HMS Ulysses And The Trolley Problem

I’m a professor of philosophy, and quite frequently, I teach classes on social and political philosophy and philosophy of law; the subject matters of these classes and their attendant discussions, very often stray, as they should, into ethical theory and its foundations. There, on numerous occasions, my students raise the The Trolley Problem and ask me what I think the ‘correct solution’ is. I’ve come up with a variety of responses over the years and have ‘settled’ on something like the following:

The Trolley Problem is not a problem or a puzzle to be solved. There is no solution per se. It is a mistake to ask anyone for their solution to it. The Trolley Problem is rather, designed to illustrate the insuperable difficulty of ethical decision-making, to suggest that very often, if not always, we will find ourselves unable to make what we, or anyone else, would consider to be a ‘correct’ or ‘satisfactory’ solution to an ethical problem. Indeed, the fact that such ethical decisions will leave traces of dissonances within us and others should suggest to us that any decision-making ‘calculus’ or ‘procedure’ is likely to be flawed, and that at best, we should only expect ‘approximate’ or ‘satisficed‘ resolutions of ethical dilemmas.  These dilemmas serve to educate us about the dimensions of the human problem that generated them, and may further guide our ethical decision-making in related domains. But that is all they are supposed to do; they are not supposed to adjudicate between ‘rival’ ethical frameworks and show that one leads to ‘better’ decisions than the other. There is no ‘solution’ to this ‘problem’ that is ‘correct’; instead, if the problem is fully fleshed out, at best we should expect to learn about the kinds of human situations that can give rise to them, and how we may ‘work around’ them in the future. We will gain, as a bonus, an added insight into why human affairs have been quite so messy and complex over the years. That is all we should expect from our reading of, and ‘resolution’ of, ethical dilemmas.

To illustrate this claim–and to further make the point that literature can provide moral instruction as well as, if note better than, formal ethical theory–I tell them the story of reading Alistair Maclean‘s WWII novel HMS Ulysses as a teenager, and the effect that one particular incident within it had on me. The precise details are a little hazy–as might be expected, given that I read the novel more than thirty years ago–but the outline is quite clear. An Allied convoy consisting of merchant ships and destroyer escorts is headed to Murmansk to deliver supplies to Russian forces; a German U-boat sneaks in and torpedoes one of the ships of the convoy; as the ship burns but refuses to sink, the captain of the HMS Ulysses orders it sunk in order to prevent its burning ruins from attracting German long-distance bombers and other U-boats from attacking other ships in the convoy; this order is reluctantly executed by a young midshipman despite the fervent expressions of horror and dismay by junior officers and enlisted men; after the torpedo is fired, we find out that that midshipman’s brother was one of the sailors on the ship he had just torpedoed.

When I finish telling this story, suitably embellished to bring out the horrors of the situation being described, I describe the conclusions I drew upon reading it:

War is a cruel and inhumane business; it makes monsters out of all us; military discipline is fascistic. We should not fight wars because we should not put men and women in conditions that require them to take decisions like the one the captain of the HMS Ulysses and the midshipman had to take.

There was no ‘correct solution’ for this WWII trolley problem. The only solution to it was to not fight the war that allowed it to develop. But notice again, that WWII was a gigantic Trolley Problem all of its own with no ‘solutions’ except for very difficult, painful, and entirely ‘suboptimal’ ones. By its end, the Allies had committed many war crimes in an effort to combat other moral atrocities.

There is no getting away from the difficulty of ethical decision-making; any ‘professional’ ethicist who believes otherwise is a charlatan. Those who believe such solutions obtain are deluded.

