurisdiction (10). Customs, founded on fair expectations, seek to apply an objective, ordered standard of conduct to human behavior. However, because customs are not universally followed, a mechanism is needed to maintain order and ensure adherence to these expectations. Primarily, to increase the level of norm adherence, sanctions serve to increase the costs of deviance. Eventually, with the creation of the state and morality, punishment began to be exercised by centralized legitimate authorities that monopolize violence (11). Important to the monopolization of violence is the codification of norms or general maxims, allowing the state to determine when punishments, such as monetary and physical punishments, should be applied. For instance, in the early United States, many crimes were accompanied by a fine and those convicted suffered harms from forced labor to capital punishment. Thus, a legal system came into existence. As punishment evolves over time with the expansion of the state, the economy also plays an important role related to order-based punishment. Namely, monetary payment can be used as a sanction on offenders, as a way to reestablish order (12). The creditor-debtor relationship serves as the basis for punishment in the Nietzschean account (13). The Nietzschean account highlights the relationality and inequalities of punishment. Namely, the asymmetry of Nietzsche’s power relations requires two or more parties, illustrating that power is something relational among individuals (14). As such, the penal relationship presents a distinct power dynamic, derived from the creditor-debtor relationship. Plainly, the creditor exercises an asymmetrical amount of power as he has something that the debtor needs or wants. On the other hand, the debtor has little power to resist, especially if he is in need of the creditor’s good. An asymmetry, then, exists between the creditor and debtor. Such inequality is mirrored in the punisher-punished relationship where the former exercises power over the latter, given that a good must be compensated. Given the desire for order—seen through the state and the economy—three points on human nature and punishment should be addressed here. First, the emergence of the state may simply be a “pleasure, delighted in the promised blood,” a mechanism that legitimizes infliction of suffering (15). Thus, instead of producing order, the state may simply serve as a means of exacting revenge on other individuals through a legitimized relationship. For example, police violence is legitimized and allowed to persist by the law (16). Second, the desire for punishment appears as a type of desire satisfaction, which signals that humans desire order. Simply, there is pleasure in order and reestablishing order through suffering. Rather than repaying money in the creditor-debtor relationship, the loan is replaced by suffering. Third, there seems to be a degree of rationality in punishment. For example, adults are sanctioned more severely than children for criminal offenses. Thus, it seems that punishment operates on a scale of rationality, as it is supposed that children have not completely developed such faculties, or what is generally accepted amongst individuals, whereas adults do (17). In short, then, punishment is derived from the desire for order, due to inequality and competing wants. Punishment reestablishes order when a standard—originally custom, presently law—is broken. Through a genealogy of punishment, certain aspects of human nature become readily disclosed. As such, punishment appears multifaceted, but likewise contained within a certain paradigm, that of history and custom. Thence, “punishment” appears to be “an attempt to reestablish order through a sanction on an offender, in accordance with human nature.” II. How to Punish This section of the paper will discuss a theory of how punishment should be practiced, as derived from human nature. Human nature appears to want order through punishment or sanction, but punishment appears to have secondary aims. Nietzsche identifies a list of secondary aims, besides the primary aim of order. For example, punishment also seeks revenge, deterrence, and reformation (18). This pa- per will now explicate the primary and secondary aims of punishment and analyze their current practice. In this way, it will be illustrated how punishment based on human nature would be conducted and how current practices deviate from these theoretical ideals. Order—the primary goal of punishment—is crucial to the practice of punishment. The basis of order is fair expectations, as has already been discussed. The notion of order, when tied to fair expectations, illustrates two aspects about how to punish. First, punishment requires a relationship of two or more individuals, most clearly seen with Nietzsche’s creditor-debtor example (19). A relationship between two individuals allows for a good to be extracted and a sanction to be applied, which releases the offender from his duty or debt. Thus, punishment must establish a relationship between individuals, thereby allowing order and therefore human nature to exist among them. Overall, this phenomenon is both practiced and disregarded in modern punishment. The modern offender engages in various relationships—with the warden, with the judge, with the prison-worker, with the doctor, with the criminologist— that allow for a good to be extracted and a duty absolved (20). However, this is not always the case. Solitary confinement is readily practiced in the modern penal system, undermining punishment’s goal of reestablishing order between individuals. Namely, by isolating an offender, it is impossible for the offender to form and maintain a given relationship, thereby disregarding a fundamental necessity of order (21). Moreover, even if it is the case that solitary confinement is not permanent, the relationships in question are disrupted (22). This not only limits the goods that can be extracted from the offender, but also creates an unequal power dynamic that further forestalls the absolution of the offender’s duty. That is, by confining the offender, he is rendered more unable to adequately engage in the relationships required by order-based punishment. Moreover, this power asymmetry strips the offender of his agency, which is of value, and contributes to disorder. Ultimately, to improve punishment, such an unequal power dynamic must be remedied. Second, in regard to order, is the notion of fair expectation. Fair expectations highlight the proportionality of a claim, as illustrated in the creditor-debtor relationship. The debtor and the creditor have an agreement on how much money should be returned to the creditor. While there exists an asymmetrical power dynamic among the creditor and the debtor, the agreement itself is fair (23). Thus, punishment requires a level of proportionality, due to the fairness of the original agreement. The proportionality of a sanction establishes a reasonable duty that is imposed on the offender, as a means to reestablish order. However, fairness as it relates to order is rarely practiced. Punishment in the United States is far from proportional, affecting minority and low-income individuals at a much higher level. These disparate impacts violate the original agreement of fairness and call into question the validity of the original agreement. Similarly, the modern penal system often places a burden on individuals, aside from the actual punishment. The offender often faces the prospect of losing his job, his family, and his friends (24). Hence, disproportionality is endemic to modern punishment. Aside from order, punishment also aims to exact revenge, deterrence, and reformation. In theory, these secondary aims support the primary goal of order. However, when improperly executed, these secondary goals actually subvert the primary end of order. Through an analysis of all three secondary aims, it will become clear that there are grand discrepancies between the theory and practice regarding punishment. The idea of revenge being an aim of punishment is grounded in Nietzsche’s work, namely the “slave morality” and his creditor-debtor relationship (25). Unable to alter the past, a wronged individual seeks to will the present and the future. To do so, punishment deprives the offender of future possibilities. Simply then, the offender must repay for his actions in sufferings that occur in and possibly over time (26). Revenge, then, desires that the offender suffers, requiring a unique relation- ship between a victim and an offender. However, in practice, revenge deviates from its theoretical framework. First, it is forbidden by modern law; second, it is expressive (27). As for the former, revenge is viewed negatively, seen by many as a type of desire to be suppressed. Only the law can punish, not private individuals. Nevertheless, the law appears to be a façade for this vengeful desire, concealing this vengefulness in its legitimacy (28). Although not always physical retribution, the law legitimizes the unsupervised and unwarranted violence of the few, seen in modern police practices (29). Moreover, punishment as revenge is expressive. Mainly a part of the retributivist framework, revenge is an expressive punishment that allows for the symbolic expression of disapprobation (30). Punishment creates a new social stratum of the delinquent (31). This social stratum unites society by providing a scapegoat that can be examined, questioned, and blamed. Thus, revenge is cathartic, creating a unified relationship between members of society against the delinquent population, as seen in Connolly’s discussion (32). Therefore, practical punishment should inflict warranted suffering on an offender and create an offender-victim relationship. However, in practice, revenge inflicts unwarranted violence that scapegoats the offender to unite large groups, perverting the aforementioned relationship. For instance, unwarranted violence against Black Americans, under the guise of punishment, has long served to unite whites around ethno-national identity. Yet, such unity under the guise of punishment is actually counterintuitive, given that through these means, the primary goal of order is subverted. Indeed, this prevents the creation of a legitimate, properly-ordered system. Deterrence is another aim of punishment, secondary to that of order. The idea of deterring crime suggests that individuals wish to live in an orderly society and have the ability to project into the future. Put simply, individuals can posit future relationships or possibilities where crime affects them. Thus, punishment deters other possible offenders from committing similar crimes in the future. However, deterrence supposes two connected ideas. The first is that individuals act rationally; secondly, it supposes that punishment is the appropriate means to deter crime. Deterrence, in theory, supposes the rationality of possible offenders and their ability to make cost-benefit analyses. The thought goes that by increasing the punishment for a given offense, individuals will be less willing to commit the crime as the benefit of committing an offense is overshadowed by the punishment for that offense. Notwithstanding this consideration, deterrence is very different on a practical level. Didier Fassin notes that the punishment used to deter crime is often aimed at humiliation and shaming, aimed at emotion, instead of rationality and cost-benefit analyses (33). Therefore, the theory behind deterrence, which is based on the conception of rationality among individuals, is overshadowed by irrational practice that subverts the primary goal of order. Deterrence, in practice, supposes not the rationality and dignity of humans, but rather exploits the social relations of individuals. Through such exploitation, the creation of a proper order is forestalled. This may partly answer why punishment aimed at deterrence fails, failing to support the primary goal of order (34). Finally, punishment has the secondary aim of rehabilitation. The idea of re- habilitation is important to maintaining the primary goal of order through punishment. In theory, rehabilitation has two key aspects: temporality and relational existence. Temporality is crucial to human nature and is tied to the goal of rehabilitating an offender. The idea of rehabilitation supposes that an offender remains the same responsible agent over time and likewise that the offender can change and adopt the laws and norms of a society (35). By attempting to reform an offender, the offender is forced to face the past and reflect upon the offense that was committed. During such a reflection, part of human nature is unconcealed, in the sense that the individual can gain understanding about himself (36). With this reflection, the offender is prompted to project into the future, where he will not commit the offense, drawing off the present insight, which is provided by the reflection on the past. As a result, the offender recognizes his own temporality, his possibility aside from crime and the temporality of the penal system. Relationality is also tied to rehabilitation. The notion of rehabilitation requires that an individual is aided by another individual. Usually, this takes the form of an offender and an authority figure, such as a therapist, a teacher, or a doctor. Although the offender-authority relationship is originally based on an asymmetry of power, the rehabilitation process diminishes the asymmetrical power dynamic as the offender reforms. Theoretically, over time, punishment serves to help the offender regain his standing in society, having “paid his debt to society.” Due to this symmetrical relationship of rehabilitation, the offender can understand his human nature and his past, knowing that the future will be based on relationships with other individuals in a given society. In short, rehabilitation awakens an of- fender to his human nature and diminishes the asymmetry between offender and non-offender. However, modern punishment falls short of rehabilitating offenders. Instead of engaging offenders with their temporal and relational being, punishment urges recidivism (37). Those who are punished by the modern system are disempowered and hardened in their ways. Rather than operating on the notion of individual responsibility, offenders are maligned; offenders are made out to be “[monsters]” beyond rehabilitation (38). Likewise, instead of turning offenders to the future and their possibility, the penal system focuses on the past and the asymmetrical power relations created by the past. This is best seen in Fassin’s ethnographic work, as prisoners are punished simply due to their past (39). For example, without the ability to secure adequate jobs or housing, many offenders turn back to crime, leading to high lev- els of recidivism. By limiting the opportunities available to former offenders, and contributing to recidivism, order-based punishment is undermined. Rather than a properly ordered system, offenders are thrust towards further crime and disorder. Offenders are neither rehabilitated nor empowered; offenders are trapped in the past, which forestalls their ability to recognize and to contribute to order. Punishment, namely how to punish, seems complex but grounded in human nature. Focusing on order, the ideas of relationality and fairness are clearly espoused. In regard to the other aims of punishment, the unique ideas of temporality, suffering, and rationality are clearly presented. However, the goals of penal theory are far from the actuality of penal praxis. Instead, the modern penal system perpetuates asymmetric relationships that alienate offenders and highlights the desire to faire le mal pour le plaisir de le faire (40). In such practice, human nature is blatantly disregarded, necessitating reform in punishment. III. Improving Punishment Punishment, as has been discussed, is based on a relationship and can thereby be described as just or unjust. As a concept, justice entails what should be given or done to others. Here, justice has a multiplicity of characteristics, yet one characteristic seems crucial to justice and is tied to human nature: relationality. Notably, justice defines the obligations and rights between individuals (41). Since relationality is an aspect of justice—which is paramount to reducing the discrepancy between theory and practice—reformation regarding relationships appears crucial to im- proving punishment. Practical punishment, as based on a power asymmetry, appears unjust. This power asymmetry is unjust because it strips the offender of his agency, which is of value. Therefore, the task of justice, regarding practical punishment, is reducing the power asymmetry between the offender and others. By reducing this asymmetry, offenders will better understand their nature, creating a proper order that is respective of the offender’s agency. Moreover, a more symmetric power dynamic would intuitively reduce the problems created by practical implementations of revenge, deterrence, and rehabilitation. That is, by having a more symmetric power relationship, not only will offenders be more capable to oppose these practical injustices, but punishers will be less likely to commit such injustices. To be more just, the penal systems must reduce the asymmetry of power relations by highlighting the agency of the offender. Instead of passively going through the penal system, the offender must exercise his unique human agency. The root of this aforementioned asymmetry arose from the penal process. Both Connolly and Fassin underscore the asymmetry of the modern penal system in their work. In regard to the former, the rhetoric surrounding the offender dehumanizes him, making the offender equivalent to an animal, one that needs to be tamed (42). In regard to the latter, the individuals are at the mercy of the penal system, unable to exercise their human capacities (43). This is further seen in the strict penal regiments of prisons and the rigid punishments of statutes. To reduce this asymmetry, I argue that offenders should be allowed to propose their punishment for the crimes in cases where a judge or jury has found the offender guilty. To illustrate this proposal, I draw from Plato’s and Xenophon’s renditions of the ancient Athenian penal system during the trial of Socrates (44). Unlike the modern penal system, where the offender plays a passive role, in the trial of Socrates, Socrates is prompted to give his own defense and cross-examine witnesses. Moreover, when Socrates’ is found guilty, he is required to propose a punishment that would serve as recompense for the offense in question. The Athenian jury, in Socrates’ case, then votes to choose between the offender’s proposed punishment and that proposed by the prosecution. By doing so, Socrates is able to exercise his agency, despite the fact that he is sentenced to drink the hemlock. In the modern penal system, the offender is able to defend himself if he wishes, but often defers to an attorney. Most times, the offender defers because he does not have a strong, functional knowledge on the intricacies of the law. Hence, a lawyer—an expert on the law—is brought in to compensate for the offender’s lack of legal knowledge. This process strips the offender of his agency to directly affect the legal proceedings and thereby creates an asymmetric power relationship between the offender and others. I propose that offenders should be allowed to propose their punishment for crimes in cases where a judge or jury has found the offender guilty. To ensure that all offenders can propose their punishments, all citizens should be required to take some course on the law, so that offenders can have more agency during the trial’s proceedings and in sentencing. In the wise words of Plato, “if law is the master [...] then the situation is full of promise and men enjoy all the blessings that the gods shower on a state” (45). By allowing the individual to present a possible punishment, the offender is forced to assume responsibility for his actions. Here, the offender exercises his agency and presents himself as a responsible agent before the court. Hence, the offender will create a more symmetric power relationship with others, including those of authority in the penal system. The result of this symmetric relationship will be a more just penal system, with individuals capable of exercising their unique human capacities. A few brief words should be said on this suggestion. First, the prosecution would also propose a penalty, like in the Athenian system. Penalty proposals would allow for the judge or jury to decide the punishment of a case, while also maintaining the symmetry of the offender-authority relationship (46). Similarly, this method does not sacrifice any of the goals of punishment as it allows order and punishment’s secondary goals to be pursued. Finally, the idea of permitting the offender to have a choice in his punishment is not completely unsupported. Geoffrey Sayre-McCord argues that individuals should choose amongst various punishment plans to repay for an offense (47). Such a penal structure allows individuals to take responsibility and reimburses society with a proportional penalty. However, one may take issue with this potential solution on the grounds that such a solution has two counterintuitive implications: sentencing and asymmetric power relationships (48). As for the former, one might think that offenders will always choose the minimal possible punishment for their crime. Or even worse, drawing from the trial of Socrates, the offender may go as far as to argue that he should be rewarded, not punished. As for the latter, one might contend that an asymmetric power relationship still maintains within this proposal. Namely, it seems to be the case that the judge or jury in question is still more powerful than the offender because the former have the final say on the punishment. To salvage this proposal, it is necessary to assuage these concerns about sentencing and asymmetric power relationships. To each concern, there are two considerations that ought to be considered. With the concern of sentencing, two factors are worth considering. First, the proposal is pragmatically worthwhile because it leaves open the possibility that one chooses a punishment that is unlike a minimum sentence and is actually more beneficial. Here, instead of spending time in prison, an offender may choose to engage in public work programs. The possibility of a punishment that differs from the minimum sentence, but is actually beneficial, is an upshot of this view. Second, extreme sentencing is rejected. For example, take the case where a serial killer proposes the punishment of a $20 fine. In this case, it is reasonable to suppose that either (1) the prosecutor in the given case would propose a much more reasonable punishment for the crime or (2) that the judge and jury would consider the reasonableness of the proposal in question when making their determination (49). As a result, extreme sentencing would rarely occur. Rather, a domain of reasonable alternatives to punishment would become socially acceptable, perhaps including minimum jail time and participation in public work projects. Therefore, regarding sentencing, there are pragmatic benefits and reasonable constraints that bolster this proposal against challenges. A more concerning objection presses on the power dynamics of sentencing, given that the judge or the jury still hold a degree of power over the offender. Here, two considerations are important. First, while it is the case that the judge or jury exercises power over the offender, the degree of asymmetry in the relationship is noteworthy. Notably, according to the proposal herein defended, judges and juries exercise less power over the offender than they currently do. Although the proposal does not completely rid itself of this asymmetry, the proposal should pragmatically be adopted, given its upshot of reducing the current asymmetry. Second, in an ideal world, judges and juries would be benevolent and strive to engage in symmetric relationships. However, in practice, there is a concern that judges and juries would overly exercise this asymmetric power. With this in mind, it is questionable whether the concern over asymmetry solely hinges on the proposal herein defended. Rather, it seems that the quality of judges and juries is important. Thus, it may not be the case that the asymmetric power dynamic completely hinges on the account of punishment that has been offered; rather, in addition to this proposal, it seems that work should be done to reform judgeships and juries, so as to further eliminate the asymmetric power relation. Aside from these concerns regarding details of this proposal, one could argue that the solutions offered to ameliorate punishment are impractical in regard to the modern penal society. Such a claim can be based on concerns with the current structure of the penal system or on larger societal concerns. In regard to the former, it could be argued the modern penal system is incapable of adjusting to the recommended changes. For example, an institution—most likely schools—would be required to teach courses on the law, requiring an overhaul of the current curriculum. Similarly, preparing authorities to engage in discourse with offenders may require training and some type of incentivization. However, both of these challenges are easily refuted. Namely, these solutions could be gradually incorporated into the penal system over time, thereby allowing for individual and institutional adjustment. Rather than implementing a radical change, change over time would ease the economic burden incurred by improving the penal system and also allow for individuals to change their biases towards offenders. Moreover, schools alter their curriculum as they incorporate new requirements, such as physical education. Hence, instituting a minimum requirement for knowledge of the law appears feasible. A greater practical concern is the need for societal change as the penal system reforms. It would seem paradoxical if the penal system reduced the asymmetry of the offender-authority power relationship, but society still stigmatized offenders. The ongoing stigmatization takes on various forms: increased policing, reduced housing opportunities, or reduced employment opportunities (50). While this is indeed a legitimate concern, it misunderstands the aims of this paper. I believe that these changes are without a doubt necessary when addressing the issue of punishment, however, this paper only seeks to examine the legal penal system. These societal concerns—while important to improving punishment—appears outside the bounds of this paper. Nevertheless, I acknowledge that the entirety of punishment, beyond the legal penal system, must be examined to create a more just society and to ensure that there is no asymmetry between the offender and society after the former has repaid for his offense. IV. Conclusion According to Michel Foucault, “western man has become a confessing animal” (51). Perhaps, however, it is better said that man has become a “punishing animal.” While this paper has only addressed legal punishment—that conducted by police, judges, and prisons—punishment is a societal phenomenon. From schools, to homes, to prisons, punishment is everywhere in society. The genealogy of legal punishment that was presented at the beginning of this paper illustrates that punishment is a fundamental derivation of man’s nature. While punishment may not be natural to man, it is a result of his nature. As such, a summary on the conclusions of this paper will help delineate the human nature that influences penal practice. The ideal of punishment was shown to have both primary and secondary goals. The most important of these goals is order, yet punishment aimed at order requires relationality. The nature of relationships, in the ideal penal theory, were shown to be fair and symmetric. However, when juxtaposed to the realities of modern punishment, it became evident that practical punishment was heavily based on the creation of asymmetrical relationships between the offender and penal authorities, thereby devaluing the human nature of the offender. A combination of increased agency and increased discourse was proposed as a means to reduce this inherent asymmetry. By empowering the offender, the penal system appears to become more just. These solutions seem promising and feasible, withstanding refutations that challenge the accounts provided. Although this paper has addressed punishment, some changes are needed beyond punishment, regarding the social and economic burden that punishment places on the offender and those associated with the offender. Moreover, work must be done to examine the effects of this paper’s paradigm on innocent individuals that have been convicted of an offense. However, legal punishment has been addressed in these pages. This is only one step towards this more just society. Such reforms are possible, among intellectuals and society-at-large: the ideal is not out of sight. Endnotes 1 The list of those involved in “legal punishment” that is provided above is non-extensive. From here on, “punishment” will refer to “legal punishment,” unless otherwise specified. 2 The United States is used as the case study of this paper for two reasons: the prevalence of punishment in the United States and the author’s familiarity with the American punishment system. 3 See the post-modern and post-structural schools of thought. For the former, see Friedrich Nietzsche’s Thus Spoke Zarathustra . For the latter, see Gilles Deluze and Félix Guattari’s Anti-Oedipus: Capitalism and Schizophrenia . 4 See the difference between Thomas Aquinas and Friedrich Nietzsche. For the former, see Aquinas’ On Law, Morality, and Politics . For the latter, see Nietzsche’s Thus Spoke Zarathustra . 5 Nietzsche, Friedrich, Nietzsche: On the Genealogy of Morality (Cambridge Texts in the History of Political Thought) (Cambridge: Cambridge University Press, 2007), 41. 6 Nietzsche, Thus Spoke Zarathustra (NewYork: Penguin Books, 1969), 123; Rousseau, Jean-Jacques, The Discourse and Other Early Political Writings (Cambridge: Cambridge University Press, 1997), 131. 7 Hobbes, Thomas, Leviathan (Indianapolis: Hackett, 1994), 75. 8 Augustine, City of God (New York: Bantam Doubleday Dell, 1958), 452-453. 9 Rawls, John, Political Liberalism (New York: Columbia University Press, 1993). 10 Carter, James, Law, Its Origin, Growth and Function (London: Forgotten Books, 2018), lectures 1-5. 11 The idea of “monopolization of the means of violence” comes from sociologist Max Weber. 12 Fassin, Didier, The Will to Punish (New York: Oxford University Press, 2018), 47-51. 13 Nietzsche, Nietzsche: On the Genealogy of Morality , 40. 14 Foucault, Michel, Discipline and Punish: The Birth of the Prison (New York: Vintage Books, 1995), 93-4. 15 Rabinow, Paul, Truth and Power: The Foucault Reader (New York: Pantheon Books, 1984), 85. 16 Fassin, Didier et al., At the Heart of the State: The Moral World of Institutions (London: Pluto Press, 2015). 17 Locke, John, Two Treatises of Government (Cambridge: Cambridge University Press, 1960), 322-323. 18 Nietzsche, Nietzsche: On the Genealogy of Morality , 53-54. 19 Ibid, 40. 20 Foucault, Discipline and Punish , 256. 21 Fassin, The Will to Punish , 76-77, 83. 22 I thank Sotonye George for the point. 23 The need or want of the debtor creates this asymmetry. The asymmetry can also be produced due to natural inequality or dire circumstances. However, within this dynamic, the agreement is fair as both parties reasonably agree to it within the asymmetric relationship. 24 Feeley, Malcolm, The Process is the Punishment: Handling Cases in a Lower Criminal Court (New York: Russell Sage Foundation, 1979), xv; Foucault, Discipline and Punish, 268. 25 Nietzsche, Nietzsche: On the Genealogy of Morality , 20, 40. 26 Foucault, Discipline and Punish , 232. 27 Revenge on the individual level is prohibited, but modern law does not preclude the idea of institutional vengeance. 28 Rabinow, Truth and Power , 85. 29 Fassin et al., At the Heart of the State . 30 Fassin, The Will to Punish , 69. 31 Foucault, Discipline and Punish , 170-184, 266-268. 32 Ibid, 53. 33 Fassin, The Will to Punish , 72-74. While it may be possible that these emotional pathways have or include some rational content, appealing to emotions deviates from the original appeal to strict rationality associated with deterrence. 34 Foucault, Discipline and Punish , 261. 35 Fuller, Lon L., The Morality of Law (New Haven: Yale University Press, 1964), 162. Modern legal systems seem to suppose human responsibility in punishment. This seems to be a key tenet of rehabilitation. 36 Heidegger, Martin, The Question Concerning Technology and Other Essays (New York: Garland, 1977), 35. 37 Foucault, Discipline and Punish , 265. 38 Connolly, William E., The Ethos of Pluralization (Minneapolis: University of Minneapolis Press, 1995), 45. 39 Fassin, The Will to Punish , 75-77. 40 Nietzsche, Nietzsche: On the Genealogy of Morality , 41. 41 See Scanlon, Thomas M., What We Owe to Each Other (Cambridge: Belknap Press, 1998); Rawls, John, Justice as Fairness: A Restatement (Cambridge: Cambridge University Press, 2001), 5-6; Miller, David, “Justice” in The Stanford Encyclopedia of Philosophy (Fall 2017). 42 Connolly, The Ethos of Pluralization , 45. 43 Fassin, The Will to Punish , 72-77. 44 See Plato, Plato: Complete Works (Indianapolis: Hackett, 1997), and Xenophon, Xenophon: Memorabilia, Oeconomicus, Symposium, Apology (Cambridge: Harvard University Press, 2013). One might argue that the trial of Socrates is the pinnacle of injustice. Yet, not only is such a position disputed, but my proposal solely attempts to schematically draw upon this example. I thank Tianyu Zhou for pushing me on this point. 45 Plato, Plato: Complete Works , 1402. 46 By allowing the judge or jury to decide between the punishments proposed by the prosecution and defense, the convicted offender is still punished if he proposes a reward as his punishment, as was the case in the trial of Socrates. 47 Sayre-McCord, Geoffrey, “Criminal Justice and Legal Reparations as an Alternative to Punishment,” Philosophical Issues no. 11 (2001), 505-506, 509. 48 I thank Morgan Cutts for pressing me to address this objection. 49 Note that this is an inclusive disjunction. 50 This list is not extensive but attempts to highlight some of the scenarios that affect offenders due to their offender-status. 51 Foucault, Michel, The History of Sexuality: An Introduction (London: Penguin, 1990), 59. 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