Abstract
Traditional accounts of the fair play principle suggest that, under appropriate conditions, those who benefit from the cooperative labor of others acquire an obligation of repayment. However, these accounts have had little to say about the nature of such obligations within morally or legally problematic cooperative schemes, taking the matter to be either straightforward or unimportant. It is neither. The question of what sorts of fair play obligations obtain for those who benefit from illicit cooperative activity is a matter of great complexity and consequence with implications for, inter alia, global economic justice. In this essay, I explore the nature of this obligation within illicit cooperative schemes, specifically those with so-called negative externalities, or deleterious effects on non-members of the scheme. I conclude that the willing beneficiaries of such schemes acquire a fair-play obligation to recognize and respond to their culpability. This reconceptualization of the fair play principle opens up new avenues for exploring the obligations of those who benefit from acts of collective wrongdoing.
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Notes
Another type of objection to the principle of fair play is that, while free-riding on the cooperative labor of others may be morally wrong, it is not morally wrong in a way that gives the cooperating members right to the free-rider’s contribution. For an example of this view, see McDermott (2004).
To be clear, I am not suggesting that only illicit cooperative schemes may have negative externalities. Morally good and lawful schemes may have them as well.
In so doing, I may appear to be setting aside, for the moment, all the complexities of the world. I appear, for instance, to assume that clear lines can be drawn between morality and immorality. I do not propose, nor need I to assume, that, e.g., perfectly legal and perfectly immoral schemes exist, nor do I rely on their metaphysical possibility.
One might also object that the illegality of an act makes the act immoral. However, I am not aware of any convincing arguments that would support such a conclusion. For a persuasive argument against prima facie political obligation, see Wellman and Simmons (2005).
These categories themselves are ill-defined, and I will not distinguish among them at this time, save to give some paradigmatic examples of cooperative schemes that are at once moral and illegal.
There is an obvious difficulty here in identifying which acts are morally acceptable and which are not. What someone like Nozick would consider to be a breach of personal liberty might, for a socialist, seem a perfectly reasonable ban on a dangerous activity, and for another a ban on an immoral practice. I cannot address these important and complex issues here.
Of course, the line between motivations of private interest and reform is not always easily drawn. For example, while the broader goal of, for instance, medical marijuana organizations, is to supply a necessary analgesic to the chronically or terminally ill, a subsidiary goal may be to fight against a paternalistic law that makes marijuana illegal in the first place.
The reader will notice that this category is the broadest of the three. I have chosen not to distinguish between morally praiseworthy and morally neutral illegal schemes in part because this would require a prior agreement about more subtle questions within moral theory and in part because I cannot here address schemes with mixed externalities. What duties and obligations, if any, might be owed to members of dangerous, but morally praiseworthy, cooperative schemes, is a question deserving of attention, though I cannot here provide it the consideration it deserves.
I owe the suggestion that even legal and lawful immorality doesn’t exhaust the category of tyrannical schemes to David Lyons, who suggested that unofficial practices (such as non-prosecution for police brutality) might be neither legal nor lawful but nevertheless systematically carried out by legal authorities.
An example of a lawful but immoral cooperative scheme might be the following: in a state that has no laws banning discrimination in the workplace, a number of people from the dominant group might use such an omission to set up unjust employment practices to gain advantage at others’ expense.
That is, the production of cooperatively generated public goods rarely requires total compliance. Where they do, defection immediately results in decreased production of the good, making considerations of fairness irrelevant. A. John Simmons (1979) rightly notes that free-riding is in tension with Rawls’s claim that near-total compliance is necessary for the success of cooperative ventures. Simmons takes issue with this clause on the grounds that it doesn’t seem to be morally relevant whether compliance is near-total or partial. However, it just is not true that successful production of a good through cooperative measures requires near-total compliance.
Richard Arneson (1982) writes that Rawls’s decision to limit morally relevant cases of the receipt of benefits to voluntary receipt, or acceptance, was a mere consequence of Rawls’ commitment to the theoretical distinction between a duty and an obligation. Since Rawls, according to Arneson, took obligations to arise out of voluntary commitments, and since the fair play principle establishes an obligation (as opposed to a duty, which need not have any voluntarist origins), Rawls had built into the fair play principle the assumption of voluntariness. One might ask Arneson why Rawls then held fair play to be an obligation rather than a duty in the first place.
I should note here that the restriction of obligation of fairness to voluntary enjoyment of benefits is not a foregone conclusion. Contra Rawls, Simmons as well as Nozick, Arneson and, later, Cullity, have maintained that unfairness can arise even where the enjoyments of benefits was compulsory. Similarly George Klosko (2004) considers all attempts to limit the scope of the fair play principle to instances of voluntary acceptance overly and arbitrarily restrictive. It may be worth noting that (at least some of) these objections appear to be motivated by the perceived need to rid the fair play principle of all contractarian intuitions. However, removing the need for consent from the equation makes the concept of obligation-acquisition far less intelligible. David Lyons suggests another possible explanation for the rejection of the voluntariness condition in an account of the duty of fair play: that Arneson was offering an explanation rather than a defense of political obligation, which he assumed (Lyons, personal correspondence).
Cullity gives an example of this kind of situation in what he calls “The Enterprising Elves,” which proceeds as follows: “On the first day in my newly carpeted house, I leave my shoes outside. In the morning I am delighted to find they have been extraordinarily well repaired. I am less delighted when I receive the bill” (Cullity 1995, 10). Such schemes, on his view, do not generate obligations of payment, as to generalize this principle would be economically crippling (Cullity 1995, 14).
By “moral environment” I mean those features of an individual’s surroundings (defined in relation to one’s sphere of influence rather than physical location) the manipulation of or non-interference with which has moral consequences. The duty to stay informed of such is primitive: it amounts to ensuring that someone who counts as a moral agent meets the epistemic requirements of moral agency, such as knowing whether some action, A, is morally permissible. A correlate of this duty is the intuitively plausible notion that ignorance is in many cases not an excuse for harmful behavior. Ignorance of the morally relevant features of one’s environment can amount to morally and legally culpable negligence if a reasonable moral agent would have been aware of the risks posed by his/her actions or inactions. For example, say I as an abled person parked in a clearly marked handicapped spot, and this caused a person with a disability to park farther away and to become injured as a result. In such a case, I could not plead ignorance of certain morally relevant features of the environment (such as the clearly marked paint and signs), nor of the immoral nature of the act (namely, that taking a spot reserved for those with disabilities violates basic principles of fairness and justice as well as the laws that embody them). The duty to stay reasonably informed of one’s moral environment would seem to apply to all major moral frameworks, though for some moral theories it might be thought of as a virtue rather than a duty. Of course, depending on the particular moral theory one holds, different features of the environment will be considered morally relevant.
In fact, Cullity appears to be drawing on this intuition when he argues that a visitor to Britain, whose home culture allows him to taste food prior to purchase, would be held accountable to the British merchant whose food he tasted (Cullity 1995, 16). Though Cullity concludes from this example that an absence of knowledge need not excuse someone from an obligation, he seems to be drawing on the intuition that this only holds under limited circumstances where the visitor is expected to have this knowledge.
Interestingly, Arneson does not take non-compulsoriness to be a necessary condition of acquiring an obligation of fair play. He suggests that acquiring a compulsory obligation is not different in principle from acquiring an obligation to abstain from using someone else’s property. Since we (notably, Nozick) accept the latter proposition, in his view, we ought to also accept the former. For the present argument, I will simply note that Arneson’s suggestion cuts both ways: we could just as easily conclude that the principle that underlies the right to property, if shared with his version of the principle of fair play, must be mistaken, and reject both his version of the fair play principle and the argument for property ownership.
The old nationalistic “love it or leave it” suggestion commits this fallacy by assuming that the cost of “leaving” is not significantly higher than the cost of staying.
As Lyons points out, free-riding in such cases may even promote utility (Lyons, personal correspondence).
This is an important question in what Cullity considers to be the morally relevant aspect of free-riding, which is one that concerns fairness. On his view, where nonrivalness obtains, the free-rider is not harming anyone by not contributing. Despite this, on Cullity’s view, the free-rider may still be acting unfairly.
One may wonder whether the Nozickean listener is guilty of culpable negligence, similar to the example of Paige, the non-contributing museum patron. In response, I believe that, if he is guilty of anything, it is of holding himself to be morally superior, in Cullity’s sense, to the other members of the cooperative scheme. The Nozickean listener has, presumably, correctly attended to the morally relevant features of his environment, given the moral framework that he adopts, and chosen a course of action that he deems morally correct. He might be morally in the wrong for reasons other than ignorance – for instance, in applying the wrong moral theory to his situation – but he is not wrong in the way that Paige or the non-handicapped driver is wrong.
We might even say that this discomfort diminishes their enjoyment of the radio station broadcasts, as they always have in the backs of their minds the thought that Sam is free-riding on their contributions, and that, in this sense, the benefit is not non-rival.
Assuming Sam is not merely selfish, his implicit reliance on utilitarian morality may account for his omission of this non-consequentialist principle, the acceptance of which does not obviously result in an increase in utility.
Cullity goes beyond this to say that “the feature of primary moral significance, it seems, is simply the [free-rider]’s dependence for the benefits she receives on others’ willingness to pay for them, without being willing to do so herself” (1995, 27). In using Cullity’s argument in this manner, I admit that I am adopting the point of view of his “thoroughgoing opponent,” or someone who reasons from the intuition that this privileging is objectionable only in cases where acceptance of benefits was truly voluntary (1995, 23–4).
While this may, at first glance, appear to be double-counting, it should be noted that the complexities of such activities make room for the same act to generate multiple obligations.
It should be pointed out that this may be a special case of unjust enrichment, as unjust enrichment need not involve any wrongdoing on the part of the person who is unjustly enriched.
The relationships that the fundamentalists bear to one another are not different in any morally relevant sense from Mel’s. The fact that they had to go farther out of their way than Mel did in order to secure these benefits make their share of the burden larger than Mel’s share, but it doesn’t generate any special obligations above and beyond this fact. The same holds of the relationships between John and the embezzlers and among the embezzlers themselves.
Because the crimes are not against the law of Mel’s country, Mel would presumably have to report them to an international tribunal, circumstances permitting.
I say his failure makes him culpable because it was motivated either by avarice or unconscionable indifference to the suffering of others. Had the failure been motivated by considerations of personal safety, receipt of benefits would not have satisfied the conditions of benefit-acceptance.
The embezzlement scheme, for example, may produce some easily divisible costs, viz., the costs of restitution to the victim of the scheme (should the embezzlers be brought to civil court). If the embezzlement scheme were to be discovered, it would not be unreasonable for the members of the scheme to expect John to contribute to the cost of repayment.
In other words, although the burden of serving a sentence would be shared, it would not be divided.
It should be noted that I am not suggesting that Mel lacks an obligation to confess the wrongdoing.
Because we are taking as a given the truth of the claim that it is impossible to be obligated to perform immoral deeds, immoral actions cannot feature in the costs he may incur. As a result, the only species of cost available to Mel is the cost of responsibility.
In fact, this conclusion is consonant with Delmas’ claim that beneficiaries of an immoral cooperative scheme have an obligation or duty (she uses the terms interchangeably for her purposes) of fairness to resist that scheme (ibid). On my account, such opting out can only take the form of resistance if it meets the non-compulsoriness account. In the example of stereotype-perpetuation, I believe this condition holds.
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Acknowledgments
I would like to thank David Lyons and Daniel Star for discussions at the early stages of this essay’s development, as well as two anonymous reviewers for their substantive comments on an earlier draft. I am especially indebted to Russell Powell for his invaluable feedback and keen editorial eye.
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Meketa, I. “Honor Among (the Beneficiaries of) Thieves”. Ethic Theory Moral Prac 18, 385–402 (2015). https://doi.org/10.1007/s10677-014-9524-x
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DOI: https://doi.org/10.1007/s10677-014-9524-x