‘Reciprocity’ As Organizing Principle For The Moral Instruction Of Young Women

I’ve often wondered how best to provide moral instruction to my daughter as she grows up, what principles and duties to keep front and center in the course of my conversations with her as she begins to grow into an age where her interactions with other human beings start to grow more complex. Over the past year or so, I’ve strived to organize this ‘instruction’ around the concept of ‘reciprocity,’ around a variation of the Golden Rule and the altruism it implies: do good unto others; but only continue with the good if it is reciprocated; do not feel obligated to respond to unkindness with kindness; indeed, you shouldn’t respond to unkindness with kindness; if good is done to you, then you must reciprocate with good. There is one conditional duty in here: that of doing good to others, whose obligations continue to hold only if your acts are met with good done to you in turn. There is no duty to do good in response to bad being done unto you; and there is an absolute duty of doing good to others when they do good unto you.

I’ve tried to provide this instruction by way of simple examples: we should not litter because in doing so we would make our neighborhoods dirty for ourselves and our neighbors; they should do the same for us; if some kid in school is nice to you, you should be nice back to them; if someone in school is not nice to you when you have been so to them, then don’t feel the need to continue being nice with them; acknowledge people’s generosity and kindness in some fashion, even if with a simple ‘thanks’; and so on. I’ve tried to make the claim that society ‘hangs together,’ so to speak, because of reciprocity. Without it, our social arrangements would fall apart.

Reciprocity is not as generous and self-sacrificing as pure altruism. I chose reciprocity as an organizing principle because I believe a commitment to altruism can hurt people, and moreover, in our society and culture, altruism has proved to be largely harmful to women. I was, and am, especially worried about a girl growing up–as too many in the past have–to believe that her primary duty is to make others happy, to do good to others even if good is not being done to her in turn. I believed that stressing reciprocity as an organizing moral principle would point in the direction of some positive obligations to make others happy but it would also place some limitations on those obligations. Aristotle wrote of the need to maintain a mean of sorts as we ‘practiced’ the virtue of generosity, between wastefulness and stinginess–the altruist gives too much in this reckoning. A moral agent guided by the principle of reciprocity aims to find a mean in the generosity of their benevolent or good actions: by all means be generous, but pick the targets of your generosity wisely.

I realize that the injunction to only do good if it is reciprocated in some way sounds vaguely unforgiving or unkind and perhaps self-defensive; but again, as I noted above, some such measure of protection is necessary for women, who for too long have been crushed by the burden of unfair or unrealistic expectations of their conduct, to the detriment of their well-being. I want my daughter to do good unto others, but I also want good to be done to her.

My daughter, to her credit, seems to have listened; she can now use the word ‘reciprocity’ in conversation and sometimes to describe a plan of ac; I wait to see how well she will internalize the ‘lessons’ it forms the core of. (She likes the rhyming with ‘gravity’; as I say to her, gravity makes the world of things work, reciprocity makes the world of people work!)

Note: ‘reciprocity’ enjoys two entries in Wikipedia. One drawn from social psychology  and the other from social and political philosophy.

 

 

 

 

That Elusive Mark By Which To Distinguish Good People From Bad

In Journey to the End of the NightCéline‘s central character, Ferdinand Bardamu is confronted with uncontrovertible evidence of moral goodness in Sergeant Alcide–who is nobly working away in a remote colonial outpost to financially support a niece who is little more than a perfect stranger to him. That night, as Bardamu gazes at the sleeping Alcide, now once again, in inactivity, utterly unremarkable and undistinguishable from others who serve like him, he thinks to himself:

There ought to be some mark by which to distinguish good people from bad.

There isn’t, of course. But that hasn’t stopped mankind from continuing to hold on to this forlorn hope in the face of the stubborn difficulty of making moral judgements and evaluations about our fellow humans. Sometimes we seek to evaluate fellow humans on the basis of simple tests of conformance to a pre-established, clearly specified, moral code or decision procedure; sometimes we drop all pretence of sophisticated ethical analysis and take refuge in literal external marks.

These external marks and identifiers have varied through and across space and time and cultures. Sometimes shadings of skin pigmentations have been established as the distinguishing marker of goodness; sometimes it is the shape of the skull that has been taken to be the desired marker; sometimes national or ethnic origin; sometimes religious affiliation. (If that religious affiliation is visible by means of an external marker–like a turban for instance–then so much the better. West Pakistani troops conducting genocide in East Pakistan in 1971 were fond of asking Bengali civilians to drop their pants and expose their genitals;¹ the uncircumcised ones were led off to be shot; their bodies had revealed them to be of the wrong religion, and that was all that mattered as the West Pakistani Army sought to cleanse East Pakistan of those subversive elements that threatened the Pakistani polity.)

Confronted with this history of failure to find the distinguishing external mark of goodness, perhaps emblazoned on our foreheads by the cosmic branding authority, hope has turned elsewhere, inwards. Perhaps the distinguishing mark is not placed outside on our bodies but will be found inside us–in some innard or other. Perhaps there is ‘bad blood’ in some among us, or even worse, some might have ‘bad brains.’ Unsurprisingly, we have turned to neuroscience to help us with moral decisions: here is a brain state found in mass murderers and criminals; innocents do not seem to have it; our penal and moral decisions have received invaluable assistance. But as a growing litany of problems with neuroscientific inference suggest, these identifications of brain states and their correlations with particular behavior and the explanations that result rest on shaky foundations.

In the face of this determination to seek simple markers for moral judgement my ‘There isn’t, of course’ seems rather glib; it fails to acknowledge the endless frustration and difficulty of decision-making in the moral domain–and the temptation to seek refuge in the clearly visible.

Note: R. J Rummel, Death by Government, page 323

Talking About Natural Law With Children

Last Thursday, thanks to New York City public schools taking a ‘mid-winter break,’ my daughter accompanied me to Brooklyn College and sat in on two classes. My students, as might be expected, were friendly and welcoming; my daughter, for her part, conducted herself exceedingly well by taking a seat and occupying herself by drawing on a piece of paper and often, just paying attention to the class discussion. She did not interrupt me even once; and I only had to ask her to pipe down a bit when she began humming a little ditty to herself. After the second class–philosophy of law, which featured a discussion of St. Thomas Aquinas and natural law theory–had ended, I asked her what she thought the class was about. She replied, “it was about good and bad.” This was a pretty good answer, but things got better the next day.

On Friday, as we drove to gym for my workout and my daughter’s climbing session, I picked up the conversation again, asking my daughter what she made of the class discussion and whether she had found it interesting. She said she did; so I pressed on and the following conversation resulted:

“Let me ask you something. Would you always obey the law?”

“Yes”

“What if the law told you to do something bad?”

“I would do it.”

“Why? Why would you do something bad?”

“Because I don’t want to go to jail.”

“You know, I’ve been to jail twice. For breaking the law.”

“Why?”

“Well, one time, I was angry with one country for attacking people and dropping bombs on them, so I went to their embassy and protested by lying down on the street. When the police told me to move, I didn’t, and so they arrested me and put me in jail for a day. Another time, I protested our university not paying the teachers enough money for their work, and I was arrested again for protesting in the same way.” [Strictly speaking this is a bad example of civil disobedience; I wasn’t breaking a law I thought unjust, rather, I was breaking a law to make a point about the unjustness of other actions.]

“Did they feed you in jail?”

“Yes, they did.”

“Oh, that’s good.”

“Well, so what do you think? Would you break the law if it told you to do something bad?”

“No.”

“Why not? The law is asking you to do something bad.”

“What if I was wrong?”

“What do you mean?”

“What if I was wrong, and it wasn’t bad, and the policeman put me in jail?”

“What if you were sure that you were being asked to do something bad?”

“Then I wouldn’t do it.”

“Why?”

“Because I don’t want do bad things.”

“But isn’t breaking the law a bad thing?”

“Yes.”

“So, why are you breaking the law?”

“Because it’s asking me to do a bad thing.”

At this point, we were close to our turn-off for the gym and our parking spot, and so our conversation ended. A couple of interesting takeaways from it:

1. We see the social construction of a legal order here in the making; at the age of five, my daughter has already internalized the idea that breaking the law is a ‘bad thing’ and that bad things happen to those who break the law. She can also identify the enforcers of the law.  This has already created a normative hold on her; she was inclined to obey the law even if it asked her to do something bad because she was worried about the consequences.

2. My daughter displayed an interesting humility about her moral intuitions; she wasn’t sure of whether her thinking of some act as ‘bad’ was infallible. What if she was wrong about that judgment?

Note: My reporting of the conversation above might be a little off; I’m reproducing it from memory.

Thinking Of Autonomous Weapons In ‘Systems’ Terms

A persistent confusion in thinking about weapons and their regulation is to insist on viewing weapons in isolation, and not as part of larger, socio-political-economic-legal-ethical systems. This confusion in the domain of gun control for instance, inspires the counter-slogan ‘guns don’t kill people; people kill people.’ Despite its glibness–and its misuse by the NRA–the slogan encapsulates a vital truth: it is singularly unilluminating to consider a weapon in isolation. Indeed, the object we term a weapon is only within the context a large system that makes it one. A piece of metal is a knife because it is used as one, pressed into service as one by a decision-making agent of some kind, to cut objects, vegetable or animal.

Which brings us to autonomous weapons, a domain where the ethical and regulatory debate is quite clearly demarcated. The case for autonomous weapons is exceedingly familiar: they are more humane because of their greater precision; they can be used to reduce the ‘cost’ of war, both human and material; no more carpet-bombing, just precision strikes, delivered by autonomous weapons–which moreover, reduce the strain of killing on humans. (That is, these weapons are kinder to those who kill and those who are killed.) The case against them is similarly familiar: the delegation of lethal decision making to a machine incapable of fine-grained ethical deliberation is an invitation to moral atrocity, to a situation in which lurking catastrophes are triggered by a moral calculus that makes decisions which are only superficially technically correct. The immaturity of such systems and the algorithms they instantiate makes them especially risky to deploy and use.

Autonomous weapons do not exist in isolation, of course; they are more correctly considered autonomous weapons systems–as one part of an economic, military, legal, political, and moral calculus; their use as weapons is not merely function of their machinic code; it is a function, rather, of a much more complex ‘code’ made up of bits of legal regulations, political imperatives, and physical and economic constraints. It is these that act together, in concert, or in opposition, to ‘fire’ the weapon in question. As such, some of the ‘ethical’ arguments in favor of autonomous weapoons systems look a little trite: yes, autonomous weapons system carry the potential to enable more targeted and precise killing, but the imperatives to do so still need to be human directed; their force is channeled and directed and perhaps weakened or strengthened–by all sorts of system level and corporate constraints like political ones. The questions such systems prompt are, as they should be, quite different from those that might be directed at an ‘isolated weapon’: Who owns them? Who ‘controls’ them? What are safeguards on their inappropriate use? Which system’s political and economic and moral imperatives are written into its operational procedures? The world’s deadliest bomber can be grounded by a political command, its engines left idling by politics; it can also be sent half-way around the world by a similar directive.

An illustrative example may be found in the history of computing itself: the wide-scale deployment of personal computing devices in office settings, their integration into larger ‘enterprise’ systems, was a long and drawn out process, one suffering many birthing pains. This was because the computers that were placed in offices, were not, despite appearances, isolated computing devices; they were part of computing systems. They were owned by the employer, not the employee, so they were not really ‘personal’; their usage–hours, security access etc–was regulated by company rules; the data on their drives belonged to the employer. (For instance, to print a document, you accessed a networked printer administered by an Information Systems Group; or, the computers are not accessible on weekends or after hours.) Under these circumstances, it was a category mistake to regard these machines as isolated personal computing devices; rather, they were part of a much larger commercial system; their human users were one component of it. Claims about their capacities, their desirability, their efficiencies were only coherently made within the framework of this system.

Similar considerations apply to autonomous weapons; talk of their roles in warfare, their abilities, and the like, are only meaningfully expressed within a discursive framework that references the architecture of the system the weapon in question functions as a part of.

 

A Persistent Difficulty In Teaching Philosophy Of Law

This semester, I’m teaching Philosophy of Law–again. My syllabus, as always, is a new one, and reflects an altered orientation and focus from those of days past. The current edition is fairly simple: it kicks off with Lon Fuller‘s ‘The Case of the Speluncean Explorers,’ excerpts from H. L. A Hart‘s The Concept of Law, Justice Oliver Wendell Holmes‘ ‘The Path of the Law‘ and then moves on to a selection of readings from Alan Hutchinson’s edited collection Critical Legal Studies. And yet again, I’m finding that I have a very hard time explaining or making comprehensible or plausible the distinction between natural law theories of the law and legal positivism, or indeed, even making clear what those theories are.

On the face of it, this should not be too difficult: natural law theories insist on a conceptual connection between law and morality such that legal obligation is a species of moral obligation; positivists, treating law as a matter of social fact, separate law from morality, and find legal obligation grounded in posited social arrangements and their resultant expectations.

But year after year, semester after semester, I find that I cannot get this distinction across clearly. Rest assured, I do not employ the language of the paragraph above, which is quite formally stated. But no matter what language I use, what instructive examples I use–I always kick off my classes on this distinction by asking students to provide me examples of “something that is legal but would be considered immoral by some and something that is legal but would be considered moral by some”–and of course, I offer extensive exposition and encourage discussion of the texts we use, many of my students’ responses–written and oral–make it quite clear the central concepts involved in making the distinction between natural law and positivist theories of the law clear are, in point of fact, not so. (Sometimes I’m tempted–because of my formal education–to say that natural law theorists say that “no matter how you define law, you are going to have morality somewhere on the right hand side”; I can only occasionally resist this temptation.)

I do not think this is my students’ fault. I suspect this is because over the years I’ve come to suspect I don’t understand the supposedly clear-cut distinction myself, especially as I’ve come to believe that natural law theories can in fact be subsumed under positivist theories: a system of morality and the particular moral principles it entails are a kind of social fact, one that has resulted from the ongoing evolution of a particular social formation; the moral principles that we take to be true at any given instant, the ones that command our obligation and allegiance and that help preserve key social distinctions and help realize socially desired ends; natural law theories can then be understood as claiming the social fact of morality as the one that underwrites legal claims and obligations; in this light, you don’t get out of the historically contingent particulars of the social into some transcendent realm of morality. (Or you could give natural law and positivism a Nietzschean twist by claiming as Nietzsche did in The Genealogy of Morals that morality is derived from law.) As Hart had noticed in his Concept of Law, the theory of law he presented did not say anything about the content of rules; they could be amoral or moral. Understood in this light, natural law theories can be understood as both descriptive i.e., making the claim that legal systems do indeed, always strive for moral content in their  laws or prescriptive i.e., legal systems should include moral content in their rules. Where natural  law would then turn out to be false is that they would not capture crucial features of extant legal systems; they would have attempted to make their descriptions exhaustive, capturing some supposed conceptual connection, and failed in the process. This fact, and the distance it puts between a natural law vision of the law and the postivist vision would still be worth pointing out.

Thus far, I have not succeeded in making myself clear though. I’ll keep trying.

Nietzsche’s Inversion Of Natural Law In The Genealogy Of Morals

The radically constructive nature of legal and economic concepts emerges quite clearly in the brilliant second essay of The Genealogy of Morals. Here, Nietzsche sets out his view of how the concept of a contract creates persons, how the ethical subject is not found but made. For Nietzsche, the law, a set of human practices, ‘creates’ its subjects by acting upon humans to make them into beings capable of obeying the law. The inversion Nietzsche forces upon us takes from the notion of a contract as a legally enforceable promise to the notion of a promise as a morally enforceable contract.

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