Chapter 4
 Rights and Responsibilities—Individual and Social



4.1
 The Internet and Ethics


The Internet has become a basic feature of people's lives, changing many institutions—the media, education, entertainment, shopping—in fundamental ways. These fundamental changes have also affected how business is done and have raised a host of ethical issues with questions about privacy, the collection of information on personnel, and even free speech. Here we will look at some of these ethical challenges, contrasting utilitarianism and deontology to make clearer what these ethical issues are so that we can understand what has changed and what has remained the same in our digital era.
The Issue: The Individual Right to Privacy Should Be Restricted

Many people do a great deal of their work on a computer, and in recent years the question has arisen about how private that work should be. Should the employee assume that all work is private, should the employer have access to all such work, or should we strike a balance between these two extremes?
Employers have a wide range of rights to keep track of employees

Those in favor of more Internet restrictions in the workplace argue that the employee is hired to do a job—and surfing the web affects productivity. Have any of your employers blocked certain websites? Did you feel like you were more productive as a result?

The contractual relationship between an employer and an employee is clear and straightforward. An employer offers a job, with a salary and benefits, to an employee; in exchange, the employee does the job he or she was hired to do. Many such jobs require Internet access, and with that access comes a number of temptations. A variety of well–known social networking sites exist where one can chat with friends, take silly quizzes, play games, and engage in similar activities. Various other software packages offer instant chat opportunities, either through typing messages or talking on the phone using one's computer. One can browse an almost infinite rate of stores in which to shop; one can play poker or chess or innumerable other games; one can read online blogs, newspapers, and magazines, or access virtually any kind of site to pursue whatever interests one may have.

But, of course, the employee isn't hired to do any of these things; the employee is hired to do a job, and any time spent surfing the Internet in ways that are not job–related decreases the employee's productivity. While at work, the employer has every right to do what is necessary to maintain productivity, and thus has every right to limit or even prohibit access to those sites that distract employees from doing what they are hired to do. An employee may have the right to spend whatever time he or she wishes to on the Internet, but that right is not unrestricted; rather, the exercise of such a "right" doesn't extend to the workplace. The employer has an obligation to stockholders to return a profit on investment, and the time devoted to activities at work that are not work–related interferes with that return. Thus, the employer not only can restrict Internet access for employees but has an obligation to do so to carry out the fundamental obligation of running a profitable enterprise.

It's been said that stricter Internet policies can help protect a company's reputation and proprietary information. What are some cases where information got out on the Internet and harmed a company?

As we have seen, the employer can restrict or prohibit access to the Internet. At the same time, blocking Internet sites in a large–scale way can, at times, interfere with an employee gaining access to sites with legitimate purposes. Furthermore, those with sufficient computer skills may be able to get past many of the restrictions imposed. For this reason, the employer should also be able to monitor the activity of employees, keeping track of what those employees do while at work. Employees should be aware of this monitoring, of course, and it should be made clear, at the time of hiring, that such activity will be tracked. This will allow the employer to determine if any employees are wasting company time and to send a clear message to all employees to do what they were hired to do. An employee who knows he or she is being monitored is much less likely to submit to the temptation to surf the Internet, and thus much more likely to be a productive worker.

Employers also have the right to restrict what employees can say on the Internet to the extent it interferes with the company's goal. Blogs and websites that criticize or denigrate a company can harm the company's reputation and make it more difficult to do business. A prospective client, for instance, who sees that some employees are unhappy with their company, may hesitate to do business or invest in that company. This can obviously harm the company, and thus it can prevent employees from participating in those activities that may be seen as producing such damage.

Given that the goal of the company, the employer, and the employees is to maintain and develop a profitable business, a variety of practices should not only be allowed but be the kinds of things any responsible company must consider as part of its business practice. These practices can include restricting or prohibiting access to non–work–related Internet sites, monitoring employee activity on the Internet, and preventing employees from posting material that may be seen as harmful to the company's interests. Furthermore, it is obvious that some material available on the Internet can be quite offensive; viewing, for instance, sexually explicit or politically distasteful material could lead to a hostile work environment. An employer has the obligation to prevent, or at least minimize, such an environment, which provides another reason for limiting access to this material. All of these things, and others, are fully justified for a company that seeks to remain profitable.
Employers have a narrow range of rights to keep track of employees

Is tightening Internet access an insult to employees and an indication that the company doesn't trust them?

Employers want their employees to be efficient and productive workers; both employers and employees share the same goal, to help develop a business that is profitable and stable. But, it is also clear that worker satisfaction is an important ingredient in this context. Employees who go to work enthusiastically, and who regard themselves as an important part of the company, are simply better employees. This means not only that they are satisfied with their jobs but that they are more productive, thus helping to provide an important component to the long–term health and profitability of the company.

An employee who tells employers that they cannot access certain sites treats those employees as if they cannot be trusted to do the job they were hired to do. Those employees who are expected to represent and promote a company that does not seem to regard them as capable of making responsible decisions may well regard this as an insult. Employees who are regarded as an important part of the company are more likely to feel invested in that company. Employees who are so invested are, in turn, much more likely to be efficient, creative, and productive employees who work harder to see the company succeed. Telling employees that they are not sufficiently responsible to do their own work by limiting their access to Internet sites sends a clear message to those employees and prevents them from regarding themselves as integral parts of the company. This lack of trust generates worker dissatisfaction and may prevent a company from being as profitable as it might be otherwise.

Some say that workers who feel respected and part of a team are more likely to be productive.

An employer who monitors employee Internet activity shows a similar lack of trust. In some cases, the work produced by a given employee may justify such monitoring. But to assume that all employees need to be watched again sends a clear message, telling those workers that the operating assumption is that they will, unless monitored, not do the work they were hired to do. A good employee should be assumed to be responsible and efficient, and assuming otherwise damages the conception that employee has of his or her role in the company, and perhaps of the company itself. Thus, employees should not monitor their workers, unless a clear reason, such as a lack of quality work or a lack of sufficient production, indicates a need for such monitoring. The respect that is thus given to employees will, in the long run, make for a more productive workforce.

The goal of a company, the employer, and the employees is to maintain and develop a profitable business. Having workers who regard themselves as important parts of the company, and who are trusted, respected, and considered responsible by their bosses, is crucial for developing a loyal, efficient, and productive workforce. Treating employees as if they cannot be trusted and assuming that they must therefore be prevented from accessing non–job–related websites, monitoring their Internet usage, and violating their right to free speech leads to a work environment where workers feel alienated from the company. Such workers do not regard themselves as part of the corporate "team" and are therefore less likely to do their best to see that the business succeeds. Treating workers with respect is not only the right thing to do, but it promotes the kind of efficient and productive workforce that is crucial to long–term corporate success. Thus, those activities that indicate a lack of respect for employees should be used only as necessary and only within a specified and narrow range.
The Theories

A utilitarian might argue that restrictions are only reasonable to ensure that computer time is spent on company work.

The utilitarian, in evaluating a policy to determine whether or not it is ethical, must take into account all the various groups affected by the policy. That includes, obviously enough, employers and employees, but also stockholders, clients and potential clients, and investors and potential investors. Policies can have wide–ranging implications for the short– and long–term growth of the company, and these implications must be looked at very carefully in crafting corporate policy and in implementing that policy.

All the members of these groups share the same goal: a thriving, stable business that is profitable and that will continue to be profitable. Assuming that goal can be used to identify the utility involved, then whatever produces the greatest good or maximizes the utility of the greatest number will clearly be that which leads to short– and long–term profitability.

Those drafting corporate policy must keep this fundamental goal in mind. There are, of course, trade–offs; some minor restrictions on free speech or privacy may have to be sacrificed for the greater good of the company and those who depend on it. Perhaps in an ideal world a company would have no need to restrict Internet access, monitor employees, and or prevent employees from saying what they think on a website not directly controlled by the company. However, this is not an ideal world: companies must make sure that employees are not spending valuable time doing things that interfere with the basic goal of the company. Thus, to generate the greatest good for the greatest number, steps must be taken to ensure that employees do what they are hired to do.
What Would You Do?

You run a company selling a product over the phone. Mary is one of your most efficient and productive workers; she is always on time, rarely misses a day of work, has had several promotions, and is frequently cited as a model employee.

The stockholders have recently insisted that company–wide drug testing be instituted, and anyone who fails two such tests or refuses to take the test will be terminated.

Mary tells you that she is not willing to take the test. She explains that it is not because she is afraid of failing it but because she regards it as an invasion of her privacy. She sees it as an indication that the company does not trust her and does not regard her as a valued employee. She will seek employment elsewhere, possibly with your main competitor.

• How do you try to convince Mary to take the test?

• What kinds of reasons do you point to in trying to convince her?

• If she continues to refuse, do you terminate such a good employee or try to modify the company policy?

Restricting Internet access is a reasonable step to make sure that time spent on the Internet is spent doing the company's work. Monitoring employees, either to make sure they are doing what they were hired to do or to make them aware that they were hired to do that work, makes workers more productive. Restricting what they can say outside of work, if it can be shown to harm the goals of the company, also benefits the company. Thus, these restrictions are justified in terms of maintaining a productive workforce, generating short– and long–term profits, and creating the greatest good for the greatest number. Therefore, such minor restrictions are both sensible from the company's financial perspective and ethical because they maximize the utility of all those affected by corporate policy. Given that employees are themselves the beneficiaries of the company's success, they should recognize that putting such restrictions in place maximizes their utility. In this way, utilitarianism sees such policies as ethical and justified.

The deontologist, in contrast, asks a simple question: If you are an employee, how do you want to be treated? On the view of deontological ethics, one should treat others as one would want to be treated. Those who design and implement corporate policy may need to ask themselves whether the policy is designed in such a way that they would feel comfortable working under it themselves. It may indicate a problem if those who draft corporate policies hesitate to work under those policies they create. Employers, therefore, should have policies they would regard as just and fair were they employees.

Deontological ethics also emphasizes the respect and dignity owed to human beings simply because they are human beings. The deontologist may challenge the idea that respect for human dignity is demonstrated by treating employees as not sufficiently trustworthy to make their own decisions. Rather, being prevented from accessing the World Wide Web, being monitored at work, and being prevented from speaking up outside of work treats workers as less than responsible, free adults capable of making the right decisions for themselves and for the corporation. In the language of the deontologist, this fails to treat employees as fully autonomous human beings. Any policy a company adopts that does not recognize its employees as fully autonomous is unjust. Hence, the restrictions discussed here, as limiting that autonomy, may be seen by the deontologist as unethical.

Deontologists will make one other related point in this regard. While recognizing that the company has a clear and specific goal—profitability—it is unethical to treat human beings solely as means to achieving that goal. Human beings deserve respect, and in the language of deontology, that requires that human beings be treated as "ends in themselves," not merely as means to an end. In short, they can't be regarded simply as objects to be used in order to achieve corporate ends, or goals; to do so is unethical. Thus, any policy that treats its employees as objects, used solely to achieve a company's goal of profitability, will violate a fundamental principle of ethics of treating human beings as deserving respect, having their human dignity recognized, and not being used solely as a means to the company's end.
Some Conclusions

As we can see, the goals of employers and the goals of employees may overlap: both have an interest, after all, in seeing the company succeed. Yet they may disagree on how that success should be achieved and what policies best promote it. We have seen one way of characterizing this conflict: the employer may regard as necessary certain Internet policies that some employees see as infringing on their rights and failing to give them due respect.

A utilitarian might also argue that there are advantages to having a satisfied workforce. Would Internet access make a difference in how satisfied you were in your job?

As we saw earlier, one way of dealing with such conflicts has been to adopt a strategy John Rawls called reflective equilibrium (1971). Rawls's account is elaborate and complex; nevertheless, here we can regard it as a way of understanding negotiations between groups with conflicting perspectives. The advantage of Rawls's approach is its insistence that all affected parties have the right to have their voices heard in such negotiations. Given that these parties share the same goal, it is also to their advantage to understand the views of each other as a way of promoting that goal. Even though there is obviously enough of a difference in the role and power of the employer relative to his or her employees, it may well be to the employer's advantage to do what is necessary to establish and maintain a satisfied and productive workforce. One result of this negotiation strategy may be to ensure that the respect employees deserve is factored into the way the company does business. This, then, would not only treat employees with respect, but may well result in a more productive, and thus more profitable, business.

A further financial advantage may accrue to a corporation that develops the reputation for being a business that is not only profitable but also well run. It is easy to see in the media various discussions along with lists of the "best companies to work for." Not only are these are companies successful, but their employees indicate a great deal of satisfaction with their jobs. This kind of reputation has obvious beneficial results: enthusiastic employees are more productive, good workers are easier to retain, high–quality employees are easier to recruit, and the profits and stability are attractive to both potential clients and potential investors. Thus, in the long run, the utilitarian's goal—maximizing utility—may best be met by also insisting that corporate policies follow the deontologist's insistence that employees be treated with respect. Balancing the demands for a productive workforce with the ethical requirements of the deontologist may not always be easy, but it may indicate a goal that any profitable corporation, seeking long–term success, should take under consideration.
Where Do We Go from Here?

Machiavelli wrote that it is better to be feared than loved if you cannot be both. How can this be applied in the work environment? If you're in a leadership position, how would you attempt to be both loved and feared by those you oversee?

There has been friction between employers and employees probably about as long as there have been employers and employees. Technological developments may have changed the form in which these kinds of conflicts arise, but the conflicts themselves are nothing new. With the increasing importance of personal computers and Internet access, new challenges arise that successful and well–run companies will have to confront and, to be successful in the long term, resolve.

The famous Italian political theorist, Niccolò Machiavelli, once posed a significant question to political leaders: Is it better to be loved or to be feared? Many have seen this as an important question for those in business, as well. Does an employer have more success if employees fear the employer, or love the employer? Or, is there a third option here?

One might be tempted to think that a company is more successful if its employees fear their employer; the kind of work environment that may emerge in this case may ensure that workers do what they are hired to do, and the various kinds of restrictions on Internet access may be one more method to keep the workforce in check. At the same time, this kind of work environment may increase tensions between employer and employee and generate unpleasant—and potentially unproductive—results.

On the other hand, one may be tempted to think that employees who love their employer work harder to help achieve his or her goals; a workforce in this environment may be more enthusiastic, more energetic, and generally happier, leading to better productivity. At the same time, there may be an increased tendency to take advantage of such an employer, leading to more time being spent on non–work–related activities and, thus, lower productivity.

Creating A Positive and Productive Work Environment

In this video, the well–known businessman and entrepreneur Richard Branson discusses the importance of "putting workers first" in creating a productive and profitable work environment.

Machiavelli suggests what is probably obvious: ideally, the good political leader (or good employer) will be both loved and feared. When appropriate, stern measures may be taken to produce the results a company seeks; but, when appropriate, making one's workplace an attractive place to work has genuine benefits, as well.

Again, balancing the private rights of the individual, and maintaining the respect owed to that individual, can be difficult to do in the context of a very competitive work environment. Here again, we see that traditional rights of privacy and free speech may not be wholly private when looked at from the larger perspective of society. Determining where the legitimate boundaries of one's ability to exercise one's rights will continue to raise difficult ethical challenges. And the on–going development of new techniques for efficiently and pervasively monitoring employees' behavior, on and off the job, will continue to make this balancing act difficult to achieve.
How Are Workplace Relations Affected by the Economy?

As perhaps happens all too frequently, an employee will find his or her job situation intolerable: perhaps the workload becomes too great or too oppressive, the work environment may become too unpleasant, or it may just be that a co–worker makes it too uncomfortable to continue in the job situation. In such cases, the employee is free to quit and, presumably, seek employment elsewhere.

Detroit unemployed lined up in April 2010 to apply for 200 jobs at a new Meijer store. U.S. unemployment peaked in late 2009 in the wake of the economic crisis. Detroit was among the areas hardest hit. A weak economy can change both employers' and employees' perception on the job environment and workplace relations.

For a number of reasons, however, this may be easier said than done. Particularly important in this context is how competitive the job market is. In an economy where unemployment is low, or a worker has a particularly desirable skill, finding a new job may be relatively easy. In this case, demand is greater than supply. But often, supply is greater—and occasionally much greater—than demand. If unemployment is high, there are more workers competing for jobs than there are jobs available. A person who lacks specialized skills, or training, may discover that there are a large number of people who can also do whatever job he or she is qualified to do. In such cases, those seeking employment are much more likely to accept conditions of employment that might otherwise be regarded as onerous or reasons for rejecting a job. Furthermore, where the job market is very "tight," people are much less likely to quit their jobs even when their work environment becomes objectionable.

Consider John, a high school graduate working on an assembly line. John's job is a pretty good one—it pays a decent wage and, until recently, offered relatively generous benefits such as inexpensive health care insurance and a retirement package. But, due to a significant downturn in the economy, John's company has sharply reduced his benefits package; John's health insurance costs now take a much bigger percentage of his take–home pay. His company has also instituted a "two–tier" compensation structure. Workers who already work for the company continue to receive their traditional salary and the newly reduced benefits package. But new workers are hired at a lower base salary and an even lower employer contribution to their health insurance benefit.

John and his fellow co–workers have, as might be imagined, serious objections to these new company policies. But, unemployment in the area is high, and a large number of people, with equivalent or better skills, are willing to replace John. There are not a lot of jobs available in the area in which John lives, and there is a good deal of competition for the jobs that are available.

John weighs his options and recognizes that he is much better off keeping his current job than quitting and running the serious risk of not being able to find another. Furthermore, he realizes that even if he were to find another job, it would be unlikely to pay as well as his current job, and, given the competition for jobs, he may not have any better options. Thus, he stays in his current position.

Here we see how the economic context can have a significant effect on the job environment. In a weak economy, there is considerably greater pressure to cut costs, and often labor costs are a prime candidate for such cuts. Employees, in this situation, have fewer options and thus may have to accept demands for increased productivity, lower salaries and benefits, or both. In contrast, in a booming economy, in an area where unemployment is low, or where one has a skill that is in great demand, an employee may have more options. In such cases, workers who find their jobs not offering enough in the way of compensation or in the quality of the work environment have the option of quitting and finding work elsewhere. In both cases, however, it is clear that the larger economic context can play a substantial role in determining what a worker may or may not be willing to accept.

Here again we see that individual rights must be understood within the larger social context. One may feel his or her rights are being violated, but the social setting—here, specifically, the economic conditions involved—may be an important factor in determining how to respond to such a perceived violation. One's opportunities may be expanded, or contracted, depending on the ease with which a new job, or better job, can be found. Factoring those economic conditions into such decisions clearly indicates that individual choices are fundamentally embedded in a much larger social context.

4.2
 Terrorism, Privacy, and National Security


The September 11, 2001, attacks on the World Trade Center propelled the debate on national security and privacy to the forefront of the nation's consciousness.

After the bombing of the Murrah Building in Oklahoma City, and even more urgently after the attack on the World Trade Center on September 11, 2001, a debate has emerged over how to balance the right to privacy and the need for the government to prevent further attacks. Some argue that the government has an obligation to protect its citizens, and that this obligation may require traditional rights to be violated. Others argue that the threat of terrorism does not provide the government the right to ignore important constitutional rights. We will look at this debate from the perspective of ethical relativism and utilitarianism.
The Issue: Restrictions on the Government Due to Terrorism

An open and free society brings with it certain risks, particularly in a time when terrorism is a serious and ongoing threat. How can the right to privacy and traditional American freedoms be balanced with the requirements to protect citizens from potential terrorist attacks?
Rights may be restricted due to the threat of terrorism

Some would be willing to give up certain rights for their security. What would you be willing to compromise to feel safe?

The fundamental obligation of any government is to protect its citizens and to provide security for them to carry out their ordinary activities. With the increased threat of terrorism, both from outside a country's borders and within, there is also an increased challenge to provide this security. Citizens, of course, have rights, but if they aren't safe from these threats, their rights mean very little. Hence the government must do what it determines is necessary to maintain the safety of its citizens.

Here, of course, we see that moral questions and legal questions are difficult to separate. The Constitution specifies various rights that the law is designed to maintain and protect, but, at the same time, these rights reflect important moral values the Constitution seeks to embody. Thus, we have the right to the free exercise of religion, and laws are designed to protect this right. The difficult issue that arises with modern–day terrorism is when a right, or a claim to a right, conflicts with what the government regards as necessary to fulfill its duty to protect its citizens. But, again, the role the government plays in providing security to its citizens is crucial; without that security, the ability to enjoy other rights may be irrelevant. As one obvious example: I may have the right to free speech, but if I'm not safe from being violently attacked for exercising that right, that would seem to mean that the right isn't worth all that much. After all, I probably would prefer to remain silent than to risk being hurt by speaking out.

Some would argue that we should not interfere with the government's duty to protect its citizens and that we should recognize that certain rights must be reinterpreted for us to remain safe.

The government has difficult choices to make in this setting but must be driven by the one fundamental requirement noted previously: to protect its citizens. This may mean that rights need to be understood in this larger context and may need to be reevaluated in terms of what restrictions on rights may be necessary. Ideally, we may wish to assume that phone calls, e–mail, and other forms of communication are private. But should that desire prevent government from doing legitimate investigations, which may require accessing e–mail and listening to phone calls? Presumably, there are laws in place that permit this government "eavesdropping," but there may be a degree of urgency such that laws interfere with agencies gaining important information. We should, therefore, defer to the government in such cases and give it the benefit of the doubt. After all, the various security agencies of the United States (the FBI, the CIA, and others) have access to highly classified information that may indicate that immediate action be taken. To deny the government the ability to take such action may interfere with its legitimate, and fundamental, duty to protect its citizens. Therefore, one should defer to the government in making such decision, and we should recognize that some "rights" may well need to be abridged, or at least reinterpreted, in order for us to remain safe.

Habeas corpus, for instance, is the requirement that an authority arresting a person show the reasons for that arrest. One simply cannot be put in jail without access to legal representation and to the courts. This is a legal doctrine, but it reflects a long–standing view that a person cannot be imprisoned indefinitely. During the Civil War, Abraham Lincoln suspended the right of habeas corpus in parts of the United States. Lincoln recognized that wartime threats required its suspension. Similarly, terrorism may require the government to broaden its abilities to read mail, tap phones, and access e–mail, from both citizens and non–citizens. It may need to use harsh interrogation techniques to discover crucial information that could not be obtained otherwise. It may need to detain suspicious people, perhaps indefinitely, and try them in a different legal setting that traditional civil courts. All of these may be extensions of government power, but these extensions are justified by the fundamental and overriding obligation of the government to protect its citizens.
Rights may not be restricted due to the threat of terrorism

Some make the case that rights are a fundamental part of our government and society. If we give up our rights, it becomes unclear what kind of state is being defended.

The government has an obligation to protect its citizens, but chief among the protections it provides are the rights of those citizens. To abridge those rights in the name of security is to violate the state's fundamental commitment to its citizens; it also risks changing the power and even the nature of the government to which its citizens owe their loyalty. The rights the government protects and the moral values those rights reflect are fundamental to our conception of that government. If those rights are abridged, do citizens owe their allegiance to that government, or owe it to the same degree? In short, if we give up rights in order to defend ourselves against a possible threat, haven't we given up too much? The state that is worth defending is the state that maintains and defends its citizens' rights; if those rights aren't sufficiently protected, then it isn't entirely clear what kind of state is being defended. Therefore, the rights of citizens cannot be restricted in the name of fighting terrorism.

A standard logical mistake, or illegitimate form of reasoning, is known as the slippery slope fallacy. The slippery slope fallacy embraces the idea that if one begins down a path, even in a small way, it can then lead, eventually, to disastrous results. Thus, one might argue that if one allows one's children to stay up an hour past their bedtime, they will end up never going to bed; therefore, one should never allow one's children to stay up past their bedtimes. This, of course, is not necessarily the case; making an exception to a rule does not necessarily eliminate the rule entirely. At the same time, it is not clear that this is always a mistake in reasoning, as in the old saying "If you give them an inch, they will take a mile." Thus, it is worth considering whether allowing the government to abridge and restrict the rights of its citizens leads to results that are indefensible.

We can certainly imagine persuasive arguments for a government being allowed to tap phones without a warrant. Perhaps it is an emergency, and important information may be lost otherwise. But if in this case warrantless wiretaps are allowed, then perhaps in the future the government will offer other reasons to do so. Eventually, the very notion of being able to talk on one's phone without fear of having the government listen to the conversation has vanished. By allowing some restrictions on rights—here the right to privacy in phone conversations—the threat of losing this right altogether arises. Many have argued the way to avoid such a potential result is to insist that rights not be abridged at all, adopting the view that if one gives the government an inch, the government will take a mile.

The slippery slope argument is often considered a logical fallacy, but it is worth considering when it comes to whether a government can restrict rights. Can you think of a situation in which slippery slope would be a legitimate argument? An illegitimate argument?

This is not to deny that terrorism poses a genuine, and perhaps increasing, threat to the citizens the government is obligated to protect. One may argue—and as the courts have found—that in wartime emergencies there may well be overriding reasons to impose restrictions on rights, for the duration of the emergency. But fighting terrorism is not like fighting a traditional war: the enemy is not clearly identified, and it seems quite possible that terrorism may never be "defeated" in the way a traditional adversary in war may be defeated. Fighting terrorism, thus, may be much more similar to fighting a disease than to fighting a war. But if rights can be abridged due to the demands of a war, and the war on terrorism is never–ending, isn't this an argument for a permanent restriction on rights?

It can be very difficult to balance the rights of citizens and the need for security for those same citizens. Endless arguments have raged over what rights one might be willing to give up to feel secure. At the end of this line of reasoning, of course, is the totalitarian state, where one may have obtained a great deal of security, but the price paid for this security is the loss of virtually all of one's rights. Thus, those citizens who seek a government worthy of the name will give up their rights only in the most compelling circumstances, and try to strike a balance between security and the protection of those rights. Even though terrorism is a genuine threat, to abandon one's commitments to moral and legal rights in the face of that threat is to give up too much. As Benjamin Franklin once put it, "They who would give up an essential liberty for temporary security, deserve neither liberty nor security." Therefore, rights may not be restricted in the name of terrorism without a substantial indication of an imminent threat, and only with the guarantee that those rights will be fully restored when that imminent threat passes.
The Theories

A relativist recognizes that different cultures perceive issues of national security and rights differently. The Chinese government, for example, went head to head with Google in early 2010 over an Internet censorship dispute. Chinese officials argued they have a responsibility to protect against social conflict and other things that could undermine Chinese society and state.

Different cultures, societies, and countries have different conceptions of the balance between security and rights. Some cultures prefer a powerful central government, where there are relatively few rights but the level of security is very high. In these cultures, one may have no fear of walking anywhere, at any time of day or night. The trade–off is that in such cultures, one may not have as much freedom to express one's views, including the criticism of the government. In this case, then, rights have been restricted in favor of security. It should be noted, of course, that some people simply have such powerful central governments imposed upon them, and that little or no choice was involved. Other cultures may strike the balance in a different way; there is much greater freedom, in terms of citizens being allowed to say and do what they wish; but with that freedom may also come increased threats to security. After all, if citizens can go where they please and do as they wish, so can others, including potential terrorists. Curbing such freedoms in order to prevent terrorism will inevitably curb the freedoms of all.

The relativist sees this balancing of rights and security as an ongoing discussion, where there is no one correct solution, but recognizes that the balance will be relative to the needs and desires of a given culture. With an increasing threat from terrorism, more emphasis may be placed on security, and relatively less weight placed on protecting rights. Fundamentally, there is no right or wrong answer here, simply an attempt to determine the degree of the threat and the appropriate response. That determination may also change over time, due to an increase (or decrease) in the threat involved. In the United States, with the increased threat posed by terrorism, it seems clear that one should increase the government's ability to deal with that threat, and this may well decrease some rights traditionally enjoyed by citizens. Other cultures and countries may decide to strike the balance in a different way. But for the relativist, it seems quite defensible to restrict those rights if they interfere with the government's ability to defend itself and the citizens it is required to defend.

A New York police officer checks a commuter's backpack at the Union Square subway station after a terrorist attack. A utilitarian might argue for some temporary restrictive measures to protect the broader population.

The utilitarian, on one interpretation of utilitarianism, might well argue that the utility of all citizens is what is at stake, and that what is right, given the various options, is what produces the greatest good for all involved. Clearly, being attacked by terrorists is something to be prevented if at all possible. At the same time, the state that protects its citizens in terms of both their security and their rights will produce the best possible outcome. Restricting rights when unnecessary does not maximize the utility of the citizens of a given state, and often a state will increase its power over its citizens when given the opportunity.

The utilitarian recognizes that balancing security and the protection of rights can be difficult. At the same time, the utilitarian does not accept the conclusion that there isn't a correct and defensible position to adopt. Rather, identifying those rights that cannot be legitimately abridged, evaluating the significance of the threat to security that is involved, and weighing the utility of having those rights maintained while being secure to enjoy them are all part of the utility calculation. The utilitarian, on this view, then sees that only under extreme circumstances, and only as a temporary measure, can a citizen's rights be restricted. Otherwise, the rights that a citizen possesses are fundamental to that citizen's happiness, and thus should be fundamental to any determination of what will produce the greatest good for the greatest number. In this case, the presumption must be that rights are to be protected and can only be restricted under the most threatening and immediate circumstances, and only for as long as those circumstances permit. A vague claim of a potential threat to security cannot be used to justify a large–scale or ongoing abridgement of the rights of citizens.
Some Conclusions

Terrorism is a serious, ongoing, and possibly increasing threat to the security of citizens in the United States and elsewhere. Fighting that threat will continue to be a challenge to governments and the people they represent, and fundamental to that challenge will be determining how to balance the rights of citizens with the obligation to protect them from terrorist attacks.

In the United States, this challenge becomes more complex. As the Constitution indicates, the government obtains its power to govern from the consent of the people. Difficult debates arise, however, over what the limits are to that governmental power and what legitimate restrictions can be placed on the rights of citizens in order to prevent terrorist attacks. The relativist may insist that there is no right or wrong answer here and simply indicate that whatever solution is offered will be relative to the standards and values of a given society. In contrast, the utilitarian will insist that among the various possible solutions, that option (or, if equivalent, options) that generates the greatest good for the greatest number will be the correct solution. These ethical theories are in conflict about whether there is a right answer, but few would argue that determining what that right answer is will be easy.

In any case, it is clear that ethical theory can provide some guidance—if not solutions—to this difficult challenge that confronts us. Are there rights that no government can, or should, restrict? Is any violation of rights justified if the threat from terrorism is sufficient? What kind of government does one defend if it is a government that is willing to deny its citizens fundamental rights? Can citizens be expected to care about rights if they are constantly confronted with serious threats to their own security?

Ethical theory can help make clear what is involved in trying to answer these difficult questions, and how we can go about formulating the questions themselves. As is often the case, making clear the questions can often be an important component in trying to provide answers to those questions. For instance, if the term "terrorism" is used too often, it may lose its strength in warning us of genuine threats to our security. But if rights are insisted on in an absolute fashion, we may be more vulnerable to attacks that could be prevented by a more moderate approach to what those rights involve. Ethics, then, helps us become clearer about what is at stake and provides clarity, rigor, and argumentation in helping us confront the challenge of terrorism we will continue to confront.
Where Do We Go from Here?

There is little doubt that terrorism will continue to be a threat for many years, if not a permanent feature in our lives. If it is such a permanent feature, citizens and governments alike will need to work to keep that threat to a minimum and to continue to work on maintaining a productive balance between security and the protection of fundamental rights. Here we again see that the notion of an individual right often must be understood within a much larger social and political context.

One approach that has been suggested, in order to combat terrorism, is to provide an alternative model to those who out of economic frustration and political powerlessness support terrorists, whether directly or indirectly. This requires, of course, a strong commitment to rights: legal rights, moral rights, and human rights. If this approach has merit, then those who now support terrorist activities may well see that a much better alternative exists. Those who work on behalf of such an alternative, where rights as well as one's safety are protected, instead of supporting terrorists, could deprive them of important support. This could, in turn, weaken—if not eliminate—terrorism as a continuing and significant threat.

Somali pirates head for the coast of Somalia. Some have blamed the rise in piracy off the Somali coast on poverty, which has driven some Somali men to seek more lucrative professions.

On the other hand, various factors continue to contribute to the support for terrorism: poverty, desperation, frustration, and other things that convince people they have no alternative. Furthermore, new and troubling forms of terrorist activity threaten to emerge. Some have warned of "cyberterrorism," computer–based attacks on defense systems, water plants, power grids, and any system that is largely run by computer. Clearly, if feasible, an attack that could cripple the energy grid of a country is a serious threat. In this case, we can see how such concerns might generate discussions about what degree of privacy any of us should expect when using a computer. Yet again, the difficult balancing act is required to determine what, if any, restrictions on privacy are legitimate.

It would be nice, of course, if we could solve the problems raised by terrorism by applying an ethical theory and generating the one correct result. Unfortunately, ethics doesn't really work that way. But by making our language clear and by determining what values are crucial to a state that protects its citizens' rights and provides security, we can increase our ability to understand and confront the challenge of terrorism. And, perhaps, that increased understanding will help us to construct a successful strategy in order to deal with that challenge.
Does Democracy Work?

A strong central government might be more effective at combating terrorism, but some would argue that giving up rights is too high a price to pay.

Democracy is an old idea, going back to the Ancient Greeks and Athens of 500 B.C.E. "Democracy" is itself a tricky word, and different people interpret it differently, but the general idea is that a democratic government acquires its ability to rule from the consent of the governed—the people—and can be replaced by those same people if found inadequate, or worse. People will differ on what countries really are democracies; some countries follow democratic policies but consider themselves republics, whereas other countries call themselves "democratic republics" when they are, in fact, oppressive and tyrannical regimes. So it is a good idea to look closely at what a country actually does when deciding whether it is an actual democracy. In any case, the idea of democracy is an old one, but it hasn't been, until somewhat recently, a particularly popular form of government. For most of the history of organized political states, democracies have been relatively rare.

Earlier, we saw Socrates' and Plato's concern that a democracy was an inferior form of government. They objected that democracies tended to allow the majority to act in way that oppressed minorities, that it put uninformed people (rather than experts) in charge of important decisions, and that politicians would appeal to voters on the basis of what those voters wanted rather than what they needed. After all, will a politician who announces that she will raise taxes, even if the tax increase is necessary, be successful?

When confronting the challenges of terrorism, one might also see an additional objection to democracy and the rights that traditionally accompany democratic forms of government. Wouldn't a strong central government be more effective at combating terrorism? A government that has little concern for rights and laws would have the ability to inspect all sources of information, whether within the country or coming into the country from elsewhere. Thus, all e–mails or phone calls could be accessed by a government agency; the government could censor publication of material it regarded as not helping the fight against terrorism (which might well include any criticism of the government). Such a government might not hesitate to imprison those it saw as potential dangers and might prevent those it so treated from having access to legal representation. It might, in short, be able to lock some people up and "throw away the key."

This kind of government may, in some sense, be more effective in combating terrorism, but many would argue that it is too high a price to pay. After all, the terrorists that attack democracies also attack a way of life, one that reflects important moral commitments. Fighting terrorists is, then, defending that way of life. But if a government is sufficiently oppressive in its fight against terrorism, it isn't clear what morals and values are being defended.

Democracy, as we can see, makes things messier, by not making decisions about how to fight terrorism easy. Rather, these decisions become more difficult because the rights of citizens must be taken into account and weighed against any need for restricting those rights. And the more diverse a society, the greater the number of views that must be taken into consideration. But if the morals and values of a democratic society are worth defending, then we are probably stuck with trying to negotiate the complex set of issues we've described here and to insist that citizens have the appropriate education and understanding to strike the right balance between rights and security in a democratic society.

4.3
 An Historical Debate: The Dred Scott Decision


In 1857, a slave named Dred Scott sued to be free, based on the fact that he had lived in areas of the United States where slavery was illegal. The Supreme Court decided against Scott, returning him to his owners. Although this decision is widely regarded now as one of the Supreme Court's worst decisions, the decision wasn't very close: the justices voted against Scott 7–2. Here we will look at this case from the perspective of deontology and utilitarianism, and we see not only how ethical theories can inform important decisions, but also how the assumptions of an argument can make an enormous difference. This case also makes clear the conflict that sometimes can arise between legal principles and moral principles.
The Issue: How Should the Court Have Found in the Dred Scott Decision?

Many historians now argue that in returning a former slave—Dred Scott—to his former master, the Supreme Court set in motion the inevitable collision over slavery. Looking at the arguments of that era gives us some valuable perspective on the continuing discussion of race in the United States.
Dred Scott should not have been freed

An 1860 wood engraving depicts slaves loading sacks of cotton onto a cart. Slaves were regarded as property and not as human beings at the time.

In 1857, slavery was legal in the United States, and slaves were regarded as property of their owners. The moral question here must be kept distinct from the legal question; that is, this case is not intended to determine the morality of slavery. Rather, it is intended to determine whether the owner was deprived of his property in a way that was illegitimate and unjustifiable. Clearly, Dred Scott was the property of his owner, John Sanford. Freeing Scott would have taken Sanford's property without due process, which violates the Fifth Amendment of the Constitution. That Amendment reads, in part, that no person can "be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation."

Furthermore, as Chief Justice Roger Taney argued in his majority opinion, citizenship was not to be extended to anyone descended from Africans, whether free or slave. Taney observed that the Declaration of Independence made this clear: that the phrase "all men are created equal" didn't include everyone. Rather, as Taney wrote, "it is too clear for dispute, that the enslaved African race were not intended to be included, and formed no part of the people who framed and adopted this declaration" (Scott v. Sandford, 1856). He also notes that Africans and their descendants were excluded from those to whom the Constitution refers as "We the People." Rather, he observed,

Negros had for more than a century before been regarded as beings of an inferior order, and altogether unfit to associate with the white race, either in social or political relations; and so far inferior, that they had no rights which the white man was bound to respect; and that the negro might justly and lawfully be reduced to slavery. . . . He was bought and sold, and treated as an ordinary article of merchandise and traffic, whenever a profit could be made by it (Scott v. Sandford, 1856).

Given that Africans and their descendants were recognized as property and could not become citizens of the United States, and given that Dred Scott was the property of John Sanford, to free Scott would be to violate Sanford's rights. Therefore Scott was not to be freed and was to be returned to his owner.
Dred Scott should have been freed

Many would argue that no human being should be kept as property.

It is clear that one cannot easily keep legal principles and moral principles distinct; the legal principles of a people codify the moral values and principles those people support. To describe a human being as property and to allow that assumption to go unchallenged violates logic and common sense. It is undeniable that Africans and their descendents are human beings. As such, human beings cannot be regarded as property, and thus no right is involved in recognizing that one person cannot own another. John Sanford therefore had no right to own Dred Scott, and freeing Dred Scott did not deprive him of property he held legitimately. To conclude this would be similar to allowing a thief to keep what he had stolen, as if the thief had some right to his wrongly obtained gains.

Furthermore, at the time the U.S. Constitution was ratified, black males could vote in ten out of the thirteen newly formed states. Clearly, at that time they were regarded as citizens in these states. To deprive such people of their rights is arbitrary and unfair, and to violate their own right to due process. As Associate Justice John McLean wrote in his dissent, the arbitrary way in which citizenship was treated in this case meant that whether one was recognized as a citizen was "more a matter of taste than of law."

This 1850s print depicts fugitive slaves fleeing to Delaware from Maryland using the Underground Railroad, a system abolitionists used to help escaped slaves.

Obviously enough, in 1857 in the United States, there was considerable debate about the moral status of human beings, and whether they could be property. In hindsight, the issues appear clear–cut, but it is worth remembering that the 1863 Emancipation Proclamation freed slaves only in those states that had left the Union. (This debate—among others—would, of course, soon be settled by a civil war.) But given that the claim that human beings can be property, owned and treated as any other property, offends our very notion of what a human being is, and the arbitrary nature in which Africans and their descendants were treated by the law, it is clear that Dred Scott was correct in claiming his freedom. The court should have found in Scott's favor, given that Sanford had neither a moral right nor a sufficient legal right, to own Scott. Therefore, Dred Scott should have been freed.
The Theories

Proponents of either side can use ethical theories to their advantage. Can you think of an argument for and against slavery using the same theory?

The deontologist insists that human dignity be respected; respecting the rights of the individual constitutes part of that respect. John Sanford, whose property was taken away from him, had the right to either due process or to be compensated for his loss. Freeing Dred Scott would have deprived him of his property with neither due process nor compensation. In so violating his rights, by freeing Scott, Sanford's rights would have been violated and his humanity would not be respected, as required by deontology. Indeed, Sanford could well have used a more informal version of the moral principle of the Golden Rule, and asked those who wished to free Scott whether they would be willing for their own property to be taken away from them. If not, then they have no justification for seizing, arbitrarily, Sanford's property.

The utilitarian, in contrast, raises the crucial question of who is included, and who is excluded, in calculating the good, or utility, involved. Do only those who own slaves, or approve of slavery, count when seeking the greatest good for the greatest number? Or must the utility of others, including Africans and their descendants, also be included in this calculation? Clearly, if one includes all those who are affected by this decision, slaves and those treated as second–class citizens will be able to show the genuine harm caused by being systematically oppressed. The utilitarian, arguing on behalf of freeing Dred Scott, insists that he is a human being, and thus his interests must also be taken into account. To return Scott to his owner may maximize the utility of those who own slaves. But the utilitarian includes Scott, and all those like him, in determining the right course of action. In doing so, it is abundantly clear that this larger group's good is what is at stake, and to generate the greatest good for the larger group, Scott must be freed.
Some Conclusions

The immediate result of the Dred Scott decision was to return Scott to slavery. (Scott was freed by his new owner—Sanford having been placed in an institution for the insane—some three months after the Supreme Court decision; he died in 1858.) More significantly for the history of the United States, the Dred Scott decision brought new attention to the issue of slavery. Those in favor of continuing slavery, and its expansion, hoped that it would be allowed in at least some of the new states entering the Union. Those objecting to slavery (abolitionists) feared that they were right, and saw the Taney opinion in Dred Scott as indicating he might well support the expansion of slavery. This debate divided the Democratic Party, and united Southern Democrats around this issue (among others) of extending slavery to Western territories. It united a new party as well, known as Republicans, and in 1860 they elected Abraham Lincoln to the presidency. Before Lincoln took office, seven states seceded from the Union; after the attack on Fort Sumter (April 12, 1861), four more states seceded. Thus, only four years after the Dred Scott decision was rendered, the Civil War began, and many historians regard that decision as an important factor in bringing it about.
Where Do We Go from Here?

Obviously enough, the debate over the Dred Scott decision depends on the crucial decision of whether or not to recognize a certain group of people—in this case, Africans and their descendants—as human beings. To reject this idea is to allow slave owners to justify owning slaves as property. It may now seem remarkable, but not so recognizing blacks (then, usually, "Negroes") was fairly easy to support with the Constitution, where in the now–infamous Article 1, Section 2, Paragraph 3, slaves were counted as "three–fifths" of a person. Many historians argue that this compromise simply delayed addressing the question of slavery, an issue that would have to be settled eventually.

We can also see here how crucial such an assumption can be in developing moral arguments, and how complex the relationship can be between moral claims and legal claims. On what now seems to be an almost universally accepted view, no person should be able to own another as property. Yet only 150 years ago, not only was this viewpoint not universally accepted, but it was widely rejected. This indicates that moral views can have a historical context, and that both moral assumptions, and the laws they can lead to, can change (or at least change for some). At the same time, in the subsequent 150 years, the United States has continued to struggle with the legacy of this history and seen the treatment of African Americans as second–class citizens who were often deprived of their moral and legal rights. Ethics allows us to focus on some of the crucial points of this debate and helps clarify what is at stake there. But even though ethics has helped make explicit what assumptions and arguments are at the center of the issue of race in America, it is also clear that the controversy will continue.
Can Property Rights Conflict with Other Rights?

As we have seen, the idea—once defended, even by the Supreme Court—that a human being could own another human being is no longer defensible. In this case, moral considerations were seen to outweigh strict legal considerations; looking back at a decision such as Dred Scott may cause us to wonder what exactly the court could have been thinking to have come to the decision it did.

New York City property owners, tenants, and elected officials gather on the steps of City Hall to protest eminent domain abuse.

But other kinds of claims to property rights continue to be very contentious, in both moral philosophy and the law. The debate often begins with the claim from the Fifth Amendment: Private property shall not "be taken for public use, without just compensation." The legal issues involved, as so often happens, overlap with the moral question: What is legitimate public use? What compensation qualifies as "just" or appropriate? Can a citizen refuse to accept compensation for his or her property if the citizen does not regard it as "just"? Can public use be seen as overriding the interest of the individual whose property is being taken?

A standard example of the kind of issue involved here is known as eminent domain, the right of a government to seize property—with or without the owner's consent—as long as just compensation is provided. A city, for instance, may determine that a public park is needed in a certain area and can require homeowners to vacate their homes in order to build the park. The city is required to compensate the homeowners, giving them fair market value for their property. Often, however, that compensation is seen as unfair and not sufficient to compensate the property owner for the costs involved (which may include items difficult to give a value to, such as the time and energy involved in moving, and one's attitude toward a home: How much, for instance, is it worth to someone to have to move from where they and their parents were born?).

We see in such cases, again, the conflict that may arise between legal statutes and the moral philosophy those statutes presumably seek to reflect. On the one hand, the right to own property, and more or less do with it as he or she pleases, seems to be a fundamental notion enshrined in the Declaration of Independence and Constitution. Furthermore, this was a right that was regarded as "unalienable" in the writings of those philosophers, such as John Locke, who were crucially influential in shaping the thinking of the Founding Fathers, such as Washington, Madison, Jefferson, Hamilton, and Monroe. At the same time, the government may have legitimate needs to "take" property for a greater common purpose: whether, as mentioned, for a public park or for a public highway, hospital, library, or military base. Presumably, the defense of an individual's property right does not include a "veto" over such governmental needs. Just compensation is intended as a compromise between the individual's rights and governmental needs, but, as one might imagine, the two parties may not regard such compensation as equally "just."

It is probably obvious that such debates are of great interest to lawyers, but they are perhaps of even greater interest to ethicists. In this case, for instance, one might examine the issue from the perspective of utilitarianism. On one utilitarian interpretation, the greater good is served by the government being able to take a citizen's property in order to produce a good (such as a park or highway) that can be used by the larger community. Another utilitarian might argue, instead, that the greatest good for the greatest number is served by property rights being treated as fundamental, and that the community in fact is not well served by making it too easy for governments to practice eminent domain, or for compensation to be inadequate when it does. It is excellent practice to take such an issue and develop the argument for a specific conclusion: as we have seen, this probably won't settle the debate to everyone's satisfaction, but it will help those participating in the debate to focus on the crucial questions involved and to provide a strong theoretical basis for seeing what is at issue.
4.4
 Product Liability and Corporate Responsibility


Corporations offer products to consumers, and consumers purchase and use those products. Many such products carry with them some degree of risk: small, in the case of, say, shoes, but much larger in many cases (such as pharmaceuticals or parachutes). Interesting questions arise over who carries the responsibility if using such a product, as intended, causes harm to the consumer. Ethics and the law recognize that both parties shoulder some of this responsibility; however, challenging issues emerge when the degree of that responsibility is considered. Here we will look at this issue from the perspective of utilitarianism and virtue ethics, seeing again the overlap between moral and legal problems, as well as the difficulty of isolating the right of the individual from the larger social context in which that individual lives.
The Issue: Who Is Ultimately Responsible for Consumer Harm?

When purchasing a product, what risks does the purchaser assume? Does the manufacturer have any responsibility to provide a safe product, and, if so, what is the extent of that responsibility? Is the manufacturer responsible for someone who uses the product incorrectly? As we will see, drawing the relevant distinctions here is not always easy.
Corporations should have a limited share of responsibility for consumer harm

No product is 100 percent perfect or safe, and some would argue that it is unreasonable to hold corporations responsible if anything goes wrong.

Corporations that produce products for consumers adhere to an implicit contract with those consumers: the product, used as it is intended, should be safe. Thus, a car is produced by a company and sold to the buyer on the assumption that, driven correctly, the driver will not be put in harm's way simply by driving the car. Similarly with other products, whether they be power tools, over–the–counter medications, or food. No product can be guaranteed to be 100 percent safe, however. If one buys a chain saw and uses it appropriately, the manufacturer should do whatever is possible to make it safe. But there is some degree of risk involved in using a chain saw, no matter how carefully it is produced and no matter how carefully it is used. It is unreasonable to require the manufacturer to try to eliminate the very possibility of this risk, and equally unreasonable to hold that manufacturer liable if anything at all goes wrong and the person using the chain saw is hurt.

Clearly, some corporations have been negligent in imposing sufficiently strict standards on their products. A famous example involves the Ford Pinto. Ford had discovered that the design of the Pinto increased the likelihood of an explosion if struck from the rear. Ford calculated that fixing that defect would cost it (in 1972 dollars) approximately $137 million ($11/car), and calculated that settling lawsuits for wrongful deaths at approximately $50 million ($200,000/death, estimating 180 deaths, plus costs for injuries sustained). Ford concluded on a cost–benefit analysis that it would make better business sense not to make the repairs. While fewer deaths resulted than Ford had predicted, internal memos were leaked indicating it had made these calculations. The lawsuits involved, and the damage to Ford's reputation, radically changed the cost–benefit analysis. In the end, then, Ford probably lost money and was widely regarded as doing something seriously unethical.

Lawsuits filed by consumers are costly for manufacturers, and the costs of modifying products often get passed down to the consumer again.

But this seems to be an exception rather than the rule. Most companies see it as both right and good business practice to offer products that are safe and work as advertised. Yet lawsuits, frivolous and otherwise, filed by consumers dissatisfied with a product for one reason or another, are well known. Tobacco companies and auto companies have been sued for billions for various reasons, and virtually any company that manufactures a product that could, under some circumstances, cause injury, has been sued. To avoid such lawsuits, manufacturers often have to add features to prevent injuries even when such injuries are unlikely, or are caused by the product being misused. These features, of course, cost the company a great deal to include, costs that are passed on to the consumer, thus raising the price for everyone.

This debate is most frequently discussed in a legal context, but as we have seen, laws are intended to capture in a basic sense what is right and wrong: what is, in other words, moral. To impose unreasonable requirements on a business, from a moral perspective, interferes with the right of a business to make and sell products and introduces distortions into the economic relationship between manufacturer and consumer. This interferes with the fundamental idea of the free market, making them less efficient, and thus affecting both the profits of the business and the right of the consumer to get the best deal.

The legal pressures these kinds of lawsuits place on corporations are extraordinary and add to the cost of doing business, a cost that is passed on to the consumer. Clearly, corporations must be responsible for producing goods that are safe and reliable. But they do not have the obligation, or probably the ability, to eliminate all injuries that can arise, whether the product is used in a way that it is not intended to be used, or simply because of human error or accident. To impose upon companies a burden that requires them to meet unreasonable standards is neither cost–effective nor fair. Therefore, corporate responsibility must be held to a standard of liability that is reasonable.
Corporations should have a substantial share of responsibility for consumer harm

Consumers have every right to expect products that they purchase to work as advertised. Implicit in this right is the ability to assume that the product, if used correctly, will not cause injury to the user. Thus, if one uses a power tool, takes a medication, or eats in a restaurant, the consumer should be able to rely on doing so without being harmed.

Clearly enough, some consumers can be harmed by misusing a product. For instance, Homer Simpson is instructed by his computer to press "any key." His response, "Which one is the 'any' key?," indicates he is probably too incompetent to use a computer. More generally, one who does not follow the manufacturer's directions when using a product assumes the risk that misuse generates. Nor should we take seriously the consumer who watches a beer commercial on television and then sues the manufacturer when the apparent promise of young women accompanying drinking the advertised beer fails to be kept. These kinds of claims have given rise to the idea that the courts are overwhelmed with frivolous lawsuits.

Consumers need to be able to rely on a product to work correctly if it is properly used. Some would argue that corporations need to be held responsible if any injury is caused.

The best–known frivolous lawsuit involved a woman and a cup of hot coffee from a major restaurant chain. As popularly presented, she spilled coffee on herself, and then sued the company for millions of dollars and won. A closer look at the case reveals that the restaurant chain knew its coffee was heated to the point that it would cause third–degree burns and had already reached out–of–court settlements in several similar cases. The woman had originally sued just to recover medical costs for the extensive and painful skin grafts that were required. However, it should be noted that she sued only after being repeatedly ignored by the corporation, and then being offered a sum of $800. The large figure she originally won was then reduced substantially on appeal.

As the Ford Pinto case indicates, corporations have to be held responsible for making decisions that are unethical and that put profit ahead of human suffering. Many such cases have become famous. The Dalkon Shield I.U.D. was shown to cause substantial harm to many of its users, and several medications (such as Fen–Phen and Vioxx) have also been demonstrated to cause severe health problems. These products were purchased in good faith, and used in accordance with the manufacturers' directions. In these, and many similar cases, the corporations were found not to have practiced sufficient testing and vigilance over the product before releasing it to the market, where consumers had no choice but to assume that it was safe.

To protect consumers' rights to safe food, medicine, and products, courts employ two different kinds of damages if a corporation is found to be negligent. Compensatory damages are paid to make the victim "whole"—that is, to compensate the victim by replacing or remunerating what is lost. Punitive damages are sometimes awarded in order to indicate that the corporation acted in a way that was sufficiently negligent that compensatory damages aren't enough. Punitive damages, then, punish the guilty company, thus giving it a further warning, often by imposing a substantial fine.

Product manufacturers, and those who purchase those products, have a mutual interest in seeing that those items offered on the market are safe. The consumer seeking a product has very little to go on when purchasing it, beyond the expectation that it is safe and that the corporation has acted in good faith. This means that the manufacturer has every obligation to meet the highest standard to ensure product safety, and that manufacturers who do not must be treated harshly. They have, after all, acted improperly and often have knowingly put otherwise unsuspecting consumers at risk. Therefore, corporations should be required to meet stringent standards of product safety and to share a substantial amount of responsibility for the products they offer.
What Would You Do?

If you were the CEO, how would you respond to a staff member's concerns?

You are the CEO of a major pharmaceutical company that has recently lost a considerable amount of its value; you have been hired to return it to profitability. Your newest product is a drug that, if successful, will prevent much of the risk of heart attack associated with diabetes. It will also be extraordinarily profitable.

The drug has been through several stages of animal and human tests and has been passed by the Food and Drug Administration. The stock value of your company has been increasing rapidly, and the drug is ready to be marketed.

One of your most trusted scientists recently came to your office to express some serious concerns about some of the test data and the fact that this drug may have powerful side effects, including stroke, that haven't been sufficiently examined.

If you postpone marketing the drug to do these tests, it will delay the drug reaching the market by at least one year. This delay will also cause the value of the stock to plummet, and you may well be fired.

• Do you act on the basis of the FDA's approval, or take the scientist's concerns seriously?

• Do you order more tests?

• Do you delay the marketing of the drug?

• How do you justify your decision, whether to the stockholders or to the scientist?
The Theories

One might look at a free market, or set of free markets, from the perspective of utilitarianism, where all participate freely and equally. Thus, every person's happiness, or utility, is more or less equivalent to every other person's happiness or utility. In this case, then, the result that produces the greatest good for the greatest number will be that which promotes efficient and productive markets. Everything else being equal, those who sell goods and services want to get the highest price they can, those who purchase goods and services want to get the most they can for the least amount of money. Allowing these markets to operate with minimal interference permits both the greatest freedom for buyers and sellers, but also lets the market determine prices. If a seller's product is too expensive or inferior to a competitor's, his or her business will not flourish. This, of course, is the basic mechanism of free–market capitalism and has been seen to be remarkably good at creating wealth. Karl Marx, not a particularly sympathetic commentator, noted that capitalism

has accomplished wonders far surpassing the Egyptian pyramids, Roman aqueducts, and Gothic cathedrals; it has conducted expeditions that put in the shade all former Exoduses of nations and crusades (The Communist Manifesto, Part I).

From a utilitarian perspective, consumers should have the freedom to choose just as corporations should have the freedom to do business without worrying about onerous regulation or lawsuits.

Let us assume, then, that the free market, unencumbered by too much regulation or a concern about unreasonable lawsuits, is that system that produces the greatest wealth. We can also assume that such wealth can be an important part of one's utility. It follows that markets, allowed to operate freely, will produce the highest utility for all those participating in these markets, whether as producers or consumers. This means that restricting onerous and expensive regulations and preventing frivolous and otherwise unreasonable lawsuits lead to the greatest good for the greatest number. On this utilitarian perspective, the liability for any harms that come to a consumer should be kept to a reasonable level.

Even though this argument is presented within the context of economics, it is clear that it also has a significant moral dimension. If one begins with the idea that it is a basic right to be free, at least part of that freedom is to operate one's business in an efficient and profitable way. Similarly, consumers should be free and allowed to choose from the various options presented to them by the market. Too much interference, whether in the form of regulation or the threat of lawsuits, acts against these freedoms. Preventing one from being as free as possible is a violation of one's fundamental rights, and is thus prohibited on this moral theory. In sum, from the utilitarian perspective, the economic and the ethical results both point to the idea that businesses should be allowed to act responsibly but profitably, and thus not be prevented from doing so by the threat of unreasonable lawsuits.

Virtue ethics insists that a person's virtues—whether honesty, courage, modesty, or the more complicated Aristotelian notion of temperance—reflect the character of that person. A complete set of virtues, balanced and in harmony, lead to what Aristotle called arête, which is often translated as "virtue" but might be better translated as "excellence." This excellence, combined with reason, leads to the highest good, or what Aristotle calls eudaimonia, a term often now translated as "human flourishing."

It can be tempting for companies to cut costs, but they need to ensure that they are not putting consumers (and themselves) at risk.

These virtues should also hold for a corporation or a manufacturer. Fundamental to a company's ethical standards—what we might call corporate virtues—is responsibility. The manufacturer, in other words, must be responsible in offering safe products to consumers. A car, that is, should not injure the driver when operated as designed, and food shouldn't harm the consumer because of the way it is produced, packaged, or marketed. Furthermore, only the manufacturer of a given product knows if it has been adequately tested and if it is, in fact, safe to bring to the market. In contrast, the consumer must assume that the product in question is safe.

A for–profit corporation, obviously enough, must return a profit on investment to stay in business. At the same, a responsible corporation must consider factors other than profit alone. Consider a company that cuts corners on testing a pharmaceutical or gives an inaccurate representation of its testing data. This may be profitable, in that such tests can be very expensive. It may bring this product to market successfully, and thus "get away" with minimizing its testing costs. But it is, of course, acting irresponsibly and not balancing the public's right to safe drugs with its desire to turn a profit. Virtue ethics regards this as unethical behavior. An economist looking at this may add that in deciding to run the risks here, the company may bring a product to market and discover that eliminating some of the tests prevented the discovery of serious risks to consumers. This changes the cost–benefit analysis, of course; by minimizing costs, the potential for costs due to legitimate lawsuits from consumers increase. Furthermore, there can be significant, if difficult to calculate, damage to the company's reputation. From this perspective, doing the right or moral thing also makes the best business sense.

In a harsh competitive environment, there can be serious temptations to minimize costs in various ways. Succumbing to these temptations may well put consumers at risk, consumers who must operate on the assumption that the products they are purchasing are safe. To make this a good assumption, substantial regulations must be put in place to ensure the safety of consumer products. This means, further, that there must be enforcement mechanisms to guarantee that manufacturers follow both the law and standard moral procedures those laws are intended to reflect. Finally, there must be means to deal with companies that fail to follow these regulations, both by compensating victims and by punishing irresponsible corporate citizens. A well–run, ethically responsible corporation will follow these moral and legal codes and not regard liability requirements as a burden. Therefore, by instituting legal and moral guidelines for manufacturers, and punishments for those who fail to follow them, no burden is imposed on responsible corporations, and consumers can purchase products with the confidence that they are safe. This seems to be the idea behind most consumer protection law, but it should also be clear that such laws are intended to protect consumers' rights: specifically, the right to enter the market, voluntarily, with the assumption that the products we purchase function as indicated and in ways that, when used as directed, will not harm us.
Some Conclusions

Corporations want to be seen as responsible citizens; the best way to achieve this, of course, is to be a responsible corporate citizen. It is the moral thing to do, as we have seen from the perspective of both utilitarianism and virtue ethics. It is probably also the best business strategy, in that a company that produces unsafe products may suffer financially devastating lawsuits or develop a reputation that badly hurts their business. Companies have, in the past, gone out of business for both of these reasons.

Consumers, on the other hand, want to be confident that the food they eat, the pharmaceuticals they purchase, and the products they use are safe. They have considerably less information about a given product than the manufacturer; thus, they have to be assured of this safety by regulations and laws and by the ability to sue a corporation that has caused them harm through no fault of their own.

At the same time, because companies want to turn a profit, they see onerous regulations and the threat of frivolous lawsuits as unjustified business costs. No company can prevent all possible injuries, no matter how hard they try or how high they have set their manufacturing standards. Too much regulatory interference can prevent companies from operating efficiently or can impose costs that, when passed on to the consumer, not only increase expenses and decrease profits but may make companies less competitive. Finally, if the risks of legal action become too high, companies may choose to play it safe, which could lead to less innovation and creativity and prevent the development of new products. This is a particularly important consideration in the development of new medicines.

Consumers, in turn, will seek the best bargain on the market, on the assumption that given an alternative, and everything else being equal, the least expensive product will be the rational choice. But this also assumes that all the products are equally safe, and if a product is less expensive because certain safeguards were ignored or preventive measures avoided, the consumer may well not be in a position to know that.

Both producers and consumers engaging in free markets agree that certain regulations are necessary, and that some such regulations are required so that markets not just be efficient but provide goods (and services) that are reliable and safe. Both producers and consumers, then, are in favor of "reasonable regulations." The sticking point comes when one person believes a regulation is justified and required, while another thinks that same regulation is onerous, burdensome, and unnecessary. Clearly, if the same regulation is seen by some as being reasonable and by others as unreasonable, resolving this problem can be difficult.

Ethics, along with the help of economics, can help clarify some of the issues in such disputes, although it is unlikely they will be resolved to everyone's satisfaction. The utilitarian may wish to broaden the notion of utility to include things other than quantifiable amounts of wealth. The virtue ethicist may argue that some policies that have been imposed have the relationship between profit and safety out of balance. Understanding the moral issues that underlie these economic and legal debates can help us focus on what legitimate regulations can be rightfully imposed on producers, and what kinds of penalties are justified for those companies that violate those regulations. Ethics can also require us to investigate what the consumer’s obligations are in free–market exchanges. As we have seen before, questions of right and wrong are often reflected in the language of the law; here we may wish to reflect a bit more deeply on the ethical questions that help us clarify these legal conflicts.
Where Do We Go from Here?

An inspector with the U.S. Food and Drug Administration checks a shipment of coffee beans. Both producers and consumers generally regard the advent of the FDA and such regulatory intervention as a positive thing.

Clearly, the debate over what are legitimate regulations and what are legitimate reasons for suing a company for alleged harm will continue. The debate itself, of course, is rather old. Scandals about food production, such as those described in Upton Sinclair's 1906 novel The Jungle led to the creation of the Food and Drug Administration. Thalidomide was introduced in the 1960s and was used widely not just to kill pain but to minimize the effects of morning sickness for pregnant women; it produced devastating and severe birth defects and generated widespread demands for more thorough and more systematic drug testing. Tobacco companies have been repeatedly sued and have been required to carry harsh warnings on cigarette packages. For the most part, both producers and consumers have regarded these kinds of regulatory interventions as justified and legitimate.

Yet there have also been consistent and widespread complaints that because government regulation has become so pervasive and lawsuits are such a commonplace threat businesses are prevented from doing what they should be doing: focusing on their business. Many companies hire employees who are responsible only for seeing that the company is in compliance with various regulations. Companies also frequently have legal staffs to avoid lawsuits or to handle those that arise. Thus, such regulations generate substantial costs. These costs, which are often passed on to the consumer, could be better spent on developing new products or improving current products. When a company has to pay a lawyer to defend it against a frivolous lawsuit, that expense is directly subtracted from revenue, thus diminishing profits for a reason that may have very little to do with the business itself.

Drug Companies and Research

In this video, professor of law and medicine Alex Capro discusses some of the ethical issues pharmaceutical companies, and physicians, confront in doing clinical research.

In response, many have argued that the claim that frivolous lawsuits as a consistent and common feature of doing business in the United States has been greatly exaggerated. Many of the standard cases—the woman being burned by spilling hot coffee being the best known—appear quite different when the specific facts of the case are examined. Many other such lawsuits, clearly frivolous—one of the most famous being Roy L. Pearson, Jr., suing a dry cleaner for $67 million for losing his pants!—were often summarily dismissed. Furthermore, from this perspective, limiting the right to sue and limiting both compensatory and punitive damages may prevent individuals from receiving the full amount due them, as well as prevent courts, in particularly egregious cases, from punishing especially irresponsible corporate behavior.

What does seem to result from this dispute is the continuing need to carefully determine what are appropriate ways to protect consumers, without imposing an undue burden on business. As is so often the case, this delicate balancing act will continue to be the focus of ethical, legal, and political battles. But as we have also seen, a clear understanding of the moral issues involved helps a great deal in seeing what rights are involved, determining how we can evaluate the various and competing claims here, and understanding the ethical and political debates with which we will continue to struggle.
What Role Does the Warning "Let the Buyer Beware" Play?

An old Latin phrase, "caveat emptor," is still used with some frequency. It means "let the buyer beware." The basic idea behind this phrase is that the purchaser of a product should be aware that it is in the seller's economic interest to make a profit, and, on occasion, a product may be produced in a dishonest way to increase that profit. Thus, shortcuts may be taken in testing it, inferior materials may be used in making it, or it may promise results that it doesn't, or can't, really deliver. Most of us are familiar with this fact; we may shop with a bit of skepticism, allowing us to determine if the product is as characterized. Caveat emptor takes this skepticism just a bit further, indicating that the purchaser is responsible for any problems with the product. Presumably, this makes one a better informed consumer and gives us some motivation to be more careful shoppers. Someone who buys a car and discovers she is stuck with a "lemon," on this view, should have inspected the car more closely, done more research, or hired a mechanic to look at it. The buyer should beware of the possibility that products can be faulty, and that marketing claims may be a bit "optimistic."

Some buyer skepticism is healthy, but it’s in the company’s best interest to offer a quality product. Also, free-market principles dictate that an inferior product will be eliminated from the market.

A bit of healthy skepticism is probably a good idea, but consumers and manufacturers have recognized that caveat emptor, by itself, may lead from being a careful shopper to outright cynicism and the assumption that the seller may be trying to unload an inferior product. Consumers may not have the expertise or time to gain the needed knowledge to prevent this. But companies also recognize that it is to their economic advantage to gain the confidence of consumers and to gain a reputation for offering quality products. One traditional way of convincing customers to purchase a product is to offer a warranty; thus, if a product proves to be inadequate for one reason or another, the purchaser can return it for a replacement or to get her money back. In addition, for a "big ticket" item such as an automobile, the federal and state governments, have instituted "lemon laws," in order for those who discover they have been stuck with a car that fails to perform to advertised standards can return it. For the largest purchase most people make, a home, a number of safeguards—such as appraisals and required house inspections, and some sellers will even offer a short grace period during the process if one gets "cold feet"—are employed to avoid this kind of problem. In general, the more expensive the item, the less willing a consumer is to adopt caveat emptor without some kind of warranty or guarantee provided by the seller.

Classic free–market capitalism is often characterized as laissez–faire, French for "allow to do," indicating that the markets should be free of interference (generally by the government). On this view, caveat emptor is generally acceptable because competitors will eliminate a company that sells an inferior product. Once it becomes known that the product is inferior, few will buy it, and those who wish to purchase the product will get it from a competing company. In the end, the market will be efficient in rewarding those who offer a quality product and in driving those who do not out of business. But, as noted, companies recognize that consumers may not be willing to let the market work unfettered over time; after all, they may need the product now. Hence, manufacturers will see it in their interest to reassure their potential customers with warranties, guarantees, and other ways of showing that the manufacturer stands behind its product. The doctrine of caveat emptor provides an important perspective on how consumers make decisions, and what kind of moral (and economic) assumptions we make about telling the truth. It may also indicate what kind of expectations we have about being treated (and, of course, treating others) honestly.

4.5
 A Contemporary Debate: Immigration and the Borders


Traditionally—although with important exceptions—the United States has welcomed immigrants seeking a new start in life. In recent years, however, an intense debate has raged about securing the U.S. borders (particularly with Mexico), and the issue gained new attention with the attacks on the World Trade Center. Here we will present both sides of the debate from the perspective of utilitarianism, trying to clarify the issues and provide a more informed way of looking at them. An important result here will be that in determining the greatest good for the greatest number, defining the group whose interests are involved will make a significant difference.
The Issue: U.S. Border Control and Immigration

How a country controls its borders—who it lets in (and who it keeps out) and how it deals with those who come in illegally or without proper documentation—is a very controversial issue. Here we will look at some of the arguments that have been made recently on different sides of this issue.
The borders should be relatively open and immigrants welcome

With the exception of Native Americans, all Americans come from elsewhere. Some would argue that a relatively open U.S. border acknowledges the country's history as well as the economic and cultural benefits of having an immigrant population.

Since 1886, the Statue of Liberty has beckoned those from abroad to seek opportunity in the United States, and features these lines from the poet Emma Lazarus:

Give me your tired, your poor, Your huddled masses yearning to breathe free, The wretched refuse of your teeming shore. Send these, the homeless, tempest–tossed to me, I lift my lamp beside the golden door!

The story of America is, of course, the story of immigrants. With the exception of Native Americans, all Americans came from elsewhere: Europe, Asia, Africa, and South America, from all over the world, and for a wide range of reasons. Although those who came as slaves (and, often, indentured servants) did not come voluntarily, those who came willingly sought religious freedom, political freedom, and economic opportunity.

This has generally been regarded as being of great benefit for the cultural, political, and economic development of the United States. Immigrants have brought different traditions, from food to music (think "salsa," which can be both!), that have become part of the American landscape. Immigrants have been a creative and productive force, helping to generate the great "melting pot" that serves as the model for the United States and to create its powerful economy and a model for many countries around the world.

A U.S. Border Patrol agent stands by the fence separating Mexico and Arizona. Some advocates on both sides of the immigration policy debate agree that a country should be able to control who enters and expect immigrants to obey its laws.

In this fashion, employers have benefited from the strong work ethic and creativity of immigrant workers and from the willingness of these workers to take on some of the most difficult and risky jobs a society needs to have done. From Welsh coal miners to Irish police officers to Chinese railroad workers to Mexican agricultural workers, these immigrants worked long hours, often in substandard and dangerous conditions, and frequently for less money than the native–born with whom, and for whom, they worked. This often culminated in the various kinds of success stories seen in America: a person willing to work hard, doing a job others don't wish to do, becoming a valued and productive member of American society, and testifying to its freedoms and opportunities.

In short, employers and workers have benefited from a system where workers take advantage of opportunities provided by doing important work that others won't do, or won't do on a given pay scale. If anything, these workers are being taken advantage of because, in general, they have been forced to leave their homes for jobs that are difficult, dangerous, and low–paying. Furthermore, these workers pay significant amounts of taxes: income taxes, payroll taxes (FICA, Medicare), and, of course, consumption taxes (such as sales taxes).

This is not to say that borders should be entirely open and unguarded. All countries must be able to control who enters their borders and should expect those who enter to accept the laws and values of that country. Those who have come here seeking opportunity and have demonstrated their willingness to adopt the United States as their country by working hard, raising families, fighting in the armed services, and participating in their communities should be allowed to become full citizens of the United States. The process for citizenship should be accelerated for those who have indicated their desire to become citizens; they should not be discriminated against on the basis of their ethnic background; and they should be welcomed as valuable additions to the mosaic that is America.
The borders should be closed

Those in favor of a closed border would say that illegal immigrants are not only competition for U.S. jobs but are also a drain on resources and services.

No country can be safe if it fails to secure its borders. Indeed, even libertarians, who argue for a "minimal state" and as small a government as possible, insist that securing borders is one of the few tasks that a state is absolutely obligated to provide. Thus a government that fails to have strict controls at its border fails to carry out its responsibility, and fails to meet its most fundamental obligation.

The notion of an "open" border is ambiguous, in that such a term could refer to a set of possibilities ranging from being relatively easy to cross to being completely unguarded and porous. For purposes of this argument, an open border is simply one where there is insufficient control to keep out those people who try to enter illegally. As such, the United States' borders, particularly between the United States and Mexico, qualify as open. This has generated a number of problems.

Immigrants who come into the United States without proper documentation compete for jobs with those who are already in the job market, whether citizens or immigrants who have followed the proper procedures. Clearly enough, those who do obey immigration laws and are willing to enter the country legally should not have to compete with those who ignore those laws and enter illegally. Such competition is both unfair and, by rewarding those who break the law, provides an incentive for others to do so. In addition, a large pool of undocumented workers competing for jobs, which they are willing to do for lower wages, puts downward pressure on wages for all those competing for such jobs.

Taxpayers provide a large number of public services, from police and fire departments and public parks and libraries to schools and hospitals. These resources are expensive, and those who use these aren't asked if they are here legally or not. Hence, local, state, and federal governments incur substantial costs, and the amount of taxes paid by these immigrants is vastly less than the amount of services they use. Whether getting treated in a hospital emergency room, adding to increased class sizes in public schools, or placing greater demands on the police and criminal justice system, these increased costs must be paid for by an already burdened taxpayer.

A man argues in favor of Arizona's new immigration law, known as SB 1070, which would require police officers to check a person's immigration status if they reasonably suspect the individual is an illegal immigrant. The bill gained momentum after an illegal immigrant trying to enter the country allegedly gunned down a rancher.

There is also substantial evidence that some of those who enter the United States contribute to crime. This shouldn't be surprising, given that those who enter the United States illegally have already indicated their willingness to break the law. In addition to the more "traditional" crimes such as dealing in drugs, and the violence that often accompanies that activity, borders that are not sufficiently protected offer an opportunity for terrorists to enter the country. These are clearly threats to the security of a country, and require much closer supervision of the border.

Finally, while the United States has often been proud of its status as a melting pot, embracing those of many different ethnic, cultural, and religious backgrounds, the fundamental idea of the melting pot is for all to become part of one country, as the slogan "e pluribus unum—out of many, one" indicates. But if a large enough group of people enters the country without following legal procedures, they may well form a "critical mass," generating a culture within a culture. Such a group may feel more comfortable speaking its original language, following its own distinct cultural traditions, and in various other ways failing to become part of the greater society. In short, members of this group may well fail to assimilate into the United States as have past groups of immigrants and, thus, serve as a contrast to the tradition of America as the great melting pot where all feel part of a single, coherent society.

America should welcome those who are willing to follow the rules set down for immigration and for becoming citizens. It should not reward those who violate those rules, impose burdensome costs on taxpayers, and increase demands on the social services those taxpayers provide. To maintain security, a fundamental obligation of the government, the border should be strictly controlled, and those who have already entered the country illegally should be identified and returned to their native lands.
What Would You Do?

You are a member of a church whose pastor has recently been asked to give sanctuary to a mother and two children from Central America. The father was killed for his opposition to the ruling party, and the mother is afraid that she or her children may either be killed or put in prison. She entered the country illegally, has very little money, and has been told that your church might be able to provide her with a job and a place to live.

In the past, you have supported candidates who are strongly opposed to illegal immigration, both by voting and contributing money to their campaigns. You have also attended rallies that have called for strict border controls and for deporting those found to be residing in the United States illegally.

• Do you think your pastor should provide sanctuary to this woman and her children?

• How do you justify your answer?

• What kinds of issues do you consider in making this decision?

• How do you distinguish the woman's situation from the situation of other illegal or undocumented immigrants?
The Theories

The utilitarian seeks the greatest good for the greatest number, or to maximize the utility of all involved in a specific decision. Given various options, what should be done is that which produces this result. This raises a traditional difficulty, however: How does one determine the relevant group that is affected by a given decision? Using a utilitarian approach to the question of border control and immigration, we will be able to highlight the fact that how one characterizes the problem, and the relevant group, may produce contrasting results, even when the same ethical theory is utilized. Not only will this discussion show us that two utilitarians can disagree, but it will also reemphasize that solutions to problems often depend, in important ways, on how the problem itself is described.

Thousands of Latino Americans protested in April 2010 before Arizona Gov. Jan Brewer said she would sign the controversial immigration bill, SB 1070. A utilitarian's position on immigration depends on who he decides to include in his evaluation. What are the various positions a utilitarian could take?

On one application of utilitarianism, we should include not just the citizens and legal aliens of a given country but also those in other countries who seek to leave and those who remain. This, of course, is a much larger group, and extending the numbers involved will almost certainly change the utility calculation, and just as certainly make it more complex.

Clearly enough, the utility of those leaving an economically depressed condition to go where they can find employment, and possibly benefits, and take advantage of increased social services will be increased. Employers will, presumably, increase their utility by hiring workers, either to do jobs that are difficult to fill or at relatively lower wages. Another factor should not be minimized: those who come to another country and find employment often send money back home. These remittances can be substantial, and of course increase the utility of those who receive them. Finally, consumers will pay less for products because labor costs are lower. Thus, if wages are relatively low for agricultural workers, that savings is reflected in the cost of fruits and vegetables. In contrast, if wages are relatively high for those products, those costs are passed on to the consumer. Thus, the consumer's utility is increased by these products having lower prices.

Two issues complicate this utility calculation. First, it is difficult to determine what costs are imposed by undocumented workers on social services, and it is also difficult to determine with any precision how much in taxes these workers themselves pay. As the old saying goes, there are "lies, damned lies, and statistics," and currently the statistical information on costs and taxes is a source of great controversy within the debate on immigration. To generate an accurate utility calculation, reliable data are needed. Second, it seems clear that for low–wage and unskilled workers, a large pool of undocumented workers does depress wages. Thus, those who might otherwise make more money doing a job may lose out to someone willing to work for less. In this case, then, the utility of those workers would be lowered, and also must be factored into a general utilitarian analysis.

However, if the utilitarian perspective is taken broadly to include everyone affected directly and indirectly, it can be seen that the greatest good for the greatest number might well justify having relatively open borders and an accelerated route to citizenship for those who are already here. As we have seen, the calculations are complex; however, they do allow us to see how the choice of group involved will play a significant role in making those calculations. Understanding better what is involved here should also contribute to meeting some of the challenges immigration poses.

Immigration and Insecurity

In this video, Matthew Frye Jacobson, professor of American Studies and History at Yale University, discusses the concerns raised by immigration into the U.S. from the Third World.

In contrast, a utilitarian may restrict the utility calculations to just those who live in the country hosting undocumented workers. Here some of the variables—such as the benefits of payments going to an immigrant's native land, and, for that matter, the utility of those gaining employment by violating immigration laws—are eliminated. It is more difficult to put a price on such intangible factors as the effect on citizens, and other legal residents, when they see their jobs taken by those who weren't willing to follow immigration law. The effects of depressed wages, however, are genuine and will certainly be relevant to the utility of those who either are unemployed or are required to work for lower pay. One may also have to consider the trade–off between lower consumer prices and these lower wages, specifically lower wages for legal residents. And while those who hire workers may regard their utility as increased due to lower labor costs, it is not clear that this increases the utility of society as a whole. Finally, the costs on social services—greater demands on health care, education, and police and fire protection—must also be factored in. Again, statistics may be found to support various results, but it should be clear enough that there is an argument that the increased costs, and the lower wages that result, from extensive illegal immigration do not produce the greatest good for the greatest number in a country with a large number of such immigrants. Thus, a utility calculation can surely be provided that will be found persuasive in demonstrating that a country that has tight border controls, and restricts immigration, will have a higher utility than it would otherwise. From this utilitarian perspective, we see the contrasting argument for a strict immigration policy.
Some Conclusions

There isn't really enough information to do a true cost–benefit analysis for the immigration question. Does competition for jobs drive up wages? Is the use of social services offset by taxes?

If one result is clear from this debate, it is that profound disagreements erupt, almost immediately, over the question of immigration and border control. On the one hand, it is obvious that America has been greatly strengthened by the large and diverse groups of immigrants who settled here. Yet in a time of economic insecurity, immigrants may burden a system of social services and take jobs from citizens who need them. Both those who argue for a relatively open border and those who insist on strict border controls agree that there must be some degree of control; the dispute is rather what is an appropriate degree of control. The dispute also rages over how those who have already come here, as undocumented workers or illegal aliens, should be treated. Some argue for an accelerated path to citizenship for those who have shown the ability to work hard and contribute to their communities. Others insist that those here illegally should be deported, not just to punish them because they have violated the law but also to send a message to others who might be considering following this same path.

A further result is that we can see some of these issues can be greatly clarified by getting more accurate and precise information. For instance, what is the effect on wages if a substantial pool of workers is competing for a relatively small number of jobs? What are the economic costs to a country due to various social services being provided, and to what extent are those costs offset by the taxes paid by these immigrants? These and related economic questions continue to be analyzed to provide a fuller and more helpful evaluation of both the costs and the benefits involved.

We also see that it is, at times, difficult to separate economic issues from moral issues. For instance, does a person have a right to make a living to feed his or her family? Does this person then have a right to go where the work is to find such opportunities? If we are willing to recognize such a right, then what happens when this person's right interferes with another person's similar right? Here, importantly, we recognize that our economic analysis has an important moral factor, as can be seen in the term "economic injustice." Here the very notion of what is just or unjust is fundamentally an ethical issue; but much of our understanding of what is just or unjust, or right or wrong, will be informed by our economic understanding of the situation. Consequently, economics will tell us a good bit that is relevant to the moral issues involved, but at the same time, our ethics will have important information to add that allows us to evaluate economic decisions.

From this, we can see something that has arisen with some frequency in our discussion of moral problems: the in–principle difficulty of keeping individual rights distinct from questions of what is right for the greater community in which that individual lives. One may have a right to work, and flourish, but how that right is exercised must be understood, at least in part, by the effects it has on others. In this way, then, we can see that many ethical issues, even those about individual rights and responsibilities, can only be fully understood when their examination includes the social component, a component that, in any case, is often virtually impossible to eliminate.
Where Do We Go from Here?

The immigration debate can take on a nasty tone of nationalism. In this picture, an Arizona anti–illegal immigration protester voices support for Maricopa County Sheriff Joe Arpaio, a controversial figure known for his stance against illegal immigration. The protestor's board also references the 2009–2010 outbreak of H1N1, more commonly known as swine flu, which was first reported in Mexico.

There is little doubt that debates over immigration policy will continue and play an important role in both political campaigns and the development of American society. When economic insecurity increases, the issue is almost certainly bound to receive more attention, whether from those who identify illegal immigration as a cause of that insecurity or from those who insist that undocumented workers play an important role in providing economic vitality and strength. Furthermore, economic pressures often generate an increase of people leaving one country for better economic conditions elsewhere. Different people draw different conclusions from this: some suggest that improved economic conditions elsewhere will decrease the numbers of immigrants; others insist that bad economic conditions provide still more reason to prevent immigrants from entering the country.

A further implication is the renewed emphasis on nationalism. On the one hand, some have insisted on a specific conception of the United States that is challenged by large numbers of immigrants from different cultures and traditions. This can simply be the expression of a concern that a traditional picture of the United States is changing, or it can take a much sharper tone, descending into what might even be regarded as xenophobia and an attitude of "us versus them." In contrast, others indicate that the fact that so many immigrants wish to enter the United States indicates that the American experiment is working, and that America is strengthened and energized by the new ideas and work ethic brought by immigrants. On this view, without denying that borders must be controlled to some degree, the desire for many people to enter the United States is an endorsement of its policies of freedom, and of the opportunities it offers.

The world and its economy (or economies) are becoming increasingly interdependent. With the development of much more rapid transportation, telecommunications, Internet business, and the various other technological innovations in recent years, we can no longer regard countries as individual units that are independent and self–reliant. Rather, virtually all developed and developing countries have important relationships with each other, in terms of its labor force, markets for its products, and as sources of raw materials. There seems to be little doubt that this globalization will continue, and probably accelerate, and this will make it more likely that the movement of people toward jobs (as in immigrants seeking work) and jobs toward people (as in outsourcing a workforce to another country) will become even more common. Ethics and economics have a great deal to inform us about these new developments, and, as we have seen, gaining an increased understanding of both components will be crucial in making quality decisions in both the short and the long term for all involved.
Do We Have Obligations to Other Countries?

In the twentieth century, some social scientists (particularly economists and political scientists), mathematicians, biologists, and philosophers turned their attention to a field called game theory. This field didn't have much to do with traditional games, such as checkers or baseball. Rather, it examined how people and organizations interacted, and what kinds of strategies they adopted to attempt to win the game they were in. In certain ways, game theory brought a new level of rigor to traditional senses of negotiation and bargaining and also helped make clear both what assumptions one made in dealing with others and what were the best kinds of strategies one might adopt.

One well–known example of this involves the issue of nuclear weapons. After World War II, the United States and the Soviet Union had large stockpiles of such weapons, more than enough to destroy each other. During the Cold War, when tensions between the two countries ran high, the idea of Mutually Assured Destruction was put forth. We can describe this simply with two countries, A and B. Both A and B have enough weapons to destroy each other. But if A were to attack B, B would still have enough weapons to destroy A. So while A's attack may be successful in destroying B, B promises that, if so attacked, it will also destroy A. Since no country wishes to be destroyed, it would never initiate an attack, for such an attack would result in the destruction of both countries. On this basic strategy, the Soviet Union and the United States maintained a large stockpile of nuclear weapons, yet never attacked each other. This is an example of what is now called game theory.

Academics have investigated many complicated games, with various numbers of people and involving people and organizations (such as businesses or countries) that may have different levels of information available to them. The various strategic results were often very technical, mathematical, and complex. But in 1981, a political scientist named Robert Axelrod published his results on these strategic interactions and indicated that what is possibly the simplest strategy of all was both the most effective and the most stable, a strategy known as tit–for–tat. Tit– for–tat indicates that when in a competitive environment, you should do what the other person (or organization) does. If the other person is nice, you should be nice; if the other person refuses to cooperate, you should refuse to cooperate. In a sense, Axelrod makes more precise a strategy most of us have recognized and used since we were children. If a person is cooperative, you cooperate with that person; if a person is not cooperative, you resist cooperating as well. Axelrod's account has spawned an enormous discussion, and its share of criticism; nevertheless, we can use his idea to look at two different ways countries can regard each other so that we might better understand how countries can treat each other ethically (Axelrod, 1984).

Game theory examines how countries interact and relate to one another to stay on top. One of the simplest strategies, tit–for–tat, suggests that if one party cooperates or resists, the other will mirror the action.

On one model, two countries simply regard themselves as competitors. Each country acts in its own self–interest, similar to the view we saw earlier described as ethical egoism. These two countries may practice the strategy of tit–for–tat, and end up cooperating or not. What will determine the results will depend on what each country regards as being in its own self–interest after watching the other country. This is, of course, a very traditional way of looking at international relations: every country is out solely for its own good, but because all the countries are aware of this, such selfishness is simply the fundamental assumption of how the game is played.

On another, somewhat more sophisticated and complex model, it is argued that such an egoistical approach fails to do justice to the fact that so many countries' economies are fundamentally intertwined with each other. One way of seeing how this model is distinct from the other conception is to see that one country's self–interest can be, at least with some frequency, in the interest of another country. That is, rather than two countries regarding each other simply as competitors, there may be occasions where both realize that specific policies can be mutually beneficial. This perspective offers some possibilities that may be neglected or ignored in the more traditional picture.

This may be of relevance to the question of immigration. If, as many have urged, illegal immigration is a reaction to economic pressures, then alleviating that pressure may decrease the need for such immigration. As an example, if high unemployment in Mexico tends to make more people leave for the United States to find work, one way of dealing with this is to work on improving the Mexican economy. If Mexico's economy improves, there will be considerably less reason for people to leave to find work elsewhere. In this way, both the United States and Mexico see it as in their individual interests for the Mexican economy to improve. While this does not seem to conflict with the basis strategic thrust of tit–for–tat, it emphasizes the mutual benefits that can result when two interdependent countries recognize that their own self–interest may involve, or even require, promoting the self–interest of the other country.
Ch 4
 Some Final Questions


   1. Is society simply a collection of individuals, pursuing their own interests? Or do people understand who they are by the various roles they play in society, as the member of a family, a business, and a community? Explain.
   2. Think of an activity that might be considered a "victimless" crime. Are there, in fact, some people who are affected, directly or indirectly, by this activity, who therefore might be considered "victims"? Explain.
   3. If a company harms someone, intentionally or through negligence, is it enough for that company to pay compensation to that person? Or should a further message be sent, punishing the company by levying substantial fines to prevent such behavior in the future? Explain.

Weblinks

Some discussion of the legal doctrine of habeas corpus can be found here:
http://www.answers.com/topic/habeas-corpus

Some discussion of the legal doctrine of eminent domain can be found here:
http://www.expertlaw.com/library/real_estate/eminent_domain.html

A summary of the debate over immigration, with additional links:
http://immigration-usa.com/debate.html