Ethics for Force Users Part 2

 

The Generalized Structure of Ethical Dilemmas



Among men there are but few who behave according to principles -- which is extremely good, as it can so easily happen that one errs in these principles, and then the resulting disadvantage extends all the further, the more universal the principle and the more resolute the person who has set it before himself.
Immanuel Kant, Observations of the Feeling of the Beautiful and Sublime [translated by John T. Goldthwait, University of California Press, 1960, p.74]


The most common question I'm asked by such non-legal characters as cross my path, or get talking to me over a glass in Pommery's Wine Bar, is how you can defend a customer when you know he's guilty. Well, the answer is, of course, that you don't. Once the old darling tells you that he did the deed, you've got to adivse him to plead guilty, admit all and take the consequences. If he refuses to agree, then you must leave him to his own devices.
Horace Rumpole [John Mortimer, "Rumpole for the Defense," The Second Rumpole Omnibus, Penguin, 1988, p.24]



Many moral dilemmas are dilemmas because of a certain kind of conflict between the rightness or wrongness of the actions and the goodness or badness of the consequences of the actions. In the list of moral dilemmas in the ethics textbook I used for many years [Victor Grassian, Moral Reasoning], the lifeboat example (where some must be tossed overboard to save the others), the fat man in the cave (where the fat man, stuck in the entrance, must be killed to save the others), and several other dilemmas are of this kind. I call this the conflict of the right with the good: Our duty is to do what is right; but as a practical matter, we would just as soon have things turn out as well as possible -- as Machiavelli says in The Prince:

Either doing what is morally right results in a bad outcome or bad effects, or doing what is morally wrong results in good or at least better effects or outcome.

 

In all men's acts, and in those of princes most especially, it is the result that renders the verdict when there is no court of appeal. [Daniel Donno translation, Bantam Books, 1981, p.63]


Hence the dilemma: If doing what is right produces something bad, or if doing what is wrong produces something good, the force of moral obligation may seem balanced by the reality of the good end. We can have the satisfaction of being right, regardless of the damage done; or we can aim for what seems to be the best outcome, regardless of what wrongs must be committed. This pattern of dilemma may be represented in the chart:
Noteworthy are the concentration camp or Sophie's Choice type dilemmas, which do not occur naturally but are intended to present unacceptable choices either way: They depend on the possibility of constructing such dilemmas. The natural possibility of such dilemmas means that they can be constructed with bad intentions. The Nazis were not trying to teach moral lessons. They were simply trying to get people to cooperate (to do wrong for fear of bad consequences), to break down their sense of right and wrong ("You are so high and noble, what is the right answer to the dilemma?"), and to distract people from the malevolence of the Nazis themselves. Nevertheless, I have had students indignantly assert (and even leave the class) that if the the Nazi guards killed more people because certain prisoners did not cooperate, then it was the fault of the prisoners. They might have considered that the guards who did the shooting, not the prisoners, would be the ones on trial at Nuremberg.


Another complication is knowledge. If one is going to do what is right, and take a stand on principle, despite undoubtedly bad consequences (like everyone in the lifeboat drowning), then one better be pretty damn sure that the principle is true. Otherwise, many may die for nothing. Parents who wish to withhold blood transfusions from their children, or even from themselves, for religious reasons, must balance grave risk of death against no more than the certainty of their faith.


A similar problem occurs over the goodness of the consequences. Tens of millions of people died in 

order to bring about a communist "workers' paradise," a society without want, greed, crime, or even government, in places like the Soviet Union and Maoist China. Such an ideal has existed in many forms, but rarely with the belief that it could be effected by mass murder and slavery. In this case, it depended on no more than a certain theory (Marxism) of economics and history. The end evisioned seemed so good and humane, that this theory made it possible to rationalize murder, torture, and slavery on the ground that these were only wrongs from a "bourgeois" point of view, and so in fact "revolutionary justice." Thus, the "end justifies the means" really became a way of denying that the means were even wrong.


Such moral dilemmas cannot simply be "solved." Ethical theories that seem to provide clear cut solutions will leave out some aspect of moral life: teleological theories leave out the dimension of the moral judgment of action, while deontological theories may deny that consequences are of any concern. Human action, in general, does go for the best consequences; but there also come times when bad consequences must be accepted because we must do the right thing. And sometimes the right thing actually produces the best consequences. Thus, standing up in opposition under a communist regime would usually just get one, and possibly one's whole family and friends, arrested; but in 1989, the spontaneous protests of many in Czechoslavakia and Romania swiftly brought down the regimes. Large scale evils require the cooperation of many, of whom a large number are just going along with the crowd and afraid of being different and victimized. If even one example can give heart to those, then right action can suddenly produce the best effects.

 

In life, the existence of moral dilemmas throws our evaluation back to the keeper level of action: to the character and intentions of the persons. Thus, in Sophie's Choice, Sophie is an appealing person because she wants to do what is right and is emotionally torn by the moral dilemmas in which she finds herself. We do not blame her for them. If, however, she were a morally callous person who didn't care about the dilemmas or about what she did, then it would not be an appealing or tragic story, as it is. The whole project of examining moral dilemmas is a relatively modern one. We don't find it in Plato or Aristotle.


With them, as in life, what we really want to know is what a person is like morally -- are they a good person or a bad person? If they are a good person, we know they will try to do the right thing, and the occurrence of dilemmas does not subtract from their goodness.


If there is no real "solution" to the conflict of the right with the good, in the sense that a solution usually seems to be expected, as by Utilitarianism, for instance, there is lesson about the nature of ethics and of value, and that is the polynomic theory of value: Moral value and the value of non-moral good ends can vary independently.


Similar dilemmas can occur with different domains of value. Thus, is good art always morally good? Certainly not. Thus, film schools commonly feature study of the films of Leni Riefenstahl (b.1902) -- Triumph of the Will (1935) and Olympia (1936) -- which are classics of documentary film making. Unfortunately, they were also Nazi propaganda films, and Riefenstahl was prohibited from making movies after World War II. Without a doubt, however, they are great art, whose aesthetic appeal is even copied in certainly anti-Nazi films like Indiana Jones and the Last Crusade (1989), where we have a Nuremberg party rally, just like in Triumph of the Will, reproduced in loving detail. Fortunately, they are the exception rather than the rule for Nazi era art.

 

Closer to home, we have the films of D.W. Griffith (d.1948). In 1915, Griffith made a movie out of a play, The Clansman, and two novels by a friend, Thomas Dixon, Jr. The Clansman was about how the Ku Klux Klan had saved the South after the Civil War. When Griffith showed the movie to the new President of the United States, Woodrow Wilson, Wilson is supposed to have suggested what became the title of the movie, Birth of a Nation. The storm of protest over the racism and pro-Southern sentiments of the movie moved Griffith to make his next movie, Intolerance (1916), which detailed various historical examples of religious or political oppression. In other words, the protest against Griffith's celebration of lynching and racism was supposed to be the equivalent of the St. Bartholomew's Day Massacre of 1572 (when French Protestants were slaughtered). Griffith seems to have been a very morally confused person. In modern Hollywood, however, reproductions of the Babylon set from Intolerance can now be inspected at the corner of Hollywood Blvd. and Highland Ave. This is now the permanent site for the Oscar telecasts. In Forrest Gump (1994), Tom Hanks is digitally inserted, as Nathan Bedford Forrest (the founder of the Klan), in Klan robes, into an actual film clip from Birth of a Nation. Griffith's films are beyond doubt of artistic and historical importance, but his racism (like Wilson's) is less often noted.


Political control is for political ends rather than for artistic ends, and political control also becomes impatient with mere artistic and aesthetic criteria. Thus, political art easily degenerates into really bad art, which is what generally characterized the Nazi regime. This preserves us from facing the dilemma of morally bad but good art very often. A similar dynamic is evident in the Soviet Union, which attracted political enthusiasts who were genuinely good artists in the '20's and then tended to kill or exile them, in favor of politically reliable hacks. The Soviet equivalent of Leni Riefenstahl might be Sergei Eisenstein (1898-1948), whose Battleship Potemkin (1925) is one of the real classics of movie history, from which scenes turn up even in unlikely places like The Untouchables (1987). Eisenstein suffered from the tides of Soviet politics, as his anti-German Alexander Nevsky (1938) was first suppressed in 1939, after the Nazi-Soviet pact, and then released again in 1941, after the German invasion. His three part Ivan the Terrible (1943, 1946, incomplete) didn't make it past part two, which was suppressed because Ivan turned out to be rather too much like Comrade Stalin. It was only released in 1958, as part of Khrushchev's de-Stalinization. In the same year, however, Khrushchev forced Boris Pasternak (1890-1960) to turn down the Nobel Prize for Literature, because his novel, Doctor Zhivago, had been published abroad after being rejected for publication in the Soviet Union. "The development of literature and art in a socialist society," said Khrushchev, "proceeds...as directed by the Party." With guidance like this, Soviet art, in general, became just as bad as Nazi art, for the same reasons. An attempt to stage an "unofficial" art show in a vacant lot in the late 70's, after Jimmy Carter's "Helsinki Accords" supposedly established certain freedoms of expression in the Soviet Union, actually ended with government bulldozers mowing down the paintings. Nothing independent, unofficial, or unauthorized was going to be tolerated. Despite an internationally successful movie version in 1965, the winner of multiple Oscars, Doctor Zhivago was not published in the Soviet Union until 1987.

 

The independence of morality from religious value is also evident in the many crimes that can be attributed to organized religion -- from the Spanish Inquisition to the Terror of revolutionary Islâmic Irân. This is commonly taken to mean that morally bad practices and actions refute the value or validity of a particular religion, or of all religions. But those who thought that the abolition of religious superstition would lead all by itself to justice and happiness were in for a shock in the 20th century, when secular ideologies, like Fascism and Communism, killed far more people than can be attributed to previous religious atrocities -- even to all of them put together. Nevertheless, this is a hard lesson, both for the religious, who see themselves as morally superior (and who, in some ways, are actually right about that), and for the anti-religious, who often use deceptions like "separation of church and state" to actually attempt to suppress the free speech and practice of the religious. The proper judgment is that the doctrines of religion, although they may contain moral teachings, are actually independent of moral judgement, which may conflict with them. Moral reasoning is a rational matter, which is over and against religion -- something that even St. Thomas Aquinas agreed with, though he did not think that conflict could arise. It does. Thus, religion sometimes needs to be morally corrected -- as must the judgment of secular ideologues.


These kinds of dilemmas, whether conflicts in action or involving art or religion, thus give us important clues about the nature of value, where the solution is the polynomic theory of value.


In the examples of moral dilemmas, however, not all of them fit the pattern of the right versus the good. The callous passerby, especially, is about something else, and it also strikes many people as no dilemma at all. What complicates the issue, as it happens, is the difference between duties of omission and duties of commission. The most easily understood moral duties are those not to do something, i.e. don't murder, don't rape, don't steal, etc. The callous passerby, however, would seem to have a duty to do something -- jump in the water and save the boy. There are some fundamental differences between the two kinds of duties. For a duty of commission to be binding, the agent must be able to carry it out. If the passerby cannot swim, then he cannot be expected to jump in the water. Similarly, for a duty of commission to be binding, the agent cannot be expected to excessively endanger himself. This is related to ability, since excessive danger means that it may not be possible to effect the action. Ability and possibility, however, are often problematic and matters of judgment. This blurs the nature of such duties, despite the cases, like the callous passerby, that we can set up to be clear and unproblematic.

 

Matters get worse if we want to makes duties of commission matters of law, as in "good samaritan" laws. The breach of a duty of omission results in a wrong of commission, and this usually results in some physical evidence -- a dead body, missing property, abused victim, etc. This makes it relatively easy to know that a crime has been committed, and also provides relevant evidence of the crime. However, a breach of a duty of commission only results in a wrong of omission, which by its very nature produces no causal effects due to the agent. This means we often will never even know that a wrong has been committed. If the callous passerby walks on, and nobody notices, then the coroner's report will simply read "accidental drowning," and no one, apart from the passerby, will ever think that a wrong was involved.


This is important point to consider in relation to the nature of law. Someone who is prospecuted for not being a "good samaritan" is not more guilty than the unnoticed callous passerby but is simply more unlucky. Legal sanctions should not fall more heavily on the unlucky than on the guilty. That makes for a bad law. Duties of commission, however, where we do not know about a prior positive obligation (as from a contract, parenthood, office, etc.), are about matters that by their nature may produce no evidence, or even evidence that a wrong has occurred, which means we can never know how many of the guilty, evenly grossly guilty like the callous passerby, escape. Furthermore, since ability and possibility cloud the nature of duties of commission, it becomes very easy to distort the evidence or to unfairly second-guess an agent who, on the spot, must often make snap judgments about what he can do in life-endangering situations. Prosecutors, as they now operate, go for convictions rather than the truth, and they would be perfectly happy to portray a dangerous rescue at sea by Walter Mitty as no more difficult than an Olympic swimmer pulling a baby out of a wading pool.

 

We see the potential for abuse of these ideas in the example of the last episode of Seinfeld. Since the victim of the robbery himself exclaims that the robber has a gun, Jerry, Elaine, et. al. are under no obligation to endanger themselves by trying to stop the robbery. Afterwards, they have a duty to remain as witnesses to the robbery, but whether they would do this or not is not even put to the test. The policeman who arrives at the scene arrests them for not having interfered with the crime. This, indeed, is a case of a breach of duty by the policeman, who should be pursuing the robber, not arresting bystanders. But we also see a possible motive: the policeman is unlikely to be shot by the bystanders, but, if the robber really had a gun, the policeman might get shot by the perpetrator. This dynamic may also be evident in what seems to be the preference of police to arrest usually harmless and passive marijuana smokers, rather than the often violent and armed speed-freaks, angel dust users, and others.


Another case provides us with some different circumstances. In a poisonous cup of coffee, we again have a difference between a wrong of commission, Tom poisoning his wife, and a wrong of omission, Joe not giving his accidentally poisoned wife the antidote. Here the motive is the same in each case -- murderous malice. It is not a matter of Joe being merely a "good samaritan." There certainly is a legal difference between the two cases. Tom's action requires malice and forethought, the conditions for first degree murder, while Joe's action is on the spur of the moment, presumably without forethought, making it a case of second degree murder. The difference between commission and omission seems less important, given the motive and intimacy of perpetrator and victim. Also, Joe's omission will not be without evidence. If the police discover the presence of the antidote, Joe is going to have some awkward explaining to do; and if he destroys the antidote, then this is a positive action, not an omission, to cover-up the effect that he did intend, the death of his wife. Nevertheless, although this situation is more grievous (because of the motive) and more provable (because of the evidence) than the callous passerby, Joe's omission may make the case harder to prove, or even discover, if the investigators are not alert and suspicious.


All of these examples that hinge on duties of commission are not really dilemmas, with alternatives in balance, but get included because the complications that attend such duties make it more obscure what the requirements of morality are. The dilemma is one of understanding rather than of choice. More dilemma-like, but for extra reasons beyond those of the conflict of the right with the good, is a case like the principle of psychiatric confidentiality. As a psychiatrist or a lawyer, it is one's legal, as well as moral, duty to report the intention of a patient or a client to commit a crime. The difficulty for the psychiatrist is evaluating the seriousness of the intention. A psychiatrist cannot go running to the police to report every fantasy, but he is going to be fallible when it comes to picking and choosing. Mistakes are going to happen, with tragic consequences. This is unavoidable, though some psychiatrists might be sued for negligence if their evaluations seem incompetent.

 

Less challenging legally, but more challenging morally, is the general circumstance that a lawyer or a priest is prohibited from divulging confidences about past crimes. A defense lawyer whose client confesses must go into court and do everything in his power to win the case, or a conviction may actually be reversed on grounds of attorney misbehavior or incompetence (British practice, as we see in the Rumpole quote above, appears to be different). The movie Devil's Advocate [1997] presents the view that a lawyer (Keanu Reeves) who does his professional duty to defend a client he knows to be guilty has done wrong to a degree that may open him to Satanic (Al Pacino) temptation. However, Reeve's determination at the end of the movie not to defend his client so competently is what is wrong.

 

For priests and lawyers the ordinary requirements of morality are modified on the basis of a "greater good" in our familiar "right versus good" pattern. The greater good for the priest is salvation and divine justice. This easily trumps considerations of earthly justice. The priest need not worry that a perpetrator will get away with anything. Before God, justice will be done. A lawyer may be less certain that justice will be done, but his professional confidentialty is based on what is needed to protect the innocent, i.e. ensure the best defense for innocent suspects. It is not enough that the priest or the lawyer gain their knowledge of guilt just because of the agreement not to divulge it, for in any other case no mere promise of confidentiality is enough to override the duty to report crime and see that justice is done (as in the value of a promise). A contractual agreement to conceal knowledge of a crime would be an invalid contract (to be enforced, it would have to divulge the existence of the crime) and could well make the contractor an accomplice after the fact, if he takes some positive action to help conceal the truth. The considerations for priests and lawyers must therefore be weightier, and they are. In the case of the lawyer, the moral imperfections of this arrangement are similar to the considerations for duties of commission: not every duty makes for good law, and not every wrong can be fairly redressed by laws. The human condition, which is ignorance and fallibility (especially for those in authority, deceived by their own, as Shakespeare says, "insolence of office"), is what makes the presumption of innocence a good principle, what makes good samaritan laws bad laws, and what makes attorney confidentiality a good basis for the protection of the innocent, allowing that the lay citizen will have the protection of the law beyond his own familiarity or understanding of it. These are the kinds of dilemmas that arise from our limitations, not from the structure of value itself.

 

Duties imposed by contractual arrangements do not always, of course, change the existing characteristics of moral duty. Thus, the problem of the partiality of friendship is stated without even taking into account the duty that Jim has to protect the interests of "his firm." It is not just that he should be "impartial," but that he should be partial as a representative of his employer. Maybe he doesn't like the employer. Maybe his doesn't like his job. Maybe he thinks that a business is something that nobody needs to be loyal to, in which case he should promote the interests of his friend. Such attitudes, however, will not be good for the business, and Jim might end up getting fired for not doing a good job (unless his job is in France, where it is difficult to ever fire anyone).

 

Another unmentioned aspect of this situation, however, is that Jim knows his friend and thus knows things about him that he would not know about another applicant, even if the paper qualifications of the other applicant look better. In economics, "knowledge costs" means the cost or the difficulty of acquiring knowledge about relevant things, like the abilities of a worker. Since Jim knows his friend, he may know that the friend is reliable and a good worker, which may be harder to know about the other applicant -- especially when businesses have stopped mentioning negative things in their recommendations, for fear of getting sued. Jim's personal knowledge thus can be a very valuable thing and can make hiring his friend a prudent move for his firm. On the other hand, if Jim knows that his friend is not a reliable worker, and simply wants to hire him as a way of bestowing a benefit on a friend, then he violates his fiduciary responsibility to his employer.

 

But again, if the business is Jim's (wholly owned) business ("his firm"), then he can do whatever he likes. He can give the job to the friend, even knowing that the friend is not a very good worker, just because he does want to bestow a benefit on a friend. This violates no duty, but may simply be an act of imprudence. It will not even be that if Jim otherwise runs the business in a prudent and profitable way. Jim may simply wish to use some of his profit margin to help his friends, as other businesses give some of their profits to charity. In this case, again, the dilemma-like quality of the problem is clarified when the nature of the obligations involved are understood. This was ambiguous in the way the partiality of friendship is presented.