Archives for category: Justice

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Objections to deliberative democracy state that culturally plural societies are too diverse to be able to enact such a concept, that social groups who are marginalized in these societies would not have the access or ability to participate in such decision-making processes. This essay argues that deliberative democracy is applicable to these societies and may be the only method of addressing historical injustices through the reconciliation process, shared stories and perceptions of a common good.

 

 “First we argue for equality, by appealing to the arbitrariness of the natural lottery. Then we allow departures from equality provided that these are not worse for those who are worst off. This explains why, in Rawls’s phrase, the worst-off have the veto, so that benefits to them should have absolute priority.” Parfit (2000, p.121)

 

Theorists of deliberative democracy assert that democracy relies upon notions of a common good and an egalitarian ideal, and also that democracies should be developed to encourage civic responsibility and self-respect. While many modern societies are culturally plural, as long as a system of government allows for a fair system of bargaining that is representative of all groups, these theorists think that it will be a legitimate system (Cohen, 1997). This essay will look at the different concepts that underpin deliberative democracy and assert that such a democratic process is both applicable to a modern, pluralist society and that collective choice will also lead to better understanding between the different groups that inhabit these societies.

John Dryzek’s “Discursive Democracy” (1990) was the first book written about deliberative democracy. Dryzek states that ‘the final decade of the second millennium saw the theory of democracy take a strong deliberative turn’ (Dryzek, 2000:1).  The opportunity to participate became the imperative in asserting effective deliberation and claims for or advocated by others could be justified in terms that would be acceptable to the participants. For Dryzek (2000), deliberative democracy should not be confined to strict forms of ‘public reason’ but should be able to engage in more tolerant positions that include testimony, humour, emotion, storytelling, argument, rhetoric and even gossip. He contends that this would help deliberation in a non-coercive way and rule out dominant powers manipulating outcomes or attempting to enforce an ideological conformity.

This also explains how deliberative democracy has come to be seen by some as being too chaotic and unmanageable through inclusion, and yet by others as being too restrictive through exclusion. For these objections even the idea of rational argument is elitist and exclusive to those who cannot explain themselves comprehensively (Dryzek, 2000:5). However, Dryzek’s inclusion of story allows those that do not have the same worldview as the dominant group to come to an arena of democracy and show through narrative why their preferences might be the ones that are chosen by the collective. Indigenous people can benefit from democracy in this way, instead of having to rely upon the political representation of someone who has little concept of their worldview or culture.

Jürgen Habermas developed the concept of deliberative democracy, basing its legitimacy in reason. Democracy, asserted Habermas, is supposed to encourage free critical reasoning about common affairs designed to guide the practice of coercive powers (Cohen, 1999:386). Joshua Cohen states that one of the reasons that Habermas contended that democracy should be deliberative, was to ensure the impartial justifiability of outcomes (Cohen, 1999:402). John Rawls (1972) also reflected this in his thinking about political decision-making where his principle of participation required fair political equality. Deliberative democracy relies upon the participants engaging in free deliberation amongst equals as the basis of their legitimacy and Cohen (1999) thinks that in this way deliberative democracy is able to address pluralism within a democratic process. Citizens find resolutions to problems of collective choice through public reasoning and establishing a framework for deliberation. It is a plural and diverse association that is committed to resolving problems through collective choice. This is assisted through each party not reaffirming self-interested or mandatory preferences or ideals.

The first step in collective choice is choosing an agenda, then the proposal of different solutions to that agenda with supportive reasoning, and finally settling upon an agreed solution. While all comprehend the necessity of their own good, in deliberative democratic decision-making they also share a commitment to finding decisions that are acceptable to all, even if it involves revising one’s own preferences and beliefs. Deliberation requires critical reasoning because it is not enough in pluralistic societies for people to provide reasons for decisions being based upon preferences, beliefs or ideals. The notion of autonomy is also important in a deliberative democracy, as preferences should be formed by agency rather than circumstance. Therefore, deliberation consists of assessing the common good from the basis of legitimate public reflection on what is an appropriate claim on public resources, rather than notions of preconceived ideas and interests (Cohen, 1997).

Historical injustice means injustices that have occurred across generations from oppressive social practices and institutions. These social practices legitimise exclusion and oppress certain groups because their features mark them as inferior to others. Through this oppression these social groups are vulnerable to exploitation, marginalization, powerlessness, cultural imperialism and violence. If this oppression occurs over a long period of time they become historical injustices. Historical oppression is unique in that it formulates identity in terms of conflict and opposition, leaving a stigma even after reparations have been reparations have been attempted. Indigenous cultures that have been conquered by settler colonial powers are an example of historical injustice. In attempting to address the plural dimensions of historical oppression, democratic inclusion must find a way of resolving these issues (Bashir, 2012).

Benjamin Barber (Young, 1989: 256) highlights the opposition between the general interests of the civic polity and the particular interests of private affiliations. Barber states that concepts of the common group are not enforced from a position of authority but agreed upon as part of a common project. Although Barber states that notions of belonging to particular groups are important as well for people, it could be that concepts such as universal citizenship and deliberative democracy may require a degree of impartiality that humans may not be able to practice (Young, 1989). People understand polity from their particular perspective and the narrower their perspective the narrower will be their political view. This occurs in societies where some are privileged while other are oppressed. To recommend that all citizens leave their perspectives and interests behind merely reinforces the privileged position of some and fails to redress the oppression, all the while silencing it by ignoring the perspective of the oppressed. Young (1989) argues that Barber confuses plurality with privatisation, stating that pluralism encourages particular private interest groups to assert their interests over others. She goes on that instead of unified public realm that does not disregard the particular perspectives of individuals but acknowledges the ‘desire to decide together the society’s policies’ (Young, 1989:258). Therefore Young suggests that there should be specific representation of disadvantaged groups in order to enact affirmative action with regard to their participation in the greater group, the greater group already having a strong enough voice (Young, 1989:262).

An objection to deliberative democracy is that its treatment of basic liberties is unacceptable because it is dependent upon a majority decision and restricts the liberty of individuals. Cohen (1997) responds to this objection by stating that deliberative democracy entails informed and autonomous judgements through public deliberations in which free and civil expression is allowed to take place. In this way it includes the individual in decisions for the majority. Another objection is that public deliberation is, in reality, irrelevant to modern political conditions. It is basically an objection that direct democracy cannot occur in modern conditions because the nature of our states is too large and complex in both population and institutions. Especially with regard to the globalization of citizenship in large conglomeration states like the European Union, this objection states that it is difficult to encourage citizens under such conditions of diversity to consider themselves equal participants in acts of cooperative deliberation (Cohen, 1997). By ensuring that institutions engaged in deliberative democracy have arenas through which citizens propose and debate issues for the political agenda, this objection seems nullified. If these institutions can act across communities and states, through the use of social media and online translators people can engage with each other on a local, national and international level.

Habermas advocated such a communitarian approach to democracy based upon mutual communication. In this way deliberative citizenship can use narratives of shared experience to address thinner concepts of liberal theory and particular interest groups. John Dewey termed this type of deliberative vision as a ‘shared way of life’. For Immanuel Kant, without ‘enlarged thought’ or public engagement in the decision-making process that includes other perspectives there is a failure in the human community to live wisely. If one loses touch with public conversation one becomes sensorily deprived ( Boyte, 1995). Addressing issues in the public sphere that involve marginalised social groups, such as indigenous, disabled, or ethnic minority groups, a necessary part of the political process is allowing those groups to become engaged in decision-making. Approaches to this could be through the convening of town meetings where citizens can be involved in discussing problems, and ensuring that election coverage gives voices to a broad range of citizens, especially those that are marginalised, as well as representatives. Civic journalism also can play a role in revealing conditions that may be hidden from the general civic polity (Sirianni and Friedland).

To ensure that institutions work within the desired parameters of a deliberative democracy, it is necessary to understand that material inequalities usually mean political inequalities. Being from a remote or poor community can mean that you have little chance to engage in the democratic process because of lack of access. Therefore, political parties that are able to be supported through public funding are an important enabling feature of deliberative democracy. In this way material disadvantage in the political arena can be overcome and ensures the manifest equality that is a part of the Rawlsian view. Also, by providing a diverse enough range of issues parties can ensure that debate is not restricted to certain issues and provide more open-ended accounts that can properly inform diverse understanding of the common good (Cohen, 1997).

Objections to deliberative democracy on the grounds that it is either too inclusionary or exclusionary are counteracted by methods of storytelling that include people who might otherwise have their voices silenced. Deliberative democracy can provide a solution to the challenge of pluralism in its insistence that participants are able to engage with each other equally and with liberty of deliberation. Critical reasoning is essential for deliberative democracy because it helps to take the decision-making beyond personal preferences and beliefs. Deliberative democracy should also be viewed as an egalitarian approach. Furthermore, through such a Rawlsian egalitarian approach the difference principle can apply and reconciliation between the general community and disenfranchised groups can occur. This is especially important when it comes to redressing historical injustices.

Deliberative democracy is a way in which those who have suffered from historical injustices can be included in the process of decision-making in an attempt to resolve their issues. Elements of affirmative action are advocated to become part of the arena of deliberative democracy to ensure that those people whose voices are usually silenced, such as the marginalised or oppressed, are included in the decision-making process. Liberty and autonomy are able to be protected in the process of deliberative democracy through public decision-making with all free and civil voices being included.

Finally, although modern states are large and populous, smaller arenas, such as social media, where people can voice their opinions on issues are becoming more popular and varied across the political sphere. Civic journalism and publicly funded political parties are also a good way to make sure that those who have little chance to engage in the democratic process have their material disadvantage addressed. Therefore, if the objections to deliberative democracy are addressed then it should be a successful basis for addressing the claims of marginalised social groups.

REFERENCES:

  1. Bashir, B. (2012), “Reconciling Historical Injustices: Deliberative Democracy and the Politics of Reconciliation”, in Res Publica, 18 (27), 2012, pp. 127-143
  2. Boyte, C.J. (1995), “Beyond Deliberation: Citizenship as Public Work”, Civic Practices Network, viewed on 5 May 2013 on http://www.cpn.org/crm/contemporary/beyond.html
  3. Cohen, J. (1997) “Deliberation and democratic legitimacy” in Deliberative Democracy: Essays on Reason and Politics , Bohman, James; Rehg, William , 1997 , pp. 67-91
  4. Cohen, J.  (1999),”Reflections on Habermas on Democracy”, in Ratio Juris, 12 (4),December 1999, pp. 385-416
  5. Dryzek, J (2000), Deliberative Democracy and Beyond: Liberals, Critics and Contestations, Oxford University Press Inc. New York
  6. Rawls, J., (1972), A Theory of Justice, Clarendon Press, Oxford
  7. Sirianni, C., & Friedland, L. (n.d.), “Deliberative Democracy”, Civic Practices Network, viewed in 5 May 2013 on http://www.cpn.org/tools/dictionary/deliberate.html emocracy reliescieties. cess ise issues.ther too inclusionary or exclusionary are conteracted by habit these societies. cess is
  8. Young, Iris Marion. “Polity and group difference: A critique of the ideal of universal citizenship” Ethics , 99:2 , 1989 , 250-274
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Amatya Sen claims that ‘capabilities’ provide the relevant evaluative space for understanding equality. However Sen’s theory has been criticised on the grounds that it does not provide sufficient specification of which functionings and capabilities are valuable. This essay investigates the capabilities theory with reference to this kind of criticism and finds that, on the basis of its reliance upon universal values of liberty and autonomy,  Martha Nussbaum’s development of capabilities theory could provide a possible framework for specifying valuable functionings and capabilities.
The capabilities approach is dependent upon the evaluation of those particular functionings that are concerned with the value of life. In the study prepared for the United Nations, Amartya Sen put forward the argument that the capability approach is an improvement on other theories of justice, such as utilitarianism, Rawlsian egalitarianism and libertarianism because it uses other informational focuses to consider social advantage (p.30). The main criticism of Sen’s approach is that it is considered vague in that it does not provide sufficient specifications as to what he thinks are valuable. Martha Nussbaum has taken Sen’s capability approach and put what she argues are universal and concrete values upon it, allowing it to become a theory of justice rather than simply an evaluative space for reckoning what values we should hold.

 SEN’S EVALUATIVE SPACE

Sen posits that his approach relies upon the functional states through which one can achieve quality of life. These include such functionings as being adequately nourished, having good health, and are functionings which would be obviously considered values by all. However, other functionings may be more complex but just as widely valued, such as belonging to a social group.  Sen stresses that, although individuals may differ in what they assess as valuable, it is important that these differences are acknowledged when assessing the capabilities that can be derived from these varied functions (Sen, 1993, p.31).

Therefore, Sen (1993, p.32) states that two necessary questions must be asked to evaluate these differing values:

1)      What is the object of the value?

2)      How valuable are the respective objects?

To identify the object of the value entails specifying what Sen terms as ‘the evaluative space’. For utilitarians this is usually defined as happiness or pleasure, whereas the capabilities approach entails identifying the evaluative space in terms of an individual’s capability to function. In this way the capability approach uses evaluative space to allow for a variety of human actions that are ends in themselves rather than means of living or freedoms, such as amounts of income, wealth, or resources etc. (1993, p.33). For Sen, when it comes to questions of freedom of choice then the criteria to be assessed must be linked to the evaluation of the range of capabilities that are open (1993, p.35).

An interesting point that Sen makes about the association of an evaluation of capabilities with freedom is that a person may have the advantage of more freedom than another but it may still result in her achieving less. For example, a person may have access to a capability such as a good education system but for reasons of personal characteristics, such as laziness or distraction, still not bother to achieve their best within it (1993, p.34). Therefore, Sen breaks down these associative values of human advantage as being:

1)      well-being achievement through the promotion of a person’s well-being;

2)      individual achievement through the pursuit of one’s goals; which result in:

3)      well-being freedom

4)      individual freedom (1993, p.34)

For Sen, the well-being of a person becomes an evaluation of the ‘wellness’ of that person rather than an evaluation of their contribution to the state or their success in reaching their goals. In this case, the functionings of the person will be comprised of the four elements above. With regard to this, the functionings of a person appear fundamental to the nature of their well-being, even if they are sourced externally from the person themselves, such as through the fulfilment of helping someone else (1993, p.36).

The functionings that assist well-being vary from the elementary, such as life-expectancy, to the complex, such as being a valued member of the community. The success of the agency of a person requires a broader assessment that can be narrowed to the evaluation of a standard of living to the broader sense of political freedom. It can even be said that the broader sense includes injuries to others, especially loved ones. These things all contribute to the success of someone developing an ability to be happy or the development of their well-being (1993, p.37).

An important thing to note is that, in Sen’s concept of evaluative space, capabilities are derived from functionings. The concepts of well-being and living standards belong to the assessment of functioning rather than capabilities. Therefore a capability is set in the space of functionings (1993, p.38). This calculus model can be used to assess basic needs and is crucial to the identification of capabilities. Sen states that an income-derived concept of poverty can be quite misleading when evaluation allows discrepancies in functionality. This is because the ‘poverty line’ in a developing nation may be quite distinct from that of developed nations (1993, p.40). Sen sees the most advantageous role of the capability approach being the ability to assess varied objects of value, rather than the utility-based approach of happiness or desire fulfilment as being the only value. It also does not place primary goods or resources as value objects, as do the Rawlsian and Dworkinian models (1993, p.44).

Sen (1993, p.49) thinks that it is in its plurality of purpose that that the capability approach works best, especially with regard to well-being and agency. This is especially relevant when judging standards of living and its particular usability lies in its egalitarian calculus that is dependent upon the truth of seeing individual advantages in capabilities and therefore its relevance to other sorts of social evaluation. In having the ability to assess the particular space for the evaluation of opportunities and successes of individuals, Sen asserts that the capabilities approach is an important addition to other theories of justice (1993, p.50).

NUSSBAUM’S UNIVERSAL APPROACH TO THE EVALUATIVE SPACE

Nussbaum takes Sen’s abstract mathematical calculus of functionings and put them into concrete terms through which constitutional guarantees can be drawn in civil society. This is Nussbaum’s universal approach (Nussbaum, 2000, p.70). Through applying concrete concepts Nussbaum breaks down standard theories of justice into questions that show how the capabilities approach can change someone’s life. The central question for Nussbaum is: “What is Vasanti actually able to do and to be?” The answer to this question is sought rather than the utilitarian approach: “How satisfied is Vasanti?”; or the  Rawlsian/ Dworkinian: “How much in the way of resources is Vasanti able to command? (2000, p.71)” For Nussbaum, the priority is to measure quality of life so that capabilities can match functionings. The next thing to do is to argue that if people fall below a functioning threshold that is necessary for justice then it should be considered urgent in terms of the injustice it creates (2000, p.71).

Nussbaum’s criteria is based upon the intuitive concept that particular functions are universal in human life and that it is these functions that separate us from other animals. Using the philosophy of Marx, she argues that humans need to be cultivated through education, leisure and self-expression, and also through socialisation with others. Nussbaum adds to this liberty of thought and association, as well as freedom of religion or worship, being fundamental to human autonomy (2000, p.72). A person has activities, goals and projects that are above the needs of nature and need support to fulfil these ideas. The essential element of this is that capabilities are sought for the individual, not groups or states or corporations. These entities can be valuable as means to ends but the well-being of the individual is the end itself (2000, p.74).

Nussbaum states that a list of concrete functionings cannot be a theory of justice however it does advise on what will be a minimum of social justice. She also adds that they could be adjusted to suit the various cultures that they encompass (2000, p.75). Nussbaum’s list of capabilities is a list in which all of the elements are distinct and equal in importance. She gives the example of the absence political rights not being able to be compensated by great economic growth (2000, p.81). Nussbaum states that the capabilities that go with these functionings are of three different types:

1)      Basic capabilities- innate equipment necessary for developing more advanced capabilities and morality, such as the capability of love, gratitude, reason and work;

2)      Internal capabilities- maturity, language, political reasoning, socialization, freedom of speech or religion; and

3)      Combined capabilities- where the environment is prepared so that individuals are able to exercise their major functionings (2000, p.85).

There is also a distinction between internal and combined capabilities in that when there is a sudden alteration in the environment in which the individual is placed, perhaps they have had to flee or migrate to another country, then they may not be able to enact their functionings. Nussbaum gives the example of a child who has never experienced freedom of speech or thought and is not able to develop the same capabilities as someone who was raised in a nation that protects these liberties. Nussbaum focuses on a social minimum of these capabilities as suitable for a system of justice (2000, p.86).

With regard to individual liberty and autonomy being safeguarded in such a system, Nussbaum states that it is important to note that ‘capability not functioning is the appropriate political goal (2000, p.87)’. This appears to coalesce with Sen’s evaluative space, where capabilities are derived from functionings. Nussbaum points out that the capabilities approach is much like Rawls’ notion of primary goods, but the difference between the capabilities approach and Rawls theory of justice is that it does not consider wealth and income as goals or ends, more a reliance upon Rawls’ natural goods such as ‘health, vigour, intelligence and imagination’ (2000, p.89). Capabilities are the things needed for functioning such that any rational being would want them. Even if one does not make use of all of them then no harm has been done if they had the choice (2000, p.88).

However, Nussbaum also states that it is important that capabilities such as bodily integrity may be regulated so as not to undermine the functionings of an individual. Although this may be seen as paternalistic it is perhaps synonymous with illegal contracts in that health and bodily integrity are so important to capabilities and functioning that there can be legitimate interference with choice up to a point (2000, p.95). This does seem to call into question whether Nussbaum would allow such choices as being a sex worker in her system of justice, but she does state that such decisions can be left to the democratic process in each nation (2000, p.95). Nussbaum also states that her list is not meant to be an exhaustive account of what is worthwhile in life and is a facilitation list rather than a tyrannical one (2000, p.95). Nussbaum contends that the political purpose of these capabilities is human well-being. She quotes Sen: ‘Political rights are important not only for the fulfilment of needs, they are crucial also for the formulation of needs. And this idea relates, in the end, to the respect that we owe each other as fellow human beings.’ (Sen, 1994, p.38)

Therefore Nussbaum sees her list of functioning capabilities as being closely aligned with universal human rights. They are quite similar to those initiated and enshrined in the Universal Declaration of Human Rights (UDHR) that was ratified in 1948, and have been used by many different peoples to assert justice. One of members of the drafting subcommittee of this document stated: “I perceived clearly that I was participating in a truly significant historic event in which a consensus had been reached as to the supreme value of the human person, a value that did not originate in the decision of a worldly power, but rather in the fact of existing—which gave rise to the inalienable right to live free from want and oppression and to fully develop one’s personality”.(U.N. n.d.) Nussbaum’s list is intended to give fundamental access to capabilities in order to provide a stable society, which was also the intent of the UDHR. Nussbaum argues that these are not only Western notions of rights: “Ideas of activity and ability are everywhere, and there is no culture in which people do not ask themselves what they are able to do, what opportunities they have for functioning (2000, p.100)”. Considering that what differentiates humans from other animals is their need to realise their ideas, whether they be social, creative, technological, or scientific, it seems that Nussbaum’s argument about the universality of her functional capabilities is valid.

Rather than being a strict theory of justice, Sen’s capability approach has the ability to allow a framework that is both accommodating and adaptable. It has the ability to assess individual well-being and evaluate social arrangements so that policies may be designed that can enact just social change. Through being a practical guide it can inform citizens and governments of the directions that may provide desirable outcomes. While criticisms of Sen’s approach state that it is unclear about how it can be extended into a theory of justice, his non-commitment to single distributive rule allows his notions of functionings and capabilities to be a formula for an evaluative space through which justice may be approached. Nussbaum’s transfer of Sen’s evaluative space into a concrete list of functioning capabilities is comprehensive and is not limited to single-types of social systems but holds true for all human beings. Therefore both Sen’s formulaic approach and Nussbaum’s sufficient account of social justice could be used together to provide a constitutional guarantee of human rights.

REFERENCES:

  1. Nussbaum, M 2000, Women and Human Development: The Capabilities Approach, University of Chicago pp. 70-101
  2. United Nations (n.d.), Universal Declaration of Human Rights, viewed 5 April 2013, http://www.un.org/en/documents/udhr/index.shtml
  3. United Nations (n.d.), Universal Declaration of Human Rights: History of the Document, viewed 5 April 2013, http://www.un.org/en/documents/udhr/history.shtml
  4. Sen, A 1993, ‘Capability and Well-Being’, in M. Nussbaum & A. Sen (eds),The Quality of Life, Clarendon Press, Oxford pp. 30-52
  5. Sen, A, 1994, ‘Freedom and Needs’, The New Republic, January 10/17, pp. 31-38
MRI
Neuroscience is making advances in mapping our brain. In doing so, it questions our fundamental beliefs about our autonomy within the law. However, to date, it still has not been successful in undermining principles of justice that have underpinned Western legal systems and international treaties for the past centuries. This essay provides a study upon what difference neuroscience makes, or not, to the law.

 

Neuroscience is an advancement in cognitive studies which has up until a few decades ago relied mostly upon behavioural studies. Presently there are claims made by corporations involved in neuro-technologies that claim to be able to detect deception accurately, and also to assess whether people have tendencies towards criminality. To study the issue of whether neuroscience in this capacity will not make a difference to the law, this essay will study the history of the cognitive sciences in the law, the claims of Greene and Cohen (2004) that state neuroscience makes no difference to the law, the philosophical and ethical issues that are fundamental to society and the law, and the claims and criticisms made about neuro-technologies such as functional magnetic resonance imaging (fMRI). This analysis concludes that for the foreseeable future neuroscience will make little difference to the law.

To assess whether neuroscience will not make a difference to the law it is necessary to look at the contributions that the cognitive sciences have made and whether they have helped to ascertain the responsibility of people under the law. The justice system relies upon defining the intentions of the defendant to judge whether they are guilty of breaching the law. To achieve this aim, often the cognitive sciences, such as psychology and psychiatry, are called upon for assistance. Eigen (2003, p.x) suggests that in the mid-nineteenth century it was not psychiatrists or legal professionals who identified the difference between insanity and the anomalous behaviour of unconsciousness, such as acts done whilst sleepwalking or from some other automatic reflex, it was the jury. It became necessary to have scientists ascertain the culpability of someone if there was a question of any mental disability, rather than have a non-professional jury assess this.

However, Eigen (2003, p.5) contends that during the nineteenth century, with more novel diagnoses becoming apparent at the courts, expert medical witnesses were at risk of twisting courtroom evidence and framing it within their own contexts. This threatened to displace the function of the jury and served as a critical point between the law and the emerging specialties and technologies of cognitive science.  According to Eigen (2003, p.6), there was an increasing judicial anxiety about insanity acquittals because of the growing diagnoses of different derangements that came before the courts explaining a person’s lack of accountability and moral agency. This is much like the contemporary dilemma with the use of new neuro-technologies and techniques that confront the law today in making assessments about people’s responsibility.  The question that arises is how much neuroscience should be included in the tools of the law for the aims of justice to be achieved.

Greene and Cohen (2004, p.1775) argue that neuroscience’s transformative effect on the law will come about by changing people’s understanding of the notion of ‘free will’. Free will is a problem because of our modern concept of the physical universe. They quote ( p.1777) Peter van Inwagen: “Determinism is true if the world is such that its current state is completely determined by i) the laws of physics, and ii) past states of the world. Therefore, if all is predetermined by physics then the idea of free will is an illusion.  However, although most philosophers and legal theorists accept determinism, many also find it compatible with free will. According to Greene and Cohen ( p.1777), compatibilists claim that free will is a persistent notion that is undeniable and that it is up to science to establish how it works. Greene and Cohen (p.1778) state that the standard legal account of punishment is compatibilist in order to allow for retribution. For Greene and Cohen (p.1779), neuroscience will not change the law because the law assumes a level of minimal rationality for people’s behaviour, rather than notions of free will. They go on to state that if neuroscience supports minimal rationality then there is no reason to think that it poses a threat to the determination of criminal responsibility (p.1779). Although new syndromes are announced as an excuse for criminal behaviour they will only have validity if they undermine one’s rationality in a significant way. Greene and Cohen (p. 1780) argue that neuroscience can be helpful in this way through being able to correlate behaviour with rationality and also helping people understand the mechanical nature of human action. Neuroscience promises to show the ‘when’, ‘where’ and ‘how’ of the mechanical process to be able to assess if someone truly deserves to be punished or if they are just a victim of their neuronal circumstances (p.1780). However, this type of technology may have profound impacts upon the ethical concepts that humans have formed over time in their societies, especially ones that pertain to the autonomy of the individual.

Philosophical and ethical thinking can help to align the law with the sciences through providing the tools with which to develop theories of responsibility and also assessing the ethics of new technologies (Tovino, 2007). Through the use of such studies, legislative, regulatory and judicial bodies can correlate legal processes with technological processes in an ethical manner, in particular when functional magnetic resonance imaging (fMRI) is combined with philosophical ethics (2007, p.44). This technology localizes changes in blood oxygenation in the brain and is used in neuroscience to map sensory, motor and cognitive function, and also physical and mental health conditions, behaviours and characteristics (p.44). The legal issues of fMRI extend beyond patient-physician relationships to confidentiality, privacy and research ethics (p.44).

Some have referred to fMRI as being too reliant upon interpretation to be reliable as evidence (Bizzi et al., 2009). As is noted by Tovino (2007, p.47), ‘Sometimes the difference between seeing higher activity in the parietal lobe compared to the occipital lobe is akin to deciding whether Van Gogh or Matisse is the more colourful artist’.  Tovino (p. 47) also includes a quote from Donaldson: ‘What constitutes a “significantly greater” activation is in a way in the eye of the beholder’. With commercial fMRI companies claiming up to 99% infallibility and areas of use to include risk reduction in dating, insurance verification and employee screening, privacy and confidentiality also become issues, especially if these claims are misleading (p.47). Tovino (p.48) quotes Greely and the U.S. Committee on Science and Law in stating that advances in fMRI threaten ‘to invade the last inviolate area of “self” and have been coined as ‘neuroprivacy’ issues.  Therefore, the questions that Tovino poses are: Is it deceptive to say that an fMRI test is objective, fully automated and infallible? (p.47), and: Will future fMRI tests require heightened confidentiality and privacy protections? (p.48).

These are important questions because of expressions of rights of freedom constructed in international treaties. In Stacy v Georgia, the seminal ‘privacy of thought’ case, the U.S. Supreme Court stated that, ‘also fundamental is the right to be free, expect on very limited circumstances, from unwanted governmental intrusions into one’s privacy’ (Glenn, 2005, p.61). That Court also states in Lawrence v Texas: ‘Liberty presumes an autonomy of self that includes freedom of thought, expression and certain intimate conduct’ (2005, p.61). A fundamental principle of democracy is our accusatory system of criminal justice, which demands that the government in seeking to establish the guilt of an individual produce evidence against him/her by their own independent labours, rather than by compelling it from his/her own mouth (Miranda v Arizona, 1966 at 460) (Tovino, 2007, p.50).

However, some objections to fMRI being argued against on these self-incrimination grounds are that DNA, blood tests, mental examinations, urinalysis, fingerprints are all means of admissible evidence that are used in courts today, so why not fMRI (Tovino, 2007, p.51)? Some questions for counterarguments could be: Does this address the implications involved in seizing an individual’s ‘privacy of thought’? Is fMRI reliable and accurate in identifying or diagnosing physical and mental conditions, behaviours or characteristics? Are such tests as effective as DNA or blood and alcohol tests, or are there more effective methods of identifying target condition? Also, who would be the authority that could gather such data from a brain scan and what precautions and protocols should be followed (p.51)? Although neuro-imaging has been effective in showing courts the diminished responsibility of adolescents on death row (p.52), and discovering brain tumors that may affect responsibility (Burns, 2003, p.48), many lawyers still argue that data gathered from fMRI should not be legally admissible evidence (Tovino, 2007, p.53).

For some philosophers, the citation of neuro-technologies, such as fMRI, as evidence in law is problematic. Fine (2010, 281) states that the problem with advances in neurosciences is that ‘we still have minimal understanding of how neural structures contribute to complex psychological phenomena’. The complex nature of brain structure makes it difficult to attribute behavioural conditions or characteristics to it.  Statistics and data gathered from procedures that involve neuro-technologies may be inadequate or inappropriate (p.281), especially for making assumptions with which to convict someone. Too many assumptions are made about a structure that is extremely complex and massively interconnected to imply a psychological construct that leads to an individual’s imprisonment.

Fine (2010, p.281) contends that inferring a mental process from a significant oxygenation of a particular area of the brain is a reverse inference and fraught with too many difficulties to attribute specific brain functions to various brain regions. For Fine (p.281), the entire brain may not be involved in a particular function and ‘there is no one-to-one mapping between brain regions and psychological processes. Cognition arises through complex interaction of brain areas, with any single region being involved in a number of processes (p.281). This makes it ambiguous as to the amount of psychological implications that can be derived from the amount of activity in particular regions of the brain. Also data acquisition from fMRI is slow which limits psychological interpretations that can be inferred from brain events (p.282). Weisberg et al. (2008, p.20) states that neuroscience has an appeal that relies upon assumptions of infallibility which allows people to find circular explanations of psychological phenomena from information about brain responses acceptable. This is problematic in a courtroom where a judge or jury might accept such scientific evidence without further validation.

Deception detection is one of the areas hailed by those who use fMRI commercially as able to revolutionize testimony in court. However, there is some doubt as to the veracity of such claims. Kanwisher (2009, p.11) points to three exceptionally successful individual subject studies that have been conducted. These three studies analysed two sets of fMRI data that were used to distinguish lies form truth (p.11). However, according to Kanwisher (p.11) in two of the studies lies were not examined but target deception events. From the successful outcomes of these studies, with correct response rates of 90%, 76% and 89% respectively, it appears that classification and imaging methods are rapidly improving (p.11). However, Kanwisher (p.12) points out that this success rate may not be able to be reflected in the real world, and argues that lie detection within a laboratory environment is completely different to lie detection in the real world. Firstly, the subjects are making an instructed false response not a lie. Secondly, real life situations differ in that the stakes are much higher for the subjects. This could cause anxiety whether a subject was guilty or not (p.12). Also, a subject could be uncooperative and fMRI is useless if a subject moves at all (p.12). It would be impossible for such studies to even remotely mimic real life situations as they would need a subject population of defendants suspected of serious crimes. Also, the experimenter would need to know whether the subject was lying for verification of the test (p.12). Therefore it seems impossible to conduct studies to mimic real life situations for ethical and practical reasons.

As neuro-technologies become more advanced they could indeed show us, as Greene and Cohen assert, that our actions are predetermined. However, for an ordered society the law requires us to be responsible for our actions and for this it requires minimal rationality. Behavioural psychologists and psychiatrists are already able to assess people’s minimal, rational psychological states. Neuro-technologies, such as fMRI can also show physical disabilities within the brain. However, for the foreseeable future, to use fMRI  for such purposes as deception detection or to assess whether people have a tendency towards criminal behaviour is spurious. Therefore, neuroscience makes little difference to the law.

 

 

 

 

REFERENCES

 

  1. Eigen, J.P., (2003) Unconscious crime: Mental absence and criminal responsibility in Victorian London, John Hopkins University Press, Maryland
  2. Green and Cohen, (2004), For the law, neuroscience changes nothing and everything, Princeton University, Princeton
  3. Tovino, S. A., (2007), “Functional neuroimaging and the law: Trends and directions for future scholarship”, American Journal of Bioethics , 7:9 , 2007 , pp.44-56
  4. Glenn, L. M. (2005), Keeping an open mind: What legal safeguards are needed? American Journal of Bioethics 5(2), p.60-61
  5. Burns, Jeffrey M; Swerdlow, Russell H. (2003), “Right orbitofrontal tumor with pedophilia symptom and constructional apraxia sign” Archives of Neurology , 60:3 , 2003 , 437-440
  6. Fine, C. (2010) “From scanner to sound bite: Issues in interpreting and reporting sex differences in the brain” Current Directions in Psychological Science , 19:5 , 2010 , 280-283
  7. Weisberg, D.S., Keil, F.C., Goodstein, J., Rawson, E., & Gray, J.R. (2008), “The seductive allure of neuroscience explanations” Journal of Cognitive Neuroscience, 20, 470–477.
  8. Kanwisher, N.  (2009), “The Use of fMRI in Lie Detection: What Has Been Shown and What Has Not”, Bizzi et al., 2009, Using Imaging to Detect Deceit: Scientific and Ethical Questions, American Academy of Arts and Sciences, Cambridge MA

Global protest has been prominent since the late 1990s. It is a reaction to dominant forces of multinational corporations undermining democratically elected governments, and the people’s own identity through citizenship, across the globe. For a few years these protests were quelled because of the threat of terrorism. However, since the new global financial crisis that began in 2008 which evidenced the complete and utter disregard that these corporations, citing their status as natural persons, have had for the real occupants of the world, new protest movements are burgeoning everywhere. It is imperative that we contemplate the vastness and autonomy of these corporations and perceive how global governance must be consolidated to be able to harness such forces for the peace and security of all. Therefore, a global social contract must be established.

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Monoprints by Janet Elizabeth Thomas (2010)

 

 

 

 

 

 

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‘If only thou couldst feel as I do, and couldst get thee power of speech’

                                                                   (Od. 9.455-58)[1]

An important feature of the relationship between humans and animals since the early Neolithic age is one of reciprocity. In this line from Odysseus, Homer draws our attention to the close symbiotic relationship between a shepherd and his flock. The shepherd provides protection and the sheep provide sustenance and companionship in his lonely life[2]. However, Hesiod stated that it is the notion of justice that holds us apart from animals, with justice demanding that we do not prey on our own kind[3]. Lonsdale notes that Xenophon went further and argued that man is different because of his capacity to speak and reason, and also in his deep religiosity[4]. Yet, while the Greeks were deeply anthropocentric, the Egyptians did not have such a notion of division between human and animal. Humans were not considered superior and animals were considered the vehicle of earthly representation of the gods[5]. To consider ancient notions of the important attributes differentiating human and non-human it is necessary to review the literature left by ancient writers. These writers tend to relegate these attributes into three distinct types: rationality, intelligence and language, and argue for difference or deny it. The ancient argument that is most valid is the one propounded by writers such as Alexander, Plutarch and Porphyry and denies the superiority of humans, as it takes into account what we may not understand.

The first criterion that many ancient writers cite is the lack of rationality found in animals. In the 5th century BCE Alcamaeon of Croton wrote that humans have xunesis, an understanding which is the basis for rational thought. This allows language to develop which assists cultural maturity. He argues that animals do not have this facility and only have perception, or aesthesis, which humans have also[6]. Plato also states that the difference between humans and animals is human rationality and goes on to say that humans who do not use rational thought are no better than beasts[7]. Aristotle also denies animals reason but concedes that they have phronesis which is the knowledge needed to cope with their environment[8]. For Aristotle, humans live by skill and reason, whereas animals live by experience made up of impressions and memories[9]. In his protestation against his nephew Alexander’s assertion of the rationality of animals, Philo of Alexandria declares that, while animals might exhibit courage, only man has the understanding that enables him to form laws and governments, and to worship God[10]. Such a determination was later reflected even more vehemently by Augustine who stated that humans were made in God’s image and that animals were for their use. For Augustine, the commandment “Thou shalt not kill” only referred to humans[11].

Other writers, such as Alexander, claimed that animals were very much like humans. Alexander said that there were two types of reason: logos endiathelos (reason within the mind) and logos proporikos (uttered reason), and that animals had both. Alexander used the ability of different animals to construct complex dwellings, especially some birds and bees, to prove reason in animals, and also contended that the deliberation of a dog in following its prey is proof of reason[12]. Plutarch and Porphyry also used such an argument, but Plutarch added that good rational thinking was not apparent in many humans and only came about through much education. He argued that because animals chose between useful and harmful and exhibited fear, hope and desire this proved their rationality[13]. Porphyry extended this further by stating that justice should be awarded to animals because both humans and non-humans are endowed with reason and practise justice[14]. However, Diogenes Laertius contended that the practice of reasoned thought in humans, especially after the fourteenth year, showed that humans have a governing principle, or hegemonikon[15], that allows one to express meaningful language and is considered to be the foundation of intelligence.

Intelligence is the second criterion that ancient writers advance when they assert the superiority of humans over animals. For Aristotle, man is deliberative in that he has intentionality; only man has the ability of recollection and reason which differentiates him intellectually from animals[16]. Philo thought that pleasure and self-preservation were the prime motivating factors of animals and that they did not need intelligence for these[17]. The Stoics stated that humans have no intellectual kinship with animals as they are irrational, and for this reason humans owe them no obligation of justice[18]. There are other ancient writers who disagreed with this view. Alexander asserted that animals do have a sovereign mind[19], while Plutarch contended that the cleverness and intellect animals use for their survival ought to be enough for us to treat them respectfully[20]. Plutarch also believed that humans shared kinship, or oikeinsois, through manner or lifestyle[21]. Lonsdale writes that Aristotle’s follower, Theophrastus, argued that animal sacrifice was wrong because humans and animals shared an intellectual kinship[22]. Further, Cicero thought that while humans were superior in that they had higher intentions, such as the pursuit of comfort, industry and sympathy for others, he conceded that some animals have such higher intentions and some intellect[23].

Higher intentions and intellect could be prerequisites for engaging in contractual behaviour, a foundation of justice. Epicurus stated that, as animals do not have the capacity for language, they do not have the capacity for forming tacit contractual agreements with an intention to respect one another’s interests[24]. Language is the third criterion for the moral status of animals. For Xenophon, humans were superior to animals both intellectually and physically, and this was manifested in the human capacity for articulate language[25]. This view was also reflected by Diogenes Laertius, who stated that the lack of intelligible language in animals proved their inferiority[26]. While Aristotle thought that animals did communicate through language, he countered that it was not based in semantics and therefore inferior to humans[27]. Philo took this argument further, stating that animal utterances are as meaningless as musical notes[28]. However, Lucretius argues that humans and non-humans do engage in tacit contractual agreements. This is illustrated by the guardianship of humans to animals and the return of services and products by animals, and does not require the understanding of languages for it to be beneficial to both parties[29]. Plutarch and Porphyry also argue that humans lack the capacity to understand the language of animals not that animal language has no meaning[30]; as the modern philosopher, Wittgenstein, stated: “If a lion could talk we would not understand him”[31].

Most of the arguments above that deny non-humans the capacity of reason, intelligence and communication result in the denial to animals of any moral obligation. The Stoic, Chrysippus, puts this argument as such: humans and non-humans have three things on common: senses, utterance and reproduction. Humans can also reason, whereas animals are only motivated by impulse. Therefore, humans need not consider the interests of animals[32]. As Aristotle stated, slavery is a natural phenomenon because it is natural for one human to rule over another and as animals are intended for human use it is natural for humans to rule over animals[33]. This denial of interest to animals culminated in Augustine’s use of Aristotle’s and the Stoics’ arguments to defend the use of animals to benefit human lives on the grounds that God gave humans animals in order to help them to salvation[34]. To attribute reason to animals was tantamount to denying Christian notions of humans being fit for the divine recreation of God[35]. The Egyptian practice of animals representing the gods on earth was sacrilegious to Christian sensibilities. Therefore, animals became ‘the other’ and the primacy of humans became paramount.

Rather than a symbiotic and reciprocal relationship based upon the interests of both humans and non-humans, this reliance on a criteria of reason, intelligence and language to assert an anthropocentric world view discounts and ignores all the ancient contentions that counter such a view. Porphyry, Plutarch and Alexander were right in using the many examples from their environment to show that other animals are very much like humans. They live in complex societies, they build complex dwellings, they make choices between good and bad, they exhibit hopes, fears and desires, and have autonomy. As Lucretius stated, humans and non-humans do engage in tacit contractual agreements when they breed animals for their products or services. However, these agreements can quickly degenerate into master/slave relationships when humans disregard the interests of animals. Also, just as some humans cannot understand the language of other humans from another society, so too it is with other animals. Therefore, arguments used by ancient writers to support the claim that animals are different to humans rely upon criteria that are not exclusive to human beings and have caused the suffering of animals for over two thousand years.

BIBLIOGRAPHY:

  1. Alcaemon of Croton, DK1a, Hermann Diels & Walther Kranz, eds, Die Fragmente der Vorsokratiker, 6th edn (Berlin: Weidmann, 1951-52)
  2. Aristotle, “Metaphysics”, from Newmyer, S.T., Animals in Greek and Roman Thought: A Sourcebook, (2011), Routledge Press
  3. Aristotle, “Parts of Animals”, from Pierre Louis, ed., Aristote; Les Parties des Animaux (Paris: Les Belles Lettres, 1956)
  4. Aristotle, “Politics”, Jean Aubonnet, ed., Aristote; Politique, Livres I et II (Paris: Les Belles Lettres, 1968)
  5. Augustine, “De civitate dei” [The City of God], from B. Dombart & A. Kalb, eds, Sancti Aurelii Augustini de Civitate Dei Libri I-X (Turnhout: Brepols, 1955 (Corpus Christianorum Series Latina 47)
  6. Beck, J., (2012), “Why we can’t say what animals think”, Philosophical Psychology, 2012, 1-27, Routledge Press
  7. Chryssipus, “SVF”, from Johannes von Arnim, ed. Stoicorum Veterum Fragmenta (Stuttgart; