Morality, Leadership, and Public Policy: On Experimentalism in Ethics (Continuum Studies in Political Philosophy)

Morality, Leadership, and Public Policy

Continuum Studies in Political Philosophy Continuum Studies in Political Philosophy presents cutting-edge scholarship in the field of political philosophy. Making available the latest high-quality research from an international range of scholars working on key topics and controversies in political philosophy and political science, this series is an important and stimulating resource for students and academics working in the area. Also available from Continuum: The Concept of Justice—Thomas Patrick Burke Nozick’s Libertarian Project—Mark D. Friedman Rawls, Dewey, and Constructivism—Eric Thomas Weber Forthcoming: The Limits of Reason in Hobbes’s Commonwealth—Michael P. Krom Perfecting Justice in Rawls, Habermas and Honneth—Miriam Bankovsky Ricoeur, Rawls and Capability Justice—Molly Harikat Mann

Morality, Leadership, and Public Policy: On Experimentalism in Ethics

Eric Thomas Weber

Continuum International Publishing Group The Tower Building 80 Maiden Lane 11 York Road Suite 704 London SE1 7NX New York NY 10038 © Eric Thomas Weber, 2011 All rights reserved. No part of this publication may be reproduced or transmitted in any form or by any means, electronic or mechanical, including photocopying, recording, or any information storage or retrieval system, without prior permission in writing from the publishers. British Library Cataloguing-in-Publication Data A catalogue record for this book is available from the British Library. ISBN: HB: 978-1-4411-7311-9

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Contents

Acknowledgments

vii

1 Introduction

1

Part One:

Philosophy and Religion in Public Policy

2 On Applying Ethics 3 Religion, Public Reason, and Humanism Part Two:

4 5 6

7 8 9

Experimentalism, Problem Construction, and Priorities

What Experimentalism Means in Ethics Construction, Art, and Politics Philosophy and Public Policy Prioritization Part Three:

53 73 97

New Technologies and Experiments in Judging

Stop him! He stole my internet connection! Activist or Active Judges Conclusion

Notes Bibliography Index

15 31

123 139 155 159 175 185

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Acknowledgments

I began working on this book in 2007. As my first major project after my dissertation, I sought help and advice from many people, each of whom deserves my thanks. The first and most important person who has helped me is my wife, Annie Davis Weber. She is always a careful editor and critic. She inspires me and challenges me every day. Among my colleagues in philosophy around the country, several have offered me comments and encouragement that have been instrumental in completing this work. At the University of Dayton, Dr. Marilyn Fischer and Dr. Denise James each raised helpful questions and comments about my chapter on problem construction while I was visiting for a conference hosted in their department. At the American Philosophies Forum in Atlanta, Dr. John Stuhr presented some excellent challenges to my presentation of experimentalism in ethics, the central thesis of this book. He also gave me permission to publish in this book a revised version of the essay I presented at that conference, which has been published in The Journal of Speculative Philosophy. The essay, which is now Chapter 4 of the present book, is titled “What Experimentalism Means in Ethics.” In addition to professor Stuhr’s input, I gained considerably from conversations with Professor Jeff Edmonds of Vanderbilt University, who was also a participant at the forum in Atlanta. In the summer of 2010, I benefited greatly from a grant from the University of Mississippi to travel to the Society for the Advancement of American Philosophy’s summer institute, which Dr. Colin Koopman organized at the University of Oregon. At that event, I had the opportunity to give a presentation about this book while it was still in development. Dr. David Woods offered me valuable feedback at that meeting. So did Dr. Koopman, who was a kind and generous host. On the same trip, I had the honor and pleasure to meet and dine with

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Acknowledgments

Dr. Mark Johnson. Dr. Johnson was extremely helpful for my work on Chapter 5, “Construction, Art, and Politics.” Of course, he coauthored the influential book Metaphors We Live By with George Lakoff. He was encouraging and helpful in suggesting I attend especially to the works of Lakoff that I then used in Chapter 5. Next, Dr. John Shook of the Center for Inquiry and coeditor of the journal Contemporary Pragmatism has significantly encouraged my work. Two of the chapters in this book were developed from essays I published in Contemporary Pragmatism. I am grateful not only for Dr. Shook’s feedback, but also for permission to republish these articles in revised form here. They are Chapters 2 and 3, respectively titled “On Applying Ethics” and “Religion, Public Reason, and Humanism.” As always, I am indebted to Dr. Larry Hickman of Southern Illinois University at Carbondale and Dr. John Lachs of Vanderbilt University. Dr. Hickman was the ideal dissertation director and remains a constant mentor and friend. Dr. Lachs was the professor in my undergraduate education who ignited my passion for a lifetime of philosophy and who remains a friend and mentor as well. I am truly fortunate to have two truly great mentors. Both of them have made a vast difference in my life and career. At the University of Mississippi, I have many people to thank. The first is a former colleague, Kenneth Townsend, who met with me to talk about early planning of this book. From the Department of Philosophy and Religion, I received help and feedback in several ways. The chair of the department, Dr. William Lawhead kindly offered me feedback and encouragement on my proposal for this book. Dr. Robert Barnard commented on an early version of Chapter 6 at the 2008 Midsouth Philosophy Conference in Memphis, Tennessee. Also, I have benefited greatly from the work of my colleague Dr. Robert Westmoreland, from whose writing I have drawn explicitly in Chapter 3. My students have been especially excited to see my work engage with the work of another professor here at the university. It has shown them how direct and conversational scholarship can often be in academia. Next, my colleague in the Department of Public Policy Leadership, Dr. David Rutherford, provided supportive comments on a chapter of this book before I edited it for inclusion here. My

Acknowledgments

ix

department chair, Dr. Robert Haws, provided summer support for my research several summers in a row and has given me helpful feedback on ideas central to this project on numerous occasions. I am grateful also to the College of Liberal Arts and the Provost’s Office at the University of Mississippi for their support for my research in the summer of 2008, in which I developed a number of the earliest essays that have become chapters of this book, such as Chapter 3, “Religion, Public Reason, and Humanism.” I must also thank a number of students at the University of Mississippi. The first two are Rachel Willis and Taylor Wood. Both worked with me as diligent research assistants, helping me find just the right resources on a number of occasions for my writing. I have benefited in addition from students in my course in Public Policy Leadership, titled “Ethics and Public Policy.” In three years of presenting that course, nearly 75 students have asked me helpful questions about articles that became chapters in this book, offering useful comments and challenges. In particular, five students gave me in-depth feedback for which I am thankful. They were Ashley Harral, Claire Graves, Will Godfrey, Hunter Nicholson, and Anna Kate Robbins. While these five deserve special thanks, I have benefited from feedback from many more students than I can list here. In short, I have found the community at the University of Mississippi to be engaging, encouraging, and challenging in all of the wonderful ways a university should be. Finally, I owe a special thanks to editors David Avital and Sarah Campbell at Continuum Publishing, whose excitement for this project invigorated my efforts. Tom Crick at Continuum has also been instrumental in the process of developing the book, overseeing its progress, and staying in regular communication with me. I should add that while I have received a great deal of help with this project, any problems with it are of course wholly my responsibility. At the same time, authors and leaders must have courage to experiment with ideas, since experiments are central tools in the development of social intelligence.

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Chapter 1

Introduction

In January of 2010, I had the pleasure of accompanying three of my students to Jackson, Mississippi, where they gave a presentation before the Mississippi State Legislature’s education committee.1 My colleague, Dr. Melissa Bass, had received papers from these three students on overlapping areas of interest regarding charter school legislation. The problems of education in Mississippi are understandably of central importance to many of our students at the University of Mississippi.2 These three students were there to talk about the potential they see in some states’ charter schools experiments. We were all a bit surprised at the level of animosity they encountered. While some legislators thanked the students for their presentation and were encouraging, others were furious. “Separate but equal!” one woman exclaimed. Though she did not explain her ideas in much detail, she believed that the charter school movement is yet another way of pulling funds away from struggling public schools. Plus, schools in Mississippi remain significantly divided by race, in large part due to residential self-segregation and the enrollment of middle-class and wealthier white students in private and parochial schools.3 The students were impressed with the incredible success that some charter schools have had in deeply troubled regions. Geoffrey Canada in New York City has become famous for his enormously successful schools.4 Less well known are the amazing Knowledge Is Power Program (KIPP) schools in places such as Helena-West Helena, Arkansas, which I have had the opportunity to visit.5 Given Mississippi’s deep problems, people here are looking for unconventional solutions to help struggling kids and communities.

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Morality, Leadership, and Public Policy

Many criticisms of charter schools have been raised, to be sure. There is a selection process, since there are not yet enough such schools to go around, and charters are often not comprehensive schools.6 I could list many more areas of controversy about charter schools. What strikes me, however, is that charter schools are experiments. As an issue, the opportunity to open a charter school is a moral matter that introduces perfectly what is at stake in this book: the moral importance of experimentation in public policy. Part of what rankles legislators in Mississippi is the fact that charter schools would only help some select groups of students who need help. Two things need to be considered in response. The first is that experiments generally do select groups when possible. Occasionally, some efforts cannot be tried without large-scale or systematic adoption of a matter to be tested. When that is not required, however, it is typically preferred that experiments be done on isolated groups. Selective tests allow different processes to be tested without big changes, thus reducing the cost of the experiment. Should the tests prove that a social measure is valuable, furthermore, changes can be advocated with evidence-based reasoning, making policy recommendations more defensible. On a second matter, however, it is important to consider the moral worth of incremental forms of progress, which experimentalism commonly fosters. Critics of partial measures for progress, like charter school laws, present strange moral reasoning. Consider a policy proposal that is akin to a bandage and the affected communities to be persons who are injured and suffering. If a limited number of bandages are available, the fact that we lack sufficient bandages to treat all injured persons cannot be reason to deny all patients a bandage. That would be outrageous. In other words, even if charter schools represent a partial measure for progress, the fact that they do not address all deserving students ought not to prevent policymakers from trying a new idea that would help students incrementally over time. In this book, I will present a way of thinking about morality that calls into question the ideological, principle-centered, or foundationalist way of thinking about ethics. Principles are extremely important to ethics, but they are only valuable, I argue, when they help us to ameliorate problems. So, the Democrats who hotly oppose trying out new ideas in Mississippi are an excellent example of the roadblocks

Introduction

3

to the experimentalist, problem-centered approach to policy that I advocate in this book. Fundamentally, they are blocking the opportunity to be open to new ways of thinking about the central moral problems in the state, especially education. Experimentalism is a way of thinking about ethics that takes problems as the starting point for inquiry and that sees human beings as fallible, and capable of significant error even when we feel sure about what we know. Given that we are fallible, we must adopt certain measures that allow learning and growth, where possible. Experiments can help us reexamine problems to see whether we ought to rethink our principles, to choose some over others, or to see whether our assumptions have been flawed. In short, experimentalism is a point of view about ethics which says we must draw on the various tools we have available and test them in different circumstances for addressing the pressing problems that we face. As I have said, principles are important in ethics. Experimentalists, however, see them as tools for human flourishing. John Dewey, one of the most important experimentalists in moral philosophy, held a view he called instrumentalism. The idea was built on insights from evolutionary theory. If human beings are continuous with other animals, biologically speaking, the reason they have come to flourish as they have on Earth must have something to do with their adaptability and powerful use of tools. Dewey saw ideas and language as crucial and immensely powerful tools for human survival and growth. In this context, he used the term instrumentalism to refer to the sense in which moral ideas help societies to survive and grow in happiness and in varied freedoms and richness. Seeing ideas as tools, as an instrumentalist would, is something that Dewey carried over into his approach to experimentalism. Practices like stoning people to death are no longer needed in society, now that we have developed intelligent procedures for justice to be sought patiently, humanely, and with careful deliberation. The problems that speedy justice were once meant to solve are today addressed with systems that seek to avoid punishing the innocent, for instance, and to minimize unnecessary or cruel pain. To the experimentalist, outdated principles, like tools, can become weapons of misuse, and division, and delays to moral progress. People who call for principles and a constant integrity

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Morality, Leadership, and Public Policy

about them often can only do so by intentionally ignoring some pronounced principles when they are not appropriate for the problems at hand. On this matter, Republicans have offered substance for criticism. In early 2009, a newly elected President Obama took office and was extraordinarily popular. The U.S. House and Senate were firmly won for the Democrats, and the Republican Party was at a loss for how to move forward. A vacuum of leadership among Republicans was quickly filled with a number of voices that were in competition. While some were considering big changes for the party, such as a significant rethinking of the party’s stance on homosexual marriage,7 others like Newt Gingrich called for returning to basic principles.8 The approach to leadership that Gingrich offered up struck me as highly interesting, yet also somewhat troubling. In his article titled “Where Does the Conservative Movement Go from Here?” Gingrich opens with predictions of a successful future if the movement does three things: 1. Advocate first principles with courage, clarity, persistence, and cheerfulness. 2. Insist on developing solutions based on those principles and on measuring other proposals against those principles. 3. Be prepared to oppose Republicans when they are wrong and side with Democrats when they are right, but always make the decision to support or oppose a matter of first principles and the application of those principles.9 Gingrich’s view of leadership is to see it as based on principles. In one way of thinking, that is perfectly normal. After all, when a leader represents an organization founded around central values, those can be translated into principles. This approach to thinking about ethics resembles the way many people think about social contract theory. If we could state specifically what our values and agreements are ahead of time in an ideal circumstance, we could then draw on cool reason when problems inflame anger and use those values to guide decision making. In response to Gingrich and to social contract theorists, I agree with David Hume, who argued that the “first rudiments of

Introduction

5

government . . . arise from quarrels,” that contracts originated from conflicts.10 In other words, principles and agreements arise in response to problems. They are chosen because of how they help us make life better and alleviate problems. While there are good times and places to state principles, experimentalism sees principles as ways of addressing problems. So the idea that we must always stick to a principle, while it may sound compelling, is disingenuous. After all, the frequently stated desire to “get government out of the way” (my paraphrase) of the private sector11 was not the principle to apply to the recession of 2008. Even such free-market advocates as Alan Greenspan conceded that “Those of us who have looked to the self-interest of lending institutions to protect shareholders’ equity, myself included, are in a state of shocked disbelief.”12 The language of “getting government out of the way,” in the wake of the B.P. oil spill, does not fit with the call for better and more careful regulation of environmental risk factors in industry. It implies that the government should have been better at getting in the way.13 There is no doubt that businesses consider taxes and regulations in their calculations of whether and where to grow. Thus, Gingrich and others are not wrong to see the principle of seeking desirable conditions for business as an idea that should be drawn on for addressing problems, such as high unemployment. At the same time, Alabama and Mississippi have the lowest taxes in the United States,14 yet both are in the top two categories of poverty in the country.15 So what this tells me is that lowered taxation and reduced government intervention in the private sector are far from the only factors that affect economic growth. With regard to such complex issues, therefore, principles need to be drawn on carefully and with the aim of addressing particular problems. The other problem with a principle-centered approach is that it is often underdetermining. There are often new problems that arise, which our principles do not address directly. These problems for Democrats and Republicans are the reasons leaders in public policy ought to adopt an experimentalist approach to ethics. We do best when we see the problems we face as the drivers of our choice of legislation, moral principles, and most of all our experiments in leadership. Unless leaders see themselves as contributors to experiments

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Morality, Leadership, and Public Policy

in learning and trying new ways of addressing moral problems, we will only continually fight battles of political maneuvering, disconnected from citizens’ real problems. Political maneuvering disconnected from people’s real problems exemplifies failures in leadership. I believe that these failures can be addressed with some careful philosophical thinking. At the same time, however, philosophers rarely write about leadership today. I have developed this book to build a bridge, therefore. It seems that philosophers often speak only to each other in their writings on ethics. In response to that trend, I write this book for philosophers, to offer suggestions about how we might develop useful ways of thinking about leadership in public policy. Clearly philosophical ideas can have profound moral importance in the real world. It is important, therefore, for some philosophers at least to try to engage leaders of public policy on issues of public importance. At the same time, this book is also meant to present a framework for thinking about actual leadership. As such, I want to speak in this book to present and future public leaders, who might take from this work some insights about how to think about the profound challenges that they face, but have little time to study. So, although there are some complex terms in this book, it is my hope to present them here in ways that are accessible and useful for people outside of departments of philosophy. While I hope that there are insights in this book about leadership that apply in a number of different contexts, it is crucially important to bring philosophy to public policy. As a philosophical Pragmatist, I see public policy as a sphere in which regular and influential practices are shaped and remade for the benefit of citizens. It is an ideal place for the application of intelligent deliberation, especially about ethics. Plus, a long tradition in philosophy has focused on leadership, even though in the last few hundred years, the subject has been written about very little among philosophers. It is time for philosophy as a discipline to return to the issue of leadership, and the sphere of public policy is a field of tremendous importance and opportunity in which philosophers can make a difference. When we focus on leadership in public policy, we can start with the idea that citizens and leaders have unique backgrounds and inclinations. The philosopher John Rawls has argued that there is a clear fact that we must notice, that there are many reasonable ways to

Introduction

7

disagree about the big questions in life, politics, and ethics.16 This does not mean, however, that every idea or point of view is equally right. It means instead that there are several competing, and sometimes incompatible, ways of thinking about issues. Among philosophers, for example, some think that happiness, the promotion of pleasure, and the diminishment of pain are the most important moral starting points for decision making, while other very bright philosophers believe that the promotion of happiness is irrelevant to morality. The latter group worries that some might seek to violate a minority group’s rights because the majority will be happier for it. This second point of view holds that our greatest responsibilities are to do what is right (such as on the grounds of duty) regardless of the effect of those decisions on human happiness. At bottom, then, in the tradition of philosophy there are deep divides that split many people and for which no simple answer can be expected to satisfy everyone. One reaction from those who witness philosophers disagreeing is to think that philosophy has not made much progress, especially compared with the sciences. In Chapter 2, I respond to worries like this one to show what I believe philosophy has to contribute to debates about public policy. Philosopher Sidney Hook has presented a number of ideas about philosophy’s value for public policy, to which I add my own list. There are philosophers who think that although philosophy has made progress in some areas, it should not be applied in the way I would suggest. In Chapter 2, I respond to that line of criticism as well. If among philosophers there are deep divides, it is not surprising that among religious persons there are widely varied beliefs as well. For many people, religion is one of the most important things in life. If that is true, then leaders of public policy must think about what to do and say about the relationship of religion to ethics and politics. Liberal philosophers like John Rawls argue that we ought to avoid as much as possible the imposition of our religious beliefs on others. Others, like evangelical Christian Tim LaHaye, think that if they tolerated in society what their religious beliefs condemn, they would essentially be giving up what is most important to them. To address this conflict, in Chapter 3 I present a way of thinking about the divide between religious fundamentalism and the political liberals who argue for leaving private religious motivations and

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Morality, Leadership, and Public Policy

reasoning out of public debates. In Chapter 3, titled “Religion, Public Reason, and Humanism,” I argue for an approach to religion and ethics that invites discussion about religious and secular motivations for action, while supporting the ideals of tolerance and cooperative social action. Some scholars do not take religion as a moral force seriously enough, while others do not treat it with sufficient openness to the differences of beliefs that are found in diverse societies. We need a way to think about both the value of philosophical inquiry into moral problems for public policy and the place of human values in contexts that include religious theists, agnostics, and atheists, all of whom come to the same table for discussion and are affected by decisions in public policy. Chapters 2 and 3 both address building blocks for supporting my theory of experimentalism in ethics. Together they make up Part One of this book, which I have titled “Philosophy and Religion in Public Policy.” Part Two is called “Experimentalism, Problem Construction, and Priorities.” In Part Two, I develop and present my proposal for thinking constructively about the problems of ethics for public policy. Part Three then offers two examples in which we can see my approach to ethics in public policy introduced in application, before concluding the book with ideas about future directions for research. Part Two progresses through three chapters on experimentalism. I start with a chapter called “What Experimentalism Means in Ethics.” In that chapter, I present an approach to morality in public policy that I develop from inspiration in John Dewey’s philosophy. The essence of my view builds on areas of human intelligence and inquiry that have been among the most successful in history. The central idea is to draw on the methods and processes that people have used to advance knowledge and to solve problems through public inquiry and experimentation. The great developments in science and in medicine are outgrowths of free thought, experimentation in the sciences, and the investment of social and private resources in funding and creating the space for their studies. We already view local policy efforts, in a sense, as laboratory experiments for policy in some spheres.17 My point here is to encourage the expansion of this idea, to soften up the hard-line approach to principles that prevents people from trying out new ideas.

Introduction

9

Part Two continues with two further chapters, each of which presents unique challenges for leaders of public policy. Two fundamental concerns arise for leaders. Chapter 5, “Construction, Art, and Politics,” addresses the ways we frame problems and the fact that they often must be reframed, reconstructed. It is familiar that the way a person characterizes a problem can often appear biased. Think about a conflict between a brother and a sister who are hitting each other. We are used to the idea that hearing one version of the story may not always convey the entire truth of the matter. Similarly, when someone raises complaints about a problem to a leader, it is common that many facts and considerations need to be heard before action is taken. Thus, one of the crucial aspects of moral inquiry for leadership in public policy must be an examination of the nature of problems that people bring to leaders for consideration. When necessary, leaders can reframe problems and seek solutions for the maximal benefit of those whom they represent. Political scientists like John W. Kingdon have offered empirical studies of the policy process, including issues such as these, but philosophers have been remiss in not tackling the big problems of policy construction in terms of moral and democratic philosophy.18 Some problems need to be envisioned and conceptualized for the first time. They can start off as inchoate groupings of bad feelings or disconnected worries. One of the powerful things that a great leader often contributes in such circumstances is a brilliant or simple framing of ideas and problems that is novel, one that offers a clear target for focusing public energies and resources in achieving a goal or in resolving a conflict. So, in Chapter 5 I discuss the experimental aspects of constructing problems, the artful process of framing and reframing the vision necessary for leaders to direct and motivate action. Equally important to framing problems, and as basic, is the process of prioritizing one’s tasks and efforts. In other words, a challenge to progress in any particular area is often the need for progress elsewhere. To address ways of thinking about this problem in ethics, Chapter 6, titled “Philosophy and Public Policy Prioritization,” covers a variety of ways in which philosophers and public leaders have, do, and ought, perhaps, to prioritize the problems that they address.

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Neither Chapter 5 nor Chapter 6 is more fundamental than the other. Rather, the processes addressed are ones that we experience and undergo simultaneously. Experimentalism as a theory must be consistent with the fact that the process of forming or reframing any problem occurs within a framework itself. There is no “view from nowhere.”19 The framing of problems and the prioritization of concerns cannot happen in smooth lockstep sequences, but are experienced in intertwined processes. Experimentalism in ethics always occurs in a field of existing values and practices. The idea, therefore, of imagining a world outside of or before values, such as is implicit in some versions of social contract theory, is unrealistic and misleading.20 Part Three follows my presentation of elements of the theory of experimentalism in ethics with an analysis of two real-world scenarios. I present the first scenario in Chapter 7, regarding the development of new technologies, which raise problems for moral theory. Consider the fact that the American Founding Fathers had no plans for the future aviation industry, given that powered human flight had not been achieved in their day. Thus, new possibilities and ways of living that will come in 50 or 100 years or further in the future appear to be inevitably underdetermined in today’s laws and principles much in the same way that laws from the eighteenth century could not reasonably be expected to fully address today’s problems. Chapter 7 is titled “Stop him! He stole my internet connection!” This title is meant to be playful, because the thing stolen is so unlike the objects of conventional theft. Nevertheless, internet bandwidth is a new thing that some people are concerned about having taken from them or used in tandem with them without the owner’s consent. The issue is interesting for my purposes, since policy is needed for the resolution of present and developing claims. The example of internet bandwidth as property is useful, since it shows that how we establish standards for internet connections and related tools will have clear implications for what looks like theft versus free sharing. Regarding broadband internet access, we need to consider three things. The first is a variety of options for establishing standard practices. The second concerns the implications and costs, broadly understood, of each option to be weighed. The third regards

Introduction

11

the consequences that will arise for people. This example, therefore, reveals the ways in which the development of best practices is important and relevant to the moral sphere of public policy. It also offers a way of understanding the potential for multiple environments to try varied methods for proceeding, such that best practices can emerge naturally through individuals’ private experiences. Developments in electronics reasonably seem to call for new ideas about relevant moral norms, but in other spheres of law and policy that we think of as traditional, there are also changes that serve as excellent examples of experimentalism in ethics. The second scenario that I will address in Part Three concerns the United States Supreme Court. I attend to the Supreme Court in Chapter 8 to offer an excellent example of an arena in which public experimentation is undertaken regularly. Policies that appear to conflict in rulings from lower courts are brought for consideration in the highest court with the intention of resolving future conflicts about the law. Of course, future conflicts can be expected to arise regarding earlier decisions, thus the court serves as a mechanism for public inquiry into the best ways to apply and respect constitutional law. One central problem discussed in Chapter 8, “Activist or Active Judges,” is that the court cannot possibly address every case that is brought to it for consideration. It must decide what cases will be addressed. The reasons why certain cases should be selected and tried rather than others are morally important matters. I address this issue in an initial way in Chapter 6, while examining the subject of policy prioritization. The ultimate purpose of Chapter 8 is to offer an example of an institution in which experimentalism appears clearly to be at work in intelligent deliberation about moral principles, political processes, and public justifications. Regarding the Supreme Court, there are those who argue that judges ought not import their own moral codes into the process of interpreting the U.S. Constitution. Gary L. McDowell’s recent book, The Language of Law and the Foundations of American Constitutionalism, argues this point, challenging the idea of the Constitution as a living document.21 I must clarify, therefore, that my point is not to argue for the imposition of judges’ moral theories in creative reinterpretations aimed at stretching the law. Rather, an experimentalist would

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challenge McDowell’s idea that values can be separated out from interpretation in the first place. We must recognize and control for the fact that our selections and interpretations will always exhibit some valuation, especially if we are to follow McDowell’s point about avoiding overreaching on the court. At the same time, how cases are selected is something that takes consideration and experimentation. Also, the tyranny that McDowell fears in judges who might go too far is itself a matter that legislators can address through the use of Constitutional amendments. In the 2008 presidential campaign, Sarah Palin’s response to the Supreme Court’s stand on abortion was to call for a Constitutional amendment outlawing the practice.22 Thus, where courts appear problematic or tyrannical to some, like McDowell, the living quality of the Constitution—as a document that can be amended—is itself a mechanism for responding politically to judges’ decisions. My point, of course, is not about any particular position on the Supreme Court’s decisions, but rather that it presents a helpful case for considering the role of experimentalism in ethics. In the end, I hope that this book offers a useful exploration and defense of experimentalism as a way to think about and address the moral challenges for leaders of public policy. There may always be hard-line defenders of absolutist moral positions. Experimentalists can take heart, however, in the fact that there are many areas in which enough freedom for inquiry can be opened for there to be real trials for new ideas. When experiments work, resulting in moral growth and societal benefit, furthermore, replication in other arenas becomes easy to justify. In this way, even in the face of political posturing, experimentalism can offer small positive steps forward that achieve true moral progress in public policy.

Part One

Philosophy and Religion in Public Policy

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Chapter 2

On Applying Ethics: Who’s Afraid of Plato’s Cave?1

I. Introduction An important first step for philosophical thinking about ethics in public policy is to ask what philosophers have to offer. In the sphere of religion, there are those who think that the world is base and is a distraction from what really matters, God and heaven. Similarly, in the world of philosophy, there are those, such as Gerald Gaus, who believe that the truth philosophers seek must be pursued without misleading interests and bias. Such philosophers argue that the discipline should be separated off from practical concerns—the ivory tower and its separation from everyday life are detached for a reason. A second concern can be raised about the very intentions of my project. It is that philosophers have not really arrived at certainty and knowledge that grows as the sciences have. What, really, can philosophers contribute to debates about public policy? These are the questions I will address in this chapter. I argue here that philosophy has many lessons and values to impart for debates about public policy. I also challenge the idea that philosophy is only any good if it is detached from the interests of real people. This chapter will begin, therefore, with an examination of what philosophers have to contribute to debates in public policy. I summarize the helpful ways in which pragmatist Sidney Hook has suggested that philosophers can help in public policy, which is my area of applied ethics, and I offer three of my own ideas about what else we have to offer. Next, I explain some central criticisms of practical philosophy that philosophers have raised, addressing Gaus as a paradigmatic example of the critic of “applied ethics.” In “Should

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Philosophers ‘Apply Ethics’?” Gaus presents several challenges to applied philosophy.2 In concluding this chapter, I address the central concerns he raises.3

II. The Value of Philosophy for Public Policy Sidney Hook offered an excellent start for explaining the value of philosophy for public policy, presenting five suggestions. In “Philosophy and Public Policy,” Hook explains that any researcher must first extensively study all the relevant facts of a case or area to the best of his or her ability.4 Thus, if you ask a strong historian, political scientist, and philosopher about rights sought in the Civil Rights Movement in the United States, such scholars would know as much as they can about the particular context of the debate between them. In this instance, the philosopher is not necessarily bringing unique knowledge to the table when approaching an issue of public policy regarding civil rights, except perhaps facts as seen somewhat differently through the philosopher’s lenses. Just as in copyediting, the more eyes read a text, the more mistakes or interesting issues are usually caught. In short, the first offering that a philosopher contributes to debates in public policy is his or her common scholarly care for the relevant facts. The second strength that philosophers bring in analysis of problems for public policy is an unusually strong ability to unearth and examine underlying assumptions, which are often tacit presuppositions. Though I was raised in a highly educated household, I first encountered the word “presupposition” in my Introduction to Philosophy course. Uncovering assumptions is somewhat like solving puzzles. The more practice you have at combing through the pieces, the better you are at finding things that are generally hard to see. Philosophers sniff out assumptions, study implication and logic, and notice when support for ideas is weak and unrecognized as such. Hook next identifies philosophers’ strengths at clarifying and sharpening the points at issue for debate as a further contribution we commonly make in interdisciplinary debates. Drawing distinctions is a remarkable specialty we learn and use, such as when we test universal claims. We see the general categories of things fitting in our conceptual frames for the most part, but philosophers know exceptionally well

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how to look for those examples that do not quite fit. They are therefore acutely capable of clarifying the different kinds of things people talk about in debates, establishing new distinctions, and cutting out those elements repeated in debates that clutter our view of the landscape of relevant ideas. Following the tasks of sharpening points for debate is the next charge that philosophers can ably fulfill. That is to question the logical consistency of underlying assumptions and explicitly held beliefs that have previously gone unnoticed. We can also question well the newly sharpened points at issue for debate once we lay them out more clearly than they have been before. Philosophers are so good at this step that we have systems of translation and signs for logical operations to make sure that even the most complex of codependent propositions and derivations can be assessed with a system of tables, the counterexample method, and truth trees, for example. Finally, Hook argues that philosophers can contribute in the form of ethical theorizing. Perusal of the various texts concerning ethics that are released in the disciplines of business administration or political science yields quick evidence that philosophers are needed outside of our own professional settings. Consider as further evidence of the value of philosophers’ knowledge of ethics the many new kinds of demand for us. Hospitals employ bioethicists. The United States has from time to time assembled presidential committees to study ethical implications of research and other activities. Schools all over are building the study of ethics into their professional curricula, such as at medical schools, schools of journalism, accounting, law, business, and others. The more that rigorous, professional philosophers are the ones to fill these seats, the more we see quality work emanate from these schools. It often occurs, furthermore, that philosophers hold more than one degree relevant to their posts. Take, for example, Professor Carl Elliott of the University of Minnesota’s Center for Bioethics. He holds a Ph.D. in philosophy and an M.D. as well. Elliott and others like him easily qualify in the first contribution that Hook raises, and they substantially deepen the ethical contributions to debates in public policy. To these five points, I add three suggestions regarding what philosophers can offer in applying ethics. The first among these concerns

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conflict resolution. John Rawls described a common notion in alternative dispute resolution—overlapping consensus. Just as philosophers are good at noting tacit assumptions, they can demonstrate to competing groups which of their tacit interests are shared across party lines, enabling the cultivation of solutions to shared problems. One example came to me from a discussion with a conservative student. He thought he was greatly in conflict with environmental groups, not realizing that he shares many interests with environmentalists, but would simply prefer to call himself a conservationist. He is a hunter and assumed that environmentalists would criticize him for hunting, and thus he was critical of their efforts. Perhaps the language of conservation sounded appealing to a self-proclaimed conservative. At the same time, he wants to put controls on industrial pollutants, limiting business’s freedoms to some extent, in order to protect the natural environments he loves. There may be groups that will butt heads directly, but sometimes simple differences in labels can raise conflicts where there are actually few. Noting and pointing out overlapping consensus in cases like this one are crucial tasks for good conflict resolution. The next area to which philosophers could contribute substantially concerns agenda setting, or policy prioritization. All too often philosophers focus on particular policy debates, under the reasonable assumption that narrowing one’s focus is a good thing. At the same time, many groups must decide how to spend their time, such as the U.S. Supreme Court, which must choose which cases to accept for review. Utilitarian theorists would say that a policy agenda that will address either the greatest good of the most people or the vastly greater good of a smaller group would be a better choice in setting priorities than another way of proceeding. Deontological theorists might argue that the grossly violated rights of individuals ought to be the first issues addressed in governmental consideration. We see the latter concerns in Rawls’s The Law of Peoples.5 Along these lines, philosophers can note and evaluate reasons and assumptions involved in policy prioritizations. Finally, philosophers are good at reconceiving ideas and problems. They do so with their creative abilities to imagine counterexamples to rules and to envision new conceptions of things such as persons,

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responsibilities, justice, virtue, duty, and more. This process is the frequently necessary task of reformulating the problems to be addressed in public policy. I mean here something different from philosophers’ abilities to clarify muddled ideas or confused principles. I mean something bigger. Philosophers are often quite good at speculation and invention in the realm of ideas. Consider how different the conceptualizations of personhood are that you can find in Hobbes, Rousseau, Descartes, William James, Josiah Royce, and Paul Churchland, just to name some varied western thinkers. Countless others could be listed here. My point is that philosophers from the beginning are trained to consider and suggest alternate ways of unifying a variety of experiences, properties, things, and processes into conceptions. Philosophers could contribute substantially to that vital component of public leadership that we call vision. Philosophers in some ways are among the most imaginative people concerning the realm of possible ideas. The various speculations and ideations of the kind that Gaus finds frivolous are important, I believe, in the imaginative task of envisioning the possibilities of intelligent progress. An important question arose in discussion about an earlier version of the present chapter, which I presented at the Eastern Division meeting of the American Philosophical Association in 2008. While these are the skills that philosophers may bring to bear in applied ethics debates and public policy deliberations, the questioner at the conference asked what real payout there is for those who invite philosophers’ participation. What might someone who hires a philosopher gain in instances of ethical conflicts? I answered with an example. A philosopher working at a hospital may serve a valuable function beyond the uses I have mentioned thus far. Quite often hospital administrators rush to their legal teams in cases of conflict, hoping to find the best and swiftest solutions to problems. While seeking legal counsel is often necessary, the interesting thing about medicine concerns all the problems for which we have no preset policies. Just as Gerald Gaus, whom I will address in the next section, suggests, there are moral situations that seem murky, and that is because they are. If there is no clear law about what to do in a situation, lawyers can try to predict the option involving the

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lowest projected cost to the hospital should lawsuits be filed. One could at least imagine a circumstance, however, in which what appears to be the right thing to do in a case is different from what a lawyer will predict to be the lowest costing route of possible lawsuits. Even if one does not have such insight or inclination to think one decision better than another, is it ethical to decide primarily on the basis of projected financial costs? Consider the decision about automobiles that was so scandalous involving the Ford Pinto.6 If you could pay out less money for lawsuits and settlements than it would cost to fix a problem, is the lower costing measure the right one to choose? If it were found out that the least expensive measure is always the one taken, can we not imagine the terrible outcome of a lawsuit that would challenge the error of this system? One way for a hospital to deal with this matter would be to do the best job that it can reasonably be expected to do in searching for the most ethically justifiable decision in a given case. I call this notion ethical due diligence (EDD). If a hospital had a team of three ethicists, one or more of which was educated with a medical doctorate on top of his or her training in philosophy, and those three people conferred with the patient, his or her doctor, family, and relevant persons, if time allowed, and then rendered a decision about what they could decide to be the most reasonable course of action, it would seem that the hospital did, at the very least, the best that it could do with the resources available to address the problem. Thus, hospitals might not only protect their bottom line, but at the same time be less liable for the decisions they make as a result of sincere EDD. Surely there could be controversy over the ways in which the ethicists deliberate. A great deal of policy has been established in this fashion, however. The Belmont Report on research ethics has been quite helpful at preserving individuals’ liberty, even if it has since needed some updating.7 With these proposed tools in mind, I hope that two things are clear. The first is that philosophy as a discipline has a great deal to offer for debates in public policy. The second is that whatever developments come in public policy to address new problems, such as in research ethics, efforts like the Belmont Report can present a sincere attempt both to draw from a variety of moral traditions and to present a revisable first run at the development of policy. Universities around

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the United States and the world draw on the ideas presented in the Belmont Report, even though debates about ethics and human research continue to develop and raise new questions. In short, we can recognize here an important example of experimentalism in moral leadership for public policy.

III. Responding to the Purists In ethics and philosophy, there will likely always be purists. In A Community of Individuals, John Lachs diagnoses a related challenge for philosophers who seek grant funding.8 The problem is that so often philosophers undermine one another and fail to agree on even the fundamental assumptions of each others’ work. I believe that by and large Lachs is right. The fact that we cannot agree on even the basics of philosophy has given other disciplines some weight to their belief that philosophy does not achieve new knowledge, while their own fields, building and refining basic shared understandings, do yield it. While there is a danger in undermining others’ work, I think that there are two reasons to engage in it. First, some people hotly challenge the bases of my work, which is at least psychologically motivating. Second, and more seriously, as a philosopher I welcome the challenge to my basic assumptions that philosophers levy. It seems to me that if I know well enough what I am talking about, I must have thought about serious challenges, or I might know my field and justify my work better if I recognize the most substantive challenges my work might face. Thus, while I think that Lachs is right about a problem plaguing the field of philosophy, I feel compelled to address a philosopher who believes that I am wrong not only with regard to an assumption underlying one of my current projects, but about even the goal of my very employment. Gerald Gaus, James E. Rogers Professor of Philosophy at the University of Arizona, published an essay which he has posted prominently on his academic Web site. “Should Philosophers ‘Apply Ethics’?” has the suggestive follow-up question immediately after the title: “By ‘applying ethics’, do philosophers actually succeed in corrupting philosophy?” For my purposes, some important questions are raised in Gaus’s essay.

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Gaus proclaims three central tenets of philosophy, which he takes to be the right ones. First, philosophers should pursue truth and the justification for believing it. Second, they should not pursue truth for the sake of happiness, since truth is valuable in itself and since the ultimate goal of happiness could in fact lead people astray. Third, without a strict adherence to rigorous philosophical method, Gaus argues, philosophy is corrupted and offers nothing more than any other person without a philosophical education. While I disagree with Gaus on a number of counts, I believe I can gain from his challenges if I can answer them. The quick of Gaus’s challenge is that he conceives of philosophy as only one half of what I see in Plato’s call. The philosopher must exit the cave into the light, to be sure. He or she must not forget, as Gaus seems to do, however, the philosopher’s responsibilities to those left behind, nor the reasons why we seek to leave the cave. To embrace the philosopher’s responsibilities includes venturing back into the murky cave. Now, on my own account, it may not be necessary for each and every philosopher to do so, but it is the case that some ought to do it. Sidney Hook made a similar point in “Philosophy and Public Policy.”9 Not everyone must be a fireman or a police officer, but some people must be. Gaus’s first challenge concerns what he thinks philosophers should be doing. If they are good philosophers, he believes that they should be pursuing two things: truth and justification. Presumably, philosophers should be pursuing philosophical truths. If we do not classify which kinds of truth we should be pursuing and which kinds of justification, I should be able to get tenure by counting the fibers in my rug, offering justification for my beliefs about the numbers and kinds of fibers present. One thing is clear in Gaus’s understanding of the motivations of proper philosophers. He believes that philosophy’s goal is “to get things right, not to make the philosopher (or others), [sic] richer, healthier or happier.”10 In other words, philosophy should not be undertaken for the benefits it brings. Gaus does not clarify why it is we are after truth, though many answers could be suggested here, such as that we seek it to satisfy curiosity. In any case, according to Gaus, truth should be pursued even if it will end in achieving less happiness.

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Here I take issue with Gaus’s assumptions. First, his paper does not specify that counting rug fibers is insufficient for good philosophy. There is a reason it would be silly to do it. It almost always does not matter! Unless a murder occurred in my hotel room, or unless the rug in my room is to be appraised for replacement value, what could the number of fibers possibly contribute to human happiness or enhanced, helpful knowledge? The answer seems to be nothing. Essentially, my challenge to Gaus is that we inevitably value certain areas of inquiry over others, and we do so for a reason beyond curiosity. Interest infuses curiosity, and most generally we are interested in things that make us happier to learn about. My second response is again to invoke Plato. His message is familiar: “the life which is unexamined is not worth living.”11 In this sense, philosophy has a part to play in living a meaningful life. If I want to avoid a life not worth living, it seems I must engage in philosophy, in self-reflection. Thus, if one wants to help others to live more meaningful lives, one way to help is to bring philosophy to them. If I think that philosophy contributes to rendering lives worthy of being lived, it is difficult to see the illegitimacy of aiming philosophy at the improvement of the lives of people. My assumption, which I think is right, is that a life worth living is better than a life that is not. The lingering question to which Gaus returns in concluding his essay is whether in thinking as I do I am corrupting philosophy. Gaus explains that to corrupt philosophy is to “sacrifice the idea that philosophy is impartial in that its goal is simply to get things right.”12 Here I believe that Gaus would need to say more before I could properly address his concern. It appears that he is identifying a way of thinking about philosophy with the class of all good philosophy, and then calling all other ways of thinking about philosophy bad. An assumption underlies his challenge here. I believe that Gaus must have some answer to why it is we pursue truth. Why do we want it? The quick answer I have suggested is that we are curious beings. It is our inclination to look and find things out. If we often learned things that hurt us, however, might our inclinations not have conditioned human beings not to inquire? Was it not the greatest strength of human beings that we can inquire into problems and fix them? It seems to me that inquiry is our most powerful tool for living happier,

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longer, more pleasant lives, even if some people employ inquiry in the hopes of hurting others. A second assumption is worth attention here, though it may be a well-worn critique. If one asks how many coffee cups I have on my desk, the concept of there being a right answer is straightforward. There may be debate about whether to include disposable cups along with the reusable ones, but whichever approach one chooses, there could be a correct answer that follows. When one inquires into beauty, however, or into better ways of living, even among some easy distinctions of right and wrong, there often arise many issues about which it is difficult to think that correctness is the appropriate measure of meaningful inquiry, versus categories of better or worse, or in some cases equally reasonable yet conflicting answers. Just as in the difference between deductive and inductive reasoning, certain contexts appear to have categorical separations, while others admit of differences of degree. If this is true, “getting things right” appears to me to be a way of thinking that inclines towards the categorical. Some philosophers may think that is better philosophy, but this is by no means self-evident. In fact, if it is right that some answers in philosophy are better and worse rather than right and wrong, then applying the “getting things right” standard seems to get things wrong. Gaus’s second challenge to applied ethics concerns the problems of bias. He writes, If philosophy is to possess intellectual activity—if it is not to be (merely) a playful activity, then it cannot rest content to propose plausible philosophical explanations . . . If what you want to believe is relevant, then philosophical positions will, at least in part, reflect different wants . . . Or, to be less kind, philosophy will be ideological: the persuasiveness of your philosophical explanation will depend on the wants, values, and ends of your advocacy.13 There are several steps to Gaus’s challenge here. First, he implies that it is important for philosophy not to be “merely” playful. It seems reasonable to me to think that there can be good philosophy that is merely playful. That depends, of course, on the parameters of what is mere. How do we isolate any activity that is “merely” playful. Children

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running outside may be playful, but they are also exercising. Couch potatoes watching mere entertainment may learn some things from watching Jeopardy. Second, it is unclear what Gaus means by “resting content.” I once heard an essay at a conference that had a conditional thesis whose antecedent, it seemed to me, could not possibly be right or better than another way of thinking. I asked the philosopher why on Earth he wanted to make that argument. He answered that he was curious about the subject. In my own way of thinking, there may be other more fruitful areas of inquiry, but what he was doing was acceptable philosophy. It is Gaus who raises the more controversial claims of exclusivity in the practice of philosophy. It is a crucial step of inquiry to figure out what are the plausible ways of thinking about an issue. Certainly one of the reasons to do so is to inquire further into the greater weight of one way of thinking over another. In cases in which one answer or a small number of answers will be in some sense right, and others wrong, it would behoove scholars to take that next step and to figure out what distinguishes the ways of thinking as such. It is not clear, however, that the people who propose ways of thinking must be the same persons who compare and evaluate them. Some evaluation is almost always done, but frequently without finality. That is true for four reasons. No one scholar can be exhaustive. The proposal of a way of thinking itself can be hard work. Proposing ways of thinking involves different skills from comparing and contrasting them with others. Finally, there are subjects about which rightness and wrongness are not appropriate categories. Must one eat peas with a fork or is a spoon permissible? Surely the answer depends on one’s context and on the purposes of the individual in question. The noncontextual, invariant truth of the matter is something in this case that could only be a fiction. The third challenge that Gaus presents seems the most important and, in my view, the most misguided. Gaus believes that when we want to believe something, we are led astray or corrupted philosophically. Nietzsche’s famous maxim comes to mind. He proclaimed that “convictions are more dangerous enemies of truth than lies.”14 I certainly think that one can blind oneself with conviction. At the same time, however, if a researcher studies diabetes because his family has suffered from or lost members to the disease, it seems

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perfectly plausible to think that the researcher may be one of the best to study his or her field. One researcher I know runs a major laboratory with a deep interest in helping people get healthier, in combating the disease that killed his family members. His research may bring him financial gain, should he find the best cure or treatment yet available. His conviction is that he can help if he works hard to find the cure. Incentive systems in the field of medicine aside, this researcher may be more likely than any dispassionate person to discover the best treatment or cure for diabetes. It seems perfectly counter to Gaus’s challenge to applied philosophy here that this should be so. The researcher could be motivated only by money, but he is not. Should he discover that someone else’s method for treating diabetes is better, he would want people to know about it, and he would want to improve as far as possible upon it, rather than upon his own ideas. At the same time, his interests, biases, and wants deeply motivate him to inquire, and human happiness is a powerful drive for him. From the philosopher’s point of view, a further response is possible. William James’s views on temperament challenge Gaus’s assumptions. James would say that what Gaus is worried about is already and always happening. He would say that given people’s temperaments, they are already inclined to prefer certain philosophical outlooks and conclusions. One may think this a bad thing, but that would be like saying it is too bad that we must consume calories. Life would be easier if we did not have to eat, but it would not be life as I can recognize it. The Jamesian answer here would not be one which gives up care for inquiry, of course. Rather, it demands that we recognize how inquiry works, what motivates people to think and act, such that we can work to alleviate the ill effects of the way things work. Gaus may not be happy with this way of thinking, but if his standards are impossible, the error is his own. Gaus’s third challenge is that ethics in real life are murky. If they are messy things, no good philosophy can come from them. He writes, As David Ross pointed out in The Right and the Good, although we may be able to obtain knowledge of abstract principles of right, particular judgments and specific issues involve conflicting principles, and it is exceedingly difficult to provide answers to these

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questions that have any claim to being clear and definitive . . . When we apply ethics—e.g., when we seek to determine how our principles concerning freedom, respect for life, the metaphysics of persons and so on relate to aborting a fetus in the fifth month—there simply is no powerful argument that demands acceptance by all.15 A trouble here in Gaus’s analysis is the same as before. It appears as though his standards for good philosophy are clarity, definitiveness, and arguments so powerful that they command acceptance by all. If philosophy is only good when it meets all of these criteria, it may be that there is then no good philosophy. That seems troubling to me for two reasons. First, I think there is a great deal of good philosophy. Second, that means that Gaus’s own arguments in his essay are not good philosophy. They certainly do not demand acceptance by all and, in my own view, are not definitive. So here again, it seems we are left with a question begging argument. To close my analysis of Gaus’s arguments against applied ethics, here are his own words. He writes, So should philosophers apply ethics? As citizens, they have every right to. Philosophers need not leave public policy debates over these matters to theologians and “professional ethicists”. However, when applying ethics in this way they are not doing philosophy, any more than are good journalists, public officials (including the bureaucracy), policy analysts, and other citizens when they think clearly about these matters. . . . But philosophers are at risk in ways other citizens are not. For participation in public controversy masked as philosophy corrupts philosophy, and this is the crux of the danger in applying ethics. (Much political philosophy is corrupting for many of the same reasons). A sophisticated, rational, ideological advocacy is conducted as if it were philosophy, giving the impression (both to ourselves and our students) that philosophy is a (sic) merely an intellectual game in which you defend what you want to believe.16 Finally, he writes, “Providing reasoned defences [sic] of these positions and their opposites [sic] is valuable for democracy. They are not,

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though, good philosophy.”17 The simple answer that I think we can offer Gaus is to say that philosophy can be more than simply getting things right. We can also say that interests and wants are powerful motivations for innovation, that Plato’s own most famous metaphor implied a responsibility to do more than pursue the truth—he wanted us to return to our friends in the cave—and that avoiding a life not worth living appears to be a deep motivation that is focused on the positive consequences of inquiry. For these reasons, I think it is crucial for at least some philosophers to consider what they can offer to people outside of professional philosophy departments, especially in areas where we meet ethical dilemmas.

IV. Conclusion Contrary to those who approach philosophy as Gaus does, experimentalists see that inquiry begins with problems. It sounds biting to a scholar to ask why his or her work is important. The answer that it contributes to the search for truth is a comforting standard reply. It leaves a crucial question open, however, which is “Why pursue truth about that issue?” Scholars are people who like to think that what they do is important, and it is. It is often the case that basic research in the sciences yields crucial knowledge for other fields or for practical applications in engineering or medicine, ones that could not have been predicted in advance. It is not clear by this fact, however, that all inquiry that is worthwhile must be approached without some ends in view. To see inquiry that way, furthermore, ignores the vital element of interest and selection of matters to study that inspire and direct scholars in their work. It has been my purpose in this chapter to show that (1) the scholarly application of moral theory to public policy is a perfectly good idea to pursue as an endeavor in philosophy, and (2) there are a number of important resources available in philosophy for making substantive contributions to public policy. The strong divisions that some scholars would like to maintain between the theoretical study of ethics and its practical applications in policy can help mark off small differences for academic purposes, but in the realm of ideas, applications in public policy are continuous with philosophical theories on ethics. It is

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also important to remember insights like Hook’s, that the fact that some philosophers ought to contribute to debates about public policy does not imply that all must do so. I can at the same time appreciate basic sciences, for example, and celebrate the positive consequences they have helped to yield in areas of application. Also, I must emphasize here again that my intended audience consists not only of philosophers, though I do use some technical terms. My hope is that I have proposed some helpful ways of thinking for actual leaders in public policy, who might draw on some of these ideas, such as the notion of ethical due diligence, in addressing their future needs for moral leadership. In this chapter I have presented eight suggestions for applying ethics to public policy debates. In the next chapter, I address another fundamental issue for experimentalism in ethics for public policy— regarding the role of reason and religion in ethics. Each step here is meant to welcome challenges and inquiry into basic considerations for the experimentalist approach to ethics. The idea, consistent with experimentalism, is that challenges are crucial to rigorous and sincere inquiry. Next, after Chapter 3, I will focus directly on the elements of experimentalism in Part Two.

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Chapter 3

Religion, Public Reason, and Humanism: Paul Kurtz on Fallibilism and Ethics1

I. Introduction It is my hope in this book to speak not only to professional philosophers, but also to students of leadership and ethics. It is important, therefore, for me to consider the real problems in ethics that leaders will experience. One great challenge for moral leadership is the will to follow custom alone, rather than to pursue inquiry into ethics. A question arises in certain religious contexts that this chapter will address: “If I have my [pick your guiding scripture, Bible, Torah, Koran, etc.], what do I need experimentalism or philosophical ethics for?” The idea at the foundation of this question is that when we have commandments from God, we need nothing else for deciding moral questions. Of course, many differences of religion, even within the same tradition, will raise challenges for this point of view. Nevertheless, I take the question seriously here, since it addresses some basic assumptions for my defense of experimentalism in leadership for public policy. In responding to it, I believe we can learn from John Dewey’s contribution. In 1934, John Dewey’s A Common Faith presented a way of thinking about religious experience that aimed to build a middle ground between atheism, agnosticism, and theism.2 Experience is so much richer, he believed, than the traditional empiricists had thought. The religious aspect of experience that so many associate with religions, Dewey claimed, is something that all can and do experience. We have an element of experience that we all share, therefore, on which we can build common values and visions.

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The more conservative religious critics of Dewey hear his willingness to eschew traditions as an attack. For instance, Dewey writes that “The opposition between religious values as I conceive them and religions is not to be bridged. Just because the release of these values is so important, their identification with the creeds and cults of religions must be dissolved.”3 And with such words, Dewey tried to unite people, many of whom took him to be a threat.4 It was his goal, however, to show that the values that he believed to be profound and shared in religions could be distinguished from the divisive rites and rituals that separate people of different traditions. In a central way, Dewey was presenting an element of the experimentalist attitude in ethics while addressing conflicts between religions. The idea is that we can keep the value and benefits of religious moral lessons, while letting go of the outmoded and troubling traditions associated with particular religions. For instance, we can preserve punishment in society without stoning people. We can have trials and seek justice, but avoid mob rule and immediate executions. His A Common Faith and other texts in moral theory were inspirations for humanist scholars like Paul Kurtz. In 1982, Tim LaHaye published a revival of criticism of humanist thinking, which he named The Battle for the Family.5 In it, LaHaye articulated the increasingly popular perception that humanism is an atheist, amoralist dogma founded upon the dangerous and devious theorizing of philosophers like Aristotle, Nietzsche, and Russell, to name a few. Figure 3.1 is the often recurring image that LaHaye uses as an illustration of these traits. There are several problems with this understanding of humanism. First among them is the assumption that all humanisms are of the secular type, or even atheistic, more specifically. Peter Fleming has written on Christian humanism.6 There are also Buddhist and Judaic humanisms.7 That said, secular humanism is one common form. One approach to criticizing humanism’s influence in the political sphere is to say that it represents a religious outlook of its own, and an atheistic one at that. We can see this view clearly in the graphic below. The claim is that humanists impose an atheist worldview upon others, and thus infringe upon their freedom of religion. Paul Kurtz, a strong and long-standing defender of humanism, especially secular humanism, explains the theory as follows. He writes,

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Figure 3.1. This drawing holds a central place in LaHaye’s The Battle for the Family (1982), 119. Reproduction courtesy of Tim LaHaye, www.timlahaye.com.

Many friends and foes of humanism maintain that it is a religion. I think that they are mistaken, but if humanism is not a religion, what is it? It is, I submit, a philosophical, scientific, and ethical outlook. Unfortunately, there is no word in the English language adequate to convey its meaning. Humanism combines, as I will argue, a method of inquiry, a cosmic world view, a life stance, and a set of social values.8 Kurtz explains clearly here and elsewhere that humanism is a theory that may or may not be theistic, but that does include moral theory, rebutting critics like LaHaye. In this chapter, I will argue that Kurtz’s humanist moral theory can help to overcome the Euthyphro problem that persists in certain

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religious moral theories and some of the challenges to liberal political outlooks that often exclude religious reasoning from political consideration. As in Dewey’s effort in A Common Faith, I see Kurtz’s approach to political conflict as an attempt to find common ground across differences, with open and free inquiry as a guiding principle. To defend Kurtz’s humanist moral theory, I will begin with a brief explanation of the Euthyphro dilemma for persisting command theories in ethics. Next, I will explain the idea of limiting public debate to what John Rawls has called “public reason,” particularly of focus in his essay, “The Idea of Public Reason Revisited.”9 Then, I will show how conservative critics have challenged Rawls’s idea. Finally, I will briefly describe Kurtz’s secular humanism, a philosophical outlook on ethics which aims to present common values to show how he avoids the pitfalls I have mentioned for both divine command theories and for political liberals. Kurtz is sympathetic with some of Rawls’s aims, yet remains open to the idea of far-reaching philosophical beliefs. These are not taken as mere assumptions, but as considered and empirically substantiated naturalistic claims. Kurtz can also be seen to forward Dewey’s goal of finding commonality across differences, to pursue a common vision of growth and human flourishing.10 What is most important here is the fact that Kurtz offers a way of thinking about how to reconcile great differences in public policy, while drawing on fallibilism and experimentalism in ethics for moral leadership.

II. Persistent Divine Command Theory and the Euthyphro Problem In November of 2007, Sam Harris contributed a short article in the Atlantic Monthly titled “God-Drunk Society.” In it, Harris calls for shifting America’s focus from religious issues like intelligent design, school prayer, and gay marriage to what he believes to be serious problems, such as the need for better environmental policy, scientific education, medical research, and aid to developing countries. He believes that America is “God-Drunk” and he criticizes what he takes to be excessive focus on matters that distract from weighty problems.11

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Following Harris’s short article, Tim LaHaye published a response titled “Godless Society.”12 After claiming that Christians founded America,13 LaHaye puts the blame for the ills of America on “atheists, socialists, Unitarians, and other freethinkers [who] planned the gradual secularization of this nation through control of public education.”14 Pursuant to policy changes, LaHaye warns that Until we break the secular educational monopoly that currently expels God, Judeo-Christian moral values, and personal accountability from the halls of learning, we will continue to see academic performance decline and the costs of education increase, to the great detriment of millions of young lives. This could easily be changed if parents were empowered to spend their tax dollars at schools of their choosing—and not at schools chosen by anti-God, anti-Christian humanist educrats, like those who now control public education from kindergarten through graduate school.15 Once again we clearly see here LaHaye’s claim that without God, particularly in terms of institutionalized religion, young people will not be exposed to moral values. The common assumption underlying such claims is that God is the source of morality, and that if one does not know God’s will, one cannot be moral. Indeed, my own students have asserted the belief that persons who are not Christian are thereby immoral. A brief explanation of the Euthyphro problem for command theories is therefore worth elaboration here to explain why so many religious and nonreligious philosophers have thought about moral theory without resting claims of rightness or wrongness on God’s will. In modern democracies, we say that a leader is unjust if actions he or she commits in the name of the people are not justified by reason. This is of no importance when the leader is choosing a blue shirt over a white one. But when he or she makes declarations or commands that have an impact on the lives of others, the leader should have a reason for acting or deciding about issues in this or that way. The basic idea here is accountability. If a ruler is said to be just, it is because he or she rules always for reasons, never simply for the sake of his or her own will.

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It is a most common belief that God is just and that His will is always good. This belief is justified usually with a demonstration of the great deeds He does. People commonly believe that God’s will decides what is right or good, just because He commands it so. This is known as divine command theory in ethics. When awful things happen, there are three responses. Either the persons affected have angered God and thus justified their own punishment through disrespect; or what happened was not God’s fault but was the fault of humans’ evil, which came about because of God’s gift of free will (similar to the first); or God’s will is mysterious, and the apparent evil is only superficially so. This last response takes all that happens as good, but as too difficult for us to understand.16 The fundamental question which gave birth to moral theory is this: Does God have reason for willing what He does? If the answer is yes, then it appears that God’s decision about what is right or wrong depends upon facts or issues independent of His willing them. If the answer is no, it is difficult to see anything but the unaccountable leader we would admonish among humans. Simply stated, either God has reason for what He does, or His will is arbitrary, and thus is tyranny. One reply is that God’s will is good, thus, what He wills is good. Of course, this simply pushes the question at issue to how it is we decide that God’s will is good. If it is good for reasons, then ultimately the reasons make it so. If not, then it appears that we are given no reason to believe God’s will is good, and we are back to tyrannical proclamations. And, if enough people declare their acceptance of what is said to be God’s will, then tyranny prevails. Plato’s Euthyphro opened the door for inquiry into the moral task of justification or criticism. Prior to the Euthyphro, authority from spiritual guides would declare the will of God, and hand down that proclamation in expectation of obedience. Now, critics of philosophers and their theorizing will say with LaHaye that philosophy and “freethinkers” are the source of evil in society. According to this view, philosophers question authorities that should not be questioned. They dare to think themselves important authorities in the morality of human affairs, as if they were divining the will of God, who knows or declares the good. Yet some critics, such as the late Jerry Falwell,

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claim to know God’s will quite well, as demonstrated in his claim that “God continues to lift the curtain and allow the enemies of America to give us probably what we deserve.” Falwell then went on to blame the American Civil Liberties Union, those who were “throwing God out of the public square,” “the abortionists,” “the gays and the lesbians,” “the People for the American Way—all of them who have tried to secularize America—I point the finger in their face and say ‘You helped this happen,’ ”17 where “this,” of course, referred to the terrorist attacks that occurred on September 11th of 2001. One can try to defend such talk by saying that while we cannot understand the will of God at times, He gave us a guide to understanding His will in scripture. Surely, God also gave reason, for instance, to St. Thomas of Aquinas, to St. Anselm, to St. Augustine, all of whom will forever be among the most famous of philosophers. It is difficult to see in figures like LaHaye and Falwell any interest in questioning the reasons for God’s judgments. In the Greek tradition, by contrast, Zeus was a clear tyrant, wielding power only because of his greater force over others. In sum, the obvious fact of great difference across peoples and within particular groups and countries demands that people use reason to justify their judgments about society and scriptures. The many variations of Christianity alone demand that a person who imposes on another do so with clear justification, and hence reason. Godgiven or developed through evolutionary process, reason is the tool we have to persuade one another of goods. And even close adherence to religious doctrine eventually leads to fragmentation and difference internally, let alone with others. One person may accept the tyrannical outlook on God, but it follows of necessity that there is no reason for someone else to accept an unwillingness to justify beliefs. Imposing on others with no reason is simple tyranny that accepts and invites a fight. For this reason, philosophers wonder how they might conceive of reasons why something might be right or wrong. Without ideas and theories, what reason do we have for our collective decisions beyond oppression? Philosophy seen in this light is freedom. It is the demand for justification for any claim, letting truth, experience, and inquiry decide. For these reasons, many brilliant religious philosophers have tried to

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formulate ethical frameworks without resting them on God’s will alone.18 In this context, we can understand experimentalism as an approach to moral theory that aims to build on human beings’ intellectual abilities. It calls for harnessing the greatest tools we have available for social inquiry, drawing from the ways in which we make claims, seek justification for them, open up our ideas for scrutiny, and gain from criticism when we receive it. Experimentalism, therefore, depends upon the freedom of inquiry that allows debate and critique.

III. John Rawls’s Idea of Public Reason and Critics If a legislator argued for a particular policy on the grounds that the Koran dictates a guiding principle for believers, Christians might reasonably balk. “Why should I take your scripture as a guide for me?” they might ask. In public deliberation, the Muslim legislator has appealed to a form of justification of great importance to him or her. What could be more important to a pious person than his or her deeply valued scriptures? When the religious text at issue is not your own, however, it becomes difficult to understand how that text should bear weight on your own vote on the bill in question. Rather, if the Muslim legislator is smart, he or she will try to appeal to my values, I might say, whether they be Christian, Buddhist, Jewish, or secular. Indeed, Gandhi had a great impact on the British by appealing to their values. To sway someone else, one must appeal to his or her values. And, when a person makes a religious appeal to someone of a different creed, the former must either do so with a sense of instruction or proselytizing, or with a disregard for persuasion, holding to the claim of truth as the only necessary justification for one’s belief. That claim to truth may be grounded in religious experience, revelation, or deduction from scriptures. Either way, political liberal theorists, such as John Rawls and Thomas Nagel, believe these approaches to political justification are deeply problematic. In his famous second book, Political Liberalism, Rawls recognizes a problem for his first major work, A Theory of Justice. He writes, Now the serious problem is this. A modern democratic society is characterized not simply by a pluralism of comprehensive religious,

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philosophical, and moral doctrines but by a pluralism of incompatible yet reasonable doctrines. . . . Political liberalism assumes that, for political purposes, a plurality of reasonable yet incompatible comprehensive doctrines is the normal result of the free exercise of human reason within the framework of the free institutions of a constitutional democratic regime.19 Rawls calls the “fact of a plurality of reasonable but incompatible comprehensive doctrines” the “fact of reasonable pluralism.”20 A comprehensive doctrine for Rawls is what I will simply call a grand theory or set of beliefs that has vast implications, such as humanism, Buddhism, or Roman Catholicism.21 Rawls came to believe that the fact of reasonable pluralism, the idea that there are most likely several reasonable overarching worldviews that conflict, was a problem for his earlier work. In A Theory of Justice, he believed a more uniform way of thinking in politics was possible. In Political Liberalism, Rawls answers critics of his earlier outlook. And he asks himself in this later book how it is we can make sense of the fact that a reasonably pluralistic nation could maintain stability despite its great differences. An extension of this question would ask how it is that people who greatly differ in basic moral beliefs can come to agreements with one another about policies and principles of justice. Rawls’s answer begins with the recognition that even people who differ greatly in their religious beliefs share certain other beliefs. For instance, inspired by Gandhi, Martin Luther King Jr. appealed to the traditional values of the dominant powers in his fight for civil rights. In his famous “I Have a Dream” speech, King refers to Lincoln, to the Declaration of Independence, and even ends with a spoken adaptation of the song “America (My Country, ‘Tis of Thee),” calling over and over for freedom.22 King’s power through nonviolence was even greater than soldiers’, given the publicity of his efforts and given the bond he sought with the values his oppressors espoused. Overlapping consensus, as Rawls describes it, refers to those areas of Venn diagrams (using a circle to describe a comprehensive doctrine) where the circles overlap, representing common beliefs and values. These areas are crucial for stability, Rawls believed.

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Overlapping consensus is a helpful concept for understanding Rawls’s idea of public reason. He explained that even if our motivations are inspired by religious revelation, when a person enters the public sphere, such as in a campaign for office, she has a duty, Rawls believed, to present her arguments with the use of public reason. Public reason refers to the scope of reasons one uses to justify claims about creating, accepting, or revising public policies. In order to be a legitimate representative, Rawls believed it is imperative that one at least be able to explain oneself in terms of reasons that are not simply private or popular among one select group of believers. The central idea is that the Muslim legislator I mentioned earlier might just as easily defend his or her policy proposal by use of reasoning that does not depend on the Koran. For instance, if empirical facts show that fewer pedestrians die from car crashes when guardrails are set between roads and sidewalks, the argument that there ought to be guardrails in relevant locations is not tied to any particular comprehensive religious or philosophical belief. So, there are areas in which consensus can be reached without great controversy, despite differences in comprehensive doctrines. Rawls’s idea of public reason has been the target of a great deal of criticism, for it essentially rules out of the realm of reasonable political consideration many sources of meaning and justification that people take to be of the greatest importance to them. At the same time, it should be noted that Rawls does not believe that all comprehensive doctrines are reasonable. And I think he’s right about that. If there were a pro-slavery, reestablishment movement based upon a doctrine that held the universe to have been created for the sole purpose of usefulness to white men, that doctrine would surely today be seen as incompatible with reasonable discussion. For an important criterion of reasonable deliberation is that you take the people with whom you deliberate to be persons deserving of at least minimal respect. Rawls gives us some clues for distinguishing reasonable from unreasonable beliefs, contrasting what is reasonable from what is rational. Hitler’s plans in making concentration camps were rational in the sense that they were thought through in terms of what Immanuel Kant called hypothetical imperatives. If you want to kill the maximum

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number of people, you must do x, y, and z. To follow such guidelines is to use rational abilities. And, insofar as monkeys can sometimes move a chair to stand on it and get the banana, monkeys have rational abilities. Reasonableness as a quality concerns what Kant called categorical imperatives, regarding the first part of the hypothetical— what ought we do? A hypothetical imperative can never tell you what you ought to do in the first place, independent of initial interests or drives. One might say that feeding oneself is a naturally arising need we have that inspires people to use rational abilities. It seems that people most frequently want others to appeal to public reason when they are not in the majority, or do not hold sway over the policy at issue. We want the reasons people give to be ones we do, or at least can, accept. Otherwise, what others argue can seem illegitimate and tyrannical. At the same time, when George Bush appeals to Judeo-Christian values to support measures banning gay marriage, it is difficult to see the nonreligious grounds for his efforts. And, while the banning of homosexual marriage is a vastly popular political position, the demands of public reason would require that legislators and other political officials restrict themselves to reason-giving that is not based on religious dogma. It is at this point that we find the most vocal critics of public reason. Is it possible to know something you cannot prove to others? I would think so. And if people believe in divine revelation, they often call what they come to believe through revelation knowledge. My point is not to begin a theological debate, though some theologians may still want to call what is experienced in revelation strengthened belief founded upon firm faith (not knowledge). Rather, there are those who think that they know something of great value, and which may indeed be true, about the demands of morality. If this is the case, then how can it ever be reasonable to tell such people not to appeal to their religious beliefs when arguing for particular public policies? In fairness to Rawls, he believes that a public figure can appeal to comprehensive doctrines if he or she can also justify the relevant decision in terms of public reason, reasons that all can accept. But, in the case of abortion, for example, a religious politician may believe that God spoke to him and said that unborn babies must only be terminated by His own doing, not by human beings. Of course, I can

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imagine an equal and opposite revelation based in some other religious comprehensive doctrine. But the problem of claims like these for Rawls is that they ask why it is that process should matter more than truth. Each person may actually be wrong. If right, it is at least arguable that truth should be the deciding factor, not procedure. In his essay, “The Truth about Public Reason,” Robert Westmoreland argues that “the logic of the public reason project carries it toward the sectarian politics it seeks to avoid.”23 He summarizes his understanding of public reason and the center of his criticism, writing, Public reason is by no means the whole of reason; it is not totalitarian. It does not try to occupy all the space there is, but rather to prevent nonpublic reason from invading public space. It presupposes nonpublic reason, acknowledges it as possibly the realm of the whole truth, and the source of the deepest questions of ethics, religion, and metaphysics, and does not aim to displace it. But from its commitment to a certain ideal of objectivity springs a requirement that basic political issues not be decided by reference to the whole truth.24 Whether or not we agree with Westmoreland’s claims about Rawls, it seems that the question of what ought to be politically legitimate for discussion is itself deeply important and democratic citizens ought to be able to decide for themselves. And it would beg the question to say that in doing so, citizens must not use religious or other comprehensive doctrines to decide the question. Robert Talisse has argued along these lines that public reason and political liberalism are ideas that bear “prior commitment to an antecedent political program that is itself not the product of deliberation.”25 And if this is true, then it seems that the idea of public reason puts the cart before the horse. There are requirements for having democratic societies, as Talisse explains. He writes, “Democracy can flourish only within a certain kind of community; it therefore presupposes such a community.”26 The fundamental problem that Westmoreland sees for Rawls is that people will not be convinced by arguments for accepting the

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restrictions of public reason if they are not already willing to restrict themselves to public reasons for agreement. In short, Westmoreland explains that Rawls begs the question and therefore does not provide reason for his opposition to agree with his view. Westmoreland writes, Separating properly political issues from others in terms of the distinction between accessible and inaccessible reasons seems either ad hoc, consisting of liberals’ gut instincts about what belongs in politics, or else systematic and principled in a way subversive of populist public reason liberalism.27 In other words, to describe the ad hoc quality of public reason’s restrictions, when we set the kinds of reasons we will allow in political discourse, we must not judge the kinds of reasons people give on whether or not they demand traditionally liberal positions. This is not to criticize liberal positions. It is to say that if defended in an ad hoc manner, public reason’s restrictions are circular. Or, if public reason is to be justified on the basis of actual popularity, in a democratic sense, then the Rawlsian idea of public reason would encounter significant difficulties in areas that are highly conservative, or with regard to issues about which the majority of all citizens feel differently than what a public reason liberal might argue. In sum, the idea of public reason as a measure for resolving conflicts in which religious or philosophical comprehensive doctrines divide citizens can reasonably be said to divide people also. As Westmoreland put it, Rawls’s liberalism commits a greater imposition on conservatives than it seeks to avoid for all with its methods. He writes, the conservative isn’t necessarily committed to the view that his opponent’s judgment about abortion and other issues is so far beyond the pale that they don’t belong in politics. A common conservative complaint is that abortion should never have been removed from majoritarian politics.28 Here we see the sense in which Rawls’s political liberalism misses its mark. This is not to say that it is unreasonable to level criticisms

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against conservative or liberal, religious, moral arguments. An important response to the challenge I raised above regarding the religious legislator deserves consideration that Rawls and Westmoreland do not address.29 Westmoreland writes, “Though justificatory liberalism claims to approve only state action that can be justified to all, it is based on sectarian epistemological and moral principles.”30 While this may be true, it is a problem for Rawls mainly because the idea of public reason would exclude other epistemological outlooks from serious consideration. An alternate approach, which I will discuss in the next section, is to let go of the idea of public reason while maintaining the argument for a particular epistemological outlook consistent with liberalism, in particular, fallibilism. As I explained in the introduction to this book, fallibilism is an important element of experimentalism. Paul Kurtz advocates fallibilism and also offers clear examples of a robust ethical theory often said to be lacking in humanist perspectives. In this sense, then, Kurtz calls for engaging the religious legislator with epistemological and moral arguments, but without demanding that his or her religious convictions be censored in public deliberation.

IV. Paul Kurtz on Humanism and Human Values In this final section I hope to show the value of Paul Kurtz’s approach to the problem of certain kinds of religious argumentation, as well as how he can be defended from the attacks of folks like LaHaye. Kurtz avoids the contentious claims involved in the idea of public reason, but does not otherwise shy away from controversy. He believes that unconsidered religious claims (i.e. those held without critical examination) often lead to problems, as we see in the Euthyphro problem for divine command theorists. And he offers a robust moral theory, founded on humanist principles. These principles can and ought to be incorporated into education, he believes, rebutting the claims of certain kinds of religious conservatives that humanist education lacks moral content. The latter claim is profoundly wrong-headed, I believe, in agreement with Kurtz. Unless some brilliant mind can resolve the Euthyphro dilemma for divine command theories, human beings must formulate moral theories for living well, founded on

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critically evaluated claims of knowledge and on the principles and practices of public and objective inquiry. Kurtz takes these insights to be consequences of humanism. To understand humanism, the easiest place to start is to look at the Humanist Manifesto 2000 that he drafted for the endorsement of many scholars and public figures at the turn of the century.31 Kurtz states succinctly that “Humanism is an ethical, scientific, and philosophical outlook that has changed the world [and that] has helped frame a new ethical outlook emphasizing the values of freedom and happiness and the virtues of universal human rights.”32 Fundamentally, humanists object to pessimisms, and “believe that it is possible to create a better world.”33 This is an important belief to hold with respect to moral theory. For, if one believes that things cannot be improved, one will be much less likely to try, and more likely to resign oneself to whatever selfish pleasures or evils one deems inevitable. In a sense, a sort of optimism is crucial to any ethical theory. In order to resolve to act better, one must believe it possible to do so, a view which pessimists oppose. Humanism believes in the power of human beings, which grows with the developments of science, of technology, of political and judicial processes, to resolve many of our own problems. Kurtz writes that “For the first time in human history we possess the means—provided by science and technology—to ameliorate the human condition, advance happiness and freedom, and enhance human life for all people on the planet.”34 We now have ways and means to improve people’s health significantly, we can grow more and more food per acre, we are able to travel to places quickly that used to take great amounts of time and resources, if possible at all. We can also communicate more freely and quickly. Finally, we have many new developments in international affairs, such as the United Nations Universal Declaration of Human Rights, that most, if not all, countries accept “in word if not in deed.”35 These are not trivial developments. They inspire us to believe that there is much we can do to make life better for human beings all over the planet. And not only do our duties to others grow over time in a shrinking world, but so too do our abilities to help others with each scientific and technological advance. In sum, we can see the fundamental moral theme of humanism to be the pursuit of ever

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widening human happiness. This happiness does not refer to simple pleasures, of course, and is consistent with believing in fundamental duties and obligations that take precedence over hedonistic pleasures. Yet according to humanism’s sense of continual growth and enhancement, the values and virtues it espouses are open to modification, reexamination, and development. I will further discuss ethical values for humanists, but it is important to note that humanists do not believe there to be an “impenetrable wall between fact and value, is and ought.”36 Reason and ethics are not separate entities. They are related and continuous. The notion that humanists hold science and objective inquiry to be of central value for humanity’s progress is consistent with a strong moral code. Ethics can be studied carefully and objectively, even if it relates to human happiness at the individual and social levels. Those who reject this view often do so from a religious standpoint. They believe that humanism is inconsistent with religion and is thus atheistic. Even those who agree that humanism is not a religion sometimes believe that it conflicts with religion. Kurtz is clear, however, that it does not conflict with all kinds of religion. The fundamental conflict that can arise concerns epistemology. Humanism is committed to a fallibilist epistemology. That does not mean that other people should not be allowed to ground their political arguments on religious values. It simply means that even those things we say we know for sure should always be considered revisable. I do not need to doubt my parents or my knowledge of baseball. When we consider how much textbooks have changed in the last 50 years, how many things we now know that we once did not, however, it is reasonable to say that many of our claims to certainty have been wrong. When we claim to be certain about issues of great political importance, the best remedy is a well-educated populace and a hard-nosed press that will question the authorities and leaders in power. Restrictions of public reason are unnecessary if a populace is prepared to question and challenge leaders, and to demand that leaders appeal to the consent of voters. So, the kind of religious people that Kurtz greatly appreciates is the fallible religious believer or liberal theologian who has not abandoned all doubt or uncertainty. This approach yearns for deeper

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meaning to life; it may be uncertain about whether death is the final chapter; but it believes that there are indications of a deeper, transcendent reality. It does not take the Bible as literally or absolutely, but reads it metaphorically as an expression of human longing for a more significant universe.37 Although Kurtz and Rawls worry about certain kinds of political reasoning that are antithetical to public inquiry and deliberation, Kurtz does not imply that religious reasoning is illegitimate politically. Rather, Kurtz engages ideological rigidity directly, whether religious or secular. Kurtz argues for a middle ground between “the extreme positions of absolute belief and absolute rejection.”38 He writes, “I think there is [a middle ground].” That middle ground includes both the “fallible religious believer” and the “skeptic.” He explains that Skeptics are agnostics but first they are seekers of the truth. They may have not entirely foreclosed the theistic option, though they maintain that the burden of proof is upon the believer and that the believer’s arguments are not convincing . . . [But, they] are ever willing to engage in further debate.39 The central point that Kurtz deems crucial is precisely the openness for debate and deliberation that both positions hold. Kurtz wants the reverse of public-reason-liberalism in this sense. He wants debate always to be open. So, the notion of excluding religious or philosophical comprehensive doctrines from what is considered legitimate political reasoning is anathema to Kurtz’s aim. So what is the best solution to close-minded, absolutist rejection or belief? Two fundamental answers are engagement, not silencing, and education. When I say education is crucial, I do not mean to say that 8-yearolds are the ones who should know how to discern good reasoning from bad. Rather, they should be taught the principles of objective inquiry so that they may challenge and test ideas for themselves. So, in cases in which parents and students want creationism to be taught in their biology curricula, public deliberation must be clarified, offering reasons why it is unacceptable. And, as we saw in the case in Dover,

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Pennsylvania, judges often do just that.40 If citizens are upset about the case and its decision, Kurtz would not suggest that their religious reasons be excluded from reasonable consideration. But to say this is not the same as to say that whoever holds controversial views should get his or her way, either. Public inquiry does not end. It is ongoing and must be held to the highest standards of objective inquiry. Returning to the problems that LaHaye raised for humanists and that Plato raised for divine command theorists in the Euthyphro, Kurtz’s robust ethical theory is worth consideration. A student of mine once asked another, “If you don’t believe in God, why don’t you just do whatever you want?” The implication in the question is that without belief in the benefits and punishments that come because of God’s watchful eye, we have no reason to do what is right when it does not selfishly benefit us. Now, certainly Kurtz believes that happiness plays a fundamental role in ethics. But neither is temporary selfish pleasure the same thing as happiness, nor is belief in God a “prerequisite for knowing moral truths or acting morally.”41 In fact, in a short article called “On Human Values,” Kurtz lays out a list of four common moral decencies in order to briefly answer the many critics of humanism who would charge it of “amoralism.” His list is neither exclusive, nor eternal. He specifies the values of integrity, trustworthiness, benevolence, and fairness.42 He chooses these values empirically, explaining that, as a humanist, he need only look at the hugely varying cultures on Earth to notice common values. In point of fact, Kurtz calls himself a relativist.43 But this term has many meanings. Some people think that relativism means that there are no moral truths and that people talk about morality only in relation to what they want. That is nothing like Kurtz’s view. He does say that moral principles and values are related to human (individual and social) interests, wants, desires, and needs—[but] I am at the same time an objectivist. I think that principles and values are amenable to critical examination; and if need be, they may be modified in the light of inquiry.44 Kurtz also expands on his ethical recommendations for his fellow citizens. He writes that it is time that “we can share a new moral obligation

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that is both realistic and attainable, extend our moral concern to the entire planetary community of which we are a part. Planetary ethics has emerged to capture our moral outlook and imagination.”45 So not only does Kurtz suggest, as a humanist would, that principles and virtues in ethics rest on the shoulders of human beings to decide, develop, and inquire into, but he also challenges the idea that moral motivation can only come from the threat of eternal damnation, not from goodwill toward others and toward future planetary generations. Kurtz calls for an expansive vision of one’s moral community, first moving from one’s own personal satisfactions to one’s community, and then to the vision that our communities are surely all intertwined as never before in a larger planetary community that bears the potential for ethical movements on an unprecedented scale. One need be neither secular nor a humanist to see value in what Kurtz proposes. He avoids the problems of divine command theory in ethics, seeing ethical deliberation as a constant and fundamental duty we must continue. He also circumvents the problematic approaches of political liberals like Rawls, with his idea of public reason. Kurtz wants to engage people, not to silence them. And, in a moment of calm pragmatism, he says that problems like the religious legislator who appeals to values different from your own may never quite go away. He writes, Perhaps the most we can do is to provide some criticism of the excesses of religious fanaticism and offer meaningful alternative humanistic options for those who seek them. Perhaps the most that we may hope for is that we may moderate and liberalize intolerant moralities and seek to develop mutual respect and tolerance as moral principles necessary in a pluralistic world. In any case, we should not give up struggling for a humanist world, nor should we lessen our commitment to the ideals of reason and of humanist morality. It is important, however, that we recognize the arduous and long-term character of our task.46 We can clearly see the concern that Kurtz exhibits with regard to religious fanaticism. In his defense, the twenty-first century began with the ringing bell of tragedy which religious fundamentalists struck in

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2001. And, after President Bill Clinton’s sex scandals, the United States elected a born-again Christian president, hoping for a leader who shared the people’s values. President George W. Bush—it seems uncontroversial to say—appears to have been among the presidents with the lowest popular approval ratings, however. This is not to say that religion is inherently problematic. Rather, I believe Kurtz has clearly expressed some ways of thinking about the reasonable middle ground between absolute religion and atheism. He offers hope, however somber at times, for thinking about ethics as independent critical thinkers would, recognizing the relation of happiness to morality, yet seeing objectivity and commonality as values in public inquiry. And contrary to the exclusive idea of public reason, Kurtz writes that “One should not seek to foreclose inquiry a priori.”47 Between religious fanaticism and public-reason-liberalism, Kurtz presents moderate yet passionately held intermediary values and a sense of purpose for human beings.

V. Conclusion As a moral theory for public policy, experimentalism is compatible with religious belief as well as secular views, but for both it calls for the kind of fallibilism I have discussed in this chapter. For a religious believer, fallibilism is not a strange idea, given humankind’s finitude. It can appear to conflict, however, with those who feel certain about revelations from God; but when we consider the fact that many people with conflicting beliefs proclaim revelation for their opposing views, in the end we still need to approach each other with efforts that draw on shared values. For this reason, it is helpful to consider the Euthyphro problem that persists in public policy today. With these two chapters of Part One, I hope to have made clear how an experimentalist would address some basic considerations for leaders of public policy, in applying philosophy and in addressing differences of religion. In Part Two, I will dig deeper into the core of experimentalism in moral theory, before next exploring two frequently overlooked matters of moral importance for leaders of public policy.

Part Two

Experimentalism, Problem Construction, and Priorities

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Chapter 4

What Experimentalism Means in Ethics1

The factors which have brought society to its present pass and impasse contain forces which, when released and constructively utilized, form the positive basis of an educational philosophy and practice that will recover and will develop our original national ideals. The basic principle in that philosophy and practice is that we should use that method of experimental action called natural science to form a disposition which puts a supreme faith in the experimental use of intelligence in all situations of life. – John Dewey and John Childs, “The Social-Economic Situation and Education,” 1933 2

I. Introduction In the past, ethical theories have been presented as self-sufficient and holistic. Philosophers have historically been either deontologists, consequentialists, virtue ethicists, divine command theorists, or some other particular theorist to the exclusion of other points of view. In John Dewey’s American Pragmatism, we see a shift that has gone underappreciated in moral theory, one which I will develop in this chapter. Dewey was an experimentalist. In this chapter, I will show what I take experimentalism to mean in moral theory. This is important to do both in fleshing out the central ideas of this book and in addressing the fact that the very idea of undertaking moral experiments sounds a bit unnerving. The reason one might have this feeling is due to the history of unethical experimental practices that have become famous, such as in the Tuskegee syphilis experiments or Stanley Milgram’s well-known psychological studies.3 To allay fears about the experimentalist’s approach to ethics, I will begin with a description of experimentalism’s basis in good scientific

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practice. Surely there have been scientists who have done wrong, but good science learns from the mistakes that others have made and follows a set of important rules for inquiry. Next, I will discuss some of the ways in which experimentalism is an outlook and spirit that America has valued in its history and government—the American experiment. Then, I will offer an example of the theoretical flexibility necessary for experimentalism as we find it in one of John Rawls’s early writings and in the ethical tradition generally. In “Two Concepts of Rules,” Rawls defends utilitarianism in the legislative ruleestablishing task.4 He offers a way to see utilitarianism’s consistency with a deontological outlook on punishment and the adherence to rules that we set for utilitarian reasons. Finally, I will conclude with some examples of the ways in which American public policy can be approached with the experimentalist method that so many industries already adopt. For when industry wants to maximize profits responsibly and carefully, businesses find test markets, set up realizable experiments, and perform careful science with profit as their incentive. When a test market does well in one region, similar tests are undergone elsewhere to see whether widespread implementation of products or services would be a good idea. Similarly, in public policy, we frequently bring to other states and sometimes to the federal government those practices and programs that are extremely successful at a particular local level. What will drive inquiry to find the best decisions for public policy will not be the profit motive, however, but the noble goal of moral growth.

II. Experimentalism’s Origin in Scientific Practice To understand the meaning and value of experimentalism in moral theory, it is important to see why experimentalism in the sciences is as successful as it is. As Dewey put it, “Experimentalism is the cause of the victories won by science in the physical field, while the social field is kept as a preserve sacred from the free use of experimental procedure. The result is unbalance, distortion, and misuse of the physical fruits of science.”5 To make use of the greatest lessons of the sciences, we must recognize some key scientific attitudes and approaches.

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In an essay called “The Development of American Pragmatism,” Dewey notes that the father of the experimentalist pragmatic movement, Charles Sanders Peirce, came to his remarkable idea given his own scientific background.6 Scientists, even of the highly theoretical kinds, must explain their hypotheses in terms of conceivable future testing. Without the process of the confirmation of hypotheses, science can only make guesses and hope for future possibilities for testing to emerge. In this sense, then, experimentalism in science involves reference to the future, to the fact that our ideas only have meaning in reference to what they would imply given the outcomes of testing and confirmation. It is in this sense that, in experimentalism generally, Dewey explained that one ought to “Think in terms of action and in terms of those acts whose consequences will expand, revise, test, your ideas and theories. This is the first commandment of the experimental method.”7 Our ideas, Dewey explains, must be considered in light of how they can be applied in the real world, if not now, at least at some point. Consider that Einstein’s theories could not be tested in his day, yet today many of them can be. The point that Dewey would make is that our ideas must concern the realm of what is or will be possible for action. Otherwise, we are stuck in a realm of moral fantasy, which cannot really have bearing on the world in which we live. We can see that the experimentalist approach to inquiry generally, and thus in ethics also, calls for people to see their own points of view as fallible, as in a condition that could be revised. Otherwise, we imply that we are incapable of learning, of making progress. Anyone who doubts the potential for moral progress and learning risks bringing to fruition a devastating self-fulfilling prophecy. Openness to adaptation and the refinement of moral ideas, then, is a crucial component of moral intelligence. At the same time, this moral consideration must always be envisioned in light of real possibilities for action that could be implemented at least at some point in the future. It is important to distinguish true experimentalism from the simple idea that we often try things in ethics and public policy. True experimentalism carries out tests of a hypothesis and makes adjustments before trying again.8 In efforts to address moral concerns, then, experimentalism demands that people not treat themselves as the

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sole sources of truth and moral consideration. Experimentalism involves recognition of the fact of individuals’ limitations, the fact that no one person has a complete or flawless understanding of ethical concerns. In this light, we see that experimentalism in ethics, as in other spheres, is a theory that is especially democratic. It calls for openness of mind for people to try alternate experiments elsewhere. Just as in science, any person has the potential to provide important insights from his or her own point of view, and in ethics all persons have the potential to contribute profitably to debate. Among the most important things that experimentalism in moral theory presents is recognition that solutions from earlier times are underdetermining or will need updating for future problems. Consider the debates necessary in politics once the initial United States Constitution was signed. What the country would later decide about air travel safety laws or about internet connectivity and practices could not have been determined in whole even by the wisest of persons. We can see in religious scriptures, furthermore, change over time in the ways that religious beliefs call people to action. Famous examples include Mosaic Law, which demanded that people who light fires on the Sabbath be put to death.9 These ideas were then supplanted in Jesus’s call for only those who have not sinned to cast stones. Another example in scripture is the Ten Commandments, which some believe to be less important than what Jesus taught as the one true commandment: to love thy neighbor as thyself.10 At least according to some religious believers, therefore, even the demands of scripture change. Just one recent example is the Catholic Church’s decision to make condom use acceptable in special circumstances, particular to the avoidance of transmitting AIDS.11 The need to update our ideas in light of new problems goes hand in hand with the scientific idea that in the process of inquiry, even goals themselves often need to be rethought. Any scientific inquiry will depend on certain accepted beliefs and practices. The anomalies we encounter, which inspire the curiosity that compels us to inquire further, sometimes call us to rethink the beliefs and accepted practices we maintain, but at other times they require that we think of the problems at issue differently. Also, so many of the discoveries we make come as a result of searching for something entirely different

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from the outcomes of our inquiries. The material that is used in Postit Notes, for instance, was the result of failed efforts to make a new and improved form of glue.12 A few concerns are important to address in arguing for experimentalism in ethics. The first one is that critics may worry about the prospects of true experimentation and of the right attitudes in ethics, when those engaged in moral debates are often found to be competing in power struggles. Professor John Stuhr at the American Philosophies Forum rightly pointed out, concerning this issue in the present chapter, that there are no outlooks without frameworks. There are no perfectly objective viewpoints. Thus, the idea of scientific objectivity might be too tempting for some to translate mistakenly into the contexts of ethics. This is true, but the same issues arise in the sciences, yet we make great progress with them. So long as we remember the ways that our beliefs factor into the very collection of facts with which our experimental inquiries begin, we can keep at the forefront of our minds the aim to approach ethical inquiry with openness and maximal consideration for the interests and insights of others. The similar challenge for the sciences can be profound, since the sciences are extremely competitive today. Grant funding is difficult to win in the presence of intense competition. Plus, the persons who decide whether work is worthwhile for publication or funding are supposed to find any flaws they can in the design of the candidates’ experiments, results, conclusions, and so forth. One might think that the end goals are more similar in the sciences than what we find in the moral sphere. There too, however, the goals of scientific study can vary greatly even when different scientists study the same biological mechanisms. Why one intends to study a certain material has a great deal to do with the theories and approaches taken. Furthermore, the more variety we can get in intelligent consideration of options for scientific discovery, the more likely we will be to stumble upon either what we are looking for or to see how to better formulate the very goals we once pursued. As I mentioned in the introduction to this chapter, a powerful worry critics might have about experimentalism is the fact that “social experiments” in the past have at times been horrifyingly cruel to people used as subjects. Dr. Josef Mengele comes to mind when we think

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about ethics and experimentation, given that his work was so disrespectful of people that it has come to be the paradigmatic example of immoral science.13 Countless examples of scientific experiments disrespectful of the people studied and affected can be found, such as in the cases of the Tuskegee experiments.14 To these and other devastating examples of disrespect for fellow human beings, the resulting question is this: Should we treat such difficult cases and examples as evidence against intelligence and learning, or as opportunities precisely to learn to do better? The clear answer is that the process of intelligence, of experimentalism, dictates that social and ethical structures be put in place to prevent such terrible occurrences from repeating. Fortunately, today we have a number of such structures, though most likely not enough or not in all relevantly desirable areas. Within universities, some of the most important spheres in which research is done, we have internal review boards that assess proposals for the study of human subjects. Philosophers here have been extremely influential in the development of such moral structures. In particular, The Belmont Report is an exemplar of the intelligent moral response to problems that were addressed precisely with an experimental effort to combine insight from a variety of ethical traditions.15 Taken in the experimentalist spirit, it may well be that the ethical guidelines for research need updating, yet The Belmont Report is an example of the effort to address new problems with some old tools as well as with some new ones, in this particular case focused on our treatment of human subjects. Consider that in The Belmont Report’s guidelines for human subject research, we see threads of consequentialism, deontology, virtue ethics, libertarianism, and more.16 We also have policies today about how animals are to be treated in scientific study, which are more stringent the more complex is the consciousness of the animal. The fact that people may need more developed practices in any such spheres is only evidence for, not against, the processes and virtues of intelligent, democratic experimentalism in moral theory. What will work best will depend on human beings’ best efforts to act and legislate morally as we carry out our various duties and activities. Dewey wrote that “life based on the experimental intelligence provides the only possible opportunity for all to develop rich and diversified experience, while also securing continuous cooperative give and take and intercommunication.”17 Here we see at the same

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time the call for a democratic attention to the value and benefit of all and also the limits of moral action where some will prefer to fight and avoid the processes necessary for intelligent judgment and debate. Experimentalism involves a crucial attitude necessary for good leadership, one which not only sees what leaders must do as the trying out of ideas, but also the recognition of those ideas as living things in need of adjustment and reformulation as new problems and challenges emerge. The content of experimentalist ethics, beyond the crucial scientific attitude, is evident in the best practices of scientific process, including observation, hypothesis testing, reformulation, and mutual exchange with others who engage in their own similar efforts. In this sense, experimentalist ethics is a democratic ethics that requires respect for others as sources not only of their own values, but also of insight for every other citizen. It may be helpful here to list some key tenets of experimentalism that I have mentioned so far in this chapter. They include at least the following: 1. an attitude of openness to learning through trial and error 2. acceptance that persons of all backgrounds could be sources of insight about ethics 3. agreement that inquiry through good scientific methods will be taken seriously in judging the outcomes of experiments 4. recognition that there is a creative element in hypothesis formation or the framing of problems to be examined and tested, which will always include implications and potential for unwanted bias 5. realization of the limits of human knowledge, both in terms of empirical fact and in terms of moral, experimental design 6. preparedness to draw on the valuable tools of various moral theories, without seeing any singular theory as required for all to accept exclusively 7. acknowledgment of the expansive progression of moral consideration beyond the limits of what previous generations respected morally. Surely one could add to this list or refine any one point involved. At the same time, it is helpful to recognize the virtues involved in these processes. What we notice, furthermore, is that experimentalism is at

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bottom a democratic ethics. This is no surprise, given the origins of experimentalism in Dewey’s democratic theory. Two further matters are worth considering here before moving on to the next section. The first concerns the limits to human knowledge that can be obtained morally, and the second has to do with the challenges of accepting the incrementalism inherent in experimentalism. First, we have discovered many times why it is that certain things we wish to know cannot be discovered in a way that is itself ethically acceptable. Discovering the extreme abilities of the human body to survive terrible circumstances is something that the Nazis sought to achieve, but they were willing to commit horribly immoral acts for that goal. Surely our scientific practices and justifications for study will evolve over time, but currently we have a strict system for deciding what kinds of science we will allow. We have that system, furthermore, because of the development of some truly terrible forms of social inquiry that ought not to be repeated. Despite our present limits, however, there may one day come new ways of testing things that at one time could only be tested in immoral fashions. Thus, it is not clear whether some things will never be known in an ethical way, or whether with enough time and effort scientists will develop new methods that avoid moral problems. Consider, for instance, the move to study adult stem cells and the effect of that move on the controversy regarding embryonic stem cells.18 If adult stem cells can yield the same effects as their embryonic counterparts, many of the elements of the conflict at issue seem to dissolve. In the end, however, experimentalism must be understood at any given time as a theory, like any other, that is confined by the limits of what we do, can, and ought to know. Next, there is an important element of scientific inquiry that must be incremental. Consider a child who has an illness. If she is given several new medicines simultaneously, what made her better may not be identifiable without the incremental changes that isolate one factor at a time for testing. Thus, changes, like adjustments to medicines, must sometimes happen incrementally, even though we may have great reason to desire quick change. To this challenge, we can appoint a representative in Dr. Martin Luther King Jr. He wrote time and again about Why We Can’t Wait.19

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There were social changes in his day that clearly needed to happen. People over and over told King and other social activists that they were simply impatient. The detractors argued that eventually progress would come, but all should come in good time. Even then, too, there were those who thought King was too modest and slow. The point here is that one could worry about experimentalism, since it involves the idea of taking one’s deliberate time, being careful to take cautious steps on solid footing. Several responses can be offered here. The first one is that sometimes in medicine and the sciences we make great discoveries that take time for people to accept. At Harvard, the scholar Louis Agassiz resisted the growing popularity of evolutionary theory, for example.20 Big change can be called for in the sciences and in experimentation, in other words. For instance, when great problems are revealed for a medical patient, drastically different treatments can be called for, even if the new efforts are also approached as experimental. Thus, in some senses, experiments need not always move slowly, but only in the context of a line of inquiry that needs particular care. Sometimes practices can and should be revolutionized. Also, in the sciences, there are many issues that require a serious effort that is not small in order for a threshold to be overcome. When we take as an example the Civil Rights movement in the United States, there were certain practices so entrenched that the idea of small changes happening slowly over time would be insufficient. Sometimes solutions call for more radical progress than is usual. One example involves the science and treatment of epilepsy. There are drugs that control different forms of seizures, for instance, and each has certain default ranges of acceptable tolerance for most individuals. These ranges have to do with the concentration of the chemical in a person’s blood. Occasionally, some individuals have been found to get better as a result of trying doses that exceed the recommended levels.21 Such trials are very rarely attempted, and only under the careful supervision of a neurological team. They are also only tried when nothing else seems to work to control a person’s seizures. Nevertheless, such treatments have worked. The monitoring of blood levels for antiepileptic drugs has proven helpful for reasons such as this for nearly 40 years.22 Sometimes measures that fall within the

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“normal” range in public policy are not sufficient for bringing about the needed social progress that is desired. A further analogy that I think helps in thinking about incrementalism and moral theory is of driving over a curb. When we push on the gas only a little, we may confirm again and again that our obstacle is too large to be overcome. Sometimes, however, we may think with good reason that if we put forward enough effort, we might be able to hop the curb. At the 2010 American Philosophies Forum in Atlanta, Professor Jeff Edmonds offered me another dimension for this analogy. He suggested that another way to overcome obstacles is to back up, start movement again while avoiding prior problems, slow downs, or impediments, and allow our greater momentum to help, much as added gas helps the immobile car in overcoming the curb.23 The point of this analogy is that sometimes we may need more gas, such as in some circumstances when a problem simply may need more money or troops to overcome. In other settings, we need to start over, reset the circumstance, and come at the same situation again with a second effort that steers clear of problems and that enhances the momentum of social progress. This happens, for instance, when a school is closed down only to be reopened with new leadership, teachers, methods, and culture. In different circumstances, these solutions have helped alleviate problems. They also offer a way of thinking about a challenge for experimentalism’s incremental progress. When problems are profound and half-measures have been tried, it can be perfectly reasonable to think that new momentum and greater effort to break over or out of entrenched problems are needed.

III. The American Experiment It is worth noting that experimentalism is not a national idea, even if in moral theory American philosophers have been among its greatest exponents. It is no coincidence that experimentalism arose in America, however. America has been referred to as an experiment. The American experiment refers to a profound change in approach to governance, grounded on democratic principles and values that were approached with hope and humility—with the awareness that future generations would wish to change and update the founding

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documents. In the United States, we have powerful examples of the effort to make intelligent philosophical ideas explicit in policy. We see them in the founding documents and the Constitution upon which a new society was built, imperfect though they were. The reason for this unique opportunity is the fact of colonists’ flight from oppressive government abroad. The context of avoiding foreign tyranny directed the identities of early founders to rebel against building up a new monarchy, a new centralized authority that would have power over all without accountability or avenues for the redress of harms.24 The American founding, as flawed as it was,25 was an experiment in seeking a basis for consensus across significant difference, built in part on the fact that a people needs the ability to change its government. The reason it needs to do so is precisely the fact that so far no society has found the eternal ethical code that wholly fulfills the lives of its citizens with maximal justice or respect for the diversity of humanity. The only ideal that comes close involves respect for people as sources of insight about their problems and of potential solutions to each others’ problems, which is precisely the ground of democracy and of the processes of social intelligence, the experimental method. We often treat founding documents as pillars that are unchanging, but clearly the ability to amend the United States Constitution has allowed the document to survive through many social revolutions. If one considers how central a theme and idea freedom of thought and expression is in the United States, it should be somewhat surprising that its defense was made possible through an amendment to the Constitution, which lacked that protection before the change we now call the First Amendment. Many other crucial American values were only included in the Constitution after the trial and error of early drafts and the many conflicts and wars that followed the creation of a highly imperfect founding document. The living quality of the document, however, has allowed America to progress in the incremental ways that noble social experiments must. Although we often want change to occur more quickly than it does, the strength and longevity of the Constitution can in part be attributed to how difficult it can be to amend it. At its heart, then, America truly has accepted the spirit of slow and deliberate experimentation in politics, one infused through and through with moral values.

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IV. Some Flexibility in Recent Moral Theory and Its Roots in the Tradition In the scholarship on ethics, the traditional approaches have been, for the most part, efforts to find a central and single theory that answers the question of what the right action is in any given context. To be sure, some moral theories have a slightly different goal, but they generally rest on the idea that one fundamental principle is what ought to decide either the action to pick or the action to censure. After Dewey’s death in the middle of the nineteenth century, there was a period when his contributions to moral theory were out of favor in philosophical debates. When John Rawls published a number of influential works in ethics and political theory, he revitalized interest in those fields. Rawls was compelling, among other reasons, because he worked hard to make the most of competing theories, showing how several of them could work together. In his A Theory of Justice, for instance, we see elements of intuitionism, deontology, and libertarianism (at least in the liberty principle), not to mention consequentialism and proceduralism. Over time, Rawls found himself moving more and more firmly into the camp of Kantian moral theory, but he worked to find common ground across differences. More recently, James Sterba has shown the importance of considering practice and the problems we face as crucial starting points for inquiry, in sympathy with experimentalism. In this section, I will show how Rawls and Sterba exhibit Deweyan tendencies to see the value of ideas without accepting the demand to adopt them exclusively. Rawls’s essay “Two Concepts of Rules” offers an exemplary case of making use of apparently conflicting ideas to show how in some contexts one idea helps more than the other and vice versa. Sterba’s analysis, which I will cover after Rawls’s, takes some starting points of experimentalism and also explains them helpfully, showing that different moral theories tend to take up their competition’s claims when cases get tough. Among the clearest and most explicit instances of this effort is in Rawls’s “Two Concepts of Rules.” In it, Rawls argues that legislators should surely consider what rules they could institute that would maximize the happiness of citizens, a consequentialist ideal. At the

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same time, however, he argued that it would be patently unfair for consequentialism to decide cases in judicial matters. Should a person be punished severely for a small infraction simply because the vast majority of people would like that outcome in this particular criminal’s case? Rawls argues that in judicial cases we ought to be retributivists—that we ought to punish people according to what they deserve in light of the laws. Thus, the two concepts of rules concern which direction in time we are looking. Legislators who look forward must consider the maximization of happiness and other good outcomes of policy making, while judges tasked with upholding the demands of justice in the light of a society’s laws ought to consider fairness and respect for law as the basis for how to treat individuals. In this light, Rawls offers a wonderful example of how scholars who are trained in the traditions that have yet to fully embrace Dewey’s insights can see the value and potential of building on multiple moral traditions. Rawls shows how we might use apparently conflicting principles to address problems for which moral theories are needed. All this said in support of Rawls does not imply that he had gained from Dewey’s insights as fully as he could have. Rather than considering the historical quality of problems and seeking to address present and looming social concerns, Rawls began his early inquiries looking for a theory that would rehabilitate the social contract tradition, which he argued could withstand the problems that had been raised for it. He was not particularly concerned, early on at least, with applying that theory in the real world.26 I have focused here on Rawls as an example of some ideas that we find in Dewey’s work. The reason for this is that Rawls is typically identified with traditions other than the classical Pragmatists. It is worth pointing out here that other philosophers show some ways in which different ethical theories can work together, come to the same conclusions, and ultimately make use of each others’ advantages in addressing problems. For instance, in James Sterba’s recent book, The Triumph of Practice over Theory in Ethics, the author writes that “traditional theories of ethics, be they Aristotelian, Kantian, Millian, or whatever, have come to be revised and reformed in such a way that, at least in their most defensible formulations, they no longer differ in the practical requirements they endorse.”27 Although he does not come to the

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point in the same way as I do here, through Dewey, it appears that Sterba and I would agree that practice is a crucial matter for the consideration of theory. I think that he and I might disagree insofar as genuine moral conflicts can remain and need hashing out in public discourse, which means that not all defensible moral theories come to the same thing. What does seem to happen when theories work best, though, is that theorists from various viewpoints take up the views of competing theories in addressing the toughest issues. To make this point clear, and thus to demonstrate why practice and taking problems as starting points for ethical inquiry is so important, I will give a few examples of the kinds of interdependence I mean here. In a presentation at the Midsouth Philosophy Conference in Memphis, Tennessee, in February of 2010, noted consequentialist Alastair Norcross explained that he could not understand people who would defend Kantian moral theory. Surely he knows the reasons that Kantian moral philosophers offer, but he means that he cannot identify with the intuitions they have that Kant’s ethics is truly the best one to take up. Although I see problems with taking Kantian theory as singularly the best approach to ethics, I find in Rawls’s “Two Concepts of Rules” reason to see the importance of Kant’s deontology in considering the punishment of citizens for doing wrong in violation of the law. It cannot be the best thing, it seems to me, that punishment be based only on popular will or majority vote. We would have a patently unfair system, prejudiced against minority points of view and practices. In such cases, we see the reason why we want a constitutional democracy, not a simple majority-rule-style government. The excesses of mob mentality, which may bring about greater overall happiness in one case or another, need to be controlled with limits on what popular movements can do to individuals in the minority. To this point, Norcross responded with an explanation that has to do with character, sounding highly Aristotelian in reference to the virtues and hierarchies of goods for individuals. In the hierarchical analysis of goods and elements of character that consequentialists sometimes accept in response to tough cases, however, we come to see the crucial importance of rules and of limits on what maximizes pleasures and pains for the largest number of people, a deontological limit in the end.

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Kantian moral philosophers can feel equally frustrated with the problems of utilitarianism’s excesses. At the same time, however, Rawls shows us that it becomes difficult to make sense of how a deontologist would choose policies that must be forward looking. While there may be issues to be resolved morally in which there are contradictions of some people’s wills or of the dehumanization of others, it seems as though consequentialists have the upper hand in recommending which policy to pick over another. One answer Kantians might give is that some issues are not moral ones, but clearly certain choices are better or worse with public funds, more responsible, bringing about greater good for more people than others. To this challenge, a Kantian philosopher might revert to matters of duties, seeing a hierarchy of them to consider in weighing what must be done. When this happens, however, we must start to weigh the value of the consequences of policies for the targets of our greatest duties in a way that starts to sound a good bit more consequentialist than we typically take deontologists to be. Also, the matter of which duty is greater for individuals starts to sound Aristotelian in nature. So, when pushed, deontologists can come to sound like consequentialists also. Virtue ethicists are sometimes treated as entirely different from Kantians and consequentialists, since they are often particularists, seeing value in relation to contexts and the nature of the agent or object in question. At the same time, they take happiness to be a central aim of human life. This view sounds a great deal like consequentialism. As a theory, too, virtue ethics takes members of humanity to be interrelated as fundamentally rational animals, different from all other species because of our ability to reason. Thus, virtue ethics in that sense is highly similar to deontology and often sees virtues in life in relation to duties we have to others. So far, I have only covered the dominant points of view in ethics, to show how they often want to have their cake and eat it too—to claim great difference with other theories and yet to accept what their conflicting viewpoints say in the tough cases or when pushed. One more such example is worth mentioning. In mainstream discussion of ethics in the United States of America, there are still many people who hold to something of a divine command theory, the view that what is good is simply what God commands. The more intellectual versions of this

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theory, such as Glenn Graber’s in his essay “In Defense of a Divine Command Theory of Ethics,” want at the same time to admit that they will not give reason for God’s goodness, since he is good by definition, but then they want to explain it nonetheless.28 In Graber’s case, he explains that God gives us commands and that He is good because He also follows them. He is righteous, according to Graber, because He follows his own commands. Not only does scripture call this view into question,29 but the point here is that each moral theory tends to have limits that are troubling or that call for the help of alternate theories. The fundamental problem in ethics cannot really be that our individual ethical theories are imperfect. The problem in ethics is that actions, decisions, policies, and other things in the world are worse than they could be, and we need to figure out how to make them better. There are problematic situations that intelligent thinking can help to ameliorate, and our ethical theories frequently help us do just that. The fact that some theories come to exhibit limits does not mean that life needs to conform to theory, but as Sterba has argued and as Rawls gives us an example, we must make the best use of theory to understand and address the problems we confront in the world. That, at bottom, is a central claim of experimentalism in ethics.

V. Applying Successful Private Practices in Public Affairs Although business is not without its tragic historical mistakes, in many cases, profit-seeking industries make use of some of the important practices of experimentalism. The competition for limited markets inspires in many successful businesses a respect for measured and carefully considered efforts to bring the greatest value to customers in a most appealing way. Plus, businesses often design hypotheses, bringing in consultants to add to the diversity of voices that contribute to hypothesizing about how best to achieve certain overall goals of product delivery, cost minimization, and profit maximization. Then, products are tested for the purposes of safety or for effectiveness. New commodities like toothpaste or beverages are often tried out in communities whose conditions will be ideal for determining applicability of lessons for other, related areas of application or sales.

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In this light, we see in industry the potential for highly intelligent observation, hypothesis formation, experiment planning, testing, evaluation, reformulation, and implementation. Businesses clearly respect to varying degrees the relevant constituencies affected through their activities. On the positive side, some companies make it a point to maximize the kinds of democratic insights that scholars like Dewey would advise. For instance, one of the most influential CEO’s of the United Parcel Service is known for having driven the company’s trucks, delivering parcels.30 The motivation behind this practice is the fact that the leadership of a multileveled organization requires interaction and communication with people and processes at all levels, as well as testing and reformulation of the various ideas that affect all relevant ways in which the business could be improved. Differences in perspective, in other words, are crucial to take into account if one wants to manage a vital, adaptive business that makes the greatest use it can of potential new ideas. There are a number of ways in which public policy about ethical choices already engages to some extent in a number of the elements of experimentalism. Whenever a community gives its best effort to frame and respond to a problem, we find the seeds of progress for larger communities. With great frequency, states devise laws to address new, pressing problems, which can then be compared with similar efforts in other states. From that analysis, comparing and contrasting the benefits of the different approaches to solving problems, policy analysts can formulate recommendations for how further states could benefit from similar policies. Currently, for instance, a number of communities are benefiting or suffering due to charter school legislation. Arizona is believed to have designed legislation that has produced some of the most questionable results, while Minnesota’s results are superior.31 Policy analysts have been trying to identify the differences, if any, that were due to the quality of the relevant legislation in the different states.32 This is the sort of work to which philosophers can contribute more than they do presently, and with great benefit. Philosophers can help expose the problems inherent in opposition to new innovations in education and can suggest new ideas for designing subsequent policies.

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For those who would read my comments regarding business as only positive and optimistic, I would certainly agree that businesses, like private individuals and governments, can do wrong. In response to these wrongs, however, the court system has taken up the role of providing financial incentives for industry to do what has been established as right given prior conflicts. Lawsuits and financial damages force industries to create safer products and healthier and more sustainable practices. We can see, then, the important role of public institutions in experimentally and incrementally shaping and reshaping social practices to make powerful organizations behave morally. Nevertheless, where industry and experimentalism in public policy can learn from each other for mutual benefit, they ought to do so.

VI. Conclusion What I hope has become clear in this chapter is the continuity of value between experimental intelligence in the sciences and the process of inquiry in public policy. Dewey did not see a hard difference between these categories, yet people today seem in many instances to treat the insights and methods of the sciences with an approach and flexibility that they do not give to ethics and public policy. The future of ethics will surely include adherents to absolutist theories about right action, and this is not a problem. After all, the debates we will have about how best to promote an ethical society will be informed through the efforts of people to figure out for themselves what the best principles are for judging matters. Even challenges to democracy itself will continue to arise. Fortunately, this is in fact a good thing, according to Dewey. He writes that it may be that the best thing which can happen to the ideal of democracy is to be put on the defensive. For then it will no longer remain a vague optimism, a weak benevolent aspiration, at the mercy of favorable circumstances. It may become a compact, aggressive and realistic intelligence directing circumstance.33

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This often cited passage in Dewey’s work is worth repeating, since it distills the value of experimentalism, the fact that the best thing for society, for pursuing the moral community, is challenge—the task of seeking reasons to support one solution over another. Only through that process can we be most assuredly called to respect others as sources of insight and communal responsibility in the practices of moral self-governance.

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Chapter 5

Construction, Art, and Politics: On Creative Leadership

I. Introduction On October 24, 2007, I attended a roundtable discussion on the subject of social segregation at the University of Mississippi. The discussion revolved around seven panelists, each of whom represented a campus program or student group. The conversation revealed the students’ unease regarding race relations on campus. Among the concerns that panelists and students in the crowd voiced were the facts of self-imposed racial segregation, such as in the school’s cafeteria, poor attendance at race- or diversity-related functions, and a general feeling experienced by some students of not fitting in or being welcome on campus.1 Some members of the panel expressed their worries that the roundtable discussion would only be preaching to the choir. It may be that such discussions on many occasions do not end up producing specific and clear plans for action, or that they speak primarily to people who do not need to be convinced about certain issues. I believe that such events serve a vital role, however, in the development of community action. This chapter will show the value of the refinement and analysis of group understandings of community frustrations. Roundtable discussions and other communal activities and discussions facilitate these needed elements of leadership. This point will become evident through my examination of the ways in which individuals and groups come to think about the problems they face and to creatively address them through artful construction and conceptualization. Before we can address any particular

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problem, however, we must firm up what we take our problems to be. This process is not nearly as cut and dry as logical argument about issues. We must be creative, assessing manners of framing our problems aesthetically, such that we can then move forward in addressing them. A number of authors in particular have a great deal to say about the project of framing, reframing, and refining problems. Others are well known for framing important problems that were previously inchoate or unnoticed. I call the latter conceptualizers.2 The first author I will talk about is American philosopher John Dewey, my central inspiration for the theory of experimentalism. Next, I will show the great example that feminist Betty Friedan offers as a conceptualizer, though an imperfect one, as any would be.3 Friedan’s limitations in framing the problems for women in her generation were acutely pointed out in bell hooks’s work, another excellent example of a conceptualizer’s contribution.4 Dewey was an especially insightful thinker on the subject of social inquiry and public deliberation. He carefully considered the methods and practices of scientific inquiry, as well as the aesthetic or artistic aspects of thought and experience. For example, Dewey’s Logic: The Theory of Inquiry and his Art as Experience are two influential works, each of which exemplify different aspects of his thought. When we consider the fusion of these two elements of his work, we find a method for thinking about the development of identities, problems, and communities of inquiry. Friedan’s book offers us an excellent example of the kind of problem Dewey noticed in social inquiry—the challenge of carefully, creatively, and critically identifying our problems. Friedan beautifully frames and renders definite a problem which previously had no name, as the first chapter of The Feminine Mystique shows us. While much criticism was leveled against Friedan’s characterization of women’s struggles,5 which we learn from bell hooks really applied primarily to middle-class white women, this criticism is evidence for seeing the process of framing and reframing as experimental and always unfinished. Public inquiry is unending, always in need of refinement. I will conclude this chapter with a discussion of some recent insights and thought about framing that George Lakoff has developed. Lakoff

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argues that Republicans in the United States came to recognize the importance of framing earlier and somewhat more effectively in some cases than Democrats.6 While Lakoff in no way denies his preference for the politically liberal point of view, his analysis of how problems are framed and reframed offers insight for people of various political inclinations. The descriptions and methods that we can learn from Dewey, Friedan, hooks, and Lakoff, I believe, point to one of the greatest and most fundamental challenges of leadership. A great leader must have the ability and the vision to capture and creatively articulate the problems of those whom he or she represents. In what follows, I will describe the challenge for communities and leadership of coming to form and reform the problems we face in public inquiry. I will start by clarifying Dewey’s understanding of the process of communal inquiry. Then, I will show how Friedan’s The Feminine Mystique puts into practice the methods which Dewey described, illustrating the need for continual refinement and reformulation of political concepts and problems through public inquiry. In this process, I will agree with bell hooks’s criticisms of Friedan, while at the same time seeing Friedan’s efforts as progressive and helpful in the process of inquiry. Finally, I will conclude with a look at Lakoff’s work on framing and problem reconstruction. Ultimately, what we learn from the challenges of construction in politics is the fact that no political or moral inquiry begins without any values. Inquiry always begins within a social system, a context in which problems arise, a set of values that guide action, thought, and even observation. Thus, the experimentalist must deny the idea of a view from nowhere. That means that whenever leaders perform inquiry and experiments in moral inquiry, they must see what they do as entrenched in a set of values, which may bring costs and biases into the process.

II. Dewey on Communal Inquiry and Creativity Philosophers commonly distinguish between description and prescription. The former is said to be objective, or (in a loose sense) unbiased. Its goal is simply to state how things are. When you go to

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the doctor, for example, you describe your symptoms. When she advises that you take a certain medicine, we say that she prescribes it. Prescription, then, is considered to be the normative aspect of experience. Your doctor’s prescription is a statement about things to be done or of what one ought to do. It is a statement involving values or ideas about what to do with them. This distinction is not hard and fast. In fact, it is rare to find political problems that a great majority of people would describe uniformly. Tragedies, as with Hurricane Katrina, are rarely challenged as motivations for action. The way we describe the facts of the momentous tragedy, however, lead to conflict over what should be done. Conflicts often arise over the best ways to describe precisely the specific problems to be addressed in such times of crisis, even in the cases in which it is obvious that a real problem exists. In less clear cases, such as in the small disparities of public school funding between similar, nearby communities, some very basic descriptive claims or claims about whether they in fact raise problems are often in dispute in the first place. In Logic: The Theory of Inquiry, Dewey reminded us of an insightful aphorism: “a problem well put is half-solved.”7 In that work, Dewey explained that situations prior to inquiry are indefinite. They do not offer themselves ready-made for us to accept. A crucial part of experience and inquiry, therefore, is precisely the determination of how things are in the world, what the problems are that we must address. Those with too strong a focus on the distinction between description and prescription overlook this point. It is no surprise, given the differences that can arise in simply describing problems, that we have such varieties of news coverage in America. This variety in the public sphere is important in itself for the challenges each news venue provides for the others. The following question may be raised, then: how do we decide what our problems are such that we can address them? Dewey’s process of inquiry answers this question by focusing on how we have done so in the past and on what we might do to continue what was previously of value, while improving on past practices as well. His approach to the question is to examine the phenomenon of inquiry.

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People disagree about descriptions. How do we settle these differences? In social inquiry, such as in news media and community meetings (like Parent Teacher Association meetings), we advance a variety of creative responses to indefinite situations, and we test them together. In short, we can call Dewey’s method creative and experimental—in a word, construction. In a fairly technical passage, Dewey told us what he took to be the objects of logic or inquiry. He wrote, An object, logically speaking, is that set of connected distinctions or characteristics which emerges as a definite constituent of a resolved situation and is confirmed in the continuity of inquiry. This definition applies to objects as existential. Since, and when, sets of interrelated abstract characters emerge and are recurrently confirmed in conjugation with such existential objects, ideational or “rational” objects come into being.8 This passage points us to several important features of the objects of inquiry. What we think or talk about in inquiring into any subject is what Dewey meant by an object. Imagine, for example, driving down the road, when all of a sudden something you cannot identify happens. In the moment when the event takes place, you are startled and unsure of its cause. When you look around or think more about it, you may see or imagine an animal as the cause of your surprise. Should you stop and inquire further into the cause of the event, you will already be looking for signs of the cause you anticipate, but will quickly and constantly make adjustments to your ideas about the cause, wherever your expectations fail to match up to observed phenomena. After the events of September 11, 2001, Pat Robertson and Jerry Falwell went on television to explain that the terrible tragedy was a result of God’s anger. They come to the world with assumptions about how it operates and about the logic of actions in the world, which relate closely or loosely with the beliefs people have. Robertson and Falwell argued that because of “abortionists” and gays, as well as others whom they believe anger God, the Creator decided to “allow” the terrorists to succeed in their attack on the United States. Whether their statements were poorly thought through or whether their

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retractions of these statements were simply to answer scathing criticisms from many different groups, the two men retracted what they said and apologized soon after. One way to see this event is to recognize the connection between beliefs, expectations, and the ways in which we categorize better or worse the problems we face within the frameworks of those beliefs. In this case, Falwell and Robertson were confronted about the harshness of their beliefs and the negative effect that their somewhat cruel condemnations would have on people’s likelihood to follow them in their religious beliefs.9 My point in this example is not that Robertson or Falwell did a good or a poor job in bringing their beliefs and values into contact with their experience, but simply that they did so in this case. Let us return to the students at the University of Mississippi, who feel dissatisfaction with their experience in the community, but in a way that is hard to describe. Consider the feelings they have about their experience at the university as analogous to the very moment of the event in the car that I described above. One obvious difference between the two elements in this analogy is just how quickly we often come to render the indefinite situation in the car concrete. Social problems, by contrast, can require a great length of time and consideration before we come to solidify them with concepts. In a car accident, specific activities are interrupted suddenly, so the problem at hand is quite pressing. Some problems are much subtler, but can be as important, and sometimes more so. Imagine the effect on persons who fit in minority categories, including persons with disabilities or persons of color, being treated as if they are incapable of serious achievement in school. The avenues for communicating those low expectations can sometimes be abrupt and noticed by many, as in cases of overt and clear racism. In other scenarios, however, low and damaging expectations can be communicated so subtly that they even look like they are intended to be to the victim’s benefit. The most patronizing of such instances are those in which oppressive influences see themselves as taking care of the helpless or incompetent minority targets. These experiences can happen and negatively affect women, persons with disabilities, minorities, youngest sons or daughter, and many others. What makes these cases examples of especially difficult problems is how subtly they can

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be conveyed, such as in cases in which children are coddled, slowing their development, or when things are done for women because of the physical nature of the activity involved. The more subtle the form of the transmission of low expectations, the more difficult it can be for people to figure out what it is that is troubling them or to group the kinds of discomforts they feel into a class of problems. Dewey’s passage above about the way in which we come to form concepts can be of help here. In describing an object, we would be unclear if we were not to differentiate that object from anything else. That is to say that the process of conceiving of an object involves fundamentally the act of distinguishing some stuff from other stuff.10 So, just as when you define a word, you must say not only what an object is, but also what it is not. The very process of defining is in a sense the process of setting limits and including some things within them and leaving out others. When we return to the feelings of discomfort on the part of students at the University of Mississippi, one helpful task would be to ask whether, across all the comments people voiced, there were elements or concerns that are shared. Time and time again, representatives of each campus group explained that they did not feel that they had a voice on campus. They felt that they were not heard. I noticed this commonality, although no one brought up this fact in the discussion—the overlap of this concern. So, one outcome of a meeting of different voices about one problem can be to identify those themes which arise in many areas to see whether they can be resolved together. One proposal that has emerged since the panel on self-segregation concerned the creation of a media outlet for minority voices on campus. Web sites have started up for this purpose and some people are thinking about whether it would be desirable to create a second newspaper for the communities on campus that feel underrepresented. There has also been growth in the number of minority voices writing for the school’s newspaper. Another example of the process of rendering definite what has been indefinite can be found in studying intellectual property. What it is we think should be protected with laws about intellectual property is precisely what so many people argue about. We do not know ahead of time what intellectual property is for all future scenarios.

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When we think about the Founding Fathers in the United States, it is laughable to imagine holding them accountable for not foreseeing the challenges for intellectual property that developments like digital music and Napster have raised for the music industry.11 This example serves to show the experimental nature of the development of concepts. On a number of occasions, Dewey called his view “instrumentalism,” referring to the sense in which ideas are instruments that can help us in understanding and solving problems. We can start our rules and ideas about intellectual property in one way. If we do not like that way because it stifles innovation, we can then adopt another outlook on what intellectual property is and test the consequences of this way of thinking about it. In this sense, the very way we describe things can be seen to be controversial and in need of both creative thinking and social experimentation. The very first act of inquiry is especially aesthetic. It involves what Dewey called selectivity and what James called sentiment. When a description or an argument seems right to you, it feels right. William James made this view clear in his famous essay, “The Sentiment of Rationality.”12 Sentiment is not merely subjective. It bears both objective and subjective aspects. Take, for example, the great public speeches of America’s past leaders. A great speech must clarify an issue or position at the same time as it embodies eloquence, careful word choice, and feeling. In one of his early essays, “The Reflex Arc Concept in Psychology,” Dewey described what he called selectivity. Essentially, in this essay Dewey challenged the long-standing tradition in psychology of considering human beings as agents controlled by the mechanism we call stimulus-response. The trouble with the stimulus-response outlook on human beings is the fact that it does not recognize the important element of inclination human beings bear in any environment. Dewey did not call selectivity inclination, because inclination is something which develops later. Rather, selectivity is the idea that in an environment in which any number of things could be a stimulus for me, some things jump out at me simply because of who or what I am. I am selecting, in a sense, those things that I find interesting. This is true for very young children as well as adults. The difference is that we adults work to train the habits that we formed in early life. This is

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because so many of our habits develop without planning. Here we see one of the fundamental motivations for Dewey’s great attention to education. Education is the process by which we think about the habits we develop and by which we try to guide them in directions that we find most intelligent. Two examples will serve to illustrate what sense there is in referring to experimentation when framing problems in politics. On the matter of world hunger, a simple and straightforward way of thinking about people who are starving is to say that they need food. In one sense, this is obvious. In another, however, it is wrong and harmful. After this belief has been tested and responded to with policy decisions, we learn that too simple an understanding of problems can mislead and cause people harm. Economist and philosopher Amartya Sen won the Nobel Prize in 1998 for his study of welfare economics. He is famous in part for recognizing the deleterious effect of simply giving food to peoples who are starving. Sen recognized a fact that seems simple now in retrospect: that the impact of giving food to poor countries includes an increase of competition for farmers, who become less and less able to continue working in agriculture. Sen recognized that hunger problems are almost always problems in the distribution of wealth, not in the lack of food.13 He showed that often famines are problems of the systems that perpetuate and intensify poverty. Thus, following Sen’s insights, we might still want to feed starving people, but only so long as we make serious efforts to address the economic conditions which surround people’s abilities to develop their economies, to have the conditions and freedoms necessary to live independently of external aid, to build and sustain their societies for themselves. We can clearly see in this example the sense in which our approach to addressing world problems is experimental, a process in which we formulate our problems, test out solutions to them, and then refine our thinking about them for further growth and improvement. For early efforts to help people may have been noble in intentions, but even they themselves need adjustment. If we truly want to help people, Sen persuasively argued, we must consider the effects of the ways in which we implement that aid. A second kind of example can be found in what fiscal conservatives have called the “death tax.” The very name, “death tax,” is a rhetorical

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title for the “estate tax.” In an article in Presidential Studies Quarterly, David Zarefsky has argued that “President [George W.] Bush simply identified the estate tax as the ‘death tax’ . . . One could argue that [this definition is] right or wrong, but the point is that, in defining the situation, the president makes no explicit argument.”14 There surely are arguments one can make regarding taxes, abortion, and homosexual marriage, but it is clear in the language of the “death tax” that people who call the “estate tax” by that alternate name use the term in an artful, rhetorical fashion aimed at rendering the idea unpalatable. The term might make the casual listener think that anyone who dies is taxed. Images of Charon taking coins from a deceased person’s eyes as a price of entry into the next world come to mind, focusing our attention on morbidity and bureaucracy. Of course, the universal character of death does not match up to the selective group that is affected by the estate tax. According to the United States Internal Revenue Service, “Presently, the amount of this credit reduces the computed tax so that only total taxable estates and lifetime gifts that exceed $1,000,000 will actually have to pay tax. In its current form, the estate tax only affects the wealthiest 2 percent of all Americans.”15 We can see, therefore, that constructions like “death tax” are used in a rhetorical manner, which include implications that mislead people. Therefore, the fact that constructions like these occur needs to be attended to carefully. The temptation, however, to imagine a set of facts that does not include selectivity of the sort that Dewey described is a throwback to the modern period, in which people frequently believed in a “view from nowhere.”16 What we can do as leaders, however, is to notice the ways in which some words come to be taken as standard ways of describing the world and problems, when in fact they are rhetorical terms. Exemplifying this idea, some former students of mine have been at various times outraged by procedures they called “partial-birth abortions.” The problem was that they thought this was the technical term for the procedure, not realizing that in fact it is polemical, aimed at inflaming emotions. An excellent piece of reporting on this issue, which I gave to them for consideration, has clarified for them the point here about rhetoric. The piece is called “ ‘Partial-Birth Abortion:’ Separating Fact from Spin.”17 The very words that are used for

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people’s positions about issues like abortion in the United States are themselves carefully selected for their influence. Both the words “choice” and “life” are things that sound good, so who would oppose them? It would seem odd to do so, and thus each side of the abortion debate has called itself pro- with respect to one of them. Another case of this kind of construction can be seen in liberal author George Lakoff’s work on environmentalism. In Sierra magazine, Katy Butler discussed her interview with Lakoff, in which he claimed that “ ‘Global warming’ is the wrong term . . . ‘Warm’ seems nice.”18 Lakoff argues that liberals need to work harder to keep up with the artful way in which conservatives use winning words. I will return to a discussion of Lakoff’s insights for issue and problem construction. For now, the point is simply that the very problems we face often need to be constructed. Especially when it comes to leaders of public policy, problems are often brought to them framed with terminology that implies values and ways of looking at the world that have weight in people’s reactions to them. Before thinking about addressing the latter concern with insights from Lakoff, it is important to notice how and when problems go unnoticed because they have often been left unformed and inchoate.

III. Friedan and the Problems That Have No Name Betty Friedan’s book, The Feminine Mystique, offers an exemplary case of the intelligent and careful conceptualization of a problem that was once very difficult to put into words. Friedan explained that she experienced a very troubling feeling that was hard to identify. This fact could not be clearer than the way we find it described in chapter 1, titled “The Problem That Has No Name.” Friedan began as follows: The problem lay buried, unspoken, for many years in the minds of American women. It was a strange stirring, a sense of dissatisfaction, a yearning that women suffered in the middle of the 20th century in the United States. Each suburban wife struggled with it alone. As she made the beds, shopped for groceries, matched slipcover material, ate peanut butter sandwiches with her children,

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chauffeured Cub Scouts and Brownies, lay beside her husband at night—she was afraid to ask even of herself the silent question—“is this all?”19 Critics of The Feminine Mystique see Friedan’s arguments as insults to those mothers who choose to raise their children as their full-time obligation.20 They also believe that Friedan did not recognize how lucky some women whom we call stay-at-home mothers are. Friedan was only trying to put into words, she explained, the great frustration that very many women felt. This frustration stemmed from the fact that some women had no other option in life. So, the idea that today some women choose to be stay-at-home mothers is something that can be valued as a choice only because it is one. It is important to note that the problems Friedan discussed were primarily the problems for middle-class white women, though her language is generalized. In her book Feminist Theory: From Margin to Center, bell hooks advances this critique of Friedan.21 In what follows, therefore, I will abbreviate “middle-class white” women (MCW). My point in referring to Friedan is not to say that she got her social critique just right. Actually, the fact that Friedan’s book offered a step in the larger experimental, social development of feminism lends itself precisely to my point about creative effort, reconstruction, and social engagement. The development of early through recent feminisms has been a continual process that evolved as greater and more inclusive considerations were adopted. The MCW women with whom Friedan identified were not physically ill, nor kept from voting booths by force. The problems that Friedan worked to solidify and identify in this book did not offer themselves up as obvious. In fact, what was so powerful about the problem that Friedan diagnoses is precisely that no one was talking about it. So, Friedan sought to turn over the rock that concealed so many problems. She performed surveys and interviews and found that the more she pursued the dissatisfaction that she felt, the more definite it became. Friedan found that sources of the problem were not only on one side of the political spectrum. That is, some elements of family-focused lives for MCW women are motivated by religious or conservative outlooks, but others come from secular and

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psychological influences, such as Sigmund Freud’s writings about women’s alleged limitations.22 Only after 14 chapters in which Friedan identified the problems (MCW) women had experienced did she then move on to offer ways of addressing those problems. Following Friedan’s example, we can return to the problems of the roundtable discussion at the University of Mississippi. This event, which attracted nearly 150 participants on a campus of 15,000 students, need not be disparaged for preaching to the choir. While I would not doubt the sincerity and substance of students’ comments about their experiences at the university, their formulations of the problems that they face were still understood in very indefinite forms. Members of the crowd at the gathering, while they felt further frustration at the fact that the panelists could not render the problems of their experience more specific, at least realized this fact, and could feel the need for leadership and original, creative conceptualization. My own experience of the event led me to find the gathering quite productive, even though other attendees may not have felt that way. Although the point was not raised about the whole of the meeting while it took place, I noted some commonalities in what was said across the presentations that each of the student leaders mentioned. That commonality, as I have said, had to do with communication. Students again and again, but in different ways, explained that they did not feel that they had a voice on campus. The first reason I found the roundtable discussion helpful, therefore, was that it provided a forum in which students were able to voice their thoughts, even if inchoate at the time. To begin dialogue is the first step in refining it. Since the meeting, several developments have occurred. First, a student group was initiated, called One Mississippi, which has brought together a great variety of student leaders on campus to talk at a weekend retreat. From the retreat, organizers bring back with them several concrete steps that students believe could be taken to work on race relations on campus. One Mississippi also organizes and sponsors events throughout the year at which people get together to talk about race and unity on campus. More is to come with regard to this organization and the burgeoning relationships it fosters. For my

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purposes, we can see in this example how necessary are the initial, frustrating meetings at which people voice ideas and concerns that are often disorganized and unclear, yet important and significant. Leadership is best exercised, I believe, when we recognize that public inquiry starts in this murky, aesthetic process of creation. In the next and final section of this chapter, I will talk about some of the specific tools that cognitive scientist George Lakoff has collected for thinking about framing and conceptualization.

IV. Lakoff on Trying Not to Think of an Elephant In 1980, linguist George Lakoff and philosopher Mark Johnson published their influential book Metaphors We Live By.23 In Metaphors, Lakoff and Johnson argued that, at bottom, ideas are grounded in metaphors, which are themselves based on very basic concepts, such as spatial ones of up, down, in, out, and so forth. So, being “in love” for instance, is metaphorically understood in relation to the ways in which we are “in the kitchen.” Spatial references are incredibly common—found all over the place—in everyday language.24 The resulting point that the authors make, which is especially important for our purposes, is that the associations we make with the use of metaphor have a great number of effects. Among the central messages that this early book presents is the fact that the language of argument and debate is infused with metaphors recalling war. Persons engaged in political argument are “opposing” and are “defeated,” “disarmed,” “beaten,” and more. The basic terms we use to analyze an argumentative discussion tend toward violent competition. To note this fact is very important, since when Dewey talks about intelligent social action, we can read him very optimistically. The irony that Lakoff notes in lessons like those that we get from Dewey, however, is that people come to recognize the importance of framing and purposely use it to control others. In past generations we would refer to this practice as propaganda. Today, it is more commonly called a component of “culture war,” which reinforces Lakoff’s and Johnson’s point. People like Keith Olbermann and Bill O’Reilly see themselves as soldiers in a fight about culture

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and framing. These messages and ideas are far from hidden. In fact, they are central values and seen as consequences of how these commentators understand their own work. In fact, O’Reilly published a book in 2006 called Culture Warrior.25 Over time, both Lakoff and Johnson have explored the consequences of the contributions that they offered in Metaphors. In 2004, Lakoff released an especially straightforward and accessible book called Don’t Think of an Elephant! Know Your Values and Frame the Debate.26 In it, he addressed the problems that Democrats and progressives were having with messaging. The points he makes here are helpful for anyone who is interested in framing, however. So, I will list the central points he makes in his chapter on the basics of framing in his language before I then offer a translation of his message to progressives for anyone who might gain from his ideas. In his preface for the book, Lakoff argues that framing and the intelligent choice of language use is a form of social action. He argues this view because many people think of framing as an occasional activity whose effects are generally overblown. Perhaps the most common form of framing that people hear about is termed “political correctness,” which is commonly understood as a matter of treating people with respect. The point here is that we are well aware that there is some framing involved in everyday language, but we tend to find it subtle and small in effect. Lakoff denies this. He insists that progressives, with whom he agrees, should work on 11 things that they can do to improve their work at framing. In abbreviated from, his list is as follows: First, recognize what conservatives have done right and where progressives have missed the boat . . . Second, remember “Don’t think of an elephant” . . . Third, the truth alone will not set you free . . . Fourth, you need to speak from your moral perspective at all times . . . Fifth, understand where conservatives are coming from . . . Sixth, think strategically, across issue areas . . Seventh, think about the consequences of proposals . . .

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Morality, Leadership, and Public Policy Eighth, remember that voters vote their identity and their values, which need not coincide with their self interest [in other words, people vote with their values even when sometimes their values appear to conflict with their self-interest] . . . Ninth, unite! And cooperate! . . . Tenth, be proactive, not reactive. Play offense, not defense . . . Eleventh, speak to the progressive base in order to activate [the relevant “swing voters”]. Don’t move to the right.27

For our purposes, it is very important to keep in mind that Lakoff’s goal in his book is to help out progressives. At the same time, when we read through this list, wherever we see the word “conservatives” we can substitute ideas of any groups that are significantly opposed to one’s views. Here are the ways in which I see value in general for leaders of public policy in Lakoff’s lessons. The first lesson here shows something important about civility. Lakoff points out that members of one’s political or moral opposition must be seen as people who are fighting for values, even if many of them are in competition with one’s own. In that effort, there are likely to be some results that are to the benefit of all from their efforts, since our values often have some bearings that apply in broad ways to many people. So, wherever we can see the logic and benefit of the actions of moral and political alternatives to one’s views, we will find several valuable things for the construction of concepts. The first is in the value of civility. For if we treat political opposition always as evil or unreasonable, our own political positions will likely be framed in ways that do not seek compromise with others. To get things done, we often need compromise. It is for reasons such as these that Rawls called for appeals to overlapping consensus and Kurtz calls for respect of religious differences, which I address here in Chapter 3. Civility is a value in public discourse that is useful for taking the higher ground. When others are unreasonable in discussions, they may get media attention, but after a time, people tire of unreasonable critics, such as when the media flared up about the town hall meetings in 2009 regarding health care reform. The second lesson Lakoff offers is about being careful not to accept the messages from opposing viewpoints when they are politically charged. He uses the example of fighting against a message, such as

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Richard Nixon’s famous claim that he was not a crook. Lakoff argues that to fight the message in that way is to accept the framing of the situation. Thus, today, Nixon is known as the person who appeared to falsely deny that he was a crook.28 The important point for my purposes is not about advancing a particular agenda, but about taking care when presented with a problem to notice the ways in which framing exhibits values that may or may not be the best ones to accept and legitimate. His subsequent step is about affirmative rhetoric—that it is better to offer a reframing than to deny someone else’s framing. Put in philosophical language, Lakoff’s point is similar to the problem of answering a loaded question. The common and favorite example of this that we find in textbooks on critical thinking concerns the court case in which a man is asked “Have you stopped beating your wife?” The innocent person who answers “no” would be saying that he does beat his wife and has not stopped. The person who says “yes” implies that he did beat his wife but no longer does. Thus, we can see that in political settings, when questions are poorly phrased, it can be very important not to accept a framing that loads a message into a question in a way that one would not accept. On the third lesson, I believe that Lakoff makes a very important point. He explains something vital about practical framing considerations for leaders of public policy. When we frame issues simply based on good inquiry, without considering how the results of that inquiry would be messaged for the public, a policy that is thought best for people may not be seen as such. This could mean an interruption in the leadership, therefore, that is trying to implement the measure. With such an interruption, the next leaders could argue that the policy was unsuccessful, even though it never received a complete and proper trial. For a recent example of this point, President Obama has explained that he has done a poor job of selling his policies to the American people. In a January 2010 interview with George Stephanopoulos, Obama said, If there’s one thing that I regret this year [it’s] that we were so busy just getting stuff done and dealing with the immediate crises that were in front of us that I think we lost some of that sense of speaking directly to the American people about what their core values

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are and why we have to make sure those institutions are matching up with those values.29 Here we see a direct example of the problem that Lakoff suggests, which is one that could happen for any political party or representative in public policy. On the fourth point here, Lakoff can be read as saying that one must always be in campaign mode. I think that is not the most fruitful way to read his point. There is something troubling to people in the phrase “constant campaign.” The idea is that one never stops fighting opposition to seek compromise and get things done. That does not appear to be Lakoff’s point. Rather, the valuable element is a repetition of the fact that whenever we receive messages about political problems, they are worth examining from the point of view of one’s own values. Republicans today, for instance, speak of minimal public endeavor, to allow maximal private sector responsibility and development. This was not always the case, however. After all, Republican Benjamin Franklin was one of the originators of the Philadelphia public library and was the country’s first postmaster general, an office that, when created, resulted in placing great limits on what had been the private industry of letter carrying. To be sure, the meaning of “Republican” cannot easily translate from Franklin’s day to our own.30 Republican president George W. Bush created the Department of Homeland Security, seeing a need for government expansion at least in the area of security.31 In short, the proclaimed value of smaller government can, in some cases, avoid conflict with intended goals, but not in others. The centerpiece of value in addressing problems ought to be considered from one’s own values and the facts about whether some problem as described actually affects one’s community, or whether it is simply an abstract value. The language of value in Lakoff’s writing is not unreasonable and is popular today, but the Deweyan caveat to using it is to make sure that these values have to do with contributions to actual well-being and happiness for people, not simply the abstract, stated values that connect well or poorly given a particular scenario. Dewey would support the idea that we always bring our considerations about society’s well-being into account when we evaluate constructions and the reframing of problems.

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The fifth point, of understanding where other people are coming from, relates to the issue of civility I have already mentioned. It is also a matter of expediency, however, when it comes to advocating for a policy solution. For instance, when the Democrats advocated for their Affordable Care Act, the healthcare bill, or “Obamacare,” as various people constructed the measure, they were careful to seek a strategy which they could argue would achieve values that conservatives hold, in particular of decreasing the deficit in time. It could be argued that health care reform is inherently so complicated that it would be remarkably difficult for anyone to boil down the message about what was to be done into simple, understandable elements. Whether or not that is true, it seems clear that President Obama has claimed that his administration focused more on getting bills passed than on their messaging. But to the point here, the editors of Newsweek sum up an important element of Lakoff’s fifth lesson. Their headline was “How Health Care Reform Reduces the Deficit in 5 Not-So-Easy Steps— Americans think the bill is too expensive because they don’t understand its cost controls.”32 Here we see the strategy of presenting arguments for policy with the language of those who need convincing. Arguably, in President George W. Bush’s first presidential campaign, the language of “compassionate conservatism” was a similar framing, aiming to appear more moderate than some outlooks on conservatism suggest.33 In short, while one ought to come to moral problems with his or her own community’s values and interests in mind, awareness of the values that others hold can be educative, could help oneself, and also can be used in advocating for one’s own point of view. On the sixth and seventh points that Lakoff offers, about strategic thinking and about the consequences of framing, one might think about policy prioritization, the subject of the next chapter in the present book. The issue can be seen pessimistically as a matter of politics and positioning alone. That does not capture the whole picture, however. What Lakoff is pointing out is that strongly held views in one area, or simply the implied consequences of one’s framing of one issue, can have consequences elsewhere. Someone who firmly believes that killing is wrong, for instance, might also feel that a soldier is a hero, despite the killing that he or she has done. Going into any war might seem

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wrong, since all wars to my knowledge have involved killing innocent people, yet they are often political realities that are difficult to avoid. Some of my own Catholic students have felt great tension in their efforts to reconcile their views about abortion, the death penalty, and war. So, whenever one is looking to frame a problem he or she faces, we must consider the effects that such framing might have on other concerns. For a more mundane, final example of this, consider the simple time constraints of attending to an issue that upon more and more reflection seems less important than other issues. We may never choose to finish thinking about it when far more pressing problems reveal themselves. This is a matter both of policy prioritization and of issue framing. This is why, although I have two separate chapters on these subjects, namely problem construction and policy prioritization, they both can overlap at times (and often) in a leader’s efforts. On the eighth point, about cultural identity, one might reasonably criticize Lakoff here for what looks like strong partisanship. There is no dearth of critics of Lakoff, who argue that what he seems to be talking about in many places is spin, not substance. A prominent example is fellow linguist Steven Pinker.34 The point Lakoff makes is not unimportant, however. In other words, when we look at problems before us to be framed or constructed, it is important to note the values of the communities involved. Taking my example from outside the traditional spectrum, I would invite you to consider poor people in Mississippi. I have been stunned time and again by how different are people’s reactions and thoughts about poverty in Mississippi from what I may have expected. For instance, when students do well in school in Mississippi, it is quite common for them to go on to college and then move from there to wherever opportunities are to be found. I have heard criticism of superintendents for creating schools that inspire kids to go to college, for those kids leave home and do not follow in their parents’ footsteps. Another example revealed to me how ignorant I was about integration in Mississippi. I was told by an African-American woman I know that she did not want to integrate when the public schools were forced to do so in Mississippi. In the newly integrated schools she was made to feel unwelcome and hated, and had to go farther to get to school. At first she was not allowed on the school bus, so she had to walk a much greater distance. She said,

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therefore, that she was very upset about integration. Prior to hearing her moving stories about her youth in Mississippi, I had never considered such problems for integration. One more example for framing is worth considering in relation to identities and politics. In Mississippi, one well-recognized problem for schools concerns limited resources and the great number of public schools that divide up those resources. The idea of school consolidation, however, in a poor state in which schools are, in many areas, central economic drivers, would put many people out of work in already poor communities. Also, many of those people would be African-American, especially in the Mississippi Delta. The forces which push back against consolidating schools, therefore, have significant histories and contexts which must not be ignored. These examples do not exhaust Lakoff’s point. There are many people who vote according to identities they see themselves holding. Therefore, it is not strange to follow Lakoff’s eighth point. When we identify problems, we ought to consider the ways in which people who are affected and people who have power to make change happen with regard to a forming problem might be drawn into cooperation, given the identities they share or bring to bear on the situation at hand. Lakoff’s ninth and eleventh suggestions overlap in offering an important lesson. In public policy, a leader’s considerations need to include, on the one hand, cooperation with outside communities, with groups and persons who do not traditionally cooperate with each other, and also with one’s more commonly acquainted communities. A person who does not consult significantly with his or her “base” of usual advisors and compatriots might lose touch with important collaborators. On the other hand, a person who does not seek to fill a big tent risks enlisting too few resources in framing problems that need to be addressed. The central lesson I see in Lakoff’s point here is to seek input and collaboration as widely as possible. Among Republicans today, few have the unifying force that Reagan held in his day. Surely there were many who opposed Reagan on many measures, but in a number of ways he was a politician who exemplified the “big tent” Republicanism that Sarah Palin did not inspire in the 2008 Presidential election. Palin was able to significantly inspire her

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base, but did not and continues not to exhibit success at drawing in moderates in her party or among other political groups. Lakoff’s tenth lesson here is one that I will address again, in a way, in the next chapter. It concerns looking at problems proactively, not merely reactively. This element of framing can at times seem inapplicable to emergency situations, like hurricane relief. That is not entirely true, however. For we can see, even in emergency situations, how planning is different when one addresses problems only as they arise, versus with a more in-depth strategy of foreseeing future and increased problems, planning several steps ahead of future problems. So, for example, to move people from a to b might be a good thing, but it is best when b will have what is necessary to help the relevant people, versus strategies that succeed at one step only to need constant problem solving at each phase. Many problems are not emergencies and also can be addressed positively rather than reactively. For instance, when people are experiencing high unemployment in a region, surely some measures may be called for immediately to help them avoid dire circumstances. At the same time, some communities experience great job loss and implement measures to help people immediately as well as steps to address the future circumstances causing the problem. Auburn, Alabama, for instance, suffered from great job losses a few decades ago, when a factory closed down. The town decided to aim at attracting many small businesses, rather than a few large companies, to protect against similar crashes in the future. Since then, in 2009, CNN Money rated Auburn as one of the “Best Places to Launch” small businesses.35 So, in short, this last lesson Lakoff offers concerns the fact that sometimes addressing problems can look like only treating symptoms. That can be because problems seem too large or because people simply never consider envisioning great solutions that resolve many problems at once. However this last lesson is applied, it is true that an important way to think about problems ought to concern our aspirations, not simply the redress of old grievances. This issue and many up to this point reveal the countless levels at which experiments in ethics need to be built and tested.

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V. Conclusion I believe that there are important lessons for the study of leadership to be taken from Dewey, Friedan, Lakoff, and the examples I have offered. The insights I have discussed for effective leadership should be understood in relation to challenges—to problems—and to the need to see ourselves as fallible and our efforts as experimental. Leadership demands flexibility, promise, and both trial and correction. There are many who wish to avoid criticism and error at all costs, but in truth both are unavoidable for leaders. A person who wishes to be a leader must and must get comfortable with both and learn to value experimentalism. These are fundamental elements of the process of experimental design and inquiry into public problems. Allowing errors to occur is a crucial step on the way to moral progress. When you build a house, pursue a technological advancement, or seek moral development, you make a new shape out of “raw materials and intermediate stock parts,” as philosopher Larry Hickman has explained in his analysis of technology.36 Even if you build a hut out of clay and dirt, you do not build the dirt. Similarly, when we construct concepts in the moral and political realms, we cannot just make them in any which way we want. The stuff of our experience influences the ways in which we construct concepts. At the same time, we form concepts and identities according to our needs and to our unique aesthetic experiences. When we encounter a great leader, we are struck by the amazing and often simple way in which that person concretely summarizes the feelings and problems we experience. We feel touched, in a way, by his or her insight and empathy. We sense a deep satisfaction first and foremost with the leader’s ability to connect with our experience. What we often do not see behind the scenes of leadership is the painstaking effort to conceptualize and prioritize our common problems. In this sense, the first and most fundamental tasks of leadership are the processes of coming to identify one’s own experience with the experiences of others and of offering a formulation of the frustrations, as well as the vision, that can most beautifully and effectively inspire in people a sense of purpose and solidarity.

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Chapter 6

Philosophy and Public Policy Prioritization

I. Introduction Peter Singer is well known, among other reasons, for an early essay he wrote about famine, called “Famine, Affluence, and Morality.”1 He argued a consistent and persuasive line for alleviating unnecessary suffering caused by famines, building on a consequentialist moral theory. The essay has been reprinted in countless textbooks on ethics and international relations.2 Like Singer, philosophers in general have a great deal to contribute to particular ethical debates. The present chapter, however, is intended to address a problem for leadership that in some ways precedes the focus on any particular problem: the question of how we ought to set priorities. This problem is crucial for public policy and for leadership. It is also an important matter for considering the tools, attitudes, and dynamism required for the experimentalism I defend in this book. Experimentalism in leadership calls for a certain fluidity in addressing moral problems. At the same time, a leader must strike a balance between holding firm to his or her goals and vision for leadership and responding only to immediate, pressing concerns. The experimentalist needs to think about both the contemplative dimensions of leadership and also the immediate, present-focused matters at hand that cannot wait. This chapter will cover these elements of policy prioritization and more. To defend philosophers and their focus on one specific subject matter of policy at a time, one could argue that greater focus yields more concrete scholarly contributions. While there is merit to this

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approach to ethical or political problems, there is a larger difficulty in the public sphere than any particular political conflict. The challenge concerns the practice of prioritizing public issues to be addressed in order of importance. Politicians call their prioritizations their agenda. In The Law of Peoples, John Rawls addresses one element of the issue of agenda-setting in his work on the subject of basic human rights.3 His efforts are focused on outlining the limits of political legitimacy for any state in what he calls the “society of peoples.” While Rawls would argue for the redress of violations of basic rights as a fundamental priority in a given state,4 he does not offer us insight into the next steps a state can take in setting political priorities for attention, nor is this his purpose. Philosophers are remiss, I believe, for not offering more in the way of theories which address this problem. In the present chapter, I begin with a brief reminder of what I take public policy to be, which I described in Chapter 1. Next, I present a number of ways in which policy prioritization has occurred or can occur so that I can then proceed to advance my own argument about agenda setting in public policy. I argue that the most famous approaches to moral theory—deontology, utilitarianism, and virtue ethics—must all be employed, but not exclusively, in assessing the importance of public policy priorities. The theory I advance as an element of experimentalism is contextualist and instrumentalist. In the first chapter, I explained what I mean by instrumentalism. I have explained contextualism, but have not yet labeled it as such. It is the idea that problems should be understood in terms of the situations in which they arise, the persons and entities whom they involve, and the tools available on hand for addressing them. Instrumentalism, again, is the idea that moral theories and concepts are tools for addressing problems. That means, then, that a particular moral problem might best be addressed with one or a configuration of moral theories and concepts. Consider that when we read the Declaration of Independence, we see in it a complex of values and frameworks. They range from utilitarianism (in the importance of the pursuit of happiness), deontology (in the rights and duties of people to govern themselves), egalitarianism (in the equality of people), libertarianism (in the central value of liberty), and so forth.

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In the case of prioritization, we need to develop tools and ideas for the process of framing and organizing the problems we face. Time and resources are always limited, thus the selection of the problems we address over any given period can be better or worse at the task of achieving far reaching, visionary goals, minimizing suffering, respecting and protecting liberties and rights, as well as other creative and valued ends. If there is one central caution I believe we must observe in leadership, it is to avoid the strong tendency to only address problems that are immediate. Certainly, there are those who might pursue a vision while ignoring the pressing problems around them,5 but I suspect that the more common tendency is for people to ignore the long-term effects of temporary action. Whatever problem for leadership is more common, the wisest course to follow, I believe, is an Aristotelian guideline—that the right answer here is probably a mean between extremes, to be determined in context of the severity of problems at hand. The idea of contemplation in leadership, of seeking to establish goals that require significant effort, collaboration, and time, like landing on the moon or fighting the spread of AIDS, is easy to forget or leave on the back burner. To address the challenge here, I will cover two ways of thinking about policy prioritizations; one category I call contemplative prioritization, and the other I call immediate or urgent.6

II. What Is Public Policy? In Chapter 1, I briefly explained my understanding of public policy. In the context of prioritization, it is helpful to consider the matter again here. John W. Kingdon, author of the influential Agendas, Alternatives, and Public Policy, defines public policy making as “a set of processes, including at least (1) the setting of the agenda, (2) the specification of alternatives from which a choice is to be made, (3) an authoritative choice among those specified alternatives, as in a legislative vote or a presidential decision, and (4) the implementation of the decision.” Of course, Kingdon warns that this definition is a “drastic oversimplification.”7 If Kingdon feels that his definition is too simple, it is because the term “public policy” has broader use than

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this. I think his approach here is fine for his purposes, yet for mine, I believe that it would be helpful to explain the scope of the use of the term public policy a bit further. There are many things which could count as public policy. On the one hand, public policy is an overarching matter of governmental orientation towards a subject. It can be understood in terms of an administration’s values and approaches, such as to foreign policy, which are often not mandated or guided by law. Policy, when differentiated from law, can be understood in this way, as orientations, methods, or rules that an administration follows in fulfilling its goals or in embodying its values. At the same time, however, policy as a term is often not differentiated from law as a separation, but rather is a term used to classify one by the other. For instance, policy initiatives can be motivations behind the pursuit of passing a bill into law. Thus policy can drive laws and be an overarching matter of inclination, orientation, or effort. So, in this sense, policy can be a high level, abstract idea about public goals and social values. On the other hand, however, public policy as a term can denote specific actual rules written in some administrative office of government. For instance, the United States’ Internal Revenue Service drafts a large number of policies which seek to enforce or carry out the letter of the laws of taxation. In this sense, then, public policy can be a detail-oriented term, referring to what one might call low-level rules and procedures of carrying out the tasks of governing. So, public policy as a term can refer to a widely varied class of ideas, practices, and values that orient public action and future planning, as well as implementation and enforcement of already enacted laws. For my purposes, I intend to select one example of public, governmental figures who must engage in a process of prioritization of political problems. I take the U.S. Supreme Court as an excellent example of a body of public figures who must decide on what they will address in a limited amount of time, while presented with far more particular problems than they can possibly address in any given term. As a model for discussion of public policy, we can see that the U.S. Supreme Court justices are public figures, who are in this example governmental representatives. Public policy need not be limited to such representatives, since we might say that leaders in business,

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schools, or healthcare play an important role in setting policies that are undoubtedly public. What public figures do in setting policy is also variable. They set explicit agreements, policies, or legislation in some instances and in others they embody policy through practices whose rules are tacit. Supreme Court justices can enact both these approaches at different times, insofar as they make decisions about a case and then make explicit their justifications for so choosing in their written opinions. Given these initial remarks, we might say that public policy comprises generally the common standards or practices followed or the explicit statement of norms to be followed on a given subject, the violations of which, when harmful to citizens, bring public repercussions in the form of punishment or scorn. It is clear that in many areas of political conflict, policies arise as a result of historical practice, and many as a result of explicit decisions. The United States Constitution offers both simultaneously in the Bill of Rights, which explains that although a list of rights is given in it, the list is neither exclusive nor comprehensive, and is compatible with a great number of further rights citizens have which are “unenumerated.”8 The need for a prioritization of public policy issues arises in those circumstances in which there are persons who have limited resources, be they of money, time, or energy, and who must choose between various political problems in making use of their resources. What follows is a list of ways in which policy priorities can be set.

III. Contemplative and Immediate Policy Prioritizations Although there are surely more ways than I will offer here, there are at least five ways I would characterize the process of prioritizing matters to be addressed in the public sphere. I break them down into two main categories, the contemplative and the immediate. What I call the summary, vision, and calculus approaches to prioritization are what I would classify as contemplative ways of setting an agenda. By contrast, the urgent or immediate category of approaches include the crisis and survival justifications for agenda setting. I will start with the contemplative category. What I will call the summary approach to public policy prioritization is a deeply interpretive

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outlook. By its very nature, a summary must not include all information presented in that which it summarizes. Therefore, the summary approach considers a set of events, conflicts, and problems, and searches for main themes among them that address the gravest concerns of the times or the most important themes that unify the widest number of problems. Americans often focus their political rhetoric around a few key terms, such as freedom or prosperity. Rhetoric must not be mistaken for careful agenda setting, of course. Where should a leader start in addressing the country’s problems? One might begin with a summary of the central themes of political difficulty for the country. Some might say that the summary themes of greatest importance are economic growth, or educational development, or the raising of standards of living for the poor. Selecting a set of themes is a common approach among politicians. The fewer themes, the better, or so effective political advertising seems to imply. The trouble with the summary approach is how simple it must render an amazingly complex set of political problems. So many problems must fall by the wayside given a summary of the country’s problems. Or, a particular theme or initiative which may have validation in some areas can be applied elsewhere at a troubling cost. Consider the partial truth, for instance, that lower taxes can often contribute positively to the attraction of business to an area. If low taxes were sufficient for attracting industry, regions in the United States with the lowest taxes, such as Mississippi, would be the wealthiest, most booming areas of the country. To continue to lower taxes could yield some benefit, people might think, but in fact, if the state lacks resources to build infrastructure that industries require, the further lowering of taxes could undercut the state’s ability to invest in things that industry seeks. The summary view, then, if focused on the idea that lowering taxes is in every case desirable, brings with it costs and could hurt some communities even while in others it yields benefits. Summaries must be simple, but too much simplicity comes at a cost. What I call the vision approach to policy prioritization bears similarities to the summary approach. It is a simplification of the many complex issues which citizens face, but its focus is not on the past. Whereas the summary view focuses on problems the country has had, the vision approach attends to what could be. A president might ask

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“What would it take to cure cancer in 10 years?”9 The question represents a powerful approach for inspiring leaders. This approach attempts to invert a great challenge for politicians. Often leaders must be on the defensive, working to address the mistakes of their predecessors or that the country encounters on its own. There are times when what is most needed is action, rather than mere reaction. A successful leader often bears the quality of vision. He or she can eloquently express the great possibilities that few dare to imagine. The vision approach takes this side of leadership in policy prioritization to be crucial to addressing apathy among citizens. A number of people have talked about the ways in which we might wish to harness the inspiration that we have in times of crisis for good causes in times of peace. For instance, William James famously spoke about “The Moral Equivalent of War,” in which he introduced the notion of national service and advocated for it.10 It is an inspiring idea to imagine a militant effort to eradicate a profound human problem, which is something that would be undertaken with a visionary outlook on public policy priorities. Another contemplative approach is worth noting. I call it the calculus approach. If Helen is a Supreme Court justice and is presented with thousands of cases, she might ask herself which cases bear the greatest overlap in content with the greatest number of other cases. This approach is similar to the summary approach, to be sure, but with a different purpose. The summary approach is an especially interpretive one, in which one’s values can be seen to guide one’s evaluative summary. In the case of the Supreme Court, however, consider that there are “more than 10,000 cases on the docket per term,” according to the U.S. Supreme Court Web site.11 Of these, the court writes formal opinions on approximately 80 to 90 cases.12 Suppose that there are several hundred cases which deal in some way with the subject of privacy.13 Rather than summarize the notion of privacy as a central concern, the calculus approach might suggest privacy be addressed in one case, rather than many, since the decision about this case may be employed in suggesting outcomes for further cases on the matter. Thus, if a justice were to see a great number of cases petitioning for Supreme Court appeal, she might believe that the number of such cases would diminish in the future should she hear

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one representative case, which could subsequently be taken as a standard for others. The summary view works differently, insofar as it searches for themes that are of greatest importance in some fundamental way.14 In this sense, the summary view approach I have in mind is not a matter of numerical sum, but of the moral weight of themes that can be greater or smaller, but which cannot be so easily quantified as a number of cases. The calculus approach seeks to calculate the greatest impact in responding to past conflicts and in preparing for the most effective use of one’s attention and limited resources for future cases. In contrast to the contemplative category of prioritization frameworks, I label the remaining two frameworks the immediate or urgent category of prioritization. The crisis approach, first of these, focuses on deadlines. Climate change can be considered a deeply important crisis, but if invaders are at our door, climate change must wait because of a more immediate crisis. Crisis focus in public policy is not usually a constant force in the prioritization of issues, however. For if we constantly consider ourselves to be in crisis, then the meaning of a crisis is diminished, as is the message of the boy who cries wolf. The crisis approach to prioritization may be said to be found in dealing with the violations of basic rights that Rawls discusses in The Law of Peoples. Surely a society without running water or enough food to eat cannot focus foremost on the propagation of greenhouse gases. Societies in which many are dying of AIDS, furthermore, cannot quickly let go of the crisis approach to prioritization. We might say, nevertheless, that a society that is not experiencing such dire circumstances must only use the crisis approach when absolutely necessary. For otherwise, the legitimate problems that people have will be ignored in the name of whatever crisis the administration fashions for its own emphasis. What we might call the survival approach is not commonly thought of as an admirable value for prioritizing agenda issues, but may be all too necessary. By survival, I mean the political survival of the leader or administration, not the physical survival of the people (which would be more of a crisis motivation). A politician must raise a great deal of money in order to be elected. To raise money, she must convince citizens that she will address the greatest concerns of her

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donors. A social system could be devised in which political candidates are given similar resources, at least at some levels, for their candidacies, a process which some countries practice in different ways.15 Campaign finance reform is a hot topic of political debate. These concerns aside, there are other ways politicians must work to survive. The bill a congresswoman introduces, for example, might only pass with her agreement to support someone else’s bill. Suddenly, the congresswoman has agreed to a policy priority by virtue of the reality of having her own greatest priority addressed. Thus, whether the survival approach concerns the priorities of a politician’s donor and voting constituency or his or her real constraints once in office, the factors which bear heavily on him or her may be only the real limitations of survival in politics. If the survival approach to policy prioritization is not unreasonable, given the real demands of getting things done in politics, it is a good example of the moral idea that ought implies can. The language that ought implies can refers to the idea that it cannot be reasonable to expect a person to do the impossible. We may be reasonable in expecting a person to push the limits of what was once thought possible, trying always to come closer and closer to what is ideal, but when a congressman fails to achieve a perfect ideal, we can see this fact as consistent with reasonable moral expectations. The idea of valuing compromise is built upon the reasonable claim that what we ought to do must be conditioned by what is in fact possible. It is important to note, however, that great leaders are often those people who are able to envision a way of achieving what others think is impossible. So, the language of ought implying can must not be thought of as an easy way to avoid courage and far-reaching goals. It is morally unreasonable, however, to criticize a profoundly paralyzed person for not standing up on his own two feet. What will decide whether an effort is reasonable when trying things that appear impossible? This excellent question for leadership is a central example of the place of experimentalism in ethics. We learn by trying and doing, by testing policy alternatives, experimenting with possibilities for achievements that come closer and closer to a balance of our ideals. As I have said, it is a problem when a leader ignores pressing problems in favor of schemes disconnected from real people’s problems.

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It is also a problem when leaders fail to think ahead. So, a strong leader will always have in mind a twin set of priorities, classified as short-term and long-term, and will try to postpone the latter entirely only in times of deep crisis. A level of attention that balances these considerations best cannot be pinpointed in the abstract, but with practice, the experimental attitude and the desire to learn and improve will help a leader to refine his or her abilities on this front. Further and more traditional philosophical reasons why one might choose one category over another in prioritization are the subject of the next section.

IV. Philosophers and Public Policy Many perspectives on ethics could offer approaches for addressing policy prioritization, though this subject matter has not often been in focus among moral philosophers. The three dominant or most studied theories in ethics are deontology utilitariaism, and virtue ethics. Here I will introduce the dominant traditional ideas in ethics to show how one might approach the subject of policy prioritization with available concepts and tools, though my experimentalist outlook would argue that these theories should not be understood as the only ones that could be used. Some who follow Immanuel Kant’s deontological ethical outlook might suggest that a hierarchy of rights be drafted, which renders logically clear which issue must be addressed at what time. No doubt the language and institution of rights have been central elements in the growth and democratization of America. Philosophers tend to associate the language of rights with deontology, since rights have to do with rules and rule-following more than facts about calculations of benefits for citizens, which is the way opposing utilitarian theories proceed.16 America’s strong focus on rights, such as with regard to firearms or to religious freedom, might incline some people to think that rights and duties are primary values in America, thus deontology could be considered a most appropriate theory for prioritizing ethical issues to be addressed in policy.

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The reason moral language in debates would incline this way is that the protection of individual liberties is often at odds with popular opinion. For instance, when tragedies like the murders at the Columbine High School shocked the United States of America, citizens and politicians wanted to take action with regard to firearm-related policies. The unpopular thing to say and defend at that time involved the right to own and use firearms. Protections like those, or of unpopular free speech, may in fact yield less popularity and immediate overall happiness when compared with silencing offensive speakers, running counter to utilitarian inclinations. Nevertheless, Americans defend such rights for a variety of reasons, some of which centrally involve deontological principles. When it comes to policy prioritization, contemporary thinkers who follow Kant or John Rawls’s Kantian-leaning political theory might argue that at the forefront of domestic political obligation should be the due respect for the rights of those who have been detained indefinitely without warrant in American-controlled prisons. Prior to the conflicts about detainees, deontologists like Thomas Pogge called special attention to human rights and poverty, following a Kantian and Rawlsian line.17 Although Rawls is commonly thought of as a Leftleaning political theorist, Kantian ethics, or at least a focus on basic rights and duties, can reflect the central values of people on the Right side of the political spectrum, at least with regard to this recent conflict. For instance, Robert Levy of the free-market-supporting Cato Institute presented deep criticism of the George W. Bush administration and its treatment of a United States citizen named Jose Padilla. Levy criticized what he called “specious arguments” that used terms like “enemy combatants” to keep Padilla from his Constitutional rights. Levy wrote that the President had no right to order “the imprisonment, without charge, of an unarmed non-soldier far from active combat, especially a U.S. citizen on our own soil.” He continues, Padilla may deserve the treatment he is receiving—perhaps worse. That is not the point. When Americans are taken into custody, they have the right to retain an attorney. Congress must first set the rules. Then an impartial judge, not the president, should make the

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ultimate decision as to whether the arrest and imprisonment comport with the Constitution.18 Rawls’s and Levy’s deontological arguments show the variety of political outlooks that find inspiration in the same moral theories. There will be great disagreement, of course, even among the deontologists, as to which issue of rights is most pressing at any given time. Thus, the problem of prioritization continues. The continuation of capital punishment may be more troubling to some. For others, international concern over the effects of America’s corporations on other nations and peoples might be of graver concern. Whichever way a deontological ethicist proceeds, he or she will likely need to consider certain duties and rights as most fundamental. This is the approach that John Rawls takes in offering his foundational ideas about human rights in The Law of Peoples. In that work, Rawls argues, for instance, that Among the human rights are the right to life (to the means of subsistence and security); to liberty (to freedom from slavery, serfdom, and forced occupation, and to a sufficient measure of liberty of conscience to ensure freedom of religion and thought); to property (personal property); and to formal equality as expressed by the rules of natural justice (that is, that similar cases be treated similarly).19 Rawls continues, furthermore, to argue that human rights “express a special class of urgent rights.”20 Here we see Rawls offering his explicit claim that problems which involve human rights are therefore significantly urgent. So, in a country in which violations of human rights are ongoing, smaller conflicts over more minor matters ought not dominate public policy agendas for politicians. When they do and when human rights violations are allowed to persist, Rawls argues, the government in question is illegitimate. It is for reasons such as these that some people believe humanitarian intervention can be justified, even though it can often require military force to achieve. My point here is not to defend Rawls’s argument, but to show how at

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least one Kantian point of view can contribute to public policy prioritization. It is reasonable, when grave violations of human rights are not occurring in a country, to argue that minor matters regarding contentious claims about rights are less important than many other matters. For instance, in times of high unemployment, focus on the past, on the redress of grievances, can be far less important to many people than things like the forward thinking necessary to attract industry to locations suffering from underemployment. Some deontologists may be able to speak to the idea that leaders could be said to have duties to pursue the attraction of employment options for citizens, but even the famous Kantian philosopher John Rawls proposed a different way of thinking about future-focused activity—in particular, utilitarianism. The utilitarian outlook on policy prioritization would be one focused especially on two elements. The first is calculation. The second is on future outcomes. In the second element, we see the traditional difference between deontological and utilitarian ethical frameworks. In “Two Concepts of Rules,” Rawls explained that we can think of the work of judges as backward looking, as deontological, and the work of legislators as forward looking, as utilitarian.21 The utilitarian outlook would not focus on principles of equity and logical exactitude, but on the actual outcomes that would be brought about by actions, priorities, or decisions. Would many more people be much better off, and in a way that seems to please more people? If so, then surely that decision is the best one, a utilitarian might argue. The common challenge to the utilitarian concerns the basic rights of citizens. Rawls’s reaction to this issue is to combine the values of utilitarianism and deontology. The way he approaches the principles of justice in his famous works is based on establishing a framework that protects people from egregious problems, safeguarding basic rights and liberties, while at the same time advocating for maximized utility so long as it is consistent with such protections. Though I have had my reasons to critique Rawls,22 his initial efforts to draw value from several moral systems are surely a step in the direction I would advocate.

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Finally, the virtue ethicist focuses on an ideal, not a principle, nor a calculation. He or she would emphasize the avoidance of excesses and deficiencies, and would consider vision to be of central importance in public policy. Such a thinker might argue that policies should be chosen and focused upon when they regard problems for society that involve the greatest excess or deficiency, according to the golden mean. But this would only be one element of the virtue ethicist’s outlook. For a society is not only composed of those who need a great deal of help. There are virtues that a wealthy person can exhibit that a poor person cannot, according to Aristotle, such as magnanimity. Similarly, a society is composed of poorer and wealthier persons, as well as of persons of greater and lesser skills and capabilities. Thus, the most virtuous society must be one that does not focus only on one segment of society, but on the virtues of many. Here we see the virtue ethicist’s affinity for vision in policy prioritization. The best musicians, according to Aristotle, should be given the best flutes. We can see some agreement in other philosophical outlooks, but for different reasons, with this last element of policy prioritization that I have mentioned. For, according to John Stuart Mill, society is better off when we allow geniuses to flourish. So even if he might think that a policy appears to call in its calculation for limitations on liberty, we must always temper our considerations of the results in question. In On Liberty, he argues that “Persons of genius, it is true, are, and are always likely to be, a small minority; but in order to have them, it is necessary to preserve the soil in which they grow. Genius can only breathe freely in an atmosphere of freedom.”23 What we see in this passage is Mill’s attention to the importance of liberty in balancing the needs for society to seek overall social benefit. The hard rules and customs we impose for reasons of mutual benefit need to be flexible enough to allow geniuses not to be forced into positions of mediocrity. In fact, Mill believes that even the utilitarianism he advocates elsewhere needs to be tempered. My reading of this passage sees Mill here as recognizing the incredible importance of virtues and excellence in pushing the envelope in the development of new customs from which society on the whole can then benefit. Thus, in Mill we see combinations of utilitarianism, libertarianism, and virtue ethics. Kant, Rawls, and I would simply add to this equation the importance

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of also protecting individuals from rule breaking that can be devastating and grossly inhumane. The portion that virtue ethics offers especially involves the idea of a vision of excellence for a society. Fairness and equality of consideration for people are very important, especially concerning basic rights and liberties, to be sure, but as Mill has argued, we must be careful to leave room in our efforts for the opportunities for bright and driven persons to make a great difference for the benefit of all. Thus, prioritizations in policy should be devised to address not only crises and past themes for a society, but also those goals and outcomes of intelligent planning and cooperation for excellence and the common good. What we see in these combinations is an important lesson for experimentalism. When scientists try to explain an anomaly, they look to the various assumptions and explicit beliefs they hold. They sometimes must reframe their understanding of a situation, but at other times they simply come to find that the way they have prioritized the elements of the anomaly lead to a problematic understanding that could have been avoided or resolved with another ordering or prioritization. Also, when we apply some well-established principles in testing out our ideas, the fact that our results are imperfect is not cause to abandon lessons learned from initial tests. Consider that in research on diabetes, some advocate for the suppression of the immune system’s attack on foreign islets, required for transplantation solutions. Others call for protection of foreign islets with an approach that masks the foreign cells. To date, the best solution has been a combination of these methods.24 To say that one alone is the right principle to follow might simply be wrong. Similarly, in policy prioritization, we must combine the greatest insights of different, valuable principles for selecting the most important set of issues to address.

V. Variety in Public Policy Prioritization and Attention to the Near and Far Contrary to exclusive approaches to each of the three views I have mentioned above, I do not believe that any of them is sufficient,

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individually, for establishing the best public policy prioritization. In essence, I believe that we need all three of these outlooks, and more. In opposition to believing that there is some fundamental ordering of issues, I believe policy prioritization must be approached contextually and experimentally. The deontological outlook is right about fundamentals. If a society does not respect freedoms of expression and other basic rights, how can any richer contexts even be possible? The idea that basic conditions are necessary for a virtuous society does not mean, however, that those basic conditions of rights must thenceforth be the sole and central value for political consideration. To say otherwise would be akin to arguing that food is the central value of human animals simply because it is among the most basic necessities for the possibility of further, more complex functioning.25 To follow the analogy a bit further, then, excess focus on basic rights and liberties sacrifices progress in other areas in the way that too much focus on food prevents sufficient attention to other needs and can lead to the vice of gluttony. The fundamental balance that must be achieved in political prioritizations rests between the demands of the people for addressing problems and the vision of what could be achieved in a society that follows a common vision. In The Public and Its Problems, John Dewey writes that “The man who wears the shoe knows best that it pinches and where it pinches, even if the expert shoemaker is the best judge of how the trouble is to be remedied.”26 Here Dewey captures the central element that must be balanced. Citizens feel their problems most intimately. At the same time, they do not always know the particular policies that will resolve their concerns. Also, attention to current problems is often not enough, either, since larger looming problems can be on the horizon and need action in advance of their arrival. When all people agree that an action must be taken, there can still be great difference in outlook on how that action should be administered, funded, or overseen. Experts and leaders may have vision and special knowledge, but citizens are best acquainted with the pains of current problems, inevitably. So the delicate approach that I believe must be strived for is this: Public policy prioritization must rest on pursuing a shared vision while considering the pressing current and

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long-term problems the people face. At the same time, the basic rights and liberties of persons must always be protected, since they are the foundation upon which greater virtues and potential for happiness rest. A worry arises whenever we consider the power of citizens to express their discontents: poorer, or otherwise disadvantaged, persons have far less ability to command the attention of the public than those who are wealthier. Exceptions to this rule often include those who commit acts of violence for attention or those who share similar problems with so many that, as a group, these less economically advantaged people can nevertheless wield influence. To avoid the problems of underrepresentation and drastic measures to catch attention, policy priorities must attend to the less advantaged, as a matter of justice and as a measure of caution. At the same time, simply enacting the demands of the people could come into conflict either with the necessary constitutional protection of other citizens or with what would actually work to alleviate citizens’ problems. For twin reasons like these, leaders often organize committees for decision making or at least for counsel, from which insight can be drawn and considerations and input can be sought from a variety of persons to include both experts and relevantly affected citizens. We see such arrangements on ethics boards, when they are well organized and planned, such as in hospitals and in other organizations that require them.27 In sum, the variety to be considered among leaders of public policy is not only found in terms of moral frameworks adopted or religious views held dear. It is also to be found in economic differences, in differences in education, and between scientific and other forms of experts and the lay public.

VI. Contextualism and a Challenge for Vision in Democratic Societies The contextualism I defend is supported when we consider certain recent events. While there was great opposition to beginning a war with Iraq, there was little in the way of dissent for the actions the United States took in Afghanistan. Philosopher Tom Rockmore has

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pointed out that this may not be a proper distinction, since the attackers on September 11, 2001, who were trained in Afghanistan were not, on Rockmore’s account, representatives of the Afghan government or people in general.28 Nonetheless, the difference between the two wars that I would call attention to is the sense in which motivations to go to war were far more shared in the war in Afghanistan than in the Iraq war. The times bring to us certain exigencies around which public will coalesces, such as Hurricane Katrina, but in many cases we do not need to be in crisis mode of policy prioritization. We must not forget the greater goals that can be shared. An example of what I have in mind can be found in William James’s essay, “The Moral Equivalent of War,”29 in which James asks about the prospects of inspiring unified public action in the way that it is invigorated in times of war, but in times of peace to direct that unified concentration on the deep moral problems of the day. Nations can take as shared goals to let no child go hungry or to cure diseases that plague us. Vision has long been missing in America, and a crisis outlook has predominated for years. Although some examples of visionary leadership, as inspired by James, have been hotly criticized or have been found ineffective, the war metaphor has been taken up in a number of ways. Ronald Reagan advanced a “war on drugs.”30 President Johnson used a Jamesian approach to leadership when he called for waging a “war on poverty.”31 In other areas, the specific ideals that James advanced are cited time and time again in such places as descriptions of Americorps’ history. In fact, both William James and John Dewey are mentioned explicitly on the “National Service Timeline” page of Americorps’ Web site.32 Today, Americorps, inspired by James’s vision for public service as a moral equivalent to war, organizes 75,000 adults in focused service activities. Other similar initiatives have proven valuable and successful. The point here in the end is that surely some forms of common vision, of metaphorically waging war on injustices or other great problems, will be successful, and others unsuccessful. What differentiates the two may not be definable in advance in a set of specific necessary and sufficient conditions. Leaders in training, therefore, need to experiment with ideas like these, with ways of envisioning

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combined efforts in which fellow citizens can join in with their own efforts and talents. An interesting element of the war metaphor is that it makes use of two of my categories. On the one hand, it employs the visionary approach, which is a contemplative form of prioritization. On the other, it makes use of the language of immediacy, which the symbol of war evokes. A significant challenge for the visionary approach to policy prioritization, of course, is basic to democracy. I once heard an architect complain about the skyline of Philadelphia. He protested that there was no architectural authorship to the city’s skyline. He described terribly ugly buildings that had been erected adjacent to beautiful, historic ones. He took this to be an affront to the city. Upon hearing this complaint, I wondered whether this cacophonous skyline was simply the consequence of freedom. Cities can choose to establish certain rules that must be followed architecturally—consider Rainbow Row in Charleston, South Carolina33—but Philadelphia had not done it. While teaching courses on ethics in public policy to groups of highly motivated and intelligent students at the University of Mississippi, one student in particular asked whether in fact the idea of a common vision, which as I have said, I would caution leaders not to forget, is realistic.34 In effect, the question asks whether the great differences in ethics and values that we find in democratic societies might preclude the sort of broadly shared ideals that I am suggesting here. To this excellent challenge I offer the following considerations and clarifications. When I refer to “common” vision, it would be a misunderstanding to think I mean universally accepted values and goals. Philosophers know especially well that nearly any claim can be questioned and disputed, whether the justifications for doing so are good or poor. Descartes drew lessons, for instance, from the hyperbole of imagining that in fact we could doubt absolutely everything we believe.35 With the incredible possibilities that philosophy can imagine for disagreement, the idea of universal acceptance of a vision does sound impossible. Two responses to this are important. The first is that John Dewey usefully differentiated between what is universal and what is general.

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We can see the same idea adopted earlier in Jean-Jacques Rousseau’s The Social Contract.36 Rousseau did not speak of universal will for a reason, but he did invoke the idea of a general will. Dewey’s idea of what is general is less controversial than Rousseau’s. His idea comes from his book, Logic: The Theory of Inquiry. Dewey explained that he sees general statements as including both “generic” and “universals.”37 The point, for my purposes, is that there is a difference between terms like “common” and others like “universal.” If one imagines the only possibility for legitimate political action to hinge upon universal acceptance of a measure, several problems arise. The first of these is that some people have significant cognitive disabilities and thus cannot be consulted for their consent or agreement. In ethics, we are faced with the challenge of reconciling our moral ideals with the brute options available in real life. This last point is commonly summarized among philosophers in a short statement that I have already explained, albeit briefly: that “ought implies can.” In other words, a pragmatic and experimentalist point of view would include the idea that what a society ought to do in seeking consent of the people is to achieve a goal that could in fact be achieved. We can wish for ideals that are unachievable, to be sure, but the pragmatist and experimentalist would urge persons who do so not to give up on ethics when perfection is unachieved. In other words, among the problems with excessive idealism are two things. The first is a giving up on public cooperation, resulting in motivations either for extraordinarily violent action, such as in vigilante “justice,” or a development of apathy for the real world, which is taken to be a lost cause in the end. One side of the excessive idealist approach to ethics does greater harm than good, and the other prevents or slows the collaborative effort to bring real-world circumstances closer to an ideal. Thus, an experimentalist would be inclined to argue that what we ought to do is something that is possible. We can aspire to ideals, furthermore, so long as we see the results of such efforts as aiming to push the boundaries of what appears possible. This approach is a good thing when it is accompanied with a stoic acceptance of the limitations of achieving ideals in the real world. So, when a leader offers up a vision for the future, he or she can certainly use idealistic language, but to avoid disheartening his or

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her followers and fellow citizens, realistic steps to be achieved are important to offer. Among the most soaring speeches in American history is Martin Luther King Jr.’s “I Have a Dream” speech. In it, people best remember the language of nationalism that refers to the reasons people love America. He invokes the values and virtues of America’s founding documents and principles. He speaks of a future as a dream, but one which he hopes could be achieved in fact in a generation. It is, however, easy to forget that King presented a number of matters that were concrete and specific for reform. He argued that the problems for African-Americans of his day included the fact that they were in many places unable to find lodging in hotels and motels.38 He raised a handful of specific problems that many faced in a show of examples of particular matters that could realistically be changed. Each of these steps were to be thought of as steps on the road to a morally brighter future. King is frequently considered an exemplar of visionary leadership. The language of a dream invokes just the right ideas about having a vision. At the same time, more mundane examples are available as well. Consider, for example, that when the United States was afraid of the Soviet Union’s launching of Sputnik, a serious effort was consolidated to get human beings into outer space. The “space race,” in which Americans poured enormous effort and funds for less than obvious particular benefit39 exemplifies the idea of a common vision. Even more mundane a set of shared values can be found, however. Security as a value is quite commonly accepted. In one way, it motivated the space race against the Soviets. But even more subtle and clearly shared values are involved in the following of traffic laws. Consider that the selection of which side of the road one ought to drive on is quite arbitrary and varies from country to country. And, in some American states, there are areas in which left turns are essentially avoided with the help of a right-turn loop that results in the end in a left turn. My point here is that one could very easily feel as though there is no great reason behind the decision to have traffic flow in a particular way. That does not mean, however, that people tend to fight traffic systems. They may stray from perfect adherence to the rules, but by and large, people do not drive in the United States on the left-hand side of the road. The simple reason is that given the

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accepted practices, it would be very dangerous to do so. Most people generally accept the sacrifice not to drive in whatever way they wish in exchange for the benefit of greater safety on the roads. This set of shared values is not a matter of high aspirations, but of very simple, background practices. But these are the very same kinds of ideals that get shared in common. We build bold visions when we search for and find common ground in values that people have not yet recognized. Leaders bring people together on this basis. One last example is even more mundane than street traffic, but can surprise those who might disbelieve in shared values. I was in LaGuardia Airport in New York City quite recently and had to file into a long line. This line was so long that it went far beyond the watch of any kind of officials present. Stronger persons who did not care to wait as long as foolishly obedient persons like you and me could have cut ahead in line. In New York City, of all places, there is an especially great amount of diversity and differences of values and ideals. Nevertheless, the lines that formed everywhere I went moved in lockstep. If a person were to cut in line, a very simple violation of a norm of little importance in the big scheme of things, it is quite plausible to imagine great public scorn and chastisement. The value in big crowds, I gather, is the smooth flow of volumes of people through matters that must be completed for each. When one person or a group of people breaks the norms of the proper functioning of masses of people, even if they are masses of very different people, all suffer from the violation of norms, which slows things down for people and aggravates proper social functioning. So, the simple idea of forming a line in an effort to complete a sequence of security checks appeared to me to be a wonderful, albeit miniscule, example of shared values and vision. The problem was basically quite important to people who needed to get to their flights, but the solution was simple, the value of it high, and the following of its norms was generalized to the point of a universal, at least while I watched it. The lesson that such examples offer has to do with a pragmatic understanding of what cooperative action looks like. We perform it regularly. How we can envision even better organization of values and practices, however, and with regard to the larger, more pressing public problems

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we face, is the crucial question to be answered for realistic prioritizations of public policy considerations. It is a fascinating and challenging question to ask how we ought to pursue common vision in a democratic society. My purpose in this chapter has been to suggest that philosophers should concern themselves more with the broad subject of policy prioritization alongside their more common contributions to specific public policy matters. Philosophers can take a step back from individual issues and offer their thoughts about the political agenda that Americans ought to pursue. I hope at least to have offered a few ways of thinking about what philosophers might contribute to the broader concerns of public policy. At the same time, I hope to address leaders, since there is a crucial balance to strike between the contemplative and the immediate approaches to prioritizing problems to be addressed in public policy. There is, therefore, a mean between extremes that must be targeted. When crises emerge, we must not ignore them in pursuit of distant idealized ends, yet we must also not abandon great ideas for intelligent social progress in treating deferrable problems as urgent. In developing the skills necessary to achieve this balance, experimentalists must take into consideration a variety of motivations for prioritization, as I have listed them, and must also continually learn from their earlier trials. The experimentalist attitude calls for patience with oneself as a leader, for otherwise we might give up before we should.

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Part Three

New Technologies and Experiments in Judging

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Chapter 7

“Stop him! He stole my internet connection!”: On the Historical Origins of Moral Concepts

I. Introduction Given the theory of experimentalism in ethics that I have laid out in the previous chapters, it is important to offer examples that highlight the experimental nature of moral developments. Among the most vivid examples we have are those conflicts which arise when new possibilities for interaction emerge. This is to say that technology often brings with it moral development. Consider the effects on the world and on individuals’ abilities to think and learn for themselves that came about with the invention of the printing press. Developments like these enable new forms of responsibility, political action, and moral conflicts. In this chapter, I will look specifically at just one element of renewed attention to an old idea, property, to show how a newly formed thing, broadband internet connectivity through wireless networks, can be owned and stolen, depending on how we think about it. It is important to see the issue of developing moral contexts in their broader history, so first a word is in order about one prominent way of disputing my view about experimentalism, which comes from the social contract tradition. That tradition had its critics, whom I will enlist in my argument for experimentalism, to show the historical origins of political and moral concepts. With roots that stretch as far back as the eleventh century monk Manegold of Lautenbach, the social contract tradition still holds a dominating influence on Western political thought today.1 The goal of social contract theory is, generally speaking, the justification of

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state authority. In the process of seeking this justification, philosophers fashion concepts that they use as justificatory tools, and that they sometimes come to assume as preexistent prior to their philosophizing—a problem so common that John Dewey gave it a name: the philosophical fallacy.2 Three critics of social contract theory have long opposed this approach to political justification, both for imagining an “original contract,” as well as for believing that ethical ideas preexist our thought about them. In this chapter, I will examine a paradigmatic example of an ethical conflict that arises, is formulated, and is refined in a historical context that itself brings related concepts into being. The notion of seeking an absolute or a priori version of these concepts, such as property or autonomy, is misleading, according to the experimentalist outlook, which claims that ideas arise for purposes in order to solve problems. They do so historically, in a way that demands their reformulation on many occasions. David Hume, Georg Hegel, and John Dewey will be the primary critics of social contract theory whom I will discuss and whom contemporary contractarians have largely ignored. In what follows, I will begin with a description of a recent conflict regarding wireless internet access and bandwidth as property, which exemplifies the historical and plastic qualities of ethical concepts. Then, I will examine critics’ views on social contract theory to show how and why the experimentalist would consider and drive policy according to the contextual nature of the development of moral concepts.

II. Much Ado about Wireless Internet Imagine you are a college student in London, sipping a cup of tea at a quaint shop. You’ve got to head to class in 10 minutes, but you remember that you said you would email your American parents before too late about setting up a time to call. Out comes your laptop. Unbeknownst to you, the store in which you’re drinking your tea provides no internet service. You turn on your laptop for a quick peak, and you’re in luck! There is a wireless access point somewhere nearby, and it is not secured, not password protected, open for use. You connect, hop on Webmail, and email your parents.

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According to Helen Nugent and Michael Sims of the (London) Times, you have just committed a crime. In their article from November 15, 2007, “Hidden Crime of ‘Wi-Fi’ Tapping: Only 11 Arrests but Most of Us Are Guilty,” “more than half of computer users have illegally logged on to someone else’s wi-fi connection yet only 11 people have been arrested for the crime,” however.3 According to the authors, the action in question violates the United Kingdom’s Communications Act of 2003 and the Computer Misuse Act of 1990. I have committed such an act myself, though not in the United Kingdom. I must admit having some difficulty seeing the harm done at first glance, or even with extensive glances at occasional instances of such actions. There is something quite different between a minor use of access to the internet for a small exchange of information and a large use of bandwidth that could cause significantly slower access for the purchaser of the bandwidth. In short, when we phrase the issue as libertarians often do, in terms of whether or not harms have been done, different scenarios are imaginable in which harms are done, and others in which no harm is done. For instance, using someone’s internet connectivity in off hours when no activity is needed could be seen as causing no harm. The trouble, of course, is that we as end users do not know when or whether the owner of a network is using it or needs it to be at optimal performance in off-peak hours, such as when one is backing up information to remote servers overnight. When we devise our ways of thinking about new standards regarding internet access, each of these elements can be considered and examined experimentally. A 2006 example from the New York Times shows how severe the problem can become. The article, “Hey Neighbor, Stop Piggybacking on my Wireless,” tells the story of Christine and Randy Brodeur, whose internet connection, which was at first very fast, “had become as slow as rush-hour traffic on the 405 freeway.”4 The same article cites the offenders, who claim that they “don’t see it as stealing.” There are many situations in which offenders say that their actions are common practice. For instance, when one sees a water fountain on private property, there are many people who would assume that the water fountain is fair to use for the public. When laws make this true, it becomes obvious why one would make such assumptions, but

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consider other examples. There are often small dishes near a cash register in which customers see pennies. The sometimes written and sometimes tacit idea involved is that if you have an extra penny, you can feel free to leave it there so that the next person who ends up just a penny or two short can draw from that dish to make up the final difference between the cost of items and the money he or she has. There are practices that make this quite common. There are also good justifications for it. After all, accounting practices are important and depend on carefully balancing the intake and outputs of a cash register, which involves manual activity. Manual activity often includes errors, even among careful and diligent workers. Also, a store owner can want to make his or her sale whether or not a penny or two is missing in the purchaser’s purse. From the view of the customer, it is a nuisance to be very close to having the right amount, but not quite having it. A person who has experienced this might sympathize and may have benefited from occasional use of the “leave a penny/take a penny” dish. Therefore, in good faith, he or she might leave a penny now that he or she has a spare, in order to feel better about the rare occasion of needing to take one later. What this simple example shows is a case in which actual, valued currency is treated as a shared resource that can be used or contributed voluntarily by people in ordinary everyday activities. The idea of taking a penny on a rare occasion is perfectly common in the United States. Other resources are commonly shared in this way. Consider entering a bank in which there are slips of paper, scotch tape, pens, and paper clips laid out on a table that appears to be there for customer use. The fact that they are not hidden behind a desk or at an individual’s desk can be taken to imply that they are there for customer use and convenience. To accuse a person of stealing a paper clip in such an environment would be quite odd, though, of course, there are norms of customer relations going on in this case. My point here so far is simply that there are instances in which norms correspond with the idea that publicly available resources are clearly not stolen when used. A better final example, which does not involve the customer relationship, concerns summertime in hot places. Water supplies, such as private water hoses, are sometimes treated as open for limited public use.5 The norms associated with public needs,

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including access to information, have gone in various directions, depending on public understanding and the problems that are associated with different kinds of use. The fact remains, however, that neighbors who have a large effect on people’s ability to access the internet through their own paid service are quite different from occasional users of an internet connection to check an email account. Furthermore, those who wish to keep neighbors out have a variety of methods for doing so, including password protection. So, in such cases, policy might be driven according to the needs of these varying degrees of use or abuse. The New York Times article goes on to present another side of story, in particular about Elaine Ball. Ball is an internet subscriber from Chicago who says she is “sticking it to the man,” whom, she believes, charges too much for her internet connection. “I open up my network, leave it wide open for anyone to jump on,” she told the New York Times. Unless her contract specifically says that she is not allowed to do this, it would appear that Ball has every right to share her resource. In a sense, this is akin to allowing a passerby to drink some of your water on a hot summer day. One difference between her case and the case of a water supply that is shared, however, is that when a person pays per amount of the thing consumed, he or she is more clearly affected by the sharing of the resource. Broadband internet is something that has limits of deliverability, but in the end, one is often charged a flat fee for the potential to use up to that maximum amount of data transfer over a specified time period. Also, wireless internet routers are commonly sold with a default setting that leaves access to login open, not requiring a password. In short, the norms that we decide on for determining ownership, for delineating property, and for establishing standard technological settings (what default settings we choose) on devices sold with regard to that resource can be driven more specifically by such considerations. Thus, we see here a great example of the development of ideas of property and theft, which must be considered given a complex array of circumstances, problems, and experiments in ethics. There is an even more powerful way for people with an internet connection to protect their wireless routers, and it is something that we could demand companies to set as a standard on wireless devices,

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such as wireless routers. Each unit typically broadcasts an “SSID,” a server set identifier. Think of this as the name of the router. If a person does not know the name of the router, he or she may know that there is a router available, but will not know how to communicate with it, given that he or she does not know its name. We could set routers not to broadcast their SSIDs as a default, so that when a person wants to log in to the network, that person must be given the SSID, a login name, and a password.6 This would require, therefore, a number of levels of protection by default. Considering the variety of ways in which a router can be protected, at least from people who are not highly sophisticated hackers, an open connection looks inviting to people, much in the way that bank pens and paper clips look free to use. Plus, unlike pens that run out when taken, the resource moments after one logs off is every bit as available as it was before. Which default settings we choose for products carries with it implications for what will seem natural to expect in terms of people’s behavior regarding it. With circumstances so varied, it is difficult to foresee the harm that would come from logging on to an internet access point for a brief stint on the Web. In the case of the large house of students who each download masses of MP3s and video files, rendering a neighbor’s internet connection extremely slow without the owner’s knowledge or approval, the circumstance becomes more clearly problematic. I think that critics of those who log on to others’ networks would argue in part on the basis of consent. My body and my things are not your resource. When you do something to them, I want you to get my consent first. This is a common view about the rights of persons to protect their property. Now, many things can be said of the issue of ownership, property, harm, interests, and so on. In the development of the conflicts that are growing, however, we have no reason to believe there is a premade answer to whether or not the action in question is acceptable. The challenge we face is to determine what we want to say about the new problematic situations that arise. In a 2006 article from the International Herald Tribune, titled “Hop on my Bandwidth,” Tim B. Lee tells us that

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News reports tend to paint the practice as a growing problem. Reporters use words like “stealing,” “hacking,” and “intrusion.” But despite the alarmist talk, the articles rarely explain what the problem is. Maybe that is because in many cases there is none. To the contrary, the increasing ubiquity of free wireless Internet access is something to celebrate.7 Indeed, some people think that we must not jump the gun to assume that all, or even many, instances of “piggybacking” are problematic. My hope in this chapter is to make clear that the instances we want to guard against, for which we ought to develop policies proactively proscribing illicit uses of internet connections, are those which come about due to clear, contextualized conflicts. This is not to say that one cannot look ahead to anticipate future problems. We do that all the time. We have ways of blocking innocent “piggy-backers”—with password protection as one of the simplest. The point, however, is that either problems or the potential for them are what inspire us to draft policy aiming to steer clear of them. While there are ways to “hack” into internet connections with significant computer talents, the open wireless internet connection is something that may be open on purpose, as in Ms. Ball’s case. Thus, all we can say for sure is that it would be prudent to assume wireless internet connections are not intended to be public. The gain people could believe there to be from quickly using an internet connection might be thought to outweigh the very small potential harm involved, the small likelihood of being caught, and the perception that the relevant punishment would be either insignificant or unimaginable. These are also all features of motivations to violate speed limits by a small margin. How we ought to think of our process for setting policy, furthermore, should be considered historically, as fulfilling purposes, and as an example of the situatedness of the development of moral concepts and principles. What fascinates me about this problem is not the idea that we lack tools for addressing the moral dimensions of the conflicts that arise in relation to a new technology. Rather, there is something exciting and complex about how we will design future policy in reference to

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the novel use of new tools. Often, we forgive people in initial forms of conflict, given that no policy was in place to protect against certain harms. Thus, when a policy is created, we get what we call “grandfather” clauses. The very idea of grandfather clauses suggests the notion that chosen policies and practices are unreasonable to apply with regard to persons who acted prior to them. The reasons we give for our policies might be ones that we expect people to follow in the future, but we allow for the fact that retroactive policies are often problematic. We need people to be entrepreneurs, developing new ideas and new technologies in ways that enhance the potential of people to seek happiness. In this sense, we need experimentalism and to avoid the idea that what is right is determined in advance of trial and error. On this subject, my prime example of a contrasting philosophy is found in SCT. SCT is the dominant tradition that for a long time took center stage in politics. This tradition held that we could imagine a world before civilized society and determine what people would accept in order to have a stable, safe community. The lessons learned from this process were said to demonstrate what principles are right in advance of experience. I see the example of new technologies, such as broadband internet, as a central test for ideas of the social contract. For, how can we know in advance of the development of tools and practices how we ought to think about the moral possibilities for free action and association? In the next section, I will look at the tradition of social contract theory and its critics to show how in the history of philosophy there were proponents and challengers to the idea that concepts are developed historically and need to be seen as tools for addressing problems of the day. It is important to keep in mind examples like the ones I have discussed so far in this chapter in evaluating the difference between SCT and experimentalism.

III. Hume, Hegel, and Dewey on SCT and the Origins of Political Concepts In the philosophical tradition, SCT held that we could determine the right principles and understandings of fairness and moral deliberation in advance of conflict. SCT is generally a process of deducing principles

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from imagined circumstances. In the case of internet bandwidth theft, one could imagine a variety of forms of agreement about how people can proceed, but until we know the costs and benefits of different strategies for action, how can our deliberations be conclusive? This question suggests the idea that a variety of ways of thinking might perhaps be tried to see their effects. The former way of thinking is called rationalist and the latter is empiricist. Empirical approaches take experience and history to be essential. Experimentalism is, therefore, decidedly empirical in approach, in contrast with SCT. A central tenet of experimentalism is the belief that political and moral concepts arise because of conflicts. This idea was also an important reason why some philosophers, such as David Hume, believed that social contract theory (SCT) is problematic. In this section, I will explain Hume’s idea in relation to the development of problems like the wireless internet issue I have discussed in this chapter so far. In his essay, “From Hume to Hegel: The Case of the Social Contract,” Christopher Berry analyzes Hume’s and Hegel’s critiques of SCT. He explains that although “both Hume and Hegel reject contractarianism,8 there is a profound gulf between their arguments.”9 In their own ways, Hume and Hegel accept elements that were taken up in the social contract tradition. Berry explains, Hume, while rejecting the idea of an original social contract, nevertheless says originally, submission must be understood as a form of contract or voluntary consent and that when it occurs it is the “best” foundation. When Hegel mentions the origins of a state he locates it in “imperious lordship on the one hand, instinctive submission on the other. But even obedience . . . in itself implies some degree of voluntary consent.” . . . Hence, in obedience it is not the isolated individual wills that prevail, but the “general will” the concrete cultural complex.10 Hume’s critique of social contract theory was focused primarily on the historical understanding of consent, although not only.11 According to Berry, Hume’s argument is two-pronged: historical and philosophical. Historically, he rejects the idea of the social contract as the source of government because

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it just does not bear up under scrutiny—“first rudiments of government . . . arise from quarrels”—and the history of all societies testifies to the role of force and usurpation.12 While Hume’s critique begins with a historical emphasis, a deeper philosophical concern is worth noting. Hume recognizes the importance of conflict, of problems, at the origin of intelligent social action. This point foreshadows Deweyan concerns regarding SCT and the experimentalism I defend in this book. It is simple to dismiss Humean critiques that are based on historical consent, insofar as there are social contract theorists who have abandoned the approach, such as Rawls in A Theory of Justice.13 The challenge to SCT regarding the origins of contracts as arising from conflict, however, still carries weight. Properly understood, Hume’s historical critique is not without merit. A historical critique of SCT need not only focus on historical consent. It can also challenge the relevance of a hypothesized consent to real, historical circumstances. If one were to say that the conflict in the Middle East could be averted if we were simply to conceive of society there as it would be agreed upon if there had been a social contract, we encounter difficulties. Whether or not one agrees to the beauty of the thought experiment, how that affects the lives of people who have been in conflict for a long time is still unclear. Are people simply to forget their fallen brothers and sisters because of what an outsider suggests would be decided upon by people in ideal circumstances? Hume’s point about the origins of society is not simply a challenge to the idea that a social contract occurred. We can interpret his challenge as especially strong if we demand of SCT an account of the relevance of hypothetical consent to real-life situations. This is an element of the argument I present in my first book, Rawls, Dewey, and Constructivism.14 Hegel presented worries about the social contract tradition as well. Berry writes, “Hegel believes that this concept [the social contract] has cogency only if it separates the individual from the State thus making membership of the State optional, a matter of voluntary choice.”15 Those who would not wish to participate in Rawls’s deliberation in the original position lack the freedom to opt out. Kant was

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right that there are those who are unwilling to let reasoned deliberation decide their political institutions, or who believe that law should be enforced for others, but not for themselves. He writes that The problem of organizing a state, however hard it may seem, can be solved even for a race of devils, if only they are intelligent. The problem is this: “Given a multitude of rational beings requiring universal laws for their preservation, but each of whom is secretly inclined to exempt himself from them, to establish a constitution in such a way that, although their private intentions conflict, they check each other, with the result that their public conduct is the same as if they had no such intentions.16 Hegel’s challenge is strengthened by Kant’s point. Do people have the option not to accept the State? If they do not, then it appears they are not entirely free to contract with one another. Their hands are forced. Whereas, if the opposite case is made, we must explain in what sense persons are not obliged to partake in the society which reared them. Hegel’s further claim arises correspondingly, then, that “it is only as one of [the State’s] members that the individual himself [or herself] has objectivity, genuine individuality and an ethical life.”17 There are two aspects of Hegel’s critique here that must be distinguished. One has to do with the idea of voluntariness in entering into contracts, and the other has to do with the problem of abstracting out one’s identity, as if only a part of it makes sense on its own. As in Hegel’s point about there not being freedom to opt out of society, there are instances in which internet activities are not voluntary. The issue is that some devices are designed to find open networks and can be set, such as by default, to log on to them. If that is the case, then it can occur that a person might unknowingly log on to someone else’s unsecured network. Thus, voluntariness, as a component of interaction that can bring with it responsibility and punishment, needs to be taken into account in drafting policy. For this sort of reason, it could be made illegal to have computers log on to networks automatically, though at the moment this is not the practice. In Hegel’s point about identity, we see that practices and habits are hard to parse out. When people are accustomed in shops and restaurants

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to being offered wireless internet access for free, they can come to identify an unsecured network as one that welcomes access. This may not be the best development, which we will find out over time, but is a factor to consider in planning relevant policy moving forward. There are four principal problems that Dewey sees with SCT. Laying out Dewey’s general criticisms of SCT, philosopher Hilary Putnam notes that “Certainly, Dewey (or James, or Mead, or any other of the classical pragmatists) would not wish to challenge the idea that a legitimate state must have the consent of those whom it governs.”18 The first great mistake of SCT, however, is that “it derived sociability as well as morality from an idealized image of the law of contracts, from property law. And Dewey, like Hegel, thinks that this is ridiculous.”19 One might be inclined to say that Rawls is concerned with rights, not property, in contrast to Hobbes, Locke, and Rousseau. But Rawls focuses a great deal of his attention on property. The very ideas of the least advantaged and most favored in society are founded on the notion of wealth and poverty, thus are fundamentally connected with the notion of property.20 While these are very important political concerns, Dewey would challenge the idea that people’s consent can be derived from conceptions of property as a starting point. Property is a social phenomenon developed through interaction and valuations in the first place. The notion of property as a starting point for SCT is troubling for Dewey, since he argued extensively for focusing philosophy, as Larry Hickman explains, “where human beings find themselves—in media res.”21 The ability to address specific problems is not the beginning of inquiry, but a result of it. We cannot assume that political or moral problems are simply “out there” fully formed for the picking. They are the products of inquiry, the point I aimed to make in Chapter 5 on framing and construction. If this is not the case, problems are only based on ideology or on potentially misleading assumptions. This trouble, of starting political theory from abstraction, is the second problem Dewey saw in SCT. Hickman summarizes Dewey’s challenge: Dewey rejected the social-contract theory in all its numerous manifestations. It was his view that social-contract theories neither

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provide what they have historically claimed to, that is, causal explanations, nor do they do any useful work when regarded, as they now most often are, as a hypothetical “limit.” Observation led him to conclude that the search for “state-forming forces” uniformly leads to myths that are at best unhelpful and at worst misleading.22 Hickman continues, “The highly abstract reconstruction of the socialcontract theory advanced by John Rawls, for example, reveals the same fault lines that Dewey thought weakened the social-contract theories of Locke and Rousseau.”23 Among these are the third and fourth problems of SCT that we can see as Dewey’s challenges. The third problem has to do with will. On the one hand, Hickman explains that “Dewey’s critique . . . sought to avoid the absolutism present in many versions of Marxism, as well as the atomism present in most political theories in the West.”24 Rawls walks a fine line between the two of these alternatives, one that is far more formalistic than what Dewey sought. After all, Rawls avoids Rousseau’s absolute “general will,” for Rawls refers political legitimacy to the decisions of citizens in idealized deliberation. At the same time, Rawls attempts to avoid atomism of wills by the very same move. The deciding factor for Rawls’s theorizing about justice and the limits of political legitimacy, however, are delineated through an analysis of what persons would have to agree to as the reasonable principles to be selected in the original position. Jean Hampton, a commentator on Rawls, claims that “there is not theoretical reason to posit more than one party in the original position,” which if right presents a worrisome outcome for democratic societies in which plurality of outlooks and views is a central value and concern.25 Samuel Freeman contests this interpretation of Rawls.26 Nonetheless, Rawls struggled with tensions from absolutism and atomism. For, even if we follow commentators like Freeman, who claim that Rawls’s notion of agreement in the original position is of great importance, Rawls nevertheless conceives of persons as isolated individuals in rational deliberation, who are not allowed to know their place in society when they deliberate. In effect, Rawls tries to preserve a social element in the original position while undercutting its very possibility, trying to dice persons into parts, when

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they are organic, related wholes. The bigger problem at issue here is what Amartya Sen has recognized in his recent book, The Idea of Justice.27 His point is that Rawls does not start with problems as the first step of inquiry. He starts with questions that are fascinating and that can be related to problems that people face, but the contexts in which problems arise are not best put aside. They are the reasons why conflicts emerge and why we need solutions that philosophy can provide. Dewey’s concern about absolutism and atomism is closely related to the fourth challenge I wish to mention. Individualism has long been a cornerstone of liberalism. Dewey believed it to be a problematic notion, however, in its common use. At the close of Individualism, Old and New, Dewey summarizes his worry about abstractions of individualism. He writes, The future is always unpredictable. Ideals, including that of a new and effective individuality, must themselves be framed out of the possibilities of existing conditions, even if these be the conditions that constitute a corporate and industrial age . . . We may, in order to have continuity of direction, plan a program of action in anticipation of occasions as they emerge. But a program of ends and ideals if kept apart from sensitive and flexible method becomes an encumbrance. For its hard and rigid character assumes a fixed world and a static individual; and neither of these things exists. It implies that we can prophesy the future—an attempt which terminates, as someone has said, in prophesying the past or in its reduplication.28 Dewey admonishes excessive faith in static individualism. This is a large part of his criticism of deontological philosophies, such as the one Rawls offers. Even in Political Liberalism, in which Rawls deals with the experienced fact of “reasonable pluralism,” he aims again to split up personhood into parts. He puts aside ethical and religious considerations (of comprehensive natures), in order to derive the principles of a legitimate society from only political matters. The problem we face so often, however, is about how we might resolve conflicts

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between people who hold firmly to hardened doctrines and encumbrances. To separate these features out from the realm of the political, therefore, is misguided. Hickman clarifies Dewey’s concern: An individual may be divided within him- or herself in terms of conflicting memberships, roles, and obligations. But to take these facts as grounds for hypostatizing “the individual” and “the social” as fundamentally opposed entities is to create what Dewey calls an unreal problem.29 When we view Dewey’s critiques as a whole, we see the program he advances and the difficulties that have not yet been taken seriously for hardened beliefs about the nature of principles. Dewey, Hegel, and Hume each contribute to the idea that problems and historical context are important as starting points of inquiry into what can be done in the political realm. These theories recognize and match the complexity of issues like broadband internet access and the developing contexts and conflicts that call for experimental efforts, testing, and fallibilist argumentation.

IV. Conclusion In this chapter, I have offered a new example of the development of moral concepts, which arise historically given conflicts and needs. When philosophers theorize about abstract political and moral problems, they must at least keep in mind current political needs for their theories, or else risk irrelevance. Surely eloquent political philosophy can inspire people, but it is successful in this only when the time is right and when there is serious need for it. I cannot know all the details about the future of wireless internet practices and problems. At the same time, experimentalism as a theory is one that is comfortable with the fact that these issues will need to be resolved over time, after many experiments and intelligent discussion. We can design intelligent practices and default standards, such as are involved in setting up wireless routers to use a unique password by default. There may be nothing inherent in some choices

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that makes them always best, but the practices we do choose ought to maximize the potential for human growth and flourishing, in senses that we have available today and in senses that we will develop in the future. I hope in the end that this chapter has offered a clear example of how we can understand some conflicts and concepts as developing as we address the new moral problems that arise day by day.

Chapter 8

Activist or Active Judges

I. Introduction In Chapter 4, I presented John Rawls’s effort to show how two apparently conflicting moral theories can work together. Rawls saw legislators as people who should think with the future in mind. That means that they should focus on the consequences of their decisions, following a consequentialist moral theory. By contrast, judges should not decide a case based on how people would feel about it, he argued, because then we would have a court system that is inconsistent and unfair. What we should want, Rawls argued, is retributivism in courts, judgment on the basis of what people deserve, not on what would bring about happy consequences. Chapter 7 focused on forward thinking, required for addressing new technologies. New technologies, therefore, can be addressed with consequentialist legislation or standardization. It is reasonable to wonder whether experimentalism fits on the judicial side of policy. In this chapter, therefore, I will present some ways of thinking about judicial systems which call into question the neat and simple distinction that Rawls made between forward looking legislators and backward looking judges. After all, judges recognize that their decisions bear implications for future cases, especially at the level of the Supreme Court. So, while judges should make their decisions about the merits of a case, how they draft court opinions can be seen as part of an experiment. Also, court systems themselves are part of a feedback mechanism for deliberation about law and its interpretation. Judges must in this sense be active on several levels of the experimentalist picture of ethics in public policy. Plus, they can be active in this way while holding to pragmatic, experimentalist values in

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judging, avoiding rigid moral judgments made in advance of hearing their cases. Recall that judges must choose which cases to hear, given limited time and excess demand for their judgment. I first raised this point in Chapter 6. How judges make such choices can be a matter of experiment and refinement. Also, it is worth noting that the U.S. Constitution is commonly referred to as a living document. Some, such as Gary L. McDowell, argue against seeing the Constitution in this way, but in doing so, they acknowledge at least that this view is common.1 I will respond to such critics and defend the active side of judging, contrasting this with activism. At the same time, for my purposes it is important to note that an experimentalist and pragmatist in moral theory can side with McDowell in advocating for judicial restraint. We have an excellent example of this in Oliver Wendell Holmes, Jr.2 Holmes is known for seeing the ideal place for experimentation as the legislature. In this respect he maintained a great deal of deference to the legislature, embodying judicial restraint even while he also exemplified Pragmatism and experimentalist views. Frederick R. Kellogg has written on Holmes, explaining that while he advocated judicial restraint, “For Holmes the problem lay in misreading the contemporary import of legal terms that had been passed down through generations, carrying moral nuances that were no longer—if they ever truly had been—in effect.”3 Here we see elements of experimentalism in Holmes’s ideas. For experimentalists and Holmes, moral norms can become outdated. Activity as a judge is not the same thing as activism, two terms which I will distinguish in this chapter. The central point I hope to make here is not about judicial restraint and its opposite, since one can appreciate and embody experimentalist views while advocating judicial restraint, as Holmes demonstrated. I hope to show that leaders in the realm of judicial policy, such as judges, are also good examples of the need for experimentalism in ethics. On the issue of activism, consider a judge who makes no real effort to tie his or her judgments to law. This would bring in a form of arbitrariness and activism that is quite different from what I mean by activity. Activity, by contrast, may involve being clear about judges’ reasons to select a docket in this way

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versus that. It can also be seen in the ways judges, conservative or liberal, often have to be active in interpreting the implicit values and meanings underlying law. I will start in section II by explaining in greater detail the difference I see between activity in judging and activism. Accusations of activism have come from both sides of the political aisle. There is a core problem. If critics argue against having judges who make decisions on the basis of political bias, they do not avoid the problem by calling for judges who represent their own political views instead. In other words, to call for “balance” in the courts is itself inherently a form of activism. It is a call to have judges decide cases on the basis of political inclinations, just of a sort that is in the critics’ views insufficiently balanced on the court at present. Thus the charge of activism in the courts, if not clearly demonstrated, can commit the very mistake it criticizes. I will expand on the idea of activity in judging, since we sometimes need judges to push boundaries, to identify the moral implications and assumptions of statements in the Constitution, in order to do what is right. Such ideas are consistent, however, with the belief that in general the legislative branch ought to remain the central space for planning and debating the country’s experiments in law for the future. In Section III, I discuss underdetermination as an inherent quality of law, which reveals the need both for the power to amend the Constitution as well as the sense in which laws and judgments are always experiments, even if they are not always treated as such. Finally, in section IV I will close the chapter with one last return to Rawls’s “Two Concepts of Rules.” Rawls’s distinctions are helpful for making certain points about ethics. At the same time, his use of judges as backward-looking paints too narrow a picture of the roles of these vital moral leaders in public policy.

II. Judges and Accusations of Activism Today, a popular criticism of judges describes some of them as activists. In a piece from the Washington Post in October of 2010, reporter David Garrow announces the release of a book about “The Original Activist Judge,” William J. Brennan Jr.4 Garrow explains that

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Brennan had long believed that “the Constitution is not a static document whose meaning on every detail is fixed for all time by the life experience of the Framers,” and the Reagan administration’s mid-1980s attacks on “judicial activism” gave him prominent opportunities to respond. The “facile historicism” championed by conservatives was really “little more than arrogance cloaked in humility,” he declared in 1985, saying that “the genius of the Constitution” lay in “the adaptability of its great principles to cope with current problems.”5 While it is not my goal here to advocate for Brennan’s outlook on the Constitution, he certainly sees it as open to the norms of experimentation for addressing new problems. It is worth noting that the language of “legislating from the bench” is not used exclusively in criticism of the more liberal judges. As Catherine Cook points out in her 2009 article “Legislating from the Bench,” both Democrats and Republicans have accused judges of overstepping their boundaries in the past. As [professor of Constitutional law at the University of Virginia Dick] Howard explained, “In the 1930s, during the New Deal, it was liberals complaining that the courts were making social and economic judgments that the legislature should make.” Later, conservatives took up the cry as the infamously liberal Warren Court took on similar political activism; it is this court that is remembered by conservatives and from whom many of the negative connotations of “legislating from the bench” are derived. More recently, it was the conservative Rehnquist court that, according to Howard, “struck down acts of Congress at a greater rate than did the more liberal Warren Court.” Liberals are consequently not the only judges who have a habit of correcting the law.6 Clearly the criticism of judges as activists does not only come from one side of the political spectrum. People have real worries about activism, of course. After all, a judge who says he will never come down on the side of a business man,

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when there are conflicts about labor, would show that he or she is not intending to judge cases on their merits. This kind of worry is legitimate about activism. Rather than simply interpret the law, critics say, judges appear to legislate on issues that can be twisted through biased readings of underdescriptive law. The term “activist” represents a serious criticism of persons who are supposed to decide on issues without following their own personal interests or biases, therefore. Activists generally fight for their own passions that they wish others would listen to and address, without care for relating decisions to law. When we separate powers in government according to necessary functions, we must guard against those who would overstep the purview of their posts. I believe an appropriate term for certain kinds of judging could be called “active,” and does not indicate the excess of which some might accuse judges. That is, when a judge interprets the U.S. Constitution or other laws, it may well be that the special case at issue is not so easily addressed with laws in place. In such circumstances, a judge is forced, if he or she must take a given case, to render a decision about an issue that is not preceded by clear-cut rules to be followed, only by laws that imply values or principles. The belief that courts ought not to try cases in which the law is unclear misses the point of having levels of court appeals. In some instances, we get a situation in which, as Holmes put it, “what is really before us is a conflict between two social desires, each of which seeks to extend its dominion over the case, and which cannot both have their way.”7 In such cases, judges must be active in proposing a solution, a set of principles, or a method for resolving the primary concern of the case, while of course always basing their arguments on law.8 Those who are angry about the outcome of the decision might think that the judges have overstepped their jurisdiction, but it is impossible to plan legislation for all unforeseen contingencies of conflict. It may well be that we should consider court cases as excellent opportunities for airing the conflicts with which legislators should deal. As such, it would make sense for courts to be places of standard-setting and quasi legislation, a notion embodied in the language of “case law” or “law settled in the courts,” at least until the legislature can offer its own proposals for dealing with future conflicts.

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It may be that an issue is such that politicians would want to avoid any association with or deliberation about it. Or, if they can find agreement about a concern, it may be that an important component of the law devised is left intentionally vague. Such cases, when legal conflicts arise, must at least sometimes be resolved by judges, who then appear to be setting the standard of law as they go, though this is only acceptable when their judgments are tied to actual laws. If this situation seems to be a problem and a fundamental threat to democracy, it is only superficially so, I argue. For the decisions of judges can be overturned, and new legislation can be introduced after courts address problematic situations, so that future cases can be dealt with simply by following newly established legislation. The quasi legislation that courts administer is sometimes simply a result of the necessary incompleteness of the considerations of legislation, and the revelatory process that courts offer is an important component of the improvement and evolution of democratic law. In this sense, then, courts are crucial venues, and judges are vital players in the process of testing policy experiments in ethics. Of course, there are many critics of judges, labeling them as activists. Tom McClusky is vice president for government affairs for the Family Research Council.9 In August of 2006, he contributed “Rein in activist judges” to USA Today. He writes, “Coming from a family of judges, I firmly believe in judicial independence. Nonetheless, the courts should not be allowed to operate as a legislative judiciary.”10 It is McClusky’s belief that judges appear to legislate, when they ought only to enforce the laws set by legislatures. Although McClusky does not address Brown v. Board of Education, it is an example of a court rendering a judgment that critics claimed to have ruled with reasons that went beyond the specific declarations of the law.11 Many believe that the decision in Roe v. Wade is another case in which the courts offered a judgment based on reasons that were not explicitly grounded in law, as in the inferred right to privacy.12 McClusky summarizes his outlook on the courts with reference to recent cases involving the Pledge of Allegiance. He writes, The House recently passed legislation that would remove the Pledge of Allegiance from the jurisdiction of the federal courts in

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response to a lower court’s ruling—twice—that the phrase “under God” is unconstitutional. If, at some future date, the American people believe that God is offensive, then Congress can strip the phrase from the pledge. But this decision should be made by the American people through the democratic process, not arbitrarily by activists dressed in black robes.13 Although McClusky’s claim about the arbitrariness of approaching issues through the courts appears polemical, a related question is reasonable. One can fight a law through legislatures or through the court system. Martin Luther King Jr., following ideas expressed as long ago as in the works of St. Augustine, argued that an “unjust law is no law.”14 That is, the notion of breaking the law in order to change it through the courts does not appear to be improper in all cases. Rawls offers guidelines for just and acceptable civil disobedience, for instance, as do other authors.15 They believe, thereby, that challenging law forthrightly, and in contexts that invoke the criminal courts, is sometimes reasonable. Taking conflicts to the courts is a mechanism by which the law is tested and through which the experiments of policy are checked. One could believe that it is always best to bring about change through legislation. One could wait for legislators to address one’s concerns, unless, of course, problems are time sensitive. Consider cases involving terminal patients or death row inmates. The idea that legislation could be designed and passed quickly is unrealistic in such cases. If legislators do not attend to an issue that you deem important and pressing, it seems legitimate to take up the issue in an alternate way, such as through the courts. That you do not have the right to approach the courts regarding a case that concerns you is quite a strong claim to make, if it is what some suggest. An alternative claim regards what the judges should see as their jurisdiction. I want to be clear that the right of a person to bring a conflict to court must not be forgotten in reacting against instances of “judicial activism.” Perhaps we ought to agree with McClusky that judges overstep their bounds when they render judgments on certain cases. He writes that “Judicial independence of opinions is a sacred foundation of government, but a court system answerable to no one dangerously weakens

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that foundation.” There are two problems with this outlook. First, the examples that McClusky cites are of lower courts. In what sense are lower courts accountable to no one? Some lower court judges are often elected or appointed and can be removed from their posts. The judgments of lower courts, furthermore, can be overturned by higher courts. Second, even if McClusky’s real target is the U.S. Supreme Court, the judgments of courts are at least in time answerable to the legislature.16 Just as McClusky put it, legislators can make laws which answer to the problems of people. Why is this no longer true after the Supreme Court renders a judgment? Legislators can do just that. If this is true, furthermore, we can see that the judgments of the courts, even at the highest levels, can be reconsidered at least as the precedent set affects future cases. And in this situation, the courts offer an important forum in which conflicts are made evident and are addressed intelligently and sometimes faster than would occur through the pursuit of new legislation. The alternative to judicial activism that people propose, judicial restraint, can be understood, according to author Jeffrey Toobin, as the view that “judges should defer to the democratic branches of government and thus resist the temptation to overturn statutes or veto the actions of government officials.”17 Following this outlook, the judiciary’s place, then, is to settle disputes and to respond to clear violations of principles set forth in the Constitution. It is important to differentiate two notions that are somewhat close to one another, and which therefore lend themselves to abuse in political rhetoric. First, the notion of “judicial activism” as traditionally understood concerns the extent to which courts feel at liberty to be evaluative of and responsive to the decisions of legislators and the demands of individuals in conflict. Should the courts not render decisions where there are gray areas in the law? It seems that the reason to need higher courts is precisely due to the difficulty of having competing claims that were each taken seriously in previous court decisions. This is an extension of Holmes’s point cited hereabove. Plus, as I have said, Holmes offers us an example of a pragmatist who accepted an experimentalist’s outlook and values, all while promoting judicial restraint. Thus, experimentalism should not be interpreted as advocacy against judicial restraint. It would challenge rigidity in

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interpretation, understanding, and thought about moral principles, however. Troubles arise for critics of activism, however, who want to see more conservative judges. For the perspective of judicial restraint and conservatism could lead a justice to uphold past practices. After all, conservatism involves deference to precedent. Some precedents are what critics of activism want to have changed. More problematic than this, however, is the fact that the desire for judges who hold a different point of view than those presently on the court is a push for activism of another sort. In this sense, the result, not the process of the courts’ decision making, appears to be the problem for many people. In clarifying the issues in conflict here, I call a judge “active” and what he or she does “activity,” rather than “activism,” when he or she holds an approach to courts that embraces the fact that values change and that meanings and intentions are difficult to interpret in application to new problems. I will leave the term “activism” to those cases in which one’s judgment is driven by an agenda that precedes cases’ arguments. The problem of bias is a reasonable worry. At the same time, competing values can come into conflict as new problems arise. This is the sense in which law is underdetermining for future circumstances and tasks. Underdetermination is the subject of the next section, therefore, in which I argue that the law inherently leaves open how to interpret it in a great variety of conflicts for which we need judges to exercise intelligent consideration about competing norms and ideals.

III. Legal Underdetermination, the Constitution, and Judicial Activity I have two reasons to defend judges whom I call active. The first concerns the underdetermination of law. The second has to do with the language of the U.S. Constitution itself, which recognizes the problem of underdetermination, and because of this explicitly opens the door to a judicially active court—one that has the power to protect citizens’ rights even if they are not enumerated explicitly in the Constitution.18

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It is obvious that law cannot be written in a way that will predict all complex cases and legal needs to come. Often, law can be generalized by category to consider problems of certain kinds. Even the very categories and kinds of legal consideration needed can change, however. New departments of government have emerged in many cases in American history, under each party’s leadership, and numerous amendments to the Constitution were necessary as well. There is no good reason to believe that the process of changing the law, government, consideration of legal categories, and so on, will ever end, unless a particular government itself comes to an end. If this is true, then, it is reasonable to expect that countless cases will come to the courts before legislation is enacted that can address the conflicts that result from vague or incomplete laws. With good reason, the U.S. is careful not to create law ex post facto. Laws are often created as a result of finding things that people want to prevent in the future. When laws come up, such as the banning of marijuana, it seems unjust to arrest someone for the consumption of marijuana that occurred before the ban. This is one of the dangers of lawmaking that the Constitution helps to avoid. Nevertheless, courts are often necessary to make a decision about cases in which laws are unclear or appear to be in competition. While the decisions of courts act as precedents for future conflict, they are neither set in stone, nor untouchable by future legislation. Thus, if we need a body to render judgment on issues that are not properly covered by existing law, courts are the proper place for seeking political representation and change. For otherwise, legislative judgments will be applied ex post facto or the courts will not be able to offer insight on whether lower courts’ judgments should be upheld. So, if there is a legitimate basis for desiring new law, and if existing law infringes upon the legitimate claims of individuals, then the courts are the perfect place to go in cases with exigency. The framers of the U.S. Constitution were aware of the limits of listing rights. For, if we list a certain set of rights without predicting the need for having listed further ones, we might find terrible gaps in the protection of individuals’ rights. The Ninth Amendment to the Constitution is the intended solution to this problem. The amendment reads: “The enumeration in the Constitution, of certain rights,

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shall not be construed to deny or disparage others retained by the people.” In this sense, the Constitution implies that citizens have more rights than are explicitly protected in it. Without further clarification, this amendment would seem to imply that any idea of the rights of the people could potentially hold up, so long as it does not violate the explicit rules already established. Of course, a further clarification is offered to limit government. The Tenth Amendment reads: “The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.” If we consider the Ninth Amendment to allow for citizens’ rights that exceed what the Constitution can explicitly list, then the job of protecting rights, even the unenumerated, is a complex matter, one which leaves to the people and the states the determination of what can be decided about a case. The Tenth Amendment implies that unenumerated rights are a state issue. This is the general point people make in claiming that decisions about new topics should be left to the states.19 Does the Tenth Amendment clearly tell us, however, how exactly we are to interpret which powers are delegated to the federal government? When we read the Constitution’s one line about postal roads and offices, “The Congress shall have Power . . . To establish Post Offices and Post Roads,”20 we see that this remarkably simple and brief statement does not tell us much at all about the details of carrying out this goal. Does the Federal government have the right to include in the delivery of post things like electronic communications? In an American Enterprise Institute forum, then Congressman Trent Lott thought that the Post Office should investigate the merits of developing electronic communications services.21 If the justification for a Post Office and for postal roads concerns the free flow of political information, the answer would be that the Post Office ought to consider developing internet capacities, as Lott suggested. On the other hand, if postal roads should only be interpreted literally, then the analogy of broadband internet infrastructure should not be applied to postal services and developments. The matter is far from clear, whether we take up an “originalist” perspective or an experimentalist one, which confirms the experimentalist thesis in the process.

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Of course, there must be some basis in the Constitution for a Supreme Court decision, but even when we stick to the firm letter of the law, we often assume implicit rights protected in it. The case to which people have returned time and time again concerns abortion. If we look at the Constitution, however, there are no protections for unborn persons, while there are protections for citizens in the Fourth Amendment—“security of person.” So, in such cases, we are left with a difficult experiment. Opponents to the Roe v. Wade decision have typically wanted two different things, either of which would significantly affect policy regarding the unborn. On the one hand, they have argued for overturning the decision, so that states can decide what they want to do for themselves on the issue. On the other hand, people have wanted to pass a Constitutional amendment to protect unborn persons. What the future will hold for policy on this subject is unclear. At the same time, judges are given no particular rules in the Constitution for how exactly they are to interpret it, especially when it comes to implications of explicit law and the redress of conflict between competing laws applied to new problems. In the end, the broad character of the law and its insufficiently specific guidance is the reason we need persons with strong moral judgment and character to apply these qualities within areas that will be necessarily gray. A final word on this subject is worth offering, since debates on abortion are so often heated and inspire strong reactions from people. There are terms that require remarkable experience and character to interpret. Two terms have always lead me to wonder about their interpretation. The first is “reasonable” versus “unreasonable.” The second is “unusual,” as in “cruel and unusual punishment.” In the former case, what will make a search and seizure “unreasonable” is especially open to question, though we do have many precedents for kinds of searches and seizures. What decides that those precedents ought to be stopped is an open question and is one that is not nearly as loaded a matter as terms in the abortion debate. Nevertheless, debates about warrantless wiretaps and other issues of security and privacy have arisen in recent years. To the matter of “cruel and unusual punishment,” it has always been unclear to me why unusual punishments are necessarily bad, or why they would be better if many

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people and places were to start implementing them—rendering them usual. My point in raising these matters is simply to show that how we interpret the language of law is always complex and difficult, calling for intelligent, experienced judgment, but also a sense that one’s decisions need not be seen as the final word on any future decision, though they may be used sometimes as guiding precedents. Ultimately, then, courts are crucial spaces in which democratic experiments in policy are designed, tested, and revised in the light of new problems and evidence.

IV. Two Concepts of Rules Revisited The fundamental conflict that people see in having the courts be active, as I mean the term, is that it appears as though the judicial branch of government is performing tasks which resemble legislation. If this is so, then there appears to be a problematic overuse and usurpation of powers. I have already offered one way of considering the issue in terms of the challenge of law which is underdetermining. In the present section, I will summarize at once the value and the problem I see in Rawls’s influential essay, “Two Concepts of Rules.” A word of reminder is in order about Rawls’s essay and the important message it conveys. Two dominant and conflicting theories in ethics are utilitarianism and deontology, as I have said. Utilitarianism holds that the right choice or decision is that which will maximize happiness for the largest number of people overall, or that which will at least minimize the pains or displeasures of people as a result of it. Deontology, by contrast, believes in criteria for what is right that are independent of whether or not the decision will make people happy. Sometimes, it seems, the fact that more people will benefit from a choice does not appear to be sufficient justification for committing the act. For example, imagine sacrificing a healthy person against her will in order to harvest her organs and save four other people. More overall happiness might result from this, but a deontologist would say that it is simply unacceptable, because of the respect human beings deserve. Of course, the two theories are vastly more complex than my restatement of them here, but these are the important ideas that Rawls discussed in his essay. For it was his goal to show that it is

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possible to see each moral framework as useful in a given context. If you are arrested, Rawls suggests, it would be wrong to punish you according to how many people would be happy about it. Rawls believed in the deontological idea of retributivism, which simply means that you should be punished only according to what you deserve, not according to how much happier people will be about the subject. At the same time, when legislators look forward, rather than backward like judges, they ought to choose those policies that will make the most people happy. He saw, therefore, a way of thinking about the two conflicting theories in a fashion that was en route to something like a Pragmatist outlook or an experimentalist view that recognizes the importance of context for moral theories. An important problem emerges, however, as I have presented it in this chapter. First, courts have a great impact on the meaning, application, and prioritization of policy, as is well known, when they simply choose the cases that are to be heard. The second issue involves the Supreme Court’s forward-looking judgments. That is, when John Rawls distinguishes in his essay between the acts of the legislator and of the judiciary as forward looking and backward looking, respectively, his approach to reconciling utilitarianism and deontology thereby appears problematic for the Supreme Court, as well as lower courts whenever their decisions come to be regarded as influential precedents. Of course, the courts must tie their judgments to law, but they make decisions that impact the future safety of others, for instance, which are clearly forward looking. The Supreme Court is especially aware that its decisions will affect future judgments through precedent, and indeed, this fact almost always guides the decision process they use for determining the docket of cases that they will hear, as well as the ways in which the justices write the opinions that they present. As such, then, the Supreme Court must address problems in a way that is responsive to cases and tied to law, thus thinking about conflicts in a sense that looks back in time, but also with an eye to the future of how law will be considered. In this latter sense, then, you can see another way in which the term “active” judging has meaning. It is a virtue that courts can have such plans, since there are often more cases to hear than can be heard in a year. Thus, with purposeful

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decision making about just the docket of cases to be heard, a court can influence other cases in the future in an intentional way. The resemblance here of the Supreme Court’s judgments appears necessarily close, therefore, to the force of legislation. I contend that we would have a less equal balance of powers should the judiciary not bear a power similar and responsive to the force of the legislative branch.

V. Conclusion In the end, there are two views of activism to discourage. The first, as I have said, is the kind which demonstrates bias in advance of hearing cases about issues, such that a person will judge them independently of the merits of the cases. When such bias is collected around a certain issue or identity, we can reasonably call it activism. The second sense of the term that is worrisome would occur when a justice in fact offers no real basis in law or in the Constitution for a judgment. That would imply that the judgment arbitrary, which is problematic in itself. So long as judges offer a reasonable effort to tie their justifications to law, however, the ways in which they do so are necessarily open to disagreement and variation. This is because what we take to be reasonable in interpretation will change and because the nature of the law is such that we fill in gaps all the time in some places and ways that bring about no controversy. In addressing the tough cases, we engage in experiments of values and judgment. We offer justification explicitly as best we can about different points of view, and we check each branch of government as best we can so that neither legislators nor judges control all of what we do. What I hope at bottom to have accomplished in this chapter is no great advancement of understanding of the courts, judges, or law. Rather I wanted to furnish some evidence for believing that the law, policy, and moral judgments in both our accepted and controversial cases are experiments that always require refinement, revisiting, and renewal.

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Chapter 9

Conclusion

In this book, I have argued that the special moral problems for leaders of public policy are best addressed with an experimentalist attitude. Even when we feel certainty about religious beliefs or scientific discoveries, in order to get things done we must cooperate with those who do not share our beliefs. In this brief final chapter, I want to offer some initial thoughts about the important challenges to consider for future research and writing about leadership and ethics. Two particular problems come to mind upon completing this book. They are problems not simply for theories of experimentalism, but for leadership in general. The first has to do with dogma in its many forms. For there are people who hold to beliefs, such as in the invisible hand of the market, with a fervor and tenacity to which they may be entitled, but which dulls their abilities to imagine other ways of thinking. Of course, the champions of business are not alone in holding to dogma. There are people who believe that all business and exploitation is inherently wrong, even though business and jobs are the central forces that put food on people’s tables and that generate the revenues which government can then tax to provide for the military, schools, and more. The danger, fundamentally, comes in when people shut themselves off from thinking. When they do so, nothing but their proposed solution makes sense to them, and any result of a competing theory is treated only negatively, no matter how positive the outcome. The dogmatic pundit is nothing new, but what is remarkable is the danger that such persons pose in their ability to shut down intelligent inquiry. Future thought and inquiry would do well to focus on the ways in which social practices can remove the countless obstacles to thinking that are all around us, while permitting people significant freedom. For

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now, I offer only a sobering lesson from John Stuart Mill, who wrote the following in his remarkable book On Liberty: Truth, in the great practical concerns of life, is so much a question of the reconciling and combining of opposites that very few have minds sufficiently capacious and impartial to make the adjustment with an approach to correctness, and it has to be made by the rough process of a struggle between combatants fighting under hostile banners.1 Here I see in Mill one of the central reasons to be an experimentalist. Each moral theory that has resonated with people has some element of value in it to consider. This is likely the reason why when we look to remarkable founding documents like the United States Constitution, or the Declaration of Independence before it, we see many different values in them. In these documents we see language which refers to myriad values. There is reference to a Creator, recalling religious values and deference. We see central value placed on liberty and the corresponding duty to protect people from tyranny, including from the religious dominance from government or from others. We see the language of rights and duties, including allusions to nature and the natural law tradition. We also see reference to the pursuit of happiness and the fact that a society that prevents its pursuit would be unworthy of the struggle for independence. All of these values and more are embedded in the American founding documents and demonstrate the goal of allowing and promoting human flourishing in a new country. To be sure, there were countless contradictions to these stated values in the founding documents or in people’s practices at the time, such as in the exclusion of women from political consideration and personhood, and worse for slaves and non-European persons who were treated as fractions of people and even as chattel. My point is not that the founding documents were perfect. What we do see in them, however, is the fact that Americans, and later people from many other parts of the world, came to see the importance of recognizing rich systems of value from wherever they come, so long as they contribute fruitfully to the ultimately important experiment of having human beings legislate for themselves.

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The second problem which arises upon reflection as a result of this book grows out of the first consideration here, which involves power. Scholars have recently challenged those who see value in John Dewey’s philosophy, because Dewey was perhaps overly optimistic about social cooperation and inquiry. He was insightful about the practice of collaboratively addressing problems, but was less attentive to the fact that the problems of some people often do not rise to the level of the broader public consciousness. John Stuhr, Robert Talisse, and Colin Koopman have presented different approaches to this kind of critique and have offered their own ideas about how to come at this problem for democracy.2 The challenge at the center of their concerns, as I see it, has to do with the fact that there is no view from nowhere, something Dewey would accept. People are always rooted in a context, therefore, which will inform the meanings, understandings, and interests they have. To defend them, they will use the powers they have at their disposal to live as they believe they should. Thus, the pursuit of truth, justice, and knowledge will be driven in a central way by chains of power and interests that might well be said to overwhelm the pursuit of truth. The debates about John Dewey’s works are not my main concern here. What matters to pragmatists and leaders in general, I take it, is that citizens have great responsibilities and limited powers. We may find that the smaller, quieter voices that have much to contribute are shut out of consideration or are neglected. Alternatively, we may find that the moderate, intelligent voices of careful and compromising persons get drowned out by the louder, more powerful interest groups. These problems are not new and they will not go away soon. My own effort to address these concerns in subsequent work will offer ways of thinking about democratic leadership and the virtues and benefits of engaging in it. I also see what the three critics I have mentioned raise as important considerations for scholars of John Dewey’s philosophy. Fundamentally, philosophy must return to the process of shaping culture, contributing to the ideas and beliefs in society that seem to promote greater freedom, happiness, and human flourishing. I hope that with this book I have offered some initial thoughts about how in the moral leadership of public policy we can advance toward these noble goals and aspirations.

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Notes

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I wrote an op-ed for the major Mississippi newspaper on the subject. See Eric Thomas Weber, “Try Charter Schools Experiment Where Others Failing,” Clarion Ledger, March 6, 2010, 9A. When I advocate for any policy, I am always presenting only my own view. I am not speaking for the University of Mississippi. For just one of countless examples of trouble for schools in Mississippi, see Peter Whoriskey, “By the Mississippi Delta, a Whole School Left Behind,” Washington Post, October 28, 2007, A3. Michael Newsom, “Another Look at Segregation,” Sun Herald (Biloxi, MS), May 17, 2009, State and Regional News. See Paul Tough’s Whatever It Takes: Geoffrey Canada’s Quest to Change Harlem and America (New York: Houghton Mifflin Company, 2008). You can visit their Web site at http://kippdelta.org/, last accessed November 20, 2010. See Kenneth Lovett and Meredith Kolodner, “Charters ‘Fail’ Special Ed. Critics Knock Low Enrollment of Severely Disabled,” New York Daily News, May 3, 2010, 32. Adam Nagourney, “Signs G.O.P. Is Rethinking Stance on Gay Marriage,” New York Times, April 28, 2009, 4A. Newt Gingrich, “Where Does the Conservative Movement Go from Here?” Washington Times, February 11, 2009, A4. Ibid. David Hume, A Treatise on Human Nature (New York: J. M. Dent & Sons Ltd., 1738/1961), 479. For one of countless examples, see Newt Gingrich and Dan Varroney, “A Dire Day for Small Firms,” National Review Online, April 15, 2010, www.nationalreview.com/corner/197946/dire-day-small-firms/newt-gingrich, last accessed November 20, 2010. See Edmund L. Andrews, “Greenspan Concedes Flaws in Deregulatory Approach,” New York Times, October 24, 2008, B1. “Anger Rises as the Oil Keeps Spewing,” New York Times, May 26, 2010, A26. See U.S. Census Bureau and U.S. Bureau of Economic Analysis, U.S. Census Bureau reports on FY 2007 tax collections (2007). Mississippi ranked 49th in “Average state and local taxes collected per person,” coming in at $2,989. Alabama ranked 50th, having collected $2,909 per person. U.S. Census Bureau, “Historical Poverty Tables” (2007).

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Rawls calls this the “fact of reasonable pluralism” in his book Political Liberalism (New York: Columbia University Press, 1996), 36. Craig Volden, “States as Policy Laboratories: Emulating Success in the Children’s Health Insurance Program,” American Journal of Political Science 50, no. 2 (April 2006): 294–312. See John W. Kingdon, Agendas, Alternatives, and Public Policies, Second Edition, Longman Classics in Political Science (New York: Longman, 2003). See also Frank R. Baumgartner and Bryan D. Jones, Agendas and Instability in American Politics (Chicago: The University of Chicago Press, 1993). Thomas Nagel, The View from Nowhere (New York: Oxford University Press, 1989). I make the case for this claim in a number of places in my first book, Eric Thomas Weber, Rawls, Dewey, and Constructivism (London: Continuum International Publishing Group, 2010). Gary McDowell, The Language of Law and the Foundations of American Constitutionalism (New York: Cambridge University Press, 2010). “Palin Factor in the ‘Culture Wars’,” Christian Science Monitor 100, no. 203 (September 12, 2008): 8.

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This chapter is a reorganized and revised version of a paper I originally published in the journal Contemporary Pragmatism. I am grateful to the journal’s editors, Dr. Mitchell Aboulafia and Dr. John Robert Shook, for permission to republish this essay in its new form here. For the original essay, see Eric Thomas Weber, “On Applying Ethics: Who’s Afraid of Plato’s Cave,” Contemporary Pragmatism 7, no. 2 (December 2010): 91–103. Gerald Gaus, “Should Philosophers ‘Apply Ethics’?” Think (Spring 2005): 63–7. In the original essay published in Contemporary Pragmatism that became this chapter, I present a more comprehensive critique of Gaus’s article. For my purposes in this book, I only respond to the most important and trenchant criticisms of applied philosophy. To see my responses to other elements of Gaus’s essay, see my original paper, cited here in note 1 for this chapter. Sidney Hook, “Philosophy and Public Policy,” The Journal of Philosophy 67, no. 14 (1970): 461–70. John Rawls, The Law of Peoples (Cambridge, MA: Harvard University Press, 2000). See Matthew T. Lee’s, “The Ford Pinto Case and the Development of Auto Safety Regulations, 1893–1978,” Business and Economic History 27, no. 2 (1998): 390–401. The National Commission for the Protection of Human Subjects of Biomedical and Behavioral Research, The Belmont Report: Ethical Principles and Guidelines for the Protection of Human Subjects of Research (1979). See also James F. Childress, Eric M. Meslin, and Harold T. Shapiro, eds. Belmont Revisited: Ethical Principles

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for Research with Human Subjects (Washington, DC: Georgetown University Press, 2005). John Lachs, A Community of Individuals (New York: Routledge, 2003), 9. Hook, “Philosophy and Public Policy,” 465–6. Also, on page 462 of his essay, he challenged Gaus’s very approach to conceiving of philosophy. Hook wrote, “The easiest and least rewarding approach to the issues is the question-begging procedure of defining philosophy in terms of one’s own partisan philosophical standpoint, and then reading off what is included or excluded from the circle of its implications.” Gaus, 63. Plato, “Apology,” The Internet Classics Archive, ed. Daniel C. Stevenson (Cambridge, MA: MIT, 1994/2009), http://classics.mit.edu/Plato/apology.html, last accessed November 20, 2010, standard notation Apology 38a. Gaus, 64. Ibid. Friedrich Nietzsche, Human, All Too Human: A Book for Free Spirits, trans. Marion Faber with Stephen Lehmann (Lincoln, NE: The University of Nebraska Press, 1996), I, Aphorism 483, 234. Gaus, 64–5. Gaus, 67. Gaus, 65.

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This paper was originally published in the journal Contemporary Pragmatism. I am grateful to the editors, Dr. Mitchell Aboulafia and Dr. John Shook, for permission to reuse this piece here. For the original paper, see Eric Thomas Weber, “Religion, Public Reason, and Humanism: Paul Kurtz on Fallibilism and Ethics,” Contemporary Pragmatism 5, no. 2 (December 2008): 131–47. John Dewey, A Common Faith (New Haven: Yale University Press, 1962). Ibid., 28. See, for example, Henry T. Edmondson, John Dewey and the Decline of American Education: How the Patron Saint of Schools Has Corrupted Teaching and Learning (Wilmington, DE: Intercollegiate Studies Institute Books, 2006). Tim LaHaye, The Battle for the Family (Old Tappan, NJ: Fleming H. Revell Co., 1982). See Peter Fleming, “No Christian Humanism? Big Mistake,” Online Catholics 115 (August 2, 2006), http://onlinecatholics.acu.edu.au/issue115/news1.html, last accessed November 20, 2010. See, for example, Ananda W. P. Guruge, Humanistic Buddhism for Social WellBeing (Los Angeles: Buddha’s Light Publishing, 2003), the Society for Humanistic Judaism (www.shj.org/), and Sherwin T. Wine, Humanistic Judaism (Amherst, NY: Prometheus Books, 1978). Paul Kurtz, Embracing the Power of Humanism (New York: Rowman and Littlefield Publishers, Inc., 2000), 169.

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John Rawls, “The Idea of Public Reason Revisited,” in John Rawls: Collected Papers, ed. Samuel Freeman, 573–615 (Cambridge, MA: Harvard University Press, 2001). This said, some of Kurtz’s language regarding religion is certainly caustic, but elsewhere he clarifies the kinds of religion that reasonably avoid his criticism. I will discuss the criteria which make the difference in Section IV. Sam Harris, “God-Drunk Society,” Atlantic Monthly, November 2007, 44. Tim LaHaye, “Godless Society,” Atlantic Monthly, November 2007, 44–6. This idea is one I have heard time and time again, yet it ignores the Jamestown colony, let alone other colonies, none of which were exactly the sole originators of the United States. Plus, people all too often forget statements like this one, passed by the U.S. Senate in the Barbary Treaties, which said: ARTICLE 11. As the government of the United States of America is not in any sense founded on the Christian Religion,—as it has in itself no character of enmity against the laws, religion or tranquility of Musselmen,—and as the said States never have entered into any war or act of hostility against any Mehomitan nation, it is declared by the parties that no pretext arising from religious opinions shall ever produce an interruption of the harmony existing between the two countries (emphasis added).

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See The Barbary Treaties 1786–1816, “Treaty of Peace and Friendship,” signed at Tripoli November 4, 1796, http://avalon.law.yale.edu/18th_century/bar1796t. asp, last accessed November 20, 2010. In an effort to raise questions about this treaty as evidence of the idea of a separation between church and state in the United States, a recent Wall Street Journal article claims that the implication of the document is at least worth questioning, practically a tautology. The article nonetheless admits that “The treaty ratification was the Senate’s third-ever unanimous vote.” See “Obscure Treaty Is Cited in Church-State Separation Debate,” Wall Street Journal, October 28, 2010. LaHaye, “Godless Society,” 46. Ibid. There are certainly other responses that avoid some of the common problems for understanding suffering. I mention these here because they are simple and because in my experience, these answers have come up time and time again with friends and students. I believe one of the most powerful responses to what is known as the problem of evil is offered in Josiah Royce’s “The Problem of Job,” though it is controversial. See Josiah Royce, “The Problem of Job” in The Philosophy of Josiah Royce, ed. John K. Roth, 85–106 (Indianapolis, IN: Hackett Publishing Company, 1982). John Harris, “God Gave U.S. ‘What We Deserve,’ Falwell Says,” Washington Post, September 14, 2001, C03. Of course I do not mean all religious philosophers. Joseph Butler believed that God gives each of us a conscience, though one with a very quiet voice. To hear it, Butler claimed, requires that a person calm himself or herself down to reflect in the cool of the afternoon on necessary moral decisions. Otherwise, the loud passions would drown out the quiet voice of divinely inspired conscience. This

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does not settle, however, whether God is letting us know what he knows about the good independent of Himself, or whether He is telling us only what He commands—retaining the Euthyphro dilemma. See Joseph Butler, Five Sermons, ed. Stephen Darwall (Indianapolis, IN: Hackett Publishing Company, 1983). John Rawls, Political Liberalism (New York: Columbia University Press, 1996), xviii. Ibid., xix. I agree with Paul Kurtz that humanism should not be called a religion, but I think it reasonable to refer to it, or at least to certain kinds of humanism, with the term “comprehensive doctrine.” Martin Luther King Jr., I Have A Dream: Writings and Speeches that Changed the World, ed. James Washington (New York: HarperOne, 1963/1992). Robert Westmoreland, “The Truth about Public Reason,” Law and Philosophy 18 (July 1999): 271–96, 271. Ibid., 275. Robert Talisse, “Liberty, Community, and Democracy: Sidney Hook’s Pragmatic Deliberativism,” Journal of Speculative Philosophy 15, no. 4 (2001): 286–304, 288. Ibid., 295. Westmoreland, “The Truth about Public Reason,” 285. Ibid., 286. In fairness, it is not Westmoreland’s purpose to address this problem, but rather to offer a critique of Rawls’s idea of public reason. Westmoreland, “The Truth about Public Reason,” 294. Paul Kurtz, Humanist Manifesto 2000 (Amherst, NY: Prometheus Books, 2000). Ibid., 7. Ibid., 12. Ibid., 13. Ibid., 16. Ibid., 29. Paul Kurtz, “Finding a Common Ground between Believers and Unbelievers,” in Toward a New Enlightenment, ed. Vern L. Bullough and Timothy J. Madigan, 247–52 (New Brunswick, NJ: Transaction Publishers, 1994), 250. Ibid. Ibid., 251. Kitzmiller v. Dover Area School District, Case No. 04cv2688, U.S. District Court in the Middle District of Pennsylvania (2005), www.pamd.uscourts.gov/ kitzmiller/kitzmiller_342.pdf, last accessed November 20, 2010. Paul Kurtz, “On Human Values,” Science and Spirit (July/August 2006): 35–7. Ibid., 36. Ibid., 37. Ibid. Ibid. Paul Kurtz, “Antireason,” in Toward a New Enlightenment, ed. Vern L. Bullough and Timothy J. Madigan, 135–41 (New Brunswick, NJ: Transaction Publishers, 1994), 141. Kurtz, “Finding a Common Ground,” 251.

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Before this book is released, the original essay that became this chapter will be published in the Journal of Speculative Philosophy. I am grateful to the editors, Dr. John J. Stuhr and Dr. Vincent Colapietro, for their feedback and for permission to republish and extend this essay. See Eric Thomas Weber, “What Experimentalism Means in Ethics,” Journal of Speculative Philosophy, Volume 25, Issue 1, forthcoming 2011. First published in The Educational Frontier, ed. William H. Kilpatrick (New York and London: Century Co., 1933), 32–72, in the Later Works of John Dewey, volume 8. This passage is from L.W.8.68, according to the standard citation method for Dewey’s works (see note at the start of the bibliography). See James H. Jones, Bad Blood: The Tuskegee Syphilis Experiment (New York: The Free Press, 1993). See also Stanley Milgram, Obedience to Authority: An Experimental View (New York: HarperPerennial, 1974). John Rawls, “Two Concepts of Rules,” Philosophical Review 64, no. 1 (1955): 3–32. Dewey and Childs, “The Social-Economic Situation and Education,” M.W.8.67. John Dewey, “The Development of American Pragmatism,” L.W.2.3–21. Dewey and Childs, “The Underlying Philosophy of Education,” also published in Kilpatrick’s The Educational Frontier, 287–319. This passage is cited from The Later Works of John Dewey, volume 8, L.W.8.92. See Dewey, L.W.8.95. See Exodus 35:1–3, New International Version, 2010: “Moses assembled the whole Israelite community and said to them, ‘These are the things the LORD has commanded you to do: For six days, work is to be done, but the seventh day shall be your holy day, a day of sabbath rest to the LORD. Whoever does any work on it is to be put to death. Do not light a fire in any of your dwellings on the Sabbath day.’ ” See Matthew 7:12, New International Version, 2010: “So in everything, do to others what you would have them do to you, for this sums up the Law and the Prophets.” In 2009, the Pope argued, according to the Associated Press, that “Condoms are not the answer to Africa’s fight against H.I.V.” See A.P. “Pope, in Africa, Says Condoms Aren’t the Way to Fight H.I.V.” New York Times, March 18, 2009, A11. Then, in November of 2010, the New York Times reported that the Pope said “there may be a basis in the case of some individuals, as perhaps when a male prostitute uses a condom, where this can be a first step in the direction of a moralization, a first assumption of responsibility.” The article continues to explain that “some Catholic commentators close to the church hierarchy have furiously backed away from the pope’s comments on condoms, contending that they are less important because they are not official church teaching.” The tensions and developments regarding the Catholic Church’s stance on condom use is at least potentially changing in the light of subtleties of policy regarding grave circumstances and suffering. For the second article, see

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Rachel Donadio, “Pope’s Comments on Condoms Sow Confusion,” New York Times, November 22, 2010. Jim Connell et al., “Troubling Successes and Good Failures: Successful New Product Development Requires Five Critical Factors,” Engineering Management Journal 13, no. 4 (December 2001): 35–9. George J. Annas and Michael A. Grodin, eds., The Nazi Doctors and the Nuremberg Code: Human Rights in Human Experimentation (New York: Oxford University Press, 1995). See Jones, Bad Blood. For more, see also Jonathan D. Moreno, Undue Risk: Secret State Experiments on Humans (New York: Routledge, 2001). See National Commission for the Protection of Human Subjects of Biomedical and Behavioral Research, The Belmont Report: Ethical Principles and Guidelines for the Protection of Human Subjects of Research, http://ohsr.od.nih.gov/guidelines/belmont.html (1979), last accessed November 20, 2010. The terms in the report include, for instance, “beneficence,” “justice,” “autonomy,” “informed consent,” and more. Dewey, L.W.8.101. Drew Wilson, “Offstage, ‘Ethical’ Stem-Cell Work Advances—New Methods Spare Embryos,” Washington Times, December 6, 2009, A1. Martin Luther King Jr., Why We Can’t Wait (New York: Signet Classics, 1963/2000). See Louis Menand, The Metaphysical Club (New York: Farrar, Straus, and Giroux, 2001), 120. Menand explains that “Agassiz intended to gather evidence that would disprove theories of Charles Darwin; and, knowing in advance exactly what he was looking for, he found it.” Menand explains that participants on Agassiz’s expedition felt that “there was something slightly bogus about the whole enterprise. For the expedition was designed to score predetermined points,” rather than to do genuine science. I learned this information from Dr. Robert J. Mittan, creator of the Seizures and Epilepsy Education Program (S.E.E. Program). His Web site is here: www. theseeprogram.com. I am pleased to say that in part with the lessons my wife and I learned from Dr. Mittan, our daughter Helen overcame her epilepsy and is making daily progress now. I bring this up in the notes here simply to explain my experience and understanding of these issues, though I am no great specialist in the area. I also bring it up because it gives me great joy. Ibid. Also, see Henn Kutt and J. Kiffin Penry, “Usefulness of Blood Levels of Antiepileptic Drugs,” Archives of Neurology 31, no. 5 (1974): 283–8. I am most grateful to Professor Edmonds for his lovely expansion of my analogy here. It is true that there were some colonists who thought the United States should have a monarch for a ruler, but that is beside the point here. For comments on getting past the monarchist movements of the later eighteenth century, see Robert Spiller, Literary History of the United States (New York: MacMillan, 1948/1963), 220. See Ben Franklin, “I Agree to this Constitution with All Its Faults,” in Essential Speeches September 17, 1787 (Toledo, OH: Great Neck Publishing, 2003).

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John Rawls, Political Liberalism (New York: Columbia University Press, 1996), xvii. James Sterba, The Triumph of Practice over Theory in Ethics (New York: Oxford University Press, 2005), 1. Glenn Graber, “In Defense of a Divine Command Theory of Ethics,” Journal of the American Academy of Religion 43, no. 1 (1975): 62–9. Consider the commandment not to kill, paired with the killing that occurs in the flood. Other examples are offered in John P. Reeder, “A Critique of Graber’s Divine Command Theory of Ethics,” Journal of Religious Ethics 3, no. 1 (1975): 157–63. See Morgan Lewis, Jr.’s “Globe Trotter: How CEO Mike Eskew helped grow UPS from a ground-only package delivery service in 37 states to a supply chain management giant in 200 countries,” Smart Business Atlanta (2003), www. sbnonline.com/Local/Article/5503/66/0/Globe_trotter.aspx, last accessed November 20, 2010. Thomas T. Holyoke, Jeffrey R. Henig, Heath Brown, and Natalie LacirenoPaquet, “Policy Dynamics and the Evolution of State Charter School Laws,” Policy Sciences 42 (2009): 33–55. See Arnold F. Shober, Paul Manna, and John F. Witte, “Flexibility Meets Accountability: State Charter School Laws and Their Influence on the Formation of Charter Schools in the United States,” Policy Studies Journal 34, no. 4 (2006): 563–87. John Dewey, “Social Absolutism,” The Middle Works of John Dewey, volume 13, M.W.13.311–16.

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Since 2007, an active student group, One Mississippi, has taken action and has been quite successful at growing student participation in events that get students thinking about diversity and identity on campus. I have served in a small advisory role for this group, but all credit and success is entirely due to the group’s great efforts. Other scholars have words for what I am describing here. Philosopher Colin Koopman, for instance, likes the word “problematizer,” which he uses in reference to Michel Foucault. See Colin Koopman, Pragmatism as Transition: Historicity and Hope in James, Dewey, and Rorty (New York: Columbia University Press, 2009), 225. See Betty Friedan’s The Feminine Mystique (New York: Dell Publishing Company, 1963). See in particular bell hooks’s Feminist Theory: From Margin to Center (Cambridge, MA: South End Press, 1984/2000), 12. Rosemarie Putnam Tong, Feminist Thought: A More Comprehensive Introduction (Boulder, CO: Westview Press, 1998). See 40–2. Lakoff has made this claim in a number of places. In this chapter, I will be talking about his work in 2004, in which he wrote for Democrats to think

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about their efforts in political strategy. For a most in-depth analysis, see George Lakoff, Moral Politics: How Liberals and Conservatives Think (Chicago: University of Chicago Press, 2002). See John Dewey, Logic: The Theory of Inquiry, The Collected Works of John Dewey: The Later Works, ed. Jo Ann Boydston, vol. 12 (Carbondale, IL: Southern Illinois University Press, 1986). See L.W.12.112. Dewey, L.W.12.513. “Falwell Apologizes to Gays, Feminists, Lesbians.” CNN.com/U.S., September 14, 2001, http://archives.cnn.com/2001/US/09/14/Falwell.apology/index. html, last accessed November 20, 2010. I use the word stuff on purpose, quite specifically, because stuff is indefinite in number and referent. For a review of a number of changes to property law, see Adam Mossoff, “What Is Property? Putting the Pieces Back Together,” Arizona Law Review 45 (2003): 371–443. For a brief discussion of Napster in particular, see 427. William James, “The Sentiment of Rationality,” The Writings of William James: A Comprehensive Edition, ed. John J. McDermott (Chicago: The University of Chicago Press, 2000). Amartya Sen, Development as Freedom (Oxford: Oxford University Press, 1999). David Zarefsky, “Presidential Rhetoric and the Power of Definition,” Presidential Studies Quarterly 34, no. 3 (2004): 607–19. See “Estate Tax” on the Web site of the U.S. Internal Revenue Service, www.irs. gov/businesses/small/article/0,,id=164871,00.html. For an engaging book that addresses the problem I mention here in the history of the modern philosophical period, see Thomas Nagel’s The View from Nowhere, New York: Oxford University Press, 1989. Julie Rovner, “ ‘Partial-Birth Abortion:’ Separating Fact from Spin,” National Public Radio Web site, February 21, 2006, www.npr.org/templates/story/story. php?storyId=5168163, last accessed November 20, 2010. Katy Butler, “Winning Words,” Sierra July/August 2004, www.sierraclub.org/ sierra/200407/words.asp, last accessed November 20, 2010. Betty Friedan, The Feminine Mystique (New York: Dell Publishing Company, 1963). See page 11. Although Friedan has argued in defense of keeping marriage as an institution, contra the claims of some of her critics, she nevertheless used powerful language that appeared to carry stronger implications than she would later want to maintain. For instance, she called “the suburban household ‘a concentration camp’ for women,” according to Wendy McElroy, “Politicizing the House Wife,” Ideas on Liberty, November 2001, 26–30, 30. bell hooks, Feminist Theory: From Margin to Center (Boston, MA: South End Press, 1984). Again, see Rosemarie Putnam Tong, Feminist Thought: A More Comprehensive Introduction (Boulder, CO: Westview Press, 1998). In particular, see “Standard Feminist Critiques of Freud,” 135–7. George Lakoff and Mark Johnson, Metaphors We Live By (Chicago: University of Chicago Press, 1980).

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Lakoff and Johnson, Metaphors, p. 59. The emphasized phrase here makes the point by example. Bill O’Reilly, Culture Warrior (New York: Broadway Books, 2006). George Lakoff, Don’t Think of an Elephant! Know Your Values and Frame the Debate (White River Junction, VT: Chelsea Green, 2004). From George Lakoff’s, Don’t Think of an Elephant, p. 33–4. Lakoff, Don’t Think of an Elephant, p. 3. See Karen Travers, “Exclusive: President Obama: We Lost Touch with American People Last Year—Obama Says Focus on Policymaking Distracted White House From Speaking Directly to American People,” ABC News Web site, January 20, 2010, http://abcnews.go.com/WN/Politics/story?id=9613462, last accessed November 20, 2010. Michael Wallace, “Changing Conceptions of Party in the United States: New York, 1815–1828,” American Historical Review 74, No. 2 (December 1968): 453–91, 453. Audrey Hudson, “Homeland Security Becomes Official—Bush Applauds Federal Employees,” Washington Times, March 1, 2003, A2. See “How Health Care Reform Reduces the Deficit in 5 Not-So-Easy Steps— Americans think the bill is too expensive because they don’t understand its cost controls,” Newsweek, March 21, 2010, www.newsweek.com/2010/03/20/ how-health-care-reform-reduces-the-deficit-in-5-not-so-easy-steps.html, last accessed November 20, 2010. Critics like to attack Bush regarding this phrase. Respondents will point in answer to the increase in aid to Africa that Bush called for on a number of occasions. For instance, see Elisabeth Bumiller, “Bush Proposes Doubling U.S. Support for Education in Africa,” New York Times, June 21, 2002, A3. Steven Pinker, “Block that Metaphor!” New Republic 235, no. 15 (October 9, 2006): 24–9. Pinker takes Lakoff to task for his own partisanship and messianic characterization of progressives. Pinker is right about that, yet in Don’t Think of an Elephant, the lessons that Lakoff offers do not match up with the difficulties Lakoff has in understanding those who oppose his views politically. Pinker, in his article, is criticizing a later work, but some features of his criticism can be leveled on earlier work. That said, an imperfect messenger may still have many lessons to teach. See “Best Places to Launch—The best metro areas for small business startups: Auburn, AL,” CNN Money Web site, 2009, http://money.cnn.com/smallbusiness/ best_places_launch/2009/snapshot/21.html, last accessed November 20, 2010. Larry Hickman has written about technology as a process that achieves progress with the help of innovative ideas used on intermediate stock parts. Those do not have to be physical things. Hickman explains that there are tools and materials at use in the writing of a book, which are ideas and literary devices, not simply physical things and computers for writing. The point here is that there are “stock parts,” as Hickman puts it, for moral inquiry also. See Larry Hickman, Philosophical Tools for Technological Culture: Putting Pragmatism to Work (Indianapolis, IN: Indiana University Press, 2001). For the passage on intermediate stock parts, see 12.

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Peter Singer, “Famine, Affluence, and Morality,” Philosophy and Public Affairs 1, no. 3 (1972): 229–43. An exhaustive list would be cumbersome here. For my purposes, here are just a few recent texts that have reused Singer’s article: Louis P. Pojman, ed. Moral Philosophy: A Reader (Indianapolis, IN: Hackett Publishing Company, 2003); Russ Shafer-Landau, ed. Ethical Theory: An Anthology (New York: Blackwell Publishing, 2007); K. R. Rajani, ed. Morality and Social Policy: A Philosophical Analysis (Associated Publishers, 2009); Hugh LaFollette, ed. Ethics in Practice: An Anthology (New York: Blackwell Publishing, 2006). John Rawls, The Law of Peoples (Cambridge, MA: Harvard University Press, 1999/2000). Rawls, The Law of Peoples, 78–81. An example often raised humorously refers to the band playing on as the Titanic sank. Interestingly, there are those who have recently found honor in that fact. See Anita Singh, “Honour for Titanic’s Fearless Violinist—Band Leader Who Instructed His Men to Play On as Liner Sank Is Listed among Britain’s History Makers,” Daily Telegraph (London), May 27, 2010, National Edition, 13. I am grateful to my wife, Annie Davis Weber, for help categorizing the several forms of policy prioritization I cover in this chapter mentioned into these two bigger categories. She has been a great help and editor throughout this project, though, of course, the flaws in this book are entirely my responsibility. John W. Kingdon, Agendas, Alternatives, and Public Policies (New York: Longman, 1995), 2–3. U.S. Bill of Rights. Like the fictitious President Bartlet in the popular television show, The West Wing. William James, “The Moral Equivalent of War,” in The Writings of William James: A Comprehensive Edition, ed. John J. McDermott (Chicago: The University of Chicago Press, 2000). U.S. Supreme Court, “The Justices’ Caseload,” www.supremecourt.gov/about/ justicecaseload.pdf, last accessed November 20, 2010. Ibid. Of course, the language of “privacy” was a central matter in Roe v. Wade, the decision regarding abortion. The issue of privacy and our right to it is important, therefore, and arises in different cases such as ones involving cellular phones. See Warren Richey, “Supreme Court Takes Up ‘Sexting’ Privacy Case,” Christian Science Monitor, April 19, 2010. Consider reasons like human rights or most fundamental constitutional rights, or reasons akin to Maslow’s hierarchy of needs. See Abraham H. Maslow, Toward a Psychology of Being (New York: John Wiley and Sons, Inc, 1968/1999), 169. See Michael Pinto-Duschinsky, “Financing Politics: A Global View,” Journal of Democracy 13, no. 4, October 2002, 76–7.

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Of course, a central exception to my point here would come from Peter Singer, who has spoken of the language of animal rights, even though he is a strong utilitarian. He would argue that we ought to think in terms of rights for animals because they are also beings who suffer and enjoy themselves. Therefore, he argues on utilitarian grounds for the moral language of rights. See for instance Peter Singer’s Animal Liberation (New York: Harper Perennial, 1975/2009). Thomas W. Pogge, World Poverty and Human Rights: Cosmopolitan Responsibilities and Reforms (Malden, MA: Polity Press, 2002). See Robert A. Levy, “Jose Padilla: No Charges and No Trial, Just Jail,” Chicago Sun Times, Aug. 11, 2003, Editorial, 39, www.cato.org/pub_display.php?pub_ id=3208, last accessed November 20, 2010. Rawls, The Law of Peoples, 65. Ibid., 79. John Rawls, “Two Concepts of Rules,” Philosophical Review, 64 (1955): 3–32. See my book, Eric Thomas Weber, Rawls, Dewey, and Constructivism (London: Continuum International Publishing Group, 2010). From John Stuart Mill, On Liberty (New York: Penguin Classics, 1859/1985), chapter 3, 129. Collin J. Weber, et al. “Long-Term Survival of Poly-L-Lysine-Alginate Microencapsulated Islet Xenografts in Spontaneously Diabetic NOD Mice,” in Cell Encapsulation Technology and Therapeutics, ed. Willem Kühtreiber, Robert Lanza, and William Chick (Boston: Birkhaüser, 1999), 117–37. This point recall’s Maslow’s hierarchy of needs, in which basic needs are essential and most pressing when they are missing, but become far less important or of interest, so long as they are secured, in comparison with richer, more complex needs. Again, see Maslow, Toward a Psychology of Being, 169. From John Dewey, The Public and Its Problems in The Collected Works of John Dewey, The Later Works, Volume 2 (Carbondale, IL: Southern Illinois University Press, 1927/1984), LW.2.364. For a study of the ethical considerations involved in bringing experts together with lay persons, see P. Allmark and A. Tod, “How Should Public Health Professionals Engage with Lay Epidemiology?” Journal of Medical Ethics 32, no. 8 (August 2006): 460–3. See philosopher Tom Rockmore, “On Justifying the First Blow,” working paper, http://tinyurl.com/2fw8ylm, last accessed November 20, 2010. Williams James, “The Moral Equivalent of War,” in The Writings of William James, ed. John J. McDermott (Chicago: The University of Chicago Press, 1910/1977), 660–71. David Boaz presents a critical response to Reagan’s initiative in “A Drug-Free America—or a Free America?” found in the U.C. Davis Law Review 24, no. 617 (1990–1991), 617–36. David Zarefsky, President Johnson’s War on Poverty: Rhetoric and History (Tuscaloosa, AL: The University of Alabama Press, 1986). See Corporation for National and Community Service Web site, “National Service Timeline,” www.americorps.gov/about/ac/history_timeline.asp, last accessed November 20, 2010.

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Peter A. Coclanis, “The Sociology of Architecture in Colonial Charleston: Pattern and Process in an Eighteenth-Century Southern City,” Journal of Social History 18, no. 4 (Summer 1985): 607–23. I am grateful to many people for feedback on this book. On this point in particular, I am indebted to Anna Kate Robbins for her challenging and inspiring question. René Descartes, Discourse on the Method for Conducting One’s Reason Well and for Seeking Truth in the Sciences (Indianapolis, IN: Hackett Publishing Company, 1637/1998). Jean-Jacques Rousseau, The Social Contract, trans. Christopher Betts, Oxford World Classics (New York: Oxford University Press, 1762/1999). John Dewey, Logic: The Theory of Inquiry in The Collected Works of John Dewey, The Later Works, Volume 12 (Carbondale, IL: Southern Illinois University Press, 1938/1986), L.W.12.263. Martin Luther King Jr., I Have A Dream: Writings and Speeches that Changed the World, ed. James Washington (New York: HarperOne, 1963/1992), 104. To be sure, one motivation had to do with security and the idea that if the Soviet Union was in space, it might thereby find a tactical advantage over the United States.

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See Michael Lessnoff, ed. Social Contract Theory (New York: New York University Press, 1990). John Dewey, Human Nature and Conduct in The Collected Works of John Dewey, The Middle Works, Volume 14, 1922, ed. Jo Ann Boydston (Carbondale, IL: Southern Illinois University Press, 1922/1983), M.W.14.122–3. Helen Nugent and Michael Sims, “Hidden Crime of ‘Wi-Fi’ Tapping: Only 11 Arrests but Most of Us Are Guilty,” (London) Times, November 15, 2007, 30. Michel Marriott, “Hey Neighbor, Stop Piggybacking on my Wireless,” New York Times, March 5, 2006, Section 1, 1. See Reed D. Benson, “Whose Water Is It? Private Rights and Public Authority over Reclamation Project Water,” Virginia Environmental Law Journal 16 (1996): 363–427. Frode Eika Sandnes, Ugo Santucci, and Yo-Ping Huang, “User Awareness and Attitude to Home WLAN Security,” in Challenges in Information Technology Management, ed. Man-Chung Chan, Ronnie Cheung, and James N. K. Liu (Singapore: World Scientific Publishing Co., 2008), 106–17. Tim B. Lee, “Hop on my Bandwidth,” International Herald Tribune, March 17, 2006, 6. This is just another word for the tenets of the social contract tradition. See Christopher J. Berry, “From Hume to Hegel: The Case of the Social Contract,” Journal of the History of Ideas 38, no. 4 (1977): 691–703, 696. Referred to hereafter as Berry, “From Hume to Hegel.” Ibid.

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I cover this idea in greater detail in Chapter 2 of my first book, Eric Thomas Weber, Rawls, Dewey, and Constructivism: On the Epistemology of Justice (London: Continuum International Publishing Group, 2010). Berry, “From Hume to Hegel,” 692. John Rawls, A Theory of Justice (Cambridge, MA: The Belknap Press of Harvard University Press, 2000). Weber, Rawls, Dewey, and Constructivism. Berry, “From Hume to Hegel,” 691. Immanuel Kant, Perpetual Peace, trans. Lewis White Beck (New York: Macmillan Publishing Company, 1795/1957), 30. G. W. F. Hegel, Philosophy of Right, trans. T. M. Knox (New York: Oxford University Press, 1952), 242. Hilary Putnam, Ethics without Ontology (Cambridge, MA: Harvard University Press, 2005), 102. Ibid., emphasis is in the original text. Rawls, A Theory of Justice, 16. Larry A. Hickman, John Dewey’s Pragmatic Technology (Indianapolis, IN: Indiana University Press, 1992), 168. Referred to hereafter as Hickman, Pragmatic Technology. Ibid. Ibid. Ibid. See Jean Hampton, “Contracts and Choices: Does Rawls Have a Social Contract Theory?” Journal of Philosophy 77, no. 6 (1980): 315–38, 334. See Samuel Freeman, “Reason and Agreement in Social Contract Views,” Philosophy and Public Affairs 19, no. 2 (1990): 122–57, 145. Amartya Sen, The Idea of Justice (Cambridge, MA: Harvard University Press, 2009). Dewey, Individualism Old and New, in LW.5.122. Hickman, Pragmatic Technology, 169–70.

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Gary L. McDowell, The Language of Law and the Foundations of American Constitutionalism (New York: Cambridge University Press, 2010). See Frederick R. Kellogg, Oliver Wendell Holmes, Jr., Legal Theory, and Judicial Restraint (New York: Cambridge University Press, 2007). I am especially indebted to Dr David Schrader for encouraging me to emphasize a number of points about Holmes. Of course, any flaws in my interpretations of Holmes here are entirely my responsibility. Ibid., 88. David J. Garrow, “The original activist judge,” Washington Post, October 17, 2010, B1. Ibid. Catherine Cook, “Legislating from the Bench,” Harvard Political Review, March 3, 2009, http://hpronline.org/america-and-the-courts/legislating-from-thebench/, last accessed November 20, 2010.

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Oliver Wendell Holmes, Jr., Collected Legal Papers (New York: Harcourt, Brace and Howe, 1920), 239. The common example here is that in Roe v. Wade, the justices in the majority agreed that the Constitution’s Fourth Amendment implied a “right to privacy.” For more on this subject, see Ellen Alderman and Caroline Kennedy’s The Right to Privacy (New York: Vintage Press, 1997), 57–8. It is worth noting that the Family Research Council has been harshly criticized. The Southern Poverty Law Center has labeled the F.R.C. a “hate group.” See Tim Rutten, “Hate Cloaked by Faith,” Los Angeles Times, December 1, 2010, 21. Tom McClusky, “Rein in activist judges,” USA Today, August 2, 2006, 8A. See Edward Erler, “Brown v. Board of Education at 30,” National Review 36, no. 17 (September 7, 1984): 26–53. Jeffrey Toobin’s The Nine: Inside the Secret World of the Supreme Court covers the subject of Roe v. Wade extensively, along with details about the court’s history revolving around the issue. Jeffrey Toobin, The Nine: Inside the Secret World of the Supreme Court (New York: Anchor Books, 2008). McClusky, “Rein in activist judges,” 8A. Martin Luther King Jr., Why We Can’t Wait (New York: Signet Classic, 1963/2000), 70. See John Rawls, A Theory of Justice (Cambridge, MA: Harvard University Press, 1971/1999), 319–20. For an example, consider that in 2007 the Supreme Court believed that Lilly Ledbetter’s case regarding fair pay was strong, in that she deserved fair pay, but the laws were clear that the court could not help her because of a statute of limitations. Congress responded to the Supreme Court’s decision in 2009 with the Lilly Ledbetter Fair Pay Act. See “Progress on Fair Pay,” New York Times, January 28, 2009, A30. Toobin, The Nine, p. 14. When I speak of unenumerated rights, which is language from the Constitution, as I will show in this section, the rights involved need not imply either a Kantian moral framework of rights and duties necessarily, even if the language inclines in that direction. In other words, the Constitution does not commit its citizens to hold a natural law theory. Rather, we can see unwritten rights, like human rights, as matters of moral aspiration, things that would be wonderful to protect if we could. I have developed a way of thinking about human rights in this fashion, following an experimentalist and pragmatist outlook in my paper, “Clearing the Path to Human Rights.” See Eric Thomas Weber, “Clearing the Path to Human Rights,” in Humanity at the Turning Point: Rethinking Nature, Culture, and Freedom, ed. Sonja Servomaa (Helsinki, Finland: Renvall Institute for Area and Cultural Studies, University of Helsinki, 2006), 480–91. For one of many possible examples, consider “Leave the Drinking Age to the States,” an argument by the Tenth Amendment Center, www.tenthamendmentcenter.com/about/, last accessed January 17, 2011. U.S. Constitution, Article 1, Section 8. J. C. Daly (Moderator), W. F. Bolger, H. Geller, J. J. LaPenta, Jr., and Trent Lott, The U.S. Postal System: Can It Deliver?, AEI Forums (Washington, DC: The American Enterprise Institute for Public Policy Research, October 12, 1978).

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I published an article on this subject. See Eric Thomas Weber, “A Historical Mandate for Expanding Broadband Internet Infrastructure,” Review of Policy Research 27, no. 5 (September 2010): 681–9.

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John Stuart Mill, On Liberty (Indianapolis, IN: Hackett Publishing Company, 1859/1978), 46. I am indebted to my colleague here at the University of Mississippi, Dr. Robert Westmoreland, for calling my attention back to this sobering passage. See John Stuhr’s Pragmatism, Postmodernism, and the Future of Philosophy (New York: Routledge Press, 2003), especially chapter 10, “Power/Inquiry: Criticism and the Logic of Pragmatism,” 153–65. Next, see Robert Talisse’s Democracy and Moral Conflict (New York: Cambridge University Press, 2009). Finally, see Colin Koopman’s Pragmatism as Transition: Historicity and Hope in James, Dewey, and Rorty (New York: Columbia University Press, 2009).

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Index

9/11 attacks 37, 77 absolutism 136 activism 140–2 Agassiz, L. 61 agnosticism 31 American experiment, the 62–3 American Founding Fathers 10, 80 American Philosophical Association 19 American Philosophies Forum 57, 62 American Pragmatism 53 amoralism 48 applied ethics 15, 24, 27 Aristotle 32, 65, 67, 110 atheism 31, 50 atomism 136 Bass, Dr. Melissa 1 Belmont Report, the 201, 58 Berry, C. 131–2 “From Hume to Hegel: The Case of the Social Contract” 131 Brennan, W. J. 141 Buddhism 39 Bush, G. 41 Bush, G. W. 50, 82, 90 Butler, K. 83 Canada, G. 1 categorical imperatives 41 charter school movement 1 Churchland, P. 19 Civil Rights Movement 16 classical Pragmatists 65 Clinton, B. 50 compassionate conservatism 91 consequentialism 58, 64, 67

conservatism 146 constant campaign 90 contextualism 98 challenges for the visionary approach 113–19 Cook, C. 142 “Legislating from the Bench” 142 creationism 47 culture war 86 death tax 81–2 Declaration of Independence 98, 156 Democrats 4–5, 75, 142 deontology 58, 64, 98, 106, 151 Descartes, R. 19, 115 Dewey, J. 3, 8, 31–2, 34, 53, 54, 58, 64–6, 69–71, 74–7, 79–82, 86, 90, 95, 112, 114, 116, 124, 132, 134, 136–7, 157 Art as Experience 74 A Common Faith 31–2, 34 on communal inquiry and creativity 75–83 “The Development of American Pragmatism” 55 Logic: The Theory of Inquiry 74, 76, 116 The Public and Its Problems 112 “The Reflex Arc Concept in Psychology” 80 divine command theory 67 and the Euthyphro problem 34–8 Edmonds, J. 62 education, description of 81 egalitarianism 98 Elliott, C. 17

186

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estate tax 82 ethical due diligence (EDD) 20 ethics 46, 48, 50, 57, 68, 70 Euthyphro dilemma 33–5, 44, 48, 50 experimentalism 3, 5, 10, 21, 29, 31, 34, 38, 50, 53–4, 56, 70, 74, 97–8, 123, 130, 132, 137, 139–40, 146 central tenet of 131 in public affairs 68–71 in scientific practice 54–62 fallibilism 34, 44, 50 Falwell, J. 37, 77–8 Fleming, P. 32 Franklin, B. 90 Freeman, S. 135 Freud, S. 85 Friedan, B. 74–5, 83, 85, 95 The Feminine Mystique 74–5, 83–4 and unidentified problems 83–6 Garrow, D. 141 Gaus, G. 15, 19, 21–8 “Should Philosophers ‘Apply Ethics’?” 15–16, 21 Gingrich, N. L. N. 4–5 “Where Does the Conservative Movement Go from Here?” 4 global warming 83 God’s will 35–6, 38 Graber, G. 68 “In Defense of a Divine Command Theory of Ethics” 68 Greenspan, A. 5 Hampton, J. 135 Harris, S. 34–5 “God-Drunk Society” 34 Hegel, G. 124, 131–4, 137 Hickman, L. 95, 134–5, 137 Hitler, A. 40 Hobbes, T. 19, 134 Holmes, O. W. 140, 143, 146 Hook, S. 7, 15–17, 22, 29 “Philosophy and Public Policy” 16, 22

Hooks, B. 74–5 Feminist Theory: From Margin to Center 84 humanism 33, 39, 45–6, 48 described 33 Kurtz on 44–50 Hume, D. 4, 124, 131–2, 137 hypothetical imperatives 40 incrementalism 62 individualism 136 instrumentalism 3, 80, 98 intuitionism 64 James, W. 19, 26, 80, 103, 114 “The Moral Equivalent of War” 114 Jesus Christ 56 Johnson, L. B. 114 Johnson, M. 86–7 judges 139–41 and accusations of activism 141–7 legal underdetermination, the Constitution, and 147–50 judicial activism 141, 145 Kant, I. 40, 64, 66–7, 106, 109–10, 132–3 Kellogg, F. R. 140 King, M. L. 61, 116–17, 144 Kingdon, J. W. 9, 99 Knowledge Is Power Program (KIPP) schools 1 Koopman, C. 157 Koran, the 40 Kurtz, P. 32–4, 44–50, 88 Humanist Manifesto 2000 45 “On Human Values” 48 Lachs, J. 21 A Community of Individuals 21 LaHaye, T. 7, 32–3, 35–7, 44, 48 The Battle for the Family 32, 33 “Godless Society” 35 Lakoff, G. 74–5, 83, 86–95 Don’t Think of an Elephant! Know Your Values and Frame the Debate 86–94

Index Lee, T. B. 128 “Hop on my Bandwidth” 128 Levy, R. 107–8 liberalism 136 libertarianism 58, 64, 98, 110 Lincoln, A. 39 Locke, J. 134 Lott, T. 149 Luther, M. 39, 60 Mahatma Gandhi 38–9 McClusky, T. 144 McDowell, G. L. 11–12, 140 The Language of Law and the Foundations of American Constitutionalism 11 Mengele, J. 57 Metaphors We Live By (by Lakoff and Johnson) 86 middle-class white women (MCW) 84–5 Milgram, S. 53 Mill, J. S. 65, 110–1, 156 On Liberty 110, 156 moral theory 53, 62, 98, 139 flexibility in 64–8 Mosaic Law 56 Nagel, T. 38 Nietzsche, F. 25, 32 Nixon, R. 89 Norcross, A. 66 Nugent, H. 125 Obama, B. 4, 89, 91 objectivism 48 Olbermann, K. 86 O’Reilly, B. 86–7 Culture Warrior 87 Palin, S. 12, 93 Peirce, C. S. 55 philosophical ethics 31 philosophical fallacy 124 philosophy, central tenets of 22 Pinker, S. 92 planetary ethics 49

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Plato 22–3, 28, 48 Pogge, T. 107 Political liberalism 39, 43 Presidential Studies Quarterly 82 presupposition 16 proceduralism 64 public inquiry 48, 74 public policy 15, 50, 70, 99, 100, 99–101, 141, 155 approaches to prioritization of 101–6 contemplative 101–4 immediate 101, 104–6 variety in 111–13 visionary approach to 115 philosophers and 106–11 philosophy for, importance of 16–21 public reason 34, 40, 42–3, 46 Rawls’s idea of 38–44 public-reason-liberalism 47, 50 purists 21–8 Putnam, H. 134 rational abilities 41 Rawls, J. 6–7, 18, 34, 38–40, 42–4, 47, 49, 54, 64, 65, 67–8, 88, 98, 107–10, 132, 134–5, 139, 144, 150 “The Idea of Public Reason Revisited” 34 The Law of Peoples 18, 98, 108 Political Liberalism 38–9, 136 A Theory of Justice 38–9, 64, 132 “Two Concepts of Rules” 54, 64, 66, 109, 141, 150–2 Reagan, R. 93, 114 Reagan administration 141 reasonableness 41 relativism 48 Republicans 4–5, 75, 90, 93, 142 resting content 25 retributivism 151 Robertson, P. 77–8 Rockmore, T. 113–14 Rogers, J. E. 21 Roman Catholicism 39

188 Ross, D. 26 The Right and the Good 26 Rousseau, J-J. 19, 115–16, 134 The Social Contract 115 Royce, J. 19 Russell, B. 32 St Anselm 37 St Augustine 37 St Thomas 37 secular humanism 32 Sen, A. 81, 136 The Idea of Justice 136 Sierra 83 Sims, M. 125 Singer, P. 97 “Famine, Affluence, and Morality” 97 social contract theory 123–4, 130, 132, 134 critics of 124 Hume, Hegel, and Dewey on 130–7 social intelligence 86 Stephanopoulos, G. 89

Index Sterba, J. 64, 66, 68 The Triumph of Practice over Theory in Ethics 65 Stuhr, J. 57, 157 Talisse, R. 42, 157 Ten Commandments 56 theism 31 Toobin, J. 145 underdetermination 147 United Nations Universal Declaration of Human Rights 45 utilitarianism 54, 67, 98, 110 virtue ethics 58, 67, 98, 110 Weber, E. T. Rawls, Dewey, and Constructivism 132 Westmoreland, R. 42–4 “The Truth about Public Reason” 42 Zarefsky, D. 82