The Public Life of Ethics

Edited by

Louis Colombo and Aaron Vlasak

The Public Life of Ethics

Critical Issues

Series Editors Dr Robert Fisher Dr Daniel Riha

Advisory Board Dr Alejandro Cervantes-Carson Dr Peter Mario Kreuter Professor Margaret Chatterjee Martin McGoldrick Dr Wayne Cristaudo Revd Stephen Morris Mira Crouch Professor John Parry Dr Phil Fitzsimmons Paul Reynolds Professor Asa Kasher Professor Peter Twohig Owen Kelly Professor S Ram Vemuri Revd Dr Kenneth Wilson, O.B.E

A Critical Issues research and publications project. http://www.inter-disciplinary.net/critical-issues/ The Transformations Hub ‘Ethics and Public Life’

The Public Life of Ethics

Edited by

Louis Colombo and Aaron Vlasak

Inter-Disciplinary Press Oxford, United Kingdom

© Inter-Disciplinary Press 2010 http://www.inter-disciplinary.net/publishing/id-press/

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British Library Cataloguing in Publication Data. A catalogue record for this book is available from the British Library.

ISBN: 978-1-84888-029-0 First published in the United Kingdom in eBook format in 2010. First Edition.

Table of Contents Introduction Louis Colombo and Aaron Vlasak PART I:

Ethics, Disagreement, Democracy The Impunity of Politicians: Rancière, Harvey and the Ethical Turn John McSweeney

PART II:

PART III:

PART IV:

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The Ethics of Testimony Paula Kuffer

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Happiness: A Private Refuge or the Construction of a Common House? Javier Camargo

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Ethics and the Academy Ethical Challenges in Today’s Higher Education Institutions in Lebanon: A Stakeholder Analysis Berge Traboulsi

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Cheating the Academy as Solidarity Louis Colombo and Aaron Vlasak

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Ethics and Regulations Transparency without Ethics? Some of the Effects of the Absence of Ethics in the Model Victor S. Peña

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Codes, Regulations…But No Systematic Ethics Accountability for Chief Executives Kathryn G Denhardt and Alain Noghiu

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Ethics and Public Understandings The Public Understanding of Ethics and its Relevance for Bioethical Reflection Mark Schweda and Silke Schicktanz

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Introduction Louis Colombo and Aaron Vlasak The papers collected in this volume represent the conference proceedings of the 2nd Global Conference: Ethics in Public Life. Participants, from various countries and trained in various disciplines, gathered in Salzburg, Austria in March, 2010 to discuss topics in the character and role of ethics in public life. Our presentation of papers approximates the original organization of the conference but slightly exercises creative license in the re-distribution of papers to parts, which are conceived along the following lines. Part one is oriented around issues of difference and happiness as they relate to democracy. Democracy as it exists today seems to take as its political and ethical task the building of consensus, a building which would happily run roughshod over any real dissent. ‘Progress’ replaces happiness as the telos of democracy; for happiness is at best an individual affair, perhaps something to be purchased in the marketplace, which has been prepared by our consensual politics. One should say our ‘politics’ is without politics for without dissent politics reaches a standstill. Against these trends, the three papers collected in this part seek to reinvigorate the ethical/political landscape by directing our ears to the voices of those who have been drowned out by the cacophony of consensus, whether those be voices which threaten the way of life consensus seeks to conserve, the voices of the victims of history that consensus would have us ignore, or the voices which suggest that we reclaim happiness as a political, even revolutionary concept, one that helps shatter the consensus that happiness is merely a private refuge. In ‘The Impunity of Politicians: Rancière, Harvey and the Ethical Turn’, McSweeney explores the depoliticisation of politics as it is presented in these two thinkers. Whereas Rancière contends that recent trends in political thinking deprive the political community of their ‘founding condition,’ that is, dissensus, or ‘difference from itself,’ Harvey’s analysis focuses on neoliberalism and post-consumer society, noting that difference is here reduced to consumer choice. At stake for both thinkers is the fate of difference in our emerging political communities and the fate of political communities, which suppress and ignore such difference. Kuffer’s article, ‘The Ethics of Testimony’, focuses on difference from an alternate angle as she articulates the paradox of testimony derived from her reading of Walter Benjamin. If the purpose of testimony is to resurrect a buried past, the paradox can be expressed simply: those who are able to tell have nothing to say, while those who should be speaking, the victims, are unable to speak precisely because they are the victims, the dead and defeated. The true historian is thus in the precarious position of having to

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______________________________________________________________ speak for those who cannot speak for themselves, and s/he must speak in a voice which contests the official testimony of the victors. The true historian is thus one who disrupts both the time and narration of history in an effort to shatter the consensus which would bury the voices of the dead. Camargo presents an imaginative reading of three authors who treat the urgency of thought in these times between past and future when tradition no longer holds. ‘Happiness: A Private Refuge or the Construction of a Common House?’ outlines a reading frame in which the author seeks to investigate the work of Hannah Arendt, Giorgio Agamben, and Maurice Merleu-Ponty. This frame, nuda-felicidad-pobre (bare-poor-happiness), is explored in three deepening levels with respect to these authors, culminating in the attempt to ‘rethink happiness from ethics and biopolitics.’ Part two situates the project of rethinking ‘ethics in public life’ within the life of academic institutions, institutions which do not always live up to their promise of exemplifying the ideal of publicly available ethical life. Both papers in this section attempt to address the current ethical impasse which is to be found in higher education. In ‘Ethical Challenges in Today’s Higher Education Institutions in Lebanon: A Stakeholder Analysis’, Traboulsi points to several ethical challenges that arise specifically in the Lebanese context of higher education, analysing them from the standpoint of the concerned stakeholders. He concludes that as institutions of higher education are formed in the image of the society in which they operate, rooting out corruption in these institutions requires that we take a hard look at the corruption in these societies. Vlasak and Colombo, in ‘Cheating the Academy as Solidarity’ propose a new model of cheating, one which does not reject Kantian or Aristotelian models, but which attempts to situation those models in the current climate of higher education. By situating these models within the current academic climate, the authors attempt to remove the blindness which afflicts them. By articulating a model of cheating which sees cheating as a method by which the cheater navigates an oppressive institution, Vlasak and Colombo draw our attention to the failings of the corporate model of education and urge a renewal of liberal education which is more than mere ‘skillfullness.’ Part three identifies and reflects upon the disparity between institutional measures of ethical conduct and the behaviour of high-ranking officials within institutions. This gulf crosses both governmental and nongovernmental organizations: against the blurred backdrop of a discourse of ethics, scandals unfold the world wide, and the impotence of institutionalised ethics is brought to focus. Both papers in this part attempt to make way for the important work of explaining the impotence of institutionalised ethics. Pena, in ‘Transparency without Ethics…’ deals with the laws in Mexico that guarantee public access to governmental information and set

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______________________________________________________________ channels of involvement where citizens can interrogate public information. Philosophically, we might insert, the idea behind the requirement of publicity is that policies need to be reasonably acceptable to all interested parties in order to be just. In the terms of Pena’s paper, the stated goals of ‘transparency’ include the eradication of corruption and the installation of public confidence. But Pena provides an example of an administration which conformed to the laws relating to transparency and yet ended up being one of the most corrupt. Here Pena seems to come close to the philosophical realization that publicity is not the sufficient condition of justice. His paper goes on to probe possible explanations for the evident failure of the national transparency laws. In ‘Codes, Regulations...But No Systematic Ethics Accountability for Chief Executives’, Denhardt and Noghiu remind us of the frequency of ethical transgressions involving senior executives of large for-profit and nonprofit organizations in the U.S. Our authors observe that virtually all senior executives are subject to systems or codes explicitly designed to regulate their conduct, and they are accountable to their Boards of Directors. Yet, Denhardt and Noghiu’s research suggests that these systems and codes are mere formal cover. In practice, as their title indicates, there is no systematic accountability for senior executives. Even further, they suggest, there are structural barriers that impede active and effective ethical assessment. The fourth and final part of this collection deals with the relationship between empirical evidence and ethical imperatives. No doubt there is a place for including empirical evidence in our ethical deliberations. After all, it is in the social context that ethical problems arise and it is the social world to which ethical judgments apply. Yet when it comes to deriving a judgment about what ought to be done solely from empirical evidence or public understanding, many will rightly recall the ‘naturalistic fallacy’: it is a mistake to argue from premises about what people believe to be right to a conclusion about what really is right. The novelty of the one paper in this final part is that our authors are shrewd to point out that often the spokesman of the naturalistic fallacy does not acknowledge that most popular contemporary ethical theories already require that we consider the views or interests of others in our ethical decision-making. Schweda and Schicktanz, in ‘The Public Understanding of Ethics and its Relevance for Bioethical Reflection’, probe the basis and legitimacy of ethics experts in the field of biomedicine. An ‘empirical turn’, they note, has come to see public attitudes in morality as relevant to ethical deliberation. This insight is important in the bioethical context where ‘affected’ persons claim to have exclusive perspectives that cannot be reconstructed by an impartial observer. Our authors go on to say that once we make this concession, there are lingering methodological issues that acquire a normative significance to the bioethicist.

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______________________________________________________________ In conclusion, the following papers reflect upon the apparent discord between ethics and public life in four contexts. While democracy is often conceived as consensus-building, consensus threatens democracy when dissenting voices of the ethical go unheard. In the context of academia, while we expect institutions of higher learning to embody certain values, academic institutions must survive within societies where conditions are unsupportive of the values we expect academic institutions to embody. In the context of large governmental and non-governmental organizations, politicians and senior executives are the subject of ethical misconduct and scandals which crop up with unacceptable regularity despite the prevalence of the discourse of ethics and the implementation of codes of conduct. In the field of bioethics there are experts who are supposed to make better judgments than most, though in many cases their judgments involve persons who may have an utterly particular view of the world. In these and other contexts it is imperative that we rethink the dialectical relationship between ethics and public life, the extent to which ethics can and should shape public institutions and the extent to which public understanding can and should shape ethics.

PART I Ethics, Disagreement, Democracy

The Impunity of Politicians: Rancière, Harvey and the Ethical Turn John McSweeney Abstract Myriad examples might be evoked of politicians today acting with apparent impunity, resistant and/or immune to accountability - even as public life itself is undergoing an ‘ethical turn.’ 1 This paper explores such phenomena in light of the recent argument of Jacques Rancière that, if society and politics have recently undergone such an ethical turn, it is ultimately a depoliticising one, which deprives communities of the dissensus - the difference from itself that is the founding condition of a political community. In turn, albeit more briefly, it considers David Harvey’s broader analysis of neoliberalism, which not dissimilarly traces the emergence of a post-modern consumer society that reduces difference to consumer choice. Each thinker’s work, it is concluded, suggests that ethics has been undermined by a complex exclusion from the political sphere of real difference. At the same time, each holds that such a political conjunction is by no means necessary. The paper explores the possibility of a return of ethics proper to politics by attending to the remedies each thinker prescribes and the broader issues raised, in their analyses, concerning the intersection of an effective ethics and politics. Key Words: Ethics, ethics and politics, Harvey, neoliberalism, Rancière, and zone of indistinction. ***** 1.

Introduction Myriad examples might be evoked of politicians today acting with apparent impunity, resistant and/or immune to accountability - even as public life itself is undergoing an ‘ethical turn,’ with more and more areas governed by ethical principles and codes. For instance, one finds politicians, who flout the ethical rules they themselves have established, or who square dubious actions by offering bizarre interpretations of how they comply with ethical rules. Or, again, they dismiss the demand for ethical standards over ‘getting the job done,’ or boldly face down public anger over a given issue, wagering that the public recognise that the opposition parties are ‘no different,’ and that it is not worth the risk of discovering whether these opposition parties will perform adequately on this or other issues.2 This paper explores such phenomena in light of the recent argument of Jacques Rancière that if society and politics have recently undergone such an ethical turn, it is ultimately a depoliticising one, which deprives communities of the dissensus - the

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The Impunity of Politicians

______________________________________________________________ difference from itself - that is the founding condition of a political community.3 In turn, albeit more briefly, it considers David Harvey’s broader analysis of neoliberalism, which not dissimilarly traces the emergence of a post-modern consumer society that reduces difference to consumer choice, offering a somewhat different perspective on these issues.4 Each thinker’s work, it is concluded, suggests that ethics has been undermined by a complex exclusion from the political sphere of real difference. At the same time, each holds that such a political conjunction is by no means necessary. The paper explores the possibility of a return of ethics proper to politics by attending to (1) Harvey’s analysis the complex interplay between the dynamic and politically-limiting forces of capital unleashed by neoliberalism, the apparent contradictions within and the role of political, ideological and industry agents in shaping the contemporary context, over many decades; and (2) Rancière’s two-fold reminder that Aristotle sought to resolve political dissensus by a careful distinction between those who merely have voice to articulate pleasure and pain and those who possess speech, the condition of politics, and that Plato argued that artisans have no time to occupy themselves with politics. 2.

Rancière and the Ethical Turn Rancière argues that the ‘ethical turn’ taking place in contemporary society has little to do with a return of morality. If there is an impulse to ensure that everyone acts and is treated according to a single, common set of standards, this is elaborated upon and undermined by the more basic emergence of an ideology of social consensus that suppresses difference. In Rancière’s terms, consensus neither refers simply to the emergence of agreement between political parties as to key national interests, nor to a style of government that gives priority to discussion and negotiation in conflict. More basically, it involves symbolically structuring society such that there are no ‘parts without part’ (the poor, the marginalised, discriminated against, etc.), which would function as a ‘remainder’ that disrupts the notion of a society of equals, sharing common ends, and thus constitutes the beginning of politics.5 Consensus is the elimination of politics proper via the reduction of the various ‘peoples’ that constitute a society to ‘a single people identical with the count of a population and its parts, of the interests of a global community and its parts.’6 As such, Rancière argues, consensus tends to reduce right to fact, creating what he terms a ‘zone of indistinction.’7 Since everyone is supposed to be ‘counted’ and their concerns accounted for, there is no fundamental torsion by which society is riven, and no fundamental structural injustice; rights (and law) will largely reflect the factual situation. Governments typically legislates to formalize and regulate what is, rather than to realise the ideals or vision of a community. If one falls outside of the count it is for one

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______________________________________________________________ of two reasons. First, one may find oneself in a position of disadvantage, but with no structural obstacle to being rescued from this essentially accidental situation, and so no need for rights that counteract what might otherwise be termed the ‘violences’ of the factual situation. One is simply one to whom the community must reach out a helping hand.8 Inversely, this is not a question of justice as such. Not only are the standards by which justice might be measured substantially aligned with the demands of the factual situation, but the specific traumas or violences suffered by individuals become transposed to a general sense of the trauma that underpins and threatens the consensual social order. In a situation in which individual actions are no longer contextualised within a framework of the just and unjust, all are guilty of inflicting trauma and thus the distinction between innocence and guilt break down. The gap individuals experience between right and fact in their own actions renders each guilty of being a threat to the consensual order Antigone, as analysed by Lacan, being the figure of this threat, according to Rancière.9 Against this backdrop of guilt and threat, the primary goal is the ‘conservation of a way of life.’10 The force of this threat is once again derived from the zone of indistinction, for insofar as there is no gap between law and fact, right and violence, there is equally no possibility of a different (and better) world. The suppression of difference not only absolves the community of the task of politics, but it equally deprives the community of the political thinking which would support the capacity to imagine an alternative world, and so to believe that we need not cling to the current order but can hope for a better world. The emphasis on conservation of a way of life is also rooted, Rancière argues, in the tendency in post-modern thought to have politics revolve around the unrepresentable. In a move that has caused some controversy, Rancière highlights how the Holocaust has come to be that unrepresentable catastrophe whose repetition politics must avoid at all costs. Rancière is by no means trivialising the Holocaust, but arguing that a very specific and no means necessary politics has been built upon this interpretation (especially in France, led by Benny Lévy),11 which inhibits a politics which would acknowledge real difference. No less, Rancière is equally critical of Lyotard’s politics and ethics of the sublime, which, in placing the unrepresentable at the heart of politics and ethics, makes difference unthinkable.12 The second way in which one can fall outside the consensual social ‘count’ follows upon this basic sense of threat: one is ‘radically other’ than the social order and a threat to it. Rancière argues that, in recent years, this notion of radical otherness has gained a global dimension in relation to terrorism, which intensifies the extent to which one must be for, or on the side of, the consensual order and the conservation of a way of life: the construction of the terrorist other.13 Rancière is not naive about the threat that

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______________________________________________________________ terrorism poses, but argues that the so-called ‘war on terror’ extends the ‘zone of indistinction’ such that what George W. Bush termed ‘infinite justice’ - a ‘justice’ that can be deployed pre-emptively - is justified as a means of conservation of a way of life. In particular, not only is the gap between right and fact collapsed, but the factual is, as it were, ‘subtracted’ from itself by the catastrophe of terrorist acts and the threat of further catastrophe. In other words, not only is there no longer any positive alternative to the prevailing way of life, but this life stands in relation to the abyss of its destruction. Ultimately a proper politics of dissensus has given way in our societies, Rancière argues, to a ‘theology of time’ defined by catastrophe and/or a waiting for a salvation to come, which lies beyond our capacities.14 The ethical impulse, then, is circumscribed by the need to conserve a way of life, which has been and is threatened from outside by the other, and is potentially undermined at every turn from the ‘inside’ by virtue of the Antigone lurking in each member of society, who would insist on right or law over the violence of facts. In this context, it is not difficult to understand how politicians might act with relative impunity: there is not only a fundamental sense that there is no alternative to the current consensus-politics, but equally to challenge this consensus in any substantive way is to threaten society with the abyss of catastrophe. At the same time, the ethical position, from which this construal of things might be challenged, is itself doubly undermined. While there may be rules, ethical standards, and so on to govern political actions, the zone of indistinction means that there is no clear standard by which these may be applied and interpreted. And the citizen who would contest this exploitation of the zone indistinction is him- or herself mired within it. For Rancière, then, the possibility of an ethics proper depends upon politics proper (distinct from what he would term ‘policing’ - politics that suppresses the real difference or dissensus within society.)15 Put differently, ethics proper will involve political contestation of the consensual frameworks within which ethics in the public sphere typically operates today. It will involve making visible that part having no part within that system. Moreover, there will also be distinctly political forms of contestation and thought which are a necessary supplement and condition of ethical thinking. That is to say, a vibrant politics in Rancière’s sense is the condition of ethics, even as ethics will ultimately also critically reflect not only upon ‘policing’ but upon politics proper. 3.

Harvey and the Emergence of Neoliberalism David Harvey’s analysis of the emergence of neoliberalism complements Rancière’s approach, pointing to the manner in which real difference is undermined by neoliberal transformations. Harvey highlights

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______________________________________________________________ how neoliberal conceptions of individual freedom, centred on market freedoms (and restrictions, on the side of labour) that facilitate the creation of wealth, have become dominant since the emergence of neoliberalism in the 1970s.16 He suggests that emancipatory movements in the 1970s were vulnerable to neoliberal ideology, because individual freedom, especially from the state, was seen as a key to a social justice which had to be won from the state and corporate power. Moreover, precisely those movements which value individual freedom tend to lack organizational cohesion and unity of purpose, leaving them vulnerable to having a wedge driven between different elements of a movement. Neoliberal thought also suggested a means for these movements to negotiate the difficult problem of capitalist corporate power: consumer choice offered a practical means of limiting state intervention, while suggesting a say for the consumer in which corporations thrive (consumer power). It also supports the apparently powerful, seductive, and then emerging post-modern notion of constructing a unique lifestyle as the expression of one’s freedom and resistance to hegemonic forces.17 Running through Harvey’s analysis is also the sense of both the challenges facing the capitalist system in the 1970s and, more obliquely, the human challenge of pursuing radical emancipation with the divisions, destructions and impasses that such movements generate and the powerful reactionary forces that they provoke. More so, Harvey evokes the sense of real differences not only between those seeking emancipation and the state or capitalist powers, but real differences between emancipatory actors themselves that in Rancière’s terms could not easily be ‘counted’ as one within society. Thus, neo-liberalism not only offered a means of addressing immediate financial problems, but a means of translating the problems of emancipatory politics into a less fraught and less uncertain idiom - one, however, whose mediation of difference by consumer choice would ultimately prove to be depoliticising. 4.

Reinvigorating Ethics While there are clear resonances between these analyses, and points at which they intersect each other, I will not attempt here to reconcile or integrate Rancière and Harvey’s approaches. Rather, in a sense, it is their differences which are important: they each emphasise a dimension of the contemporary elimination of real difference and the undermining of ethics in the public sphere. One might say Rancière examines the internal logic of the socio-cultural ideas and framework, which neoliberal economics supports, while Harvey interrogates the neoliberal impact upon the context in which these ideas have been elaborated. Rancière will primarily direct us to the question of ‘aesthetics of politics’: the problem of making visible and sayable social-consensus that eliminates real difference, in a way that disrupts its operation.18 Harvey, on the other hand, stresses the extent to which the

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______________________________________________________________ success of neoliberalism rested, in part but integrally, upon a concerted, multi-faceted effort by organizations and individuals to further its agenda and concerns via neo-liberal think-tanks, the gaining of a significant presence in higher education, heavily-funded and collectively-planned corporate lobbying of governments, and so on.19 Hence, Harvey’s analysis thus pushes ethics toward an interrogation and contestation of the multiple and various practices, interventions, forms of lobbying, and their corresponding reception by politics which supports and continues to modulate the contemporary socio-cultural consensual space. As such, the impunity of politicians also rests upon the fact that apart from certain actions, relationships, etc., that are deemed ‘scandalous,’ these kinds of actions, interventions, etc., remain largely uninterrogated. Harvey’s analysis of the contradictions within neoliberalism and the many movements that attempt to contest it on the sites of these contradictions, combines well here with Rancière’s recollection that Aristotle sought to resolve political dissensus by a careful distinction between those who merely have voice to articulate pleasure and pain and those who possess speech, the condition of politics, and that Plato argued that artisans have no time to occupy themselves with politics. Juxtaposed, their analyses therefore point to a practice of taking one’s place in the centre of the polis and as Rancière has suggested of performing an equality of speech at the sites of dissensus. At the same time, although Rancière remains committed to the notion of an aesthetic politics (and, one might say, ‘ethics’), in the sense already discussed, the logic of his position suggests the need to go further than such a practice, or even Harvey’s notion of exposing contradictions. If the dynamics of a consensual society depends upon the notion of a way of life that is the only way of life and so must be conserved, something more would seem to be needed than merely making difference visible. For, made visible, such difference tends to intensify the concerns about this way of life: if real difference is acknowledged and engaged with, then this way of life appears an even more fragile construction. This has been evidenced in the financial crisis - the event that reveals the contradictions of neoliberal capitalism, and the real differences which are sacrificed to it, has, if anything, underscored the extent to which we can only hope to conserve the current order to things, and that whatever ethical responsibility toward dissensus is possible, is possible only within this way of life.20 As such, the deeper challenge to which Rancière’s analysis appears to point, somewhat against his own prescriptions, is the need to interrogate and articulate the possibility of an alternative world. The felt need to conserve the current order must be challenged by beginning to articulate and construct the alternative worlds that are possible. Of course, this raises the question of how one can do so while remaining open to the torsion of real difference, by which society is driven; of how one can combine politics

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______________________________________________________________ proper (as Rancière conceives it) with a constructive project that does not become a mode of ‘policing’. As difficult as it may be to conceive of such a practice, it is that, nevertheless, to which Rancière’s analysis points.

Notes 1

This paper has been prepared with the support of funding by the Irish Jesuits through Milltown Institute. 2 While it is beyond the scope of this chapter to provide supporting data, I would suggest that these issues or variants of them appear and reappear consistently across a wide range of political systems and contexts. 3 This argument is found in J Rancière, Aesthetics and its Discontents, trans. S Corcoran, Polity Press, Cambridge, 2009, pp. 109-132. 4 See D Harvey, A Brief History of Neoliberalism, Oxford University Press, Oxford, 2007. 5 Rancière’s notion of the “part having no part” is given its seminal expression in J Rancière, Dis-agreement: Politics and Philosophy, trans. J Rose, University of Minnestoa Press, Minneapolis, 1998. 6 Rancière, Aesthetics, p. 115. 7 Ibid., pp. 28, 112. 8 Ibid., p. 116. 9 Lacan’s analysis of Sophocles’ Antigone is pursued in J Lacan, The Ethics of Psychoanalysis, The Seminar of Jacques Lacan: Book 7, Routledge Classics, London and New York, 2007, pp. 297ff. 10 Rancière, Aesthetics, pp. 113-114. 11 Ibid., pp. 123-7. See, for example, B Lévy, Le Meurtre du Pasteur: Critique de la vision politique du monde, LGF, Paris, 2004. 12 Rancière, Aesthetics, pp. 127-8. 13 Ibid., pp. 111-2, 116. 14 Ibid., p. 132 15 Again, see Rancière, Dis-agreement, pp. 21ff. 16 Harvey, op. cit., pp. 5-38. 17 Ibid., pp. 39ff. 18 See J Rancière, The Politics of Aesthetics, trans. G Rockhill, Continuum, London and New York, 2004. 19 Harvey, op. cit., 43-46. 20 Rancière’s ethics largely follows the thrust of Alain Badiou’s rearticulation of ethical theory. See A Badiou, Ethics: An Essay on the Understanding of Evil, Verso, New York and London, 2002. However, the particular value of Rancière’s reading is that he articulates the felt tensions and anxieties which tend to secure the ‘zone of indistinction’ that allows space for no real difference.

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Bibliography Badiou, A., Ethics: An Essay on the Understanding of Evil. trans. P. Hallward, Verso, New York and London, 2002. Harvey, D., A Brief History of Neoliberalism. Oxford University Press, Oxford, 2007. Lacan, J., The Ethics of Psychoanalysis, The Seminar of Jacques Lacan: Book 7. Routledge Classics, London and New York, 2007. Lévy, B., Le Meurtre du Pasteur: Critique de la vision politique du monde. LGF, Paris, 2004. Rancière, J., Dis-Agreement: Politics and Philosophy, University of Minnestoa Press, Minneapolis, 1998. _______

, The Politics of Aesthetics, trans. G. Rockhill, Continuum, London and New York, 2004. _______

, Aesethetics and its Discontents, S. Corcoran (trans). Polity Press, Cambridge, 2009. John McSweeney is Hyde Fellow in Philosophy, Milltown Institute, Dublin, Ireland. His research centres on poststructuralist politics and ethics and the work of Žižek, Badiou and Rancière.

The Ethics of Testimony Paula Kuffer Abstract The current communication considers the notion of testimony, whose importance is crucial in the ethical configuration of the public discourse about memory. The theoretical turning points are Walter Benjamin’s premises about the writing of history and the issue of the articulation of the voice of the defeated. According to Benjamin, the account of temporal continuity proposed by historicism is equivalent to the dominant narration of the victors, and reduces the victims to pure nothingness by their integration in a causal fiction that assumes their death as necessary. If the real writing of history entails paying attention to these failed fights that would never fit into the epic fiction of the winners, the real testimony entails everyone that has been unable to testify. In the act of testifying an obvious paradox arises: the survivor talks without really having anything to tell, because the true crime is beyond his knowledge; however, his telling is the only bridge to the real victims, the ones who cannot talk precisely because they have given in. The historian as an interpreter of history, must be responsible to this silenced past and cater to the essential gap between the drowned and the saved, its dialectic. Key Words: Dialectical image, historicism, memory, remembrance, testimony Walter Benjamin, and writing of history. ***** This paper exposes the notion of testimony and presents it as a main point in constructing a public discourse concerning memory, that’s to say, a political discourse. A discourse which is not only capable of catering for the voice of the victors, by definition those who write history, but also caters to the voice of the defeated and their failed plights, not to commemorate these plights but to update them. The mentioned discourse is based on the premises about the writing of history that Walter Benjamin set out in his last text Thesis on the Philosophy of History. The Benjaminian philosophy of history has a peculiar place amongst the philosophies of history we are used to. We are used to thinking about history as a successive series of objective and closed events that took place in a past time. We are used to thinking that progress takes place as time goes by, that things get better, that they have a sense and a finality. A history written from this perspective displays a tale that links events causally, and therefore establishes a linear continuity and a need between them. Hegel is one of the

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______________________________________________________________ most famous defenders of this vision: ‘Everything that is real is rational, and all that is rational is real.’ From this perspective, the point isn’t the finality to which all these philosophies of history aspire; it doesn’t matter if it is the development of the spirit towards the conscience of his freedom or the un-classed society of Marxism. What matters is that they consist of philosophies which cater to a future which is bound to happen, and even if that future might be a promise of happiness, the happiness is always postponed. What comfort is Hegel’s philosophy of history for the victims? None. It is a philosophy written by and for the victors. A mere narcissistic history arises from the ideology of progress; it is written for its own sake, to legitimise itself, a nihilistic history that turns the dead into necessary victims for a definite end; the Kingdom of God, self-consciousness of the spirit or a society free of classes. They are philosophies of history which do not look back, that only look to the future. The ideology of progress presents to us an optimistic history, a permanent road towards the final realisation of humanity, that tends to exclude the failures, even in the Hegelian version, that includes death and tragedy and the negative processes as an impulse towards a final positive stage of selfconsciousness and freedom. Benjamin’s view is not modern in the Habermasian sense, for in his philosophical discourse it is not possible to incorporate fundamental principles of the Benjaminain thinking, such as the Jetzteit, that time that blasts the continuum of history. It is not post-modern either in Lyotard’s sense, despite outlawing the great narrative of modernity, deconstructing the discourse of progress and despite its support for the discontinuity of history. Benjamin is far from having substituted the great narrations for flexible and agonistic language games. Benjamin’s concept of history is not beyond all narrations, but actually constitutes a story of emancipation that is inspired in Marxist, messianic and romantic foundations, and that makes use of the nostalgia of the past as a revolutionary critique of the present. His idea of the past being something unfinished that in a future will repair its injustices, rules out the concept of the present as being agonistic. At the same time, Benjamin intended to set out an alternative and controversial vision of historical materialism, especially that which was professed by a main part of the socialdemocracy of his period. Benjamin refers to the history of the defeated but that does not mean that his view is a tangential one: the memory of the defeated reveals the truth about history, for it is devoted to not forgetting anything; neither the kingdom of the victors nor the tradition of the victims that must be upheld. It is a philosophy concerned with saving the dead, not only from oblivion, not only pretending to remember and commemorate them, empathising with their suffering but also renewing their struggles in the present. Other philosophies of history, such as Christianity or even Marxism, cater to the victims. All of

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______________________________________________________________ them, however, locate the utopia in the future. Benjamin, on the other hand, looks back; the utopia is in the past. That which has been established by history can be modified by the remembrance. In doing so, the unaccomplished that is happiness, can turn into something accomplished, and the accomplished, that is grief, into something non-accomplished. As he comments in the second of his Thesis on the Philosophy of History: The conception of happiness resonates irremediably with that of redemption. It is just the same with the conception of the past, which makes history into its affair. The past carries a secret index with it, by which it is referred to its redemption. Remembrance - a central concept of his philosophy of history- for example, is one of the chores of the theological dwarf hidden in the materialism. Benjamin speaks about this in the first of his thesis, where from the beginning a paradoxical association between materialism and theology is presented. In one of the quotes of The Arcades Project comments: History is not only a science but also a form of remembrance. Remembrance can modify that which science sets as definitely established. [...] This is theology; but in remembrance we find an experience that stops us from understanding history in a fundamentally nontheological way.1 Every philosophy of history conveys a concept of time. Benjamin proposes a deformalisation of the quantitative time, a subjective experience of time. He challenges the homogenous and empty time that refers to a quantitative concept of measuring time that results in a linear history, causal, and whose historical narration partner is the belief in progress. Benjamin shows a radical opposition to the historical method dominant in the stages of the 20th century, historicism. The foundations of this proceeded from the natural sciences. Historicism says that there are certain historical facts that are considered objective. The idea is that from their accumulation, as the inductive method proposes, general laws can be deduced. The objectivity of these laws is considered as obvious as the scientific facts. A progressionist history is written from this quantitative concept of time (which is the time of technology, that of the bourgeoisie which converts it into homogenous and measurable units, and therefore marketable): causal, linear, rational, that is to say, necessary and metaphysical. A causal history turns those who do not coincide with the discourse of progress into

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______________________________________________________________ nothingness. As Benjamin, in his essay about Eduard Fuchs says, facing the social democracy of his time: In development of the technique it was only able to discern the progress of natural science and not the regression of society [...] The energies deployed by technology beyond that threshold are destructive. They mainly feed the technique of war and its journalistic preparation.2 Progress is technological progress and war is the truth of technology. Benjamin proposes a historical materialism whose main category is not progress but updating. The perception of time as an empty form in which the events of the psychic life settle in, had been questioned by Saint Agustin, and by Bergson from the beginning of the twentieth century, and from different premises, by Husserl and later Heidegger. Benjamin applies this principle of deformalisation to the analysis of historical time, showing that the past, the present and the future are not successive segments of a continuous line, but represent three specific states of the historical conscience. A qualitative time implies discontinuity. The ruptures and the crisis, facing an apparently continual story of the victors, are catered to. Opposing the temporal continuity of the ideology of progress is the discontinuous punctual and instantaneous advent of the historical time, a time discontinuous in time and its narration. For this discontinuity cannot be manifested in the form of a narration but in the form of images, in the dialectical images that are a conjunction of the past and the present in which there is no causal relationship but a leap. Image, for Benjamin, is this dialectic at standstill. The dialectical images are the ‘primal phenomenon of history.’3 They allow for the different elements of the past to ‘receive a status of higher contemporary relevance to the moment of their existence.’4 History depends on a now where only the legibility and the cognoscibility of the dialectical images can emerge, a now that is closely linked to the moment of awakening. The historical index of the images does not only point out to what time they belong to, but it also states that they only reach their legibility in a determined time. Those reaching legibility constitute a critical point determined in the movement of their interior. All present time is determined by those images that are synchronized to it: all present time is a present of a determined cognoscibility. The read image, the image in the now of cognoscibility, conveys the critical and dangerous mark that underlies any reading. In this sense, Benjamin distances himself from Heidegger, saying that the latter searches, futilely, to save history in an abstract way through historicity. The now of legibility that Benjamin refers to is the exact counterpart of the current

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______________________________________________________________ hermeneutical principle, by which every work can be in every instant an object of an infinite interpretation, in the double meaning of being inexhaustible and being possible regardless of its temporal historical situation. The dialectical image, born in the moment of enlightenment of the present instant, gathers a moment of the past and a moment of the future. The now unpatterns the chronology, not cancelling the temporal difference, but making past and future coextensive in the present. It is a deciphering of the past through our present. In one of the notes that were found regarding the writing of the Thesis on Philosophy of History, there is a reference to the real historian: ‘‘To read what was never written’, Hofmannsthal says. The reader to be considered here is the real historian.’5 If the task of the real historian is to read what was never written, it means that writing of history is not an epic reconstruction of a motionless past with the memorable facts that the victors wrote. The political vision of the present proposed by Benjamin illustrates the relation of the current situation we live in now with the plights and sufferings of the generations that preceded us. If memory was satisfied with merely giving back the events of the past to the collective inheritance and celebrating its cult, with simple commemoration of its failures and its victims, these would remain forever lost in the conformity of tradition. Saving the past means ‘pulling it out of the conformity that, in every instant, threatens to abuse it,’6 updating it in our present. The proposal of Benjamin’s writing of history leads to the main question about testimony. If the real subjects of history are the drowned the real witnesses are the drowned too. If it depends on reading what was never written, those failed struggles which were never included in the epic narrations of the victors, then, the real testimony depends on those who have never been able to testify. The real writing of history requires reading what was never written and the real historian must listen to the testimony of those who have not been able to testify. The Benjaminian dialectical images make the continuity of time explode and make possible the conjunction of the past and the present beyond a causal relationship, make possible to update that voices and struggles that the ideology of progress leaves behind his way towards the perfect catastrophe. This conjunction of the past and the present, this dialectical but no causal relation is to be found in the dialectics that the figure of the testimony stages into the public discourse. As Primo Levi pointed out in The Drowned and the Saved, where he reflects on the meaning of witnessing regarding his experience in the concentration camps, the saved, those who are able to testify, must give their voice to those who are not able, the drowned. The real testimony is this dialectics, the remnants between the drowned and the saved. Updating the failed struggles of the drowned means listening to this dialectics.

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______________________________________________________________ The real historian, as an actor of history, must make himself responsible to the past that he is in charge of. In the testimony, the Benjaminan utopian relationship with the past is clearly shown. An ethics of the testimony, as Agamben7 establishes, following Primo Levi, states that the real witnesses are not the survivors but the drowned. In this sense, the testimony speaks by delegation, meaning that the testimony finds its worth, essentially, in what is missing from it; it contains something which cannot be testified, something which destroys the authority of the survivors, since the real witnesses are those who have not been able to testify. One testifies about a witness who is missing. The voice of the survivor justifies its existence if it replaces the voice of those who cannot testify. The testimony, essentially, includes a lacune: the survivors testify about something which cannot be testified, the voice of the dead; this lacune must be heard, in the same way that the certain historian must read what was never written, if he wants to reach the true of history and update the struggles the drowned died for. Agamben faces us with the incapacity of the moral categories of our time and suggests a new ethics: that of testimony. We have to listen to the voices of the witnesses, the lacune and remnant of that impossible testimony, the presence without face that all testimony necessarily contains. The saved ones and the drowned are inseparable and the testimony is constituted solely by their unity-difference. The witnesses are neither the dead nor the survivors, but what is left between them, the dialectic between them, which is the dialectic between our past and our present that the remembrance brings to us. Benjamin suggests a Copernican twist: the historical does not depend on the positivist reconstruction of the past but on the construction of the present. The remembrance, that updating that goes further than merely commemoration, is to be found in the testimony. If each moment of the past can be made present, developed in new conditions, in a new stage, then, nothing in the history of men is irreparable. And in the same way that that there is nothing irreparable, there is nothing inevitable in the future either.

Notes 1

W Benjamin, The Arcades Project, Harvard University Press, Massachusetts, 1999, p. 471. 2 W Benjamin, One Way Street and Other Writings, Verso, London, p. 357. 3 Benjamin, The Arcades Project, op. cit., p. 474. 4 Ibid., p. 392. 5 Ibid., p. 416. 6 Benjamin, Gesammelte Schriften I, 2, Suhrkamp, Frankfurt, 1977, p. 659. 7 G Agamben, The Remnants of Auschwitz, Zone Books, NY, 1999.

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Bibliography Agamben, G., The Remnants of Auschwitz. Zone Books, NY, 1999. Benjamin, W., Gesammelte Schriften I, 2. Suhrkamp, Frankfurt, 1977. _______

, Illuminations. Schoken Books, NY, 1968.

_______

, One Way Street and Other Writings. Verso, London.

_______

, The Arcades Project. Harvard University Press, Massachusetts, 1999.

Levi, P., The Drowned and the Saved. Simon & Schuster, NY, 1988. Paula Kuffer is Researcher and Ph. D. Student at the Department of Philosophy at Universitat Autònoma de Barcelona. Fellowship Investigation Project ‘Guide to Martin Heidegger’s Being and Time’ funded by the Spanish Department of Science and Culture (Ref. FFI 2009-13187 FISO).

Happiness: A Private Refuge or the Construction of a Common House? Javier Camargo Abstract This article reviews a path to read three authors to rethink ethics, politics and happiness. The paradox that alludes to the division between the public and private spaces is the bridge to establish a relation between Hannah Arendt and Giorgio Agamben taking as a motive a letter the second sent to the first. The pertinence of treating the third author (Merleau-Ponty) in companion with the other two is provided by the analysis of the preface of a book of Arendt that Agamben mentioned in his letter. The article also traces some lines on the topic of happiness, taking as a base the conception of the human and ethics of Agamben, the topic of nativity, and the construction of space thorough language. Key Words: Agamben, Arendt, biopolitics, ethics, happiness, and MerleauPonty. ***** 1.

The Space of Happiness: Exploring a Reader’s Relation. Perhaps to approach the study of happiness, to confront the paradox suggested by the title and many others related, there is only one imperative, or rather, a clear maximum of the phenomenology of the soul which appears in the introduction of The Poetics of Space that must be taken into account: ‘L’âme inaugure’. This little phrase refers to the potentiality of occupying a form, of inhabiting it and of taking pleasure out of it. 1 My main intention is to recover the subject of happiness from the anxiety to possess it no matter the cost, and instead to explore the space between zoé and bíos (Hannah Arendt), between the bare life and form of life (Giorgio Agamben), between being-in-the-world and being-project-of-theworld (Merleau-Ponty), from three authors who allow us to investigate the implications of our biological birth and a second birth in our language and integration into the political arena. This, in the words of Bachelard would mean that man is not only thrown into the world because he is placed in the cradle of the house. However this does not mean, as we shall see, that he does so as an heir with a will. To show the relevance of reading these three authors I started exploring the relationship between two of them; and from there I refer briefly to the pertinence of the third one. The relationship between Arendt and Agamben is normally stated in terms of readers, as if some concerns of the

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______________________________________________________________ first one were collected and later modified by the ‘young writer and essayist,’ as he presents himself in a letter dated 21st February 1970. In the letter Agamben begins by sharing how he got her address, then he declares the ‘decisive experience of having known her books the year before’ (1969), he afterwards expresses his gratitude for the contribution this has meant to his investigation, and finally after the parting line and his signature, he declares that he has taken the liberty of sending the letter along with a work he wrote under the guidance of her books. The above letter I think opens many reading possibilities in the study of these authors that can be extended to include Merleau-Ponty. 2.

A Reading Frame to Explore the Gap Between Past and Future An outline of a reading frame, to explore this reader’s relation would consist of three interrelated elements that appear in Agamben’s letter. The first one is a place from which it is possible to think (‘in the gap between past and future’), the second is a style to do it (‘the urgency of working in the direction that it points?’), and the third, the possibility of sharing with others this location and style (‘with me’ and ‘feel all’).2 Hannah Arendt, in the preface that entitles the book, starts with the dictum by Rene Char ‘Notre Heritage n’est précédé d’aucun testament’.3 This reference will be expanded with allusions to the poet himself, to eventually include a parable of Kafka. It is almost impossible to refer separately to a part of the text, since form and message are intertwined to such extent that one is tempted to reproduce it fully. Abruptly, three levels of this gap could be pointed out: the historical, the experience of thought, and an assumed position relative to the previous two. Arendt narrates that the generation of the resistance was forced to depart, first from thought towards action, and then was obliged to return to thought, experiencing the intensity of a treasure which it had given up and forgotten. The treasure, as Char puts it, for Arendt was composed of two parts since whoever joined the resistance found himself and got to experience an appearance of liberty, regardless of victory or defeat, because he had achieved to be a part of public space. However, in her opinion, the treasure got lost because even though it had a meaning during action, the heirs, actors and witnesses did not have a structure of thought capable of retaining it.4 In terms of the experience of thought, Arendt recovers the parable of Kafka in which the character ‘[He] is in the midst of the fight between two times: past and future, and wishes to escape over them in order to see them as a referee.’5 From this parable, Arendt problematises the difference between physical time, cyclic, natural and human time, as past and future would strictly not exist if not for the presence of such a character that is between them.6 But, for Arendt the Kafkaesque description lacks a spatial dimension where thought would not obliged, as it would be in the dream of Western

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______________________________________________________________ metaphysics, to exit human time over a linear conception of time. Therefore that gap in which the character is placed must be considered as a parallelogram of forces where a third may emerge. In Arendt’s words, this would be ‘the resulting diagonal on which the other forces clash and operate. This bias would be the experience of thought, which for Arendt would be ‘something contemporary to man’s existence on earth.’7 Nevertheless, this force has two characteristics: it cannot be inherited but only indicated, since each generation must discover and explore…8 That little timeless path that activity of thought crosses in the temporary space of mortals and where sequences of thought, memory and premonition save everything they touch from the ruin of historical and biographical time.9 The second peculiarity is that according to Arendt, the activity of thought has become a fact of political importance since not only it became a ‘tangible reality,’ but also the professional activity of a few and a perplexity for everyone.10 For Arendt, the experience of thought is something that can be learned from exercise. The essays of her book are intended for ‘gaining experience in how to think. They do not contain requirements about what to think or what truths must be supported.’11 More likely, they are ‘exercises of political thought’ that contain both ‘critics and experiments’ and therefore the ‘essay’ proves to be its natural form. The book is composed as if it were a musical suite that with its movements allows us to rethink politics. In Arendt’s words, this would be done by distilling from some political concepts their original spirit, which evaporated leaving behind empty shells.12 3.

The Urgency of Thought When Tradition has Lost its Hold Back to Agamben’s letter we may understand the importance of thinking politics from that gap or threshold, although it should be noted that it is not about them sharing the same conclusions or describing the same phenomena. In my view, in The Human Condition Arendt’s point of departure is the separation between public and private to show a wider horizon to the predominance of the social. For Agamben, this division would be no longer possible to think and would only serve a critical function. After concentration camps ‘there is no return to classical politics’ because we cannot distinguish between the biological body and the political body.13 By contrast, Agamben, who incorporates Walter Benjamin’s concept of bare or nude life, proposes rather to think life without breaking it, arguing that in it resides its form. However, one might wonder if that bios that is only its zoé, a nude life inseparable from a form of life, does not have an echo of the nudity that Arendt mentioned coming from René Char’s aphorisms when it comes to

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______________________________________________________________ that ‘nudity, stripped of all mask’ of those that society gives its members and also those that the individual makes for himself in his psychological reactions against society.14 Could it not be suggested that they at least share the concern of situating themselves at: That strange intermediate period that sometimes inserts itself into historic course, when not only the last historians, but also actors and witnesses, people themselves alive, realize that there is an interval in time entirely determined by things that no longer exist and by things that yet do not exist.15 Moreover, it must also be noted that both Arendt and Agamben, as the character [He] of Kafka’s parable, use a peculiar review of the historical past, either to find the most immemorial of the arcana imperii in biopolitics or to track down a way of thinking politics differently from the one prevailing in modernity, and so find that third force to face a future in which singularity along with human plurality is possible. In regard to style, perhaps it is not entirely accidental, after reading the preface, that Agamben presents himself as a young writer and essayist and besides the differences, as could be implied by the question at the end of the sentence, they both share the point of view that thinking is an exercise, a critical and ongoing experimentation, when not only questions but also answers are meaningless, and when there is no tradition but fragments of thought on which to hold. Finally, regarding location and style they share with others, one could not assume an amplitude that is limited only to the inner circle of Agamben at the time of his writing the letter, but to those that even in the era of the Resistance or immediately thereafter, maybe in another language, another form of expression or media that would have been possible, felt the urgency of not letting thought in the next generation be completely helpless without frame of reference, even if this would not involve leaving a will, but only traces in order for it to discover the gap and not die of exhaustion. It is precisely such urgency that, shared with Arendt, Agamben felt, and that could also be extended to the case of Merleau-Ponty, at least from a reading frame that seeks to rethink happiness from the ethical repercussions that biopolitics implies, there where the issues of natality and birth are particularly important: in Hannah Arendt this would be located in addition to biological birth, in action as the possibility of starting something new, or in thought as a third type of birth.16 For Agamben, birth is the capture of the zoé and the foundation of sovereignty and division of man and citizen. In the case of Merleau-Ponty, ‘each consciousness is born in the world and every

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______________________________________________________________ perception is a new birth of consciousness,’17 so it can be the starting point for realizing the relationships in which we are interwoven. 4.

Happiness as the Space to Rethink Ethics and Politics My interest in treating these authors so generally, responds, as it should be declared a few paragraphs before coming to the end, to the urgency of rethinking happiness from ethics and biopolitics. To do this a starting point could be to notice the resonances and repercussions between the following phrases: ‘Man is condemned to meaning’ (Merleau-Ponty), ‘man has the need to understand’ (Hannah Arendt), ‘man is doomed to happiness’ (Agamben). So that if I may return to the preface of Hannah Arendt, taking the variations between the critical and the experimental parts of her essays as a structure for this reading framework, I could suggest three ways to do it. As a first moment I consider relevant to start by retrieving two elements of Agamben´s philosophy. The first one refers to the approach he proposes on ethics, an ethics of testimony, that unlike other approaches that seek to reinstate happiness as a theme of ethics in a combined reading of Kant and Aristotle does not conceive the human as separate from the inhuman. The second element refers, in my opinion, to the fact that the treatment Agamben gives to the topic of happiness allows it to regain its reflective potential by combining multiple philosophical dimensions that can be taken as an axis to read the item in the other two authors. Happiness in Agamben’s case is woven as a phenomenon in which the relation of language with the biological, the biological with the political and the political with the ethical cross over one another. A second way, moving more on the experimental part, would be to note that while the above dimensions are present in both Arendt and MerleauPonty, the emphasis varies or connections are not as evident. Thus, the tension between being-in-the-world and being-a project-of the world, zoé and bios, bare life and form of life, although cannot assimilate each other because they come from different approaches, in what corresponds the topic of happiness, from these points of view we can be established as a common recognition that there is happiness in the mere fact of being alive and we could refer to that happiness as Agamben does, with the name eumería or beautiful day. However, that happiness is problematised in the case of man because of his relationship to language and the presence of other men. So with Agamben we would talk about the capture of that happiness in a biopolitical scenario and its relation to the messianic, with Arendt we would find the presence of a type of happiness in every human activity in an era dominated by homo faber, and finally with Merleau-Ponty we would have a happiness in the simple fact of having a body in a world where

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______________________________________________________________ internationalities are surrounding it, although he might not seem to notice all the consequences involved in a bio-political scenario. As a third way, increasingly more experimental than critical, Agamben´s thought could be read in relation to Arendt’s and MerleauPonty´s as follows. From Hannah Arendt, is Merleau-Ponty not a unique case to think of that inheritance without a will? Except that unlike Char, political action did not disappear after the years of resistance, but was even the cause of a rupture with Sartre. Just like Agamben, the possibility of thinking the poiesis and its relation to thought is without placing it in the workplace. From Merleau-Ponty, could Arendt not be a way to contrast his political thinking, and with Agamben, a possibility of convening the relationship between language and corporeality in a bio-political scenario? Or, from Agamben, could Arendt not be a way to ask whether it is necessary to renounce completely the notion of responsibility, or could alluding to Merleau-Ponty show how a bare life is already considered as a way of life from the evolving line of corporeality-perception-flesh? And together, would it not be possible to read these authors as voices that are located in the gap between past and future emphasizing each time on the influence of a time over others, as if the character ¬ [him] from the parable of Kafka, with Arendt went to the past to recover a horizon wider than the social, as if with Merleau-Ponty he realized that he is a part of the fight and has a close relationship with time, or as if with Agamben would predominate the force of the future?

Notes 1

G Bachelard, La poética del espacio, FCE, México, 2000, p. 13, 15-16. H Arendt Papers, Manuscript Division Library of Congress, Letter Giorgio Agamben to Hannah Arendt February 21, 1970. General, 1938-1976 3 H Arendt, ‘Prefacio: La brecha entre el pasado y el futuro’, p. 9. 4 ibid., 12 5 ibid., 13 6 ibid., 16-17 7 ibid., 19 8 ibid. 9 ibid. 10 ibid., 20 11 ibid. 12 ibid., 21 13 C Mills, The Philosophy of Agamben, Mc-Gill-Queen´s University Press, Montreal, 2008, p. 86. 14 ‘Prefacio...’, op. cit., p. 10. 15 ibid., 11 2

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______________________________________________________________ 16

M Millán, ‘La natalidad y su promesa en la filosofía de Hannah Arendt’, in Rossana Cassigoli (eds), Pensar lo femenino, un itinerario filosófico hacia la alteridad, Editorial Anthropos, México, 2008, p. 16-18. 17 M Merleau-Ponty, Fenomenología de la percepción, Ediciones Península, Barcelona, 2000 p. 416

Bibliography Agamben, G., Homo Sacer, El poder soberano y la nuda vida. Pre-Textos. Valencia, 2006. Arendt, H., Entre el pasado y el futuro: ocho ejercicios sobre la reflexión política. Ediciones Península, Barcelona, 1996. _______

, Papers, Manuscript Division Library of Congress, Letter Giorgio Agamben to Hannah Arendt February 21, 1970. General, 1938-1976 (Series: Correspondence File, 1938-1976, Folio 004722). Bachelard, G., La poética del espacio. FCE. México, 2000. Cassigoli, R. (ed), Pensar lo femenino, un itinerario filosófico hacia la alteridad. Editorial Anthropos, México, 2008. Mills, C., The Philosophy of Agamben. Mc-Gill-Queen´s University Press, Montreal, 2008. Merleau-Ponty, M., Fenomenología de la percepción. Ediciones Península, Barcelona, 2000. Javier Camargo is a PHD Student at Instituto Técnologico y de Estudios Superiores Monterrey, (CCM-México), and is interested in ethics, biopolitics, posthumanism, happiness, in a reading frame call “nuda-felicidad-pobre” (bare-poor-happiness). (Translation from Spanish to English by Nydia Pineda)

PART II Ethics and the Academy

Ethical Challenges in Today’s Higher Education Institutions in Lebanon: A Stakeholder Analysis Berge Traboulsi Abstract Dozens of Higher Education Institutions [HEI], i.e., universities, colleges, and institutes, have been established in Lebanon over the last decades. These ‘sister’ institutions are involved in strong competition in the absence of any accrediting association. The governmental application of many traditional standards remains lenient in most cases. HEIs’ adherence to ethical policies and practices is questionable. This paper will examine a few complex ethical cases that stakeholders of some private HEIs are encountering in Lebanon. Key Words: Higher education, ethical challenges, quality, and stakeholders. ***** 1.

Introduction From the outset, let us focus on some questions that many private Higher Education Institutions [HEIs] are facing and debating in Lebanon. Are they indeed not-for-profit institutions? Are they precisely teaching or research institutions? How can they balance between mission and business in a competitive market? What quality education are they offering to their students and at what cost? Why should ethics be maintained in higher education and how? How can they be committed to ethics in developing individuals and societies? HEIs should be involved, not only in teaching ethics across their curricula and raising awareness, but also in embedding and maintaining ethics in every single academic and administrative decision and function in order to ensure academic honesty and fairness, to demonstrate integrity, and to secure their stakeholders’ basic rights and dignity. HEI’s direct stakeholders are trustees, donors, faculty members, staff, students, and alumni; they all bear the responsibility to ensure that ethical standards are properly maintained. According to R. Kaufmann, ‘ethics are what lead to decisions that guide us to the measurable value added for all stakeholders.’1 Knowledge is not enough to make people behave ethically; HEIs should formulate the right ethical vision and mission in order to achieve the right objectives. Many HEIs, however, pretend that their key strategic objective is to deliver quality education; quality objectives cannot be achieved without having competent stakeholders who are able to create and sustain a healthy organizational culture that tolerates openness, promotes accountability, and supports uncompromised integrity. Actually, quality objectives will not

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______________________________________________________________ materialise without sufficient resources and funds. Thus, HEIs should be able to strike a balance between education and business. Within this context, it is essential to know why some HEIs in Lebanon fail to adhere to ethical standards, policies and practices. In fact, this failure might be due to one or many of the following factors: the ‘rule of law’ is not perceived as a contributing factor to create a healthy society; ethics is not yet the cornerstone of the society’s ethos; the inappropriate praxis about quality in education; and insufficient financial support. Actually, HEI’s artefacts, such as mottos, codes and manuals that theoretically echo principles of excellence and moral values, do not guarantee ethical conducts. Thus, the purpose of this paper is to illustrate a few cases that tackle some observed complex ethical issues; it is not intended, however, to generalise the ethical situation across all the private HEIs in Lebanon. 2.

Higher Education in the Lebanese Context The intricate issue of having many private teaching HEIs in a small country like Lebanon is debatable. Some believe that it is good to make education accessible to all people. Others consider that a new institution may enhance the weak economy by creating new jobs. The ‘newly established’ HEIs are accused of compromising and downgrading education in order to increase profitability and wealth, and thus, shifting both learning process and outcome from developing knowledge to trading diplomas. In fact, these institutions have shown flexibility towards the needs of their non-traditional students, especially by scheduling evening classes for working students and by facilitating payment of tuitions and fees which are relatively cheaper than those ‘old prestigious’ universities. The aforementioned accusations reflect the tough competition among the various so-called ‘sister’ HEIs. These accusations remain meaningless for the following reasons: (a) there is no national accrediting agency which serves as a reliable authority about the quality of university practices; (b) there are no national councils which deal with professors, students, registrars and admissions officers, and student financial aid administrators; and (c) there are no ranking criteria and weighted indicators pertaining to student selectivity and retention, faculty and staff credentials, institutional resources and facilities, graduate starting salaries, as well as many other benchmarking criteria. Furthermore, the Ministry of Higher Education had set some trivial measures (last amended in 1996) concerning the establishment of a HEI. Among others we mention the ratio of full time faculty to the total number of students (1:20), the percentage of PhD holders vis-à-vis the total number of faculty members (50%), the ratio of full timers (PhD holders) to the total number of faculty members (1:2).2 In fact, maintaining these ratios remains nominal in the absence of any form of close monitoring and control. Moreover, these measures do not reflect the real credentials of faculty members in a teaching HEI where most often they

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______________________________________________________________ deliver the content of international editions of textbooks that do not necessarily meet the market’s needs. 3.

Academic & Administrative Challenges There are several ethical and behavioural challenges that face HEIs worldwide.3 These are: 1)

2)

3)

4)

5)

6)

the curriculum (e.g., offering irrelevant courses to the market’s needs; forcing students to join majors, classes, courses, and sections that they do not want to enrol into); the learning process (e.g., fraud and dishonesty in teaching and research, restrictions on academic freedom and critical thinking, partiality in teaching, delivering inaccurate knowledge, cheating, plagiarism, compromising learning and assessment in order to build teacher’s popularity, unfair grading and bumping grades up or down to have a bell curve of grades); managerial practices (e.g., incompetency on several managerial leadership levels, hiring unqualified faculty and staff due to budget limitations, favouritism, nepotism, discrimination, and conflict of interest in recruiting, assessment, appraisal, and monitoring, bad communication and cooperation, lack of transparency); financial resources (the use of institutional endowments in risky businesses, keeping double books, corruption in allocating funds, financial aid assistance pertaining to the imbalance between equity and equality); university life (e.g., accepting or offering expensive gifts between faculty and students or students and staff, creating a hostile non-collegiate atmosphere, dating, sexual harassment, defaming people, breaching of privacy and releasing confidential information); public disclosure (e.g., following ‘unorthodox’ or misleading marketing and advertising strategies and criteria to attract prospective students and to increase enrolment). Actually, there are many HEI handbooks which contain clear policies, codes, and regulations about a lot of the aforementioned ethical challenges; but since ‘the rule of law’ and the value of discipline are not essentials in the Lebanese society, their implementation remains selective.

The context of Lebanon makes several challenges worth sharing. For instance, some faculty members prefer to use Turnitin.com where

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______________________________________________________________ available to detect plagiarism and to penalise students according to the degree of the academic offence. Others, however, consider that plagiarism is not a serious offence at the undergraduate level: English is not the mother tongue of the majority of the Lebanese students who might have difficulties in expressing their thoughts in correct English and thus, ‘copying’ from other sources becomes a learning exercise! They further consider that assignments submitted at the undergraduate level are not that genuine to contribute to knowledge or to be granted copyright licenses. It is of note that Lebanon has been trying to introduce copyright laws. The use of photocopies and pirated software is still common and nothing serious has been done about it so far. Five real cases are illustrated in this paper; cases A to D will remain anonymous since they weren’t revealed in the media. Case [A] Recruiting Students or Deceiving Customers? The student recruiter at a newly established university has developed uncommon methods that fit into the university aggressive high-cost marketing strategy. He is always accompanied by attractive students to promote the university’s image; he claims that senior students immediately find ‘good’ jobs, even before graduation; he shows documentaries about the university and the various celebrities, politicians, and businessmen who often visit the campus and participate in professional activities and elegant social events, such as lectures, fairs and exhibitions, and even beauty contests which are broadcasted on Media. Moreover, he distributes non-traditional souvenir items, and he grants discounts on the fees of the first semester. Besides his fixed salary, the recruiter is paid on commission basis for every student who joins the university. Finally, he has managed to establish a win-win relationship with influential persons in various high schools who often facilitate his recruitment job. Several objections have been levelled against this recruiter and his university for their unethical and deceptive approach. The recruiter’s problem is that he has been simply manipulating prospective students based on their needs or desires. Case [B] Mission or Compromising Integrity? A blind student joined university aiming to major in Behavioural Sciences. The university had enrolled him although it lacked the appropriate resources to educate blind people. The administration was not willing to subsidize the purchase of textbooks or tools that might be of help. Actually, he parachuted in the middle of the department without further assessment of weaknesses that have nothing to do with his blindness. Faculty members were to deal with the new situation. The administration has consistently ignored the department’s complaints regarding the case. Furthermore, he was catering selective courses in order to meet the required number of credits for graduation and not necessarily to complete the curriculum of his major. Many

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______________________________________________________________ faculty members often granted him passing grades out of sympathy, regardless of any serious learning outcome. Finally, the years passed and the student received his BA certificate, planning with great ambition to join the MA program. For some people, he is a success story, for others, he is a victim of shortsightedness of the administration. Case [C] Teaching Assessment and Evaluation A sciences student had no interest in humanities courses. She considered some general requirement courses, such as religion and cultural studies, irrelevant to her needs. She believed that they are included in the program for profit purposes (On the contrary, the university strongly considers that these courses are of cultural and personal value). In consequence, she became a very passive student and got a failing grade on the midterm. Later on, she asked the instructor to bump the average up in a way that she would guarantee a passing grade. Actually, in principle she could have been enrolled in a different section where students prepare the exam questions in advance and thus no one fails. Many classmates objected to her request to curve the grades; they were aware of her unfair request since she was asking for a grade that she did not deserve. It might be that the other instructor was building his popularity through compromising standards of learning. Meantime, her instructor realized that her recommendation of the course was not favourable. Case [D] A Letter of Appointment with a Discriminatory Close A HEI issued its new contracts in which it is stated that the appointment of a faculty member may be terminated due to illness or physical disability. The university faculty handbook does neither define what constitutes a ‘physical disability’ or an ‘illness’ nor explain how the university administration makes its opinion about them. Only one faculty member refused to sign the contract because it reflects discrimination against people with ‘physical disabilities’ and it is against his moral and religious principles. The university administration refused to remove the discriminatory clause; this by itself constitutes an offence against Human Rights, irrespective of any other contributing factors, such as, non academic unknown motives including the suspect capabilities of some executives. In principle, HEIs should not discriminate against employees on the basis of gender, race, religion, color, origin, disability, and sexual orientation if they are really generating ‘modern’ professionals based on Human Rights principles. Though labor laws do not always reflect quality criteria and ethical principles, nonetheless faculty members should have the right and the courage to object to such clauses in their contracts. Maintaining ethical principles should come first since ethics constitutes a major constituent of whatever quality means. This case is only an example of one unjustifiable

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______________________________________________________________ ‘ethical failure’ of those executives who compromise the dignity of their HEI’s stakeholders. Case [E] Academic freedom, confidentiality, and Politics The Antonine University organized a conference in February 2010 on Lebanese Premiership. Pascale Lahoud, VP for Cultural Affairs, quoted a recent study published in The Leadership Quarterly which presents the assassinated former PM Rafik Harriri as an effective corrupt leader. Lahoud expressed her sad feelings about Lebanon’s image abroad and asked for serious measures to restore it. The Information Minister, representing PM Saad Rafik Harriri, voiced his objection to Lahoud’s speech. Consequently, Pro-Harriri participants withdrew from the conference and PM Hariri cancelled his conference sponsorship hoping that ‘the university would take the necessary measure to mend this offence.’4 Secretary General of the University apologized for ‘the offensive comments’ and insinuated to the possibility of taking disciplinary actions against Lahoud.5 Many consider that the reactions of both PM Harriri and the university unacceptable since HEIs should guarantee freedom of thought and expression.6 It is of note, that a few months earlier, confidentiality was breached by many private HEIs in yielding to the request of the Special Tribunal for Lebanon which is investigating Harriri’s assassination and providing the Tribunal with information about their students without the students’ knowledge or consent.7 4.

Conclusion HEIs have a fundamental role in building the society and fostering civic engagement based on ethical foundations and human rights principles. Ethics and Human rights are the cornerstone of every institution; they should come first and may even transcend any legal standard which does not accord with those principles. If HEIs are in the image of their corrupt societies, the lack of credibility, reliability, and seriousness of those institutions will be manifested in the activities of their stakeholders, mainly, board members, faculty members, students, staff, and alumni. Actually, if HEIs stakeholders do not ‘walk the talk’, the society and the marketplace will remain corrupt. To build the society on ethical values and principles requires changing the individual and the community into a more human and ethical existence.

Notes 1

R Kaufman, ‘A Practical Definition of Ethics for Truly Strategic Planning in Higher Education’, New Directions for Higher Education, vol. 142, Summer 2008, p. 11.

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______________________________________________________________ 2

Ministry of Higher Education, ‘Decree 9274’, viewed on 10 January 2010, http://www.higher-edu.gov.lb/arabic/laws/decree9274.html. 3 T Kuther, ‘A Profile of the Ethical Professor: Student Views’, College Teaching, vol. 51, Fall 2003, pp. 153-160. 4 Daily Star Staff, ‘Antonine University angers leading politicians’, viewed on 12 February 2010, http://www.dailystar.com.lb/article.asp?edition_id=1& categ_id=1&article_id=111708. 5 Now Lebanon Staff, ‘Antonine University Secretary General apologizes for offensive comments’, viewed on 11 February 2010, http://www.now lebanon.com/NewsArchiveDetails.aspx?ID=145623. 6 J Aziz, ‘The University, The Order, The Antonine: A Threefold Apology’ (In Arabic), viewed on 13 February 2010, http://www.al-akhbar.com /ar/node/177214. 7 A Mohsen, ‘What does the International Tribunal need from Lebanon’s Students ‘ (In Arabic), viewed on 12 October 2009, http://www.alakhbar.com/ar/node/177214.

Bibliography Aziz, J., ‘The University, The Order, The Antonine: A Threefold Apology’ (In Arabic). viewed on 13 February 2010, http://www.al-akhbar. com/ar/node/177214. Daily Star Staff, ‘Antonine University angers leading politicians’. viewed on 12 February 2010, http://www.dailystar.com.lb/article.asp?edition_id=1& categ_id=1&article_id=111708. Kaufman, R., ‘A Practical Definition of Ethics for Truly Strategic Planning in Higher Education’. New Directions for Higher Education, vol. 142, Summer 2008, pp. 9-15. Kuther, T., ‘A Profile of the Ethical Professor: Student Views’. College Teaching, vol. 51, Fall 2003, pp. 153-160. Ministry of Higher Education, ‘Decree 9274’. viewed on 10 January 2010, http://www.higher-edu.gov.lb/arabic/laws/decree9274.html. Mohsen, A., ‘What does the International Tribunal need from Lebanon’s Students ‘ (In Arabic). viewed on 12 October 2009, http://www.al-akhbar. com/ar/node/177214.

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______________________________________________________________ Now Lebanon Staff, ‘Antonine University Secretary General apologizes for offensive comments’. viewed on 11 February 2010, http://www.now lebanon.com/NewsArchiveDetails.aspx?ID=145623. Berge Traboulsi is an Associate Professor in the Faculty of Humanities and Director of the Orientation Program at Haigazian University, Lebanon.

Cheating the Academy as Solidarity Louis Colombo and Aaron Vlasak Abstract Academic honesty is encouraged, expected, and required not just by academic institutions, but by faculty members in those institutions. The ‘traditional model’ of cheating operates in a context which understands the role of the academy and academic life as one of personal enrichment, not simply job training. While we do not pretend that the tension between ‘education as a good-in-itself’ and ‘education as a means-to-an-end’ has always been tilted in favour of the former, recent trends in education indicate that it is tilting ever further towards the latter. As this inherent tension comes more and more to be resolved in the direction of ‘means-to-an-end’, we are invited to re-evaluate the conceptual framework of cheating against this shifting backdrop. If academia now operates by the logic of an oppressive instrumental rationality, might cheating then come to be seen as a form of solidarity amongst students as they collectively navigate through and actively resist this oppressive institution? Might not a re-evaluation of cheating serve as a necessary critique of the current shape of academia? Key Words: Academic Integrity, corporate culture, Giroux, Kant, liberal education, solidarity, and vocational training. ***** Perhaps the time is already come, when it ought to be, and will be, something else; when the sluggard intellect of this continent will look from under its iron lids, and fill the postponed expectation of the world with something better than the exertions of mechanical skill.-Emerson1 1.

Introduction ‘Faculty development’ offices at universities across the U.S. have promoted a seminar entitled ‘Helping Students Learn from Ethical Failures.’ Captured in a mix of scepticism and curiosity, we consider the seminar’s solicitation: Over half of students admit to cheating before they even leave high school…The prevailing attitude seems to be ‘win at all costs.’ Get yourself into a good school…into a good job. No matter how you have to do it. As an educator,

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______________________________________________________________ you’re entitled to feel somewhat depressed about that. You can throw up your hands and throw in the towel. On the other hand, you can stick to your guns, defend academic integrity, and learn new and better ways to champion it.2 It seems that a common message to come out of literature on the topic is that educators need to promote an ethos of integrity and honesty. 3 We believe that this approach to cheating is typically blind to the current landscape of the academy which the cheater navigates. At the same time universities adopt a discourse of integrity and honesty, by implementing policies that undermine the tradition of liberal education, universities support the prevailing attitude ‘[g]et yourself into a good job.’ According to a recent statement from the Board of Directors of the Association of American Colleges and Universities, the priorities of higher education should be to guarantee ‘access and completion’ and achievement on ‘key learning outcomes,’ which have been approved by the business community.4 The Board further claims that ...designs for future learning that have long drawn clear distinctions between liberal education-intended for future leaders-and more targeted job training-envisioned as workforce development-now are obsolete.5 And so they propose to ‘Set guidelines for new investments that make academic versus vocational tracking a relic of the past.’6 The landscape is one that seeks to obliterate the distinction between liberal education and vocational training, in favour of teaching and testing in Learning Outcomes. The landscape is mechanical and it favours merely intelligent students, where ‘intelligent’ has come to mean ‘skilful’. This paper is oriented around the question, how should we view the discourse of integrity and honesty in an environment that is fundamentally organised around the idea of treating humans like tools? The paper proceeds in the following steps. We begin in the next section by identifying and defending the ‘traditional model’, a model with which we, as educators (and students) are both acquainted and loathe to entirely abandon. Our defence will take shape as following from the standpoint of Kantian ethics. As concepts are intimately connected to the social world in which they operate, in the third section we situate this traditional model against its unelaborated backdrop. By elaborating this backdrop, we hope to open a space in which the traditional model can be made to confront itself. This confrontation informs the fourth section of the paper, where we offer a new theoretical model of cheating, supplying the critical element which had been missing from the traditional model.

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______________________________________________________________ 2.

Traditional Model The Centre for Academic Integrity is a consortium of 200 colleges and universities. The Centre created a document entitled ‘The Fundamental Values of Academic Integrity.’7 The document relies on statements of countless boards on academic integrity, as well as input from various conferences and workshops, and comments from academics and students. This is certainly the paradigm example of the ethos of integrity and honesty. This ethos of integrity is saturated by the ethical theories of Aristotle and Kant. Aristotle is mentioned here by name in connection to honesty being a habit.8 Aristotle, the Centre rightly notes, held that virtue is acquired through a process of habituation. In Aristotle’s view, we become good or bad by practicing good or bad acts. If we are in the habit of doing bad acts, such as cheating, then we are bad; we are cheaters. There is no more character to me beyond my practices. This is why we need to keep a very close watch on our habits: to make sure we do not become someone we no longer like. Kant is not mentioned by name, but the Centre’s definition of ‘respect’ is from Kant’s second formulation of the Categorical Imperative, the Formula from Humanity. According to Kant, we should act so that we use humanity never merely as a means but always also as an end. The cheat, by deceiving the other for his/her personal benefit, is merely using the other. Cheating, for Kant, is thus never ethically permissible. We are not prepared to commit to either an Aristotelian or a Kantian conception of ethics, but neither do we have a problem with the Centre’s casual assemblage of ethical theories in condemnation of dishonesty and disrespect. We too think dishonesty is generally a bad practice. What we do find noteworthy here is the predominantly moralistic tone that these educators are prepared to take. The rhetoric of the document is that educators should stand up against dishonesty, unfairness, disrespect, and irresponsibility. But when we look at the reason why educators should ‘stand up,’ we think the conclusion should be amended. Academic Integrity is a legitimate object of concern for the educator because it is essential to the success of the mission of education. In order for us to educate and award grades and degrees on the basis of merit, the whole arrangement has to be fair. Educators do not need to stand up for these values generally, but only where transgressing these values threatens the purpose of education. Certainly if a student speaks disrespectfully about another student in a class discussion we will do something about it. But this is because the activity is disruptive to our purpose and the spirit of shared inquiry, not because it is bad. Thus academic integrity policies have more in common with law than with ethics. Certain actions in the state are forbidden, presumably because they are disruptive to the purpose of the state, not because they are bad. While Aristotle makes the legislator’s goal of making citizens good a

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______________________________________________________________ legitimate pursuit, this was no longer the case for Kant. For Kant, there are duties of virtue and duties of right. Lying is strictly forbidden by the duties of virtue, but Kant says in The Metaphysics of Morals that [i]n the doctrine of right an intentional untruth is called a lie only if it violates another’s right; but in ethics, where no authorization is derived from harmlessness, it is clear of itself that no intentional untruth in the expression of one’s thoughts can refuse this harsh name.9 The implication is that in law authorization is derived from harmlessness. The point we are making is that just as the lawmaker is only legitimately concerned with those lies that disrupt justice, so too the educator as disciplinarian is only legitimately concerned with the dishonesty disruptive to fairness. Though this analogy holds, we readily admit, even urge that we do not forget, that the educator has aims beyond imparting information and developing skills. We want our students earnestly to seek to find themselves in the books they read and the discussions they have. In all this, we believe, they become better. Yet nowhere is there an endorsement of a particular normative theory or a ‘championing’ of a particular set of virtues. If anything we are in the business of ‘corrupting’ (challenging conventional) values. Nevertheless, we intend these points of clarification more as a defence of the traditional evaluation of cheating than as an utter dismissal of it. We are making the insistence on honesty immune to the cliché charge of Sunday school moralizing. 3.

Situating the Traditional Model While we recognize the universalistic and ahistorical nature of this model as one of its greatest strengths, it also constitutes one of its greatest blind spots. For insofar as this model claims to be universal and ahistorical, it also claims to operate independently of any and all contexts. But in making and sticking to such claims, this conceptual model too frequently fails to understand those judged. It is thus capable of blinding us in the most powerful way; for it prevents us from critically examining our own beliefs, taking our beliefs to be part of the ‘natural’ fabric of the moral universe. Pushed to the extreme, this moral dogmatism tends to be the source of intolerance, wherein we do not attempt to understand our moral opponents, seeing them not as partners to be engaged with, but as enemies to be eradicated. William James, in his well-known essay ‘On a Certain Blindness in Human Beings’, gives an evocative description on how we are often blinded by our conceptual frameworks. Recalling a conversation with a settler concerning some clearings in the mountains of North Carolina, James writes:

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______________________________________________________________ Because to me the clearings spoke of naught but denudation, I thought that to those whose sturdy arms and obedient axes had made them they could tell no other story. But, when they looked on the hideous stumps, what they thought of was personal victory. The chips, the girdled trees, and the vile split rails spoke of honest sweat, persistent toil and final reward. The cabin was a warrant of safety for self and wife and babes. In short, the clearing, which to me was a mere ugly picture on the retina, was to them a symbol redolent with moral memories and sang a very paean of duty, struggle, and success. I had been as blind to the peculiar ideality of their conditions as they certainly would also have been to the ideality of mine, had they had a peep at my strange indoor academic ways of life at Cambridge.10 It is not our intention to give the impression that there is no way to mediate between world-views, for even between world-views which appear radically incommensurate, there remains the hope that dialog is possible. This dialog can only begin if all parties recognize that the holder of a ‘peculiar’ world-view is not simply the other, but the self as well. All world-views are equally peculiar, even those which we take for granted and therefore do not see as ‘world-views’. Underlying this is a further complication. The contexts in which our concepts are embedded are political thru and thru. At stake in the contestation over world-views is a real struggle for power, although our ethical commitments often facilitate a view of the situation which allows us not to see the power struggle at play, a power struggle whose terrain includes all the forces that give shape to one’s world-view.11 4.

Solidarity In suggesting a new model of cheating, one that judges cheating not simply as a personal failing, but that understands it as an act of solidarity amongst the cheaters, we seek not to erode the individual responsibility inherent in the first model, but to situate that responsibility in its current context. We suggest that this new conceptual framework allows us to better view the context in which education currently takes place. This context is described in painful detail by Henry Giroux, who writes: The ascendancy of corporate culture in all facets of American life has tended to uproot the legacy of democratic concerns and rights that has historically defined the stated mission of higher education.12

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______________________________________________________________ A proper understanding of cheating must take stock of the change to which Giroux calls our attention. Giroux draws an important distinction between ‘democratic culture’ and ‘corporate culture.’ Giroux understands democracy as ‘a struggle to combine the distribution of wealth, income, and knowledge with a recognition and positive valorising of cultural diversity.’13 On this understanding, the role of higher education within a properly democratic culture would be to promote just such a struggle, the classroom serving as a site where questions critical of the prevailing power regime could be shaped and articulated, where marginalized voices and viewpoints could participate with equal vigour in the conversation. Opposed to ‘democratic culture’ stands ‘corporate culture,’ which, writes Giroux, …functions largely to cancel out the democratic impulses and practices of civil society by either devaluing them or absorbing such impulses within a market logic. No longer a space for political struggle, culture in the corporate model becomes an all-encompassing horizon for producing market identities, values, and practices.14 Academia, increasingly beholden to ‘corporate culture’ and operating as an extension of it, no longer affords the space for political struggle, or for a vision of democracy which operates independently of a ‘market logic.’ This is the social environment against which cheating must be understood. If academia is no longer in the business of (re)producing citizens fit to take part in a robust democracy, but has instead taken on the job of (re)producing passive citizens, how are we to understand the student who uses cheating as a means to navigate her environment? For the marginalized student, who might have hoped or expected the university to provide not just the tools to overcome her marginalisation, but the setting wherein such overcoming might have been enacted, the university in its present incarnation must resemble to an unsettling degree just another instrument of marginalisation, one which promises to serve not as a conduit to greater political agency, but only and at best, as a means to acquiring more consumer goods. Given the market logic of the corporate culture described above, the only available language in which one could describe a student’s status as marginalised would be one that referenced not access to political power but access to consumer goods. The university functions as a gate-keeper, one which, for the majority of students, keeps the doors to power safely barricaded behind a wall of trinkets. Sizing up the university as an enemy, one whose corridors must be negotiated even for the most meagre of rewards, cheating becomes a means by which the marginalised may seize back a portion of that which is being kept from them.

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______________________________________________________________ 5.

Conclusion In our context of market driven instrumentality, ardent speech in praise of values such as honesty, trust, fairness, respect, and responsibility may sound naïvely moralistic, or perhaps ironic, dissembling, ideological, or hypocritical, and people who embody these values are likely to be judged suckers or traitors. How else are we to judge the demand for honesty, trust, and fairness in a setting that is without transparency? How else are we to view respect, where students and employees are human resources? How else are we to view responsibility, where there is no accountability? To fail to ask these questions is to be blind to a world-view which sees the discourse of integrity as ironic and chooses to turn on it in solidarity. Our own position is not to abandon these values. We need to continue to ‘promote’ honesty and respect, if only by forbidding those actions that threaten the purpose of education. Yet while we do not abandon these values, we emphasize the importance of understanding their frailty. The assault on value is multidirectional, surely coming from cheating students, but coming in no small force from the very institutions that create the academic integrity policies as well. We understand that many students view education as a necessary evil, but we are baffled by the fact that many of the academics who promote the ethos of academic integrity actually share and promote the basic instrumental attitude towards education which has made the values of academic integrity so frail. A more effective way to discourage cheating would be to rekindle the appreciation of the intrinsic value of understanding ourselves and the world. In 1837 Emerson warned Colleges, in like manner, have their indispensable office,-to teach elements. But they can only highly serve us, when they aim not to drill, but to create; when they gather from far every ray of various genius to their hospitable halls, and, by the concentrated fires, set the hearts of their youth on flame. Thought and knowledge are natures in which apparatus and pretension avail nothing. Gowns, and pecuniary foundations, though of towns of gold, can never countervail the least sentence of syllable of wit. Forget this, and our American colleges will recede in their public importance, whilst they grow richer every year.15 Emerson’s message appears to have been lost. More than ever the landscape is mechanical, and it favours those who skilfully work it-intelligent mechanics. Let us speak truthfully: the academy is not partial to honest people. This is why we need to look beyond the ‘exertions of mechanical skill’ and above all promote the value of liberal education at the same time

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______________________________________________________________ that we forbid those behaviours disruptive to the purpose of just such an education.

Notes 1

R Emerson, ‘The American Scholar’, in Selected Writings of Ralph Waldo Emerson, W. H. Gilman (ed), Signet Classics, New York, 2003, p. 225. 2 Magna Resources for Higher Education, December 2009, viewed on 12 March 2010, . 3 The idea is already evident in several unexciting titles. See, for example: Guiding Students from Cheating and Plagiarism to Honesty and Integrity: Strategies for Change; or Pedagogy, Not Policing: Positive Approaches to Academic Integrity at the University. 4 Association of American Colleges and Universities, The Quality Imperative, 2010, viewed on 12 March 2010, http://www.aacu.org/about/ statements /documents/Quality_Imperative_2010.pdf. , note on p. 4. Thanks are due to Ron Cordero for sharing this document. 5 ibid., p. 3. 6 ibid., p. 6. 7 The Center for Academic Integrity, The Fundamental Values of Academic Integrity, October 1999, viewed on 12 March 2010, http://www.academic integrity.org/fundamental_values_project/pdf/FVProject.pdf. 8 ibid., p. 2. 9 I Kant, The Metaphysics of Morals, M Gregor (ed), Cambridge University Press, Cambridge, 1996, p. 182. 10 W James, ‘On a Certain Blindness in Human Beings’, in The Writings of William James, J. J. McDermott (ed), p. 631. 11 Henry Giroux writes, ‘…that schools are seen as if they were removed from the tensions and antagonisms that characterize the wider society. As a result, it becomes impossible to understand schools as sites of struggle over power and meaning. Furthermore, there is no theoretical room in this approach to understand why subordinate groups may actively resist and deny the dominant culture as it is embodied in various aspects of classroom life.” Quoted from: H Giroux, ‘Radical Pedagogy and the Politics of Student Voice’, Pedagogy and the Politics of Hope: Theory, Culture, and Schooling (A Critical Reader), pp. 131-132. 12 H Giroux, ‘The Corporate War Against Higher Education’, in Workplace, University of Louisville, October 2002, viewed on 15 Novermber 2009, http://louisville.edu/journal/workplace/issue5p1/giroux.html. p. 6. 13 ibid., p. 19. 14 ibid., p. 2. 15 ‘The American Scholar’, op. cit., p.232.

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Bibliography Association of American Colleges and Universities, The Quality Imperative. 2010, viewed on 12 March 2010, http://www.aacu.org/about/statements/ documents/Quality_Imperative_2010.pdf. The Center for Academic Integrity, The Fundamental Values of Academic Integrity. October 1999, viewed on 12 March 2010, http://www.academic integrity.org/fundamental_values_project/pdf/FVProject.pdf. Emerson, R., ‘The American Scholar’, in Selected Writings of Ralph Waldo Emerson, W. H. Gilman (ed). Signet Classics, New York, 2003. Giroux, H., ‘The Corporate War Against Higher Education’. Workplace. University of Louisville, October 2002, viewed on 15 Novermber 2009, http://louisville.edu/journal/workplace/issue5p1/giroux.html. ___, Pedagogy and the Politics of Hope: Theory, Culture, and Schooling (A Critical Reader). Westview Press, Boulder, 1997. James, W., The Writings of William James. J. J. McDermott (ed). The University of Chicago Press, Chicago, 1977. Kant, I., The Metaphysics of Morals, M Gregor (ed). Cambridge University Press, Cambridge, 1996. Magna Resources for Higher Education. December 2009, viewed on 12 March 2010, http://www.magnapubs.com/calendar/376.html. Louis Colombo is an Assistant Professor of Philosophy at BethuneCookman University. Aaron Vlasak is a Lecturer of Philosophy at the University of Wisconsin, Oshkosh.

PART III Ethics and Regulations

Transparency without Ethics? Some of the Effects of the Absence of Ethics in the Model Victor S. Peña Abstract Since 2002, in Mexico at levels of both state and federal government, laws have appeared regarding access to public information and transparency. Although with little variance, the model adopted all over the nation is very similar: an independent organ is in place, the agencies must publish information through Internet and install offices to take care of citizen requests about information they have. The short way crossed from 2002 until today have not been free of problems. The agencies for the transparency, mainly at local level, have suffered repeated internal crises. In some cases its viability was committed up to the point where redesign has to be performed several times. To fight corruption, to legitimise a government, to generate an atmosphere of confidence between the population and the agencies, are some purposes of the transparency. To create public agencies is expensive; but when the objectives are not reached, thus costs increase sky high. This paper argue that absence of ethics within the model adopted for transparency in Mexico is among the main reasons why local agencies have not been able to generate the results awaited, moving citizens away from practices and behaviours that cause good governance. Key Words: Corruption, Mexico, and transparency. ***** Since this is an empirical approach to the relationship which exists between ethics and the institutional design of transparency in Mexico, please allow me to start with a short anecdote: There were only five months left for the municipal administrations to finish their term in the State of Coahuila where I am from. This end of administration fell together with the end of the first year after the State Law of Transparency had been enforced. From the 38 municipalities of the state, one stood out clearly among the others because of its interest: The municipal presidency took all the necessary resolutions within a very short period and - following all the recommendations of the regulatory agency - hired the personnel necessary for a special office, built an improved web-page which contained all the available information. The municipal administration proclaimed this inclination towards the topic as part of a personal conviction of the town mayor and as an answer to the public interests.

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Transparency without Ethics?

______________________________________________________________ This municipality named Matamoros, was used by the regulating agency during the training courses as an example to be followed. The devotion exhibited was even recognized in a public event. How did this story end? Before the first year of the new administration ended, an order of apprehension was released against the town mayor and a part of his staff due to the inappropriate use of public funds, the disappearance of public files and a great number of other administrative irregularities. In short: in the end the only administration which seemed to show an absolute conviction to be transparent by fulfilling enthusiastically everything required by law and, therefore, being recognized and pointed out as an example, turned out to be the most corrupt one of all. In Mexico the word transparency has been appearing in public speeches, in laws and public policies from the year 2000 on. It coincides with the first alteration in the presidency of the Republic after 70 years of domination by a single political party. Today every one of the 32 states make up the Mexican Republic has its own transparency law. The anecdote referred would lack relevance if it were not for the fact that from the year 2000 on we have been coming across many other cases where a certain obedience regarding some of the State Laws of transparency, even if this fact has not had any impact in a way of diminishing corruption.1 After one decade of transparency having been adopted by the public sector as a pending task, the question that arises must be: Why does corruption keep persisting on the same levels or has even increased in some cases? The decrease of corruption is one of the consequences hoped for to be generated by transparency, however, it is not the only one. According to what has been said and written in the country, we can mention at least three additional consequences: the formation of a more participative citizenship2, the increase of private investments3, and a better quality in the public service.4 We can identify at least three studies which deal with one or several of the mentioned consequences: The ‘Encuesta sobre gobernabilidad y desarrollo empresarial’ (Inquiry on Governability and Enterprise Development), carried out by the Centro de Estudios Económicos del Sector Privado, A.C. (Center for Economical Studies of the Private Sector) by commission of the Secretaría de la Función Pública (Department of Public Office), whose objective is to find out what impact corruption has on enterprise development and democratic governability.

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______________________________________________________________ The ‘Indice nacional de corrupción y buen gobierno’ (National Index of Corruption and Good Government), developed by Transparencia Internacional, Chapter Mexico. The ‘Indice de transparencia de la información fiscal de las entidades federativas’ (Index of transparency on fiscal information of the Federal Entities), developed by private agencies. In none of the cases an incidence of the national transparency effort can be identified. The question is: Why? This question remained with us throughout our field work carried out with qualitative investigation techniques, which I have developed in recent years, using the transparency’s state agencies (and their crises) as study objects. What demands an explanation is not what is correct but those cases deviating from this ideal …what turns out to be notable is what they explain [the analysts of institutions]: not the correct results, but the bad ones; not the perfect achievement of our objectives, but our failures.5 It must be mentioned that in practically all cases the impossibility of identifying any kind of impact of their work is being accepted. And when they are asked why this is, the answers can be divided into four main categories6: 1) the process-related cultural category; 2) the limited resource category; 3) the one of the ‘good people caught in bad systems’ and, finally, 4) the one of organizational weakness. The process-related cultural explanation refers to a long succession of steps or indispensable consecutive approaches, in order to integrate transparency as an aspect of life: in the case of the public servants, this assimilation is reflected in their way of working, as they become more and more aware of the fact that whatever they do or do not do will be known; for society the cultural change will show by way of a constantly growing interest in knowing, and in the action of asking. These, as all cultural changes, take time. How much time? There are people who speak of five, ten, fifteen years; others are speaking of one or two generations. But actually nobody knows for sure. And it is not a matter of establishing a date or dead line for when this change will occur. The vulnerability of this explanation, however, focuses on the fact that no fairly reliable support exists which indicates the time span mentioned or a program or anything like it: nothing goes beyond mere speculation.

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______________________________________________________________ In the second category the low impact is justified by the economical factor: agencies belong to those autonomous instances which have less money available for their work activities. This argument has permeated in some organized circles of the regulating agencies from where an additional budget assignation on part of the federation is promoted. This explanation is based on the reasoning of ‘a mayor dinero, mayor impacto’ (‘the more money the larger the impact’) which is not true. Besides, it gives preference to the criterion of expenses for activities and not for the product or impact achieved. ‘Good people in bad systems’, the third category, contains the summary of the explanation which considers that within states agencies there are persons in favour of transparency who fight against those who work in public administration and who are in favour of opacity, and because the first ones are fewer than the second, only very little progress can be made. As a matter of fact, the regulating agencies of transparency in Mexico were created under this logical principle. Even nowadays, the dominating paradigm is the ‘citizenization’ of the agency, being understood as a necessary previous personal and professional detachment of the public sector by those who pretend to belong to and work in it. This fact, far from helping to reach the attempted objectivity hoped for by those who make up the regulating agency of transparency, has produced simulations in the designation of functionaries, or a lack of knowledge and experience of the sector to be regulated. Finally, the category of the organizational weakness is among other aspects, a product of the natural inexperience of newly created organizations. Which element is missing in the explanations I found? As absurd as it might seem, transparency is not related to ethics. Even in the processrelated cultural explanation described, the topic is to generate the habit of asking and answering but nobody ever talks about impregnating the work activities with an element of ethics. This as it seems to me, takes us to a profound and ancient debate which, according to the Mexican legal tradition, strips morality off the observance of the law. The law according to what is taught at universities and centres of education, is obeyed because of being the law; the public servant fulfils a task by observing the law or the regulation. To question himself about the axiological contents of the law or of the actions performed is very far away from the necessities of the lawyer and the public servant. Which is the problem we can find in this context? I return to the anecdote with which we started: the municipality we were talking about really fulfilled all the requirements prescribed by law, the regulating agency of transparency verified that it happened this way and did not find any irregularity. The problem did not lie in the way in which the law was

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______________________________________________________________ fulfilled; the problem lay in the original motive which resulted in a simulated fulfilment. Within the institutional design of transparency, and given the experience accumulated in one decade, we can observe important areas of opportunity which would require improvement. Given that institutions are costly to establish and run, demanding [that developing countries] adopt institutions that are not strictly necessary can have serious opportunity cost implications . . . Even when we agree that certain institutions are ‘necessary,’ we have to be careful in specifying their exact shapes.7 In order to reach the objectives of transparency, for example the integration of the legal framework becomes necessary, which includes pertinent dispositions regarding matters as diverse as civil, penal and administrative aspects. A major integration would provoke the coordination between government orders, which is the essential topic within a democratic order, requiring at least: A General Law, which means the abrogation of the presently prevailing laws which would admit appellation instances outside the territory where information has been requested, through which a patrimonialistic handling of the organizations would be avoided; A necessary transversal homologation within the order being also the product of a constitutional reform and a General Law - is needed, so the law can be practiced in the same way within the autonomous authorities and agencies of the type in question, which would avoid a normative dispersion; The homologation of the law within the national territory meaning equal rights for the entire country: the same terms, the same procedures, the same suppositions by law. However, despite all this, ethics in public service would still remain the great absent element. How could their presence be achieved in the future? That is the question.

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______________________________________________________________

Notes 1

V Peña, Fortalecer desde la experiencia: Apuntes para el diseño institucional que involucre organismos de transparencia en los Estados, InfoEM, Mexico, p. 72. 2 J Fox and Libbi Haight. ‘Las reformas a favor de la transparencia: teoría y práctica’ in Derecho a saber. Balance y perspectivas cívicas, Fundar and Woodrow Wilson International Center for Scholars, México, 2007, pp. 29-64. 3 J Ackerman, Organismos autónomos y democracia: el caso México, Siglo XXI Editores, Mexico, 2008, p. 11. 4 ibid., p. 15. 5 R Goodin, ‘Las instituciones y su diseño’, in Teoría del Diseño Institucional, GEDISA, Barcelona, 2003, pp. 73. 6 Peña, op. cit., pp. 81-94. 7 M Grindle, ‘Good Enough Governance: Poverty Reduction and Reform in Developing Countries’. Governance: An International Journal of Policy, Administration, and Institutions, Vol. 17, No. 4, October 2004, pp. 525-548.

Bibliography Ackerman, J., Organismos autónomos y democracia: el caso México, Siglo XXI Editores, Mexico, 2008. Fox, J. and Libbi Haight., ‘Las reformas a favor de la transparencia: teoría y práctica’ in Derecho a saber. Balance y perspectivas cívicas. Fundar and Woodrow Wilson International Center for Scholars, México, 2007. Goodin, R., ‘Las instituciones y su diseño’, in Teoría del Diseño Institucional. GEDISA, Barcelona, 2003. Grindle, M., ‘Good Enough Governance: Poverty Reduction and Reform in Developing Countries’. Governance: An International Journal of Policy, Administration, and Institutions, Vol. 17, No. 4, October 2004, pp. 525-548. Peña, V. Fortalecer desde la experiencia: Apuntes para el diseño institucional que involucre organismos de transparencia en los Estados. InfoEM, Mexico, p. 72. Victor S. Peña is PhD Student at School of Graduated in Public Administration, ITESM; Mexico. [email protected]

Codes, Regulations…But No Systematic Ethics Accountability for Chief Executives Kathryn G. Denhardt and Alain Noghiu Abstract Leaders in most large for-profit and not-for-profit organizations are subject to some kind of ethical regulation as well as some type of code of ethics. Nevertheless there seems to be a continuous stream of reports of leaders acting in an unethical manner, bringing down not only themselves but sometimes their organizations as well. This paper reports on exploratory research into how senior leaders in large US publicly traded corporations and in large non-profit organizations are held accountable by their own organizations to ethics regulations and codes. The findings, though preliminary, suggest that there is little or no systematic assessment of whether senior leaders are in fact behaving ethically or leading in a way that enhances ethical culture in their organizations. Without systems or strategies for assessing (or even discussing) ethical performance and culture along the way, Boards of Directors (to which senior leadership is accountable in publicly traded corporations and non-profit organizations in the US and many OECD countries) find themselves reacting to crises due to ethical failures of leadership that could have been identified and addressed much earlier. This paper examines the need for improved, systematic forms of ethical scrutiny and leadership. Key Words: Boards of directors, chief executives, codes of ethics, ethics, regulations, and systematic accountability. ***** 1. The Role of Boards of Directors in Assuring Ethical Behaviour of Chief Executives Virtually all senior executives in publicly traded corporations and large non-profit organizations are subject to regulations and codes of ethics intended to assure they will act in an honest and ethical manner. These senior executives are accountable to their Boards of Directors which are responsible for reviewing and evaluating the performance of the chief executive, including hiring/firing, and setting their compensation levels (including all forms of salary, benefits, bonuses, and perks). Yet, the many high profile cases of unethical conduct by chief executives in both for-profit and not-forprofit sectors, accompanied by a drumbeat of criticism about excessively high executive compensation in both sectors, leads us to question what the

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______________________________________________________________ boards are doing to fulfil their obligation of holding chief executives accountable for ethical behaviour. The November 2009 Walker Review of Corporate Governance of UK Banking Industry1 final recommendations addressed many questions related to the responsibilities and effectiveness of boards in overseeing the actions of corporate senior leadership, leaving no doubt that boards had fallen short of meeting their governance responsibilities. Boards allowed financial services entities to engage in years of increasingly risky investment activities which ultimately led to the financial meltdown felt around the world. The boards also created compensation structures for senior executives that rewarded, and thereby encouraged, the high risk behaviours. Following the massive earthquake that devastated Haiti in January 2010, CNN News examined the question of whether Americans should trust the American Red Cross when making their donations for relief efforts.2 The report provided reassurance that the millions of dollars donated to the American Red Cross would be well spent today, but also reminded us that a previous American Red Cross Executive Director had planned to divert donations to the Liberty Fund (intended for victims of the September 11, 2001 attack on New York’s World Trade Centre) to other purposes, meaning that donations would not be spent as the donors had intended. In a video clip we see former Chairman of the Board, David McLaughlin, acknowledging that it took longer than it should for the board to address the ‘credibility gap.’ We also hear Kathleen McCarthy, Director of the Centre for Philanthropy, stating that when trust in charitable organizations is undermined, the whole infrastructure of philanthropy and charity is jeopardized. Another interesting case related to non-profit board responsibility is unfolding in the state of Pennsylvania in the US. While serving in the state legislature, Vincent Fumo established the non-profit organization Citizens Alliance for Better Neighbourhoods, and for twenty years this organization funnelled resources into Philadelphia neighbourhoods…and into the pockets of Fumo. Fumo is in prison for unlawfully diverting $1.9 million for personal use and political advantage. For purposes of this paper, though, what is more interesting is that in April 2009 the Pennsylvania Attorney General filed a civil suit against board members of Citizens Alliance for failing in their fiduciary responsibility. 3 These cases serve as stark reminders that when senior leadership engages in unethical conduct, we must also question whether the boards of directors whom they serve have failed in their responsibility to hold these leaders accountable. The cases also remind us that when boards fail in carrying out their fiduciary responsibility, the very foundations of our philanthropic and economic institutions can be threatened. According to Koestenbaum,4 an important responsibility of boards of directors is the creation of a ‘tone at the top’ that promotes ethical conduct

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______________________________________________________________ and results in attention to ethics permeating throughout the culture of an organization. It is his belief that deterring misconduct before it takes place is better than punishing it after the damage has been done. Koestenbaum points out that any organization can establish a code of ethics, but without its leadership promoting an ethical environment on a daily basis, the impact of such a code of ethics will be negligible. One method of achieving the ‘tone at the top’ preventative approach is for the board of directors to conduct a comprehensive annual assessment of the ethical performance of the chief executive. Along the same lines, Lipman5 argues that the key to creating an ethical work culture is to assure that leaders exhibit the highest of standards in regards to their conduct. He points out that the US Department of Justice currently requires boards of directors to create an ethical, law-abiding culture to avoid criminal indictment. Lipman argues that financial incentives must be provided to the CEO to create such a culture. Holding the leaders of an organization accountable for their behaviour through a yearly assessment process is critical for establishing a framework for such incentives. Lipman and Koestenbaum offer two approaches to what boards can do to prevent unethical behaviour and encourage ethical conduct. But are boards actually doing these things? 2. A Study of the Ethics Assessment Process for Chief Executive in Large US Charitable Non-Profits and Publicly Traded Corporations In 2007, following an earlier wave of ethics scandals, a team of University of Delaware researchers6 developed a survey to explore the various methods of assuring and assessing ethical behaviour of chief executives in the largest 200 publicly traded corporations and the largest 200 charitable non-profit organizations in the US.7 Earlier research showed that performance evaluations of CEOs merely involved a cursory review of performance and automatically resulted in relatively standard pay increases.8 There had been some movement toward organizations implementing formal and measurable evaluation systems for their senior leadership, based on better defined performance criteria (such as those suggested by the Ethics and Policy Integration Centre just cited). In our study we were searching for evidence that this trend had taken hold and that the largest for-profit and nonprofit organizations were engaged in a serious effort to hold senior leadership accountable for their ethical conduct. Frankly, we found very little evidence that boards were taking a proactive approach to holding chief executives accountable for high levels of ethical behaviour. Nor did we find attention being paid to setting a ‘tone at the top’ that would encourage an ethical culture throughout the organization. In fact, our research raised concerns about structural factors that work against

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______________________________________________________________ the board being proactive in strengthening ethical accountability of its chief executive. Our original research design involved asking board members directly how they assessed the chief executive’s ethical behaviour and leadership, and how they held the executive accountable to ethical standards. Structural barriers, however, prevent access to the board. Whether by phone, email or letter, contact with the board is almost invariably channelled through the chief executive’s office. If all communication with the governing board is screened by the chief executive, how many ‘red flags’ are missed by a board? Bowing to the realities of these communication barriers, surveys were instead directed to the chief executive, essentially asking how he/she was held accountable by the board. The study was further limited by a response rate of 26% from non-profits and only 13% from for-profits, so must be viewed as exploratory rather than conclusive. Nevertheless, the study does highlight some interesting dimensions of ethical accountability for chief executives. Fifty-two responses to our survey were received from the 200 largest charitable non-profit organizations (26% response rate). The typical respondent was the chief executive. Ninety-five percent of respondents agreed or strongly agreed that their organization had a robust ethics enforcement policy. When asked what procedures their organizations used to assess ethical conduct of the chief executive, 15 (29%) either said ‘None’ or skipped the question. The remaining 37 respondents indicated a variety of procedures being utilized (see Table 1). Twenty-six responses to our survey were received from the largest 200 US publicly traded for-profit corporations (13% response rate). Six of those responses came from the chief executive, while twenty came from elsewhere (primarily from the chief ethics officer even though these ethics officers report to the CEO and are only responsible for ethics enforcement at organizational levels below the executive suite). All of these for-profit respondents agreed or strongly agreed that the organization had a robust ethics enforcement policy. When asked what procedures their organizations used to assess ethical conduct of the chief executive, 3 (12%) said ‘None’. The remaining 23 respondents indicated a variety of procedures being utilized (see Table 2).

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______________________________________________________________ Table 1: Procedures Used by Large Non-profit Organizations Which Assess Ethical Conduct of Chief Executive Procedure used to assess ethical conduct of chief executive

N using this procedure

% of respondents which assess CEO N=37

% of all respondents N=52

Self-Rating Assessment Metric Signed statement of agreement to standards of ethical conduct Assessment by group external to the organization Assessment by group internal to the organization (e.g. HR, ethics officer) Completion of an assessment metric by board member Number of complaints receive via hotline, feedback forms, etc.

17 20

46% 54%

33% 38%

11

30%

21%

18

49%

35%

10

27%

19%

12

32%

23%

Table 2: Procedures Used by Large For-Profit Corporations Which Assess Ethical Conduct of Chief Executive Procedure used to assess ethical conduct of chief executive

N using this procedure

% of respondents which assess CEO (N=23)

% of all respondents (N=26)

Self-Rating Assessment Metric Signed statement of agreement to standards of ethical conduct Assessment by group external to the organization Assessment by group internal to the organization Completion of an assessment metric by board member Number of complaints receive via hotline, feedback forms, etc.

7 19

30% 83%

27% 73%

2

9%

8%

11

48%

42%

1

4%

4%

10

43%

38%

Large publicly traded corporations are required by the 2002 Sarbanes-Oxley (SOX) Act to adopt ‘such standards as are reasonably necessary to promote…honest and ethical conduct.’9 As with most SOX provisions, this requirement does not apply to non-profit organizations. So, it is not surprising that fewer large for-profit organizations responded that they had no procedures for assessing the ethical conduct of chief executives (12% among for-profits and 29% among non-profits). Why any organization would

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______________________________________________________________ not have procedures for assessing the ethical conduct of its chief executive is concerning, however. 71% of respondents from the non-profit sector and 88% of respondents from the for-profit sector reported assessing ethical conduct of their chief executive in some fashion, but the only method used by more than half of these organisations was requiring the chief executive to sign a statement of agreement to standards of ethical conduct. Nearly half of the organisations in both sectors seek assessments from a group internal to the organisation. This would include, for example, 360-degree feedback schemes that provide opportunities for organisation members to assess their superiors as well as peers and subordinates. The research team was particularly interested in two assessment procedures that represent a clearly defined set of ethics expectations and a systematic and thorough assessment: ‘Completion of an assessment metric by board member’ and ‘Assessment by group external to the organization.’ 21% of all non-profit respondents reported assessment by an external group, and 19% reported a board member using an assessment metric. But among for-profit respondents only 8% reported assessment by an external group, and 4% reported a board member using an assessment metric. It is speculated that non-profit boards seek external assessments of the chief executive more frequently because of external grant funding requirements. The infrequency of boards in both sectors utilizing the most systematic and thorough methods of holding chief executives ethically accountable – even in the aftermath of major ethical scandals – raises a fundamental question: Can boards of directors provide effective oversight of chief executives? 3. Can Boards of Directors Provide Effective Oversight of Chief Executives? One obstacle to boards acting as an independent check on the chief executive is the practice of combining the roles of CEO and Chairman of the Board in US for-profits. There is increasing pressure from both regulators and shareholders to separate those roles, and forerunners in this movement show that it can be done successfully. As Wajnert10 points out The independent chair model has been adopted successfully in Europe, Canada, and Australia as a sure-fire approach to creating an independent, and empowered, board. Increasingly, US boards are concluding that separating the chair from the CEO is the right thing to do – to underscore commitment to best governance practices and to ensure a more accountable, more transparent organization.

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______________________________________________________________ But does a more independent board necessarily mean it will provide adequate oversight of the chief executive? A study of differences between CEO behaviours in financial institutions leading up to the 2008 financial meltdown might provide some insights. Did financial institutions with independent boards (e.g. in the UK, Germany, Australia, Netherlands, Canada) avoid the excessive risk taking and short term profit orientation exhibited by US financial institutions (with their combined CEO/Board Chair model)? Such a study would also be likely to tell us that separating the chief executive and board chair roles will be no panacea because both leadership and accountability are far too complex to be resolved by a simple structural reform. Another factor making it difficult to achieve strong, independent board oversight is the nature of those chosen to serve on boards. In the forprofit world, it has traditionally been fellow CEO’s who are asked to serve as members of the board, resulting in a community so small that researchers found just 3.5 degrees of separation between the boards of America’s largest corporations in years 1988-2001.11 A CEO serving on an average of 7 boards might find it quite difficult to do the digging and preparation required for assuring high levels of oversight and accountability. In the non-profit world, board members are often selected because they can bring in donations and are civic minded, not because they are able or willing to provide high levels of oversight and accountability. Legal liability is one way of motivating boards to take more seriously their responsibility to hold the chief executive accountable. While stockholders have tried to hold board members legally liable, rarely have they prevailed in court. Attorneys General taking action against non-profit boards is a relatively recent phenomenon. In addition, the motivating force of legal liability is reduced by the almost universal practice of purchasing Director’s and Officer’s (D&O) liability insurance for management and board members of both for-profit and non-profit organizations, large or small. D & O liability insurance offers officers and board members peace of mind that they will not be held personally liable for any but the most wilful wrongdoing or gross negligence. Unfortunately this works in opposition to encouraging board members to aggressively hold chief executives accountable, at least until after an ethical crisis has emerged. 4.

Conclusion Nothing contained in this paper’s analysis offers much hope that boards of directors can or will hold chief executives systematically accountable for behaving ethically. Too many conflicting obligations make it unlikely that board members will focus on issues of chief executive ethics until a crisis occurs. Codes of ethics will be written. Chief executives will be asked to sign a statement agreeing to those ethical standards. Governmental

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______________________________________________________________ regulators will declare boards of directors obligated to create an ethical and law abiding culture. But in the absence of a crisis, these matters of ethics draw little attention. In the midst of a crisis, everyone asks how this could have happened. And soon after the crisis wanes, ethics is once again relegated to something given much lip service but precious little real attention.

Notes 1

D Walker, A Review of Corporate Governance in UK Banks and other Financial Industry Entities: Final Recommendations, 26 November 2009, viewed on 2 February 2010 http://www.hm-treasury.gov.uk/d/walker_ review_261109.pdf. 2 CNN, Should Americans Trust the Red Cross? 2 February 2010, viewed on 3 February 2010 http://amfix.blogs.cnn.com/2010/02/02/should-americanstrust-the-red-cross/. 3 R Moran, ‘Fumo Excused from Citizens’ Alliance Lawsuit’, The Philadelphia Inquirer November 11, 2009, viewed on 6 February 2010, http://www.philly.com/inquirer/local/pa/20091111_Fumo_excused_from_Cit izens__Alliance_lawsuit.html. 4 P Koestenbaum, et. al., ‘Integrating Sarbanes-Oxley, Leadership, and Ethics’, The CPA Journal, vol. 75, April 2005. 5 F Lipman, ‘The Ten Best Practices for Audit Committees’, Financial Executive, October 2006, pp. 49-51. 6 The team consisted of Kathryn Denhardt, Alain Noghiu, James Morrison, and Audrey Helfman, all of the University of Delaware School of Urban Affairs and Public Policy. 7 The study used the top 200 US companies from the Forbes 2007 list of the World’s 2000 Largest Public Companies, and the Forbes 2006 list of America’s 200 Largest Charities. 8 Ethics and Policy Integration Centre, Measuring Organizational Integrity, and the Bottom Line Results One Can Expect, 1999. 9 Sarbanes –Oxley Act of 2002, viewed on 8 December 2009, http://fl1.findlaw.com/news.findlaw.com/hdocs/docs/gwbush/sarbanesoxley0 72302.pdf. 10 T Wajnert, ‘Separation Anxiety: Splitting the Chair, CEO Roles’. Directorship: Boardroom Intelligence, July 21, 2009 http://www.director ship.com/separation-anxiety/. 11 G Davis, M Yoo & W Baker. ‘The Small World of the American Corporate Elite, 1982-2001’ Strategic Organization, Vol. 1, No. 3, 2003, pp. 301-326.

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______________________________________________________________

Bibliography CNN, Should Americans Trust the Red Cross? 2 February 2010, viewed on 3 February 2010, http://amfix.blogs.cnn.com/2010/02/02/should-americanstrust-the-red-cross/. Davis, G., Yoo, M., Baker, W., ‘The Small World of the American Corporate Elite, 1982-2001’. Strategic Organization, vol. 1, no. 3, 2003, pp. 301-326. Ethics and Policy Integration Centre, Measuring Organizational Integrity, and the Bottom Line Results One Can Expect, 1999. Forbes America’s 200 Largest Charities, 2006. Forbes World’s 2000 Largest Public Companies, 2007. Koestenbaum, P., et. al., ‘Integrating Sarbanes-Oxley, Leadership, and Ethics’. The CPA Journal, vol. 75, no. 4, 2005, pp. 13-15. Lipman, F., ‘The Ten Best Practices for Audit Committees’. Financial Executive, October 2006, pp. 49-51. Moran, R, ‘Fumo Excused from Citizens’ Alliance Lawsuit’, The Philadelphia Inquirer. 11 November 2009, viewed on 6 February 2010, http://www.philly.com/inquirer/local/pa/20091111_Fumo_excused_from_Cit izens__Alliance_lawsuit.html. Sarbanes–Oxley Act of 2002. viewed on 8 December 2009, http://fl1. findlaw /news.findlaw.com/hdocs/docs/gwbush/sarbanesoxley072302.pdf. Wajnert, T, ‘Separation Anxiety: Splitting the Chair CEO Roles’, Directorship: Boardroom Intelligence. 21 July 2009, viewed on 30 January 2010, http://www.directorship.com/separation-anxiety/. Walker, D, A Review of Corporate Governance in UK Banks and other Financial Industry Entities: Final Recommendations. 26 November 2009, viewed on 2 February 2010, http://www.hm-treasury.gov.uk/d/walker_ review_261109.pdf. Kathryn G. Denhardt is Professor of Public Management in the School of Urban Affairs and Public Policy at the University of Delaware (USA).

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______________________________________________________________ Alain Noghiu is a doctoral candidate in Urban Affairs and Public Policy at the University of Delaware (USA).

PART IV Ethics and Public Understandings

The Public Understanding of Ethics and its Relevance for Bioethical Reflection Mark Schweda and Silke Schicktanz Abstract In the sphere of biomedicine, ‘ethics’ has emerged as a label for a new kind of public actors and of governance that comprises a complex scenery of experts, institutions and regulations. However, the basis, status and legitimacy of ethics expertise is far from clear: What is its genuine field and question? In how far can it claim a different epistemological and political status than everyday life moralities? And how should it be integrated with these everyday life moralities on a political level? We argue that bioethical reasoning has to include the views of and attitudes towards biomedicine among the general public. We will first summarize some of the main reasons for taking into account these ‘public understandings of ethics’, addressing their methodological relevance for the epistemic quality of ethical arguments, and their normative relevance for the legitimacy of ethical decision making. We will then sketch an argument underlining the public dimension of ethical reasoning and the important role of ‘being affected’, especially in the field of biomedicine. Against this background, we will draw conclusions for the ways in which public understandings of ethics should be included by social research and public participation. Key Words: Being affected, deliberation, ethics expertise, lay moralities, and public understanding of science. ***** 1.

Introduction Especially in the sphere of modern biomedicine, ‘ethics’ has emerged as a label for a relatively new kind of public actors and of governance. It comprises a complex scenery of experts, institutions and regulations in various social contexts and on different political levels. 1 Ethicists and ethics committees seem to interfere with public and political opinion formation and decision making processes in manifold, often rather intransparent ways: They give advice to governments, formulate recommendations for parliaments or issue guidelines for certain fields such as biomedical research and practice. However, the basis, status and political legitimacy of this ethics expertise is far from clear. After all, almost everybody seems to have moral values and principles, and they often vary strongly between individuals, subcultures and societies. It is not evident how anyone can claim to be an

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______________________________________________________________ expert in this area: Are some peoples’ values or principles ‘better’ than others’? And if so: What exactly is it that explains their allegedly superior quality? What specific expertise do ethics experts possess, at all?2 What is its genuine field and question and its relation to everyday life moralities?3 And how should it be integrated with these everyday life moralities on a political level?4 In this paper, we will argue that bioethical reasoning has to find adequate ways of including public understandings of ethics, that is, the moral views of and attitudes towards biomedicine among the general public. We will first summarize some of the main reasons given for taking into account the general public and their views and attitudes in the academic debate, addressing two aspects: (a) their methodological relevance for the epistemic quality of ethical arguments, and b) their normative relevance for the legitimacy of ethical decision making. Building on these considerations, we will sketch an argument underlining the essentially public dimension of ethical reasoning and the important role of ‘being affected’, especially in the field of biomedicine. Against this background, we will draw methodological conclusions for the ways in which public understandings of ethics should be included by social research and public participation. 2.

The Relevance of Public Understanding of Ethics The so called ‘empirical turn’5 in bioethics has brought to bear an increasing interest in social research on public views of, attitudes towards and interactions with moral questions and problems in the context of biomedicine, e.g. concerning abortion, in-vitro-fertilization, or allocation in health care. Following similar trends in social research on the public uptake of science,6 the object of this interest could be labelled as ‘public understandings of ethics’, that is, moral positions and arguments among the general public. Such public understandings of ethics can comprise public concerns about scientific developments and technological risks, but in a broader sense also any kind of argumentation and normative assessment about why it is morally wrong to lie in a particular situation or how to respect another person in a specific relationship. Of course, the relation of these public understandings of ethics to academic ethical reasoning is still discussed rather controversially: Why should they be of any relevance for ethical reflection, at all? At the end of the day, there seems to be no way of crossing the is-ought-gap, of directly drawing normative conclusions from empirical observations, of inferring from what people think is morally right to what actually is right. In the course of the recent debate, mainly two kinds of arguments have been pursued in favour of including empirical evidence and public understandings.7

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______________________________________________________________ A. Methodological Arguments Most of the arguments for taking social research and public understandings of ethics into account are of a primarily methodological nature - and are thus located on a meta-ethical level. They make the point that the epistemic quality of ethical theorizing could be improved by taking into account additional empirical information, that empirical observations could be used on several levels to make ethical arguments more plausible. On a basic level, moral issues as observed by socio-empirical studies can be important as triggers or topics of ethical reflection. They can call the experts’ attention to remote or emerging moral problems in the first place.8 Thus, the detection of a statistic gender bias in living organ donation can raise moral concerns about justice and exploitation.9 Furthermore, all applied ethical arguments rest on socio-empirical premises. Thus, so called ‚slippery slope’ and ‚automatic escalator’-arguments are based on assumptions about future and uncertain social developments.10 Empirical studies can be used to test, strengthen or criticize these assumptions. Beyond that, empirical research can make ethical reasoning more context-sensitive by providing information about relevant framework conditions and factors of concrete practical decisions and actions.11 This is particularly important where ethical judgements and orientations are supposed to be ‘applied’, which means being implemented in social reality. Various models of moral education and implementation need a lot of empirically gained background information. B. Normative Arguments The most polarized controversy in academic ethics is not about these methodological aspects, though, but about the role of socio-empirical studies for the normative justification of general ethical principles.12 Traditionally, there is strong scepticism about the normative relevance of empirical research on this level. The major critique refers to the natural fallacy-argument, saying that normative judgements must not be concluded on the basis of empirical facts alone. However, the critics often fail to recognize that actually, nearly all of the relevant contemporary ethical theories already seem to allow for the inclusion of the public in one way or the other. Thus, an interactive, communicative approach like Discourse Ethics explicitly states that only those norms which could - theoretically - find the rational consent of all persons affected can claim genuine legitimacy.13 And another prominent approach, Preference Utilitarianism, demands that the preferences of those affected by decisions have to be respected.14 Under these premises, socioempirical studies can definitely have a function in ethical justification, e.g. to find out what positions are consensual or what preferences are ‘out there’. Both approaches can also be backed from an epistemic angle since it is questionable whether one single person is really able to consider and weigh all relevant arguments impartially only by using her rationality.

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______________________________________________________________ 3. The Public Dimension of Ethical Reasoning and the Role of ‘Being Affected’ Indeed, most ethical positions rest on the basic assumption that the ‘moral point of view’ is essentially characterized by impartiality, that is, the abstraction from particular individual interests and the consideration of all other standpoints. Like in a nutshell, some of the most elementary ideals and intuitions of modern moral thinking are comprised in this conception. First and foremost, it expresses the idea of mutual respect and recognition among equally autonomous individuals: Prima facie, nobody is entitled to impose his own will on others. Nobody can be forced to comply with others’ directives unless he can agree to them, himself, that is, accept them on the basis of convincing arguments. Against this background, a morally legitimate rule has to be based on the rational agreement of everyone concerned. From an epistemological point of view, however, it is highly questionable whether one single person is really capable of generating such a rule, respectively impartially considering and weighing all relevant perspectives, aspects and pro and con arguments in foro interno, that is, within the framework of a monological reflection. Can we really rescind from our own individual perspective and interests to reach an impartial point of view? And apart from the problem of biased standpoints: Do we really have the cognitive capacity to imagine and anticipate all conceivable or possible objections, differentiations, reservations, amendments? This scepticism gets particularly profound in respect of bioethical conflicts: Who could claim - e.g. as a healthy, cognitively functioning person in a socially secure situation - to be able to really put himself in the position of somebody who has another cultural background, lives in material and social instable surroundings, has another sex or is chronically ill or disabled? Especially in the bioethical context, the concept of ‘being affected’ seems to play a central, although ambiguous role. Many affected persons claim to have an exclusive perspective which rests e.g. on specific embodied experience or a personal patient history, gives them privileged insights into certain aspects of their situation and cannot be reconstructed from an external point of view.15 Against this epistemological background, considering and including peoples’ actual viewpoints and attitudes could help to secure and extend the normatively required consensus or at least some congruence between those who decide or regulate on the one hand and those who are affected by the decisions or regulations on the other. Therefore, conceptions and strategies of including the public, its views and attitudes, by means of empirical research and public participation seem to have the greatest potential to achieve the required qualities for ethical reasoning. At the same time, however, methodological questions concerning the way this inclusion of public understandings of ethics should take place are shifted to the centre of normative concern:

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______________________________________________________________ First of all, the identification of informants and the composition of samples becomes a topic of high normative import: Who should be included in the research design, at all? Who should be interviewed, take part in a focus group or attend a participatory setting? In order to answer these questions, we have to decide whose voices should count in a specific situation and give an account of our decision. In this context, the concept of ‘being affected’ plays a central role because the ethical ideal of autonomy implies that those affected by a decision should have a say in it. At the same time, however, the concept of ‘being affected’ itself needs reflection: It is not always evident at first sight who can count as an affected person in a given situation. The (self) ascription of ‘affectedness’ can depend on several factors, from types of knowledge to social roles and moral ideals. Moreover, there may be different ways of ‘being affected’ which have to be weighed differently, e.g. being directly or indirectly affected, being actually, potentially or future affected. Given the normative relevance of ‘being affected’, these questions have to be made explicit and reflected upon. Furthermore, the epistemological and moral claims based on ‘being affected’ need consideration, themselves: In how far does it really constitute a specific, maybe exclusive and at the same time superior perspective? And which implications would that have for representative forms of deliberation on the one hand and for the possibility of consensus in participatory settings on the other? Secondly, many important and complex questions refer to the adequate methods of collecting public understandings and everyday-life beliefs. How do we have to collect the opinions and voices among the public and those affected in order to meet the ethical requirements? Quite frequently, quantitative studies are still regarded as the ‘gold standard’ for social research on public opinions. They are designed to be representative for the investigated population and their results claim objectivity and generalisability. From the ethical point of view, however, it seems that qualitative, participatory and deliberative methods are more relevant as long as we are interested in detecting broader contexts and resources of ethical argumentation in a highly differentiated form. In contrast to representations of the public in the form of quantitative surveys which statistically aggregate opinions, deliberative approaches focus on the question in how far the respective positions have been considered and can find the agreement of those affected within the framework of argumentative debate. From this point of view, opinions obtain normative relevance and weight if and insofar as they are the result of a consideration and reflection of relevant aspects and perspectives. This, however, also requires - or at least makes highly desirable - a certain degree of active participation in the deliberative discourse. Here the public and the affected persons are not just addressed as informants who respond to standardized questionnaires, but also as agents who spontaneously bring to bear and discuss their own positions and arguments.

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______________________________________________________________ Moreover, there is the third question which theoretical approaches and concepts we should use for describing and analysing the collected public positions adequately. Much social research in this field traditionally frames these issues in terms of ‘values’, of personal attitudes that can be measured by means of opinion surveys. In light of the ethical purposes mentioned above, this approach is not sufficient for several reasons. First, it usually pursues a descriptive interest while the overarching perspective of the ethically motivated approach is a normative one: Not only the factual statistic occurrences and correlates of attitudes are relevant, but also their normative content, weight and legitimacy. Therefore, sociological research that restricts itself to surveying individual ‘values’ often also lacks ideational and argumentative context: In order to assess moral claims from a normative point of view, broader patterns and resources of moral argumentation and orientation have to be taken into account. Especially the sociological use of the concept ‘value’ represents a normative vocabulary which is much too undifferentiated for ethical debates. Thus, especially in the context of a deficit model of public understanding of science,16 quantitative research designs run the risk of developing the dynamic of a self-fulfilling prophecy: Public positions might not be that irrational, per se, but rather made look irrational by concepts and methods which separate them from their ‘thick’ socio-cultural contexts, their concrete ideational and motivational backgrounds and their rich argumentative resources, reducing them to isolated ‘opinions’ or ‘values’. Since qualitative research and especially deliberative and participatory approaches give a three-dimensional and more fine grained picture of ethical positions and arguments and their ideational and motivational resources, they are important tools for detecting and criticizing such misrepresentations of public views and interests and the instrumentalisation of statistical findings. 4.

Conclusions The interplay of empirical social research, public participation and bioethical reflection raises general considerations about the interrelation between ethics and civil society. If we aim at a rational solution of conflicts on the basis of mutual recognition and respect for each other (values inherent to civilized societies in general and modern liberal democracies in particular), the practice of communicative exchange by means of arguments gains fundamental importance. From this point of view, public democratic deliberation on bioethical questions is not just some pleasant and prestigious, but finally dispensable add-on. Instead, the implementation and further development of inclusive and reasonable forms of public exchange and debate constitute an essential bioethical concern. Monological reflexion has to face the challenge and stand the test represented by the factual plurality of - affected, situated and embodied - standpoints, perspectives and interests. A bioethical position

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______________________________________________________________ that fails to do so and avoids the confrontation with public arguments not only runs the risk of missing important aspects and ideational and argumentative resources. It also arouses strong suspicion to be one-sided, biased or ideological. By actually taking the public into account, on the other hand, bioethics could be an element of a modern, liberal and democratic policy in the field of biomedicine and biotechnology. Against this background, the significance and the implications of the recent debate about ‘empirical ethics’ begin to become clear. The ‘empirical turn’ in bioethics is particularly important and explosive insofar as it means the consideration and inclusion of voices, experiences and positions that have previously been excluded from or under-/misrepresented in the established expert discourse. This trend should not be seen as a threat to pure academic rationality, but - on the contrary - as a chance to actually increase the reasonableness and legitimacy of ethical considerations by expanding the forum (the agora - as Nowotny, Scoot and Gibbons put it) in which they have to prove their persuasive power.17 In this perspective, however, methodological questions of social research gain a crucial normative relevance, especially as far as the composition of samples and the methods and concepts of data collection and analysis are concerned. Particularly in the case of bioethical conflicts - where downright existential standpoints, deeply rooted views and vital interests collide - binding and sustainable decisions cannot be achieved and responsibility, reciprocity and solidarity claimed as long as the agents, addressees and affected persons, themselves - the citizens - have not been actively engaged and convinced.18

Notes 1

H Nowotny, P Scott & M Gibbons, Re-Thinking Science: Knowledge and the Public in an Age of Uncertainty, Polity Press, London, 2001. 2 D Birnbacher, ‘Wofür ist der „Ethik-Experte“ Experte?’, Biomedizinische Ethik: Aufgaben, Methoden, Selbstverständnis, B. Gesang (ed), Mentis, Paderborn, 2002, pp. 97-114. 3 NL Steinkamp, B Gordijn & HAMJ ten Have, ‘Debating Ethical Expertise’, Kennedy Institute of Ethics Journal, vol. 18, June 2008, pp. 173-192. 4 C Delkeskamp-Hayes, ‘Societal Consensus and the Problem of Consent. Refocusing the Problem of Ethics Expertise in Liberal Democracies’, Ethics Expertise. History, Contemporary Perspectives and Applications, L. Rassmussen (ed), Springer, Dorderecht, 2005, pp. 139-163. 5 P Borry, P Schotsmans & K Dierickx, ‘The Birth of the Empirical Turn in Bioethics’, Bioethics vol. 19, February 2005, pp. 49-71. 6 B Wynne, ‘Knowledges in Context’, Science Technology and Human Values, vol. 16, Winter 1991, pp. 111-21; B Wynne, ‘Misunderstood

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______________________________________________________________ Misunderstandings: Social Identities and Public Uptake of Science’, Public Understanding of Science, vol. 1, July 1992, pp. 281-304. 7 Birnbacher 2002, pp. 97-114. 8 M Levitt, ‘Public Consultation in Bioethics. What’s the Point of Asking the Public when They have Neither Scientific nor Ethical Expertise?’, Health Care Analysis, vol. 11, March 2003, pp. 15-24. 9 S Schicktanz, M Schweda & S Wöhlke, ‘Gender Issues in Living Organ Donation: Medical, Social and Ethical Aspects’, in Gender and Medicine, I. Klinge & C. Wiesemann (eds), Göttingen University Press, Göttingen, 2010, p. 35. 10 S Holm & T Takala, ‘High Hopes and Automatic Escalators: A Critique of Some New Arguments in Bioethics’, Journal of Medical Ethics, vol. 33, January 2007, pp. 1-4. 11 AW Musschenga, ‘Empirical Ethics, Context Sensitivity, and Contextualism’, Journal of Medicine and Philosophy, vol. 30, October 2005, pp. 467-490. 12 ibid. 13 J Habermas, ‘Discourse Ethics: Notes on a Program of Philosophical Justification’, in The Communicative Ethics Controversy, S. Benhabib & F. Dallmayr (eds.), MIT Press, Cambridge, Mass, 1990, pp. 60-110. 14 P Singer, Practical Ethics. Cambridge University Press, Cambridge, 1979. 15 S Schicktanz, M Schweda & M Franzen, ‘‘In a Completely Different Light’? The Role of ‘Being Affected’ for the Epistemic Perspectives and Moral Attitudes of Patients, Relatives and Ly People’, Medicine, Health Care and Philosophy, vol. 11, March 2008, pp. 57-72. 16 Wynne 1991, 1992. 17 Nowotny, Scott & Gibbons, p. 201. 18 A Guttman & D Thompson, Democracy and Disagreement, Havard University Press, Cambridge, MA, 1996.

Bibliography Birnbacher D., ‘Wofür ist der „Ethik-Experte“ Experte?’, in B. Gesang (ed), Biomedizinische Ethik: Aufgaben, Methoden, Selbstverständnis. Mentis, Paderborn, 2002, pp. 97-114. Borry, P., Schotsmans, P. & Dierickx, K., ‘The Birth of the Empirical Turn in Bioethics’. Bioethics, vol. 19, February 2005, pp. 49-71.

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______________________________________________________________ Delkeskamp-Hayes, C., ‘Societal Consensus and the Problem of Consent. Refocusing the Problem of Ethics Expertise in Liberal Democracies’. L. Rassmussen (ed.), Ethics Expertise. History, Contemporary Perspectives and Applications. Springer, Dorderecht, pp. 139-163. Guttman, A. & Thompson, D., Democracy and Disagreement. Havard University Press, Cambridge, MA, 1996. Habermas, J., ‘Discourse Ethics: Notes on a Program of Philosophical Justification’, S. Benhabib & F. Dallmayr (eds), The Communicative Ethics Controversy. MIT Press, Cambridge, Mass, 1990, pp. 60-110. Levitt, M., ‘Public Consultation in Bioethics. What’s the Point of Asking the Public when They have Neither Scientific nor Ethical Expertise?’. Health Care Analysis, vol. 11, March 2003, pp. 15-24. Musschenga, A.W., ‘Empirical Ethics, Context Sensitivity, and Contextualism’. Journal of Medicine and Philosophy, vol. 30, October 2005, pp. 467-490. Nowotny, H., Scott, P. & Gibbons, M., Re-Thinking Science: Knowledge and the Public in an Age of Uncertainty. Polity Press, London, 2001. Schicktanz, S., M. Schweda & M. Franzen, ‘‘In a Completely Different Light’? The Role of ‘Being Affected’ for the Epistemic Perspectives and Moral Attitudes of Patients, Relatives and Lay People’. Medicine, Health Care and Philosophy, vol. 11, March 2008, pp. 57-72. Schicktanz, S., Schweda, M., & Wöhlke, S., ‘Gender Issues in Living Organ Donation: Medical, Social and Ethical Aspects’. I. Klinge & C. Wiesemann (eds), Gender and Medicine. Göttingen University Press, Göttingen, 2010, pp. 33-55. Schweda, M. & S. Schicktanz, ‘Public Ideas and Values concerning the Commercialization of Organ Donation in Four European Countries’. Social Science & Medicine, vol. 68, 2009, pp. 1129-1136. Singer, P., Practical Ethics. Cambridge University Press, Cambridge, 1979.

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______________________________________________________________ Steinkamp, N.L., Gordijn, B. & H.A.M.J. ten Have, ‘Debating Ethical Expertise’. Kennedy Institute of Ethics Journal, vol. 18, June 2008, pp. 173192. Wynne, B., ‘Knowledges in Context’. Science Technology and Human Values, vol. 16, Winter 1991, pp. 111-121. Wynne, B. ‘Misunderstood Misunderstandings: Social Identities and Public Uptake of Science’. Public Understanding of Science, vol. 1, July 1992, pp. 281-304. Mark Schweda is research associate at the Department of Medical Ethics and History of Medicine, University Medical Center Göttingen (Germany). His research interest comprises bioethics, philosophical ethics and political philosophy. Silke Schicktanz is professor for culture and ethics of biomedicine at the Department of Medical Ethics and History of Medicine, University Medical Center Göttingen (Germany). Her research comprises work on cultural differences in bioethics, conceptions of body and identity in medicine, ideas of autonomy and responsibility as well as the relation of lay and expert perspectives and ethics and empirical research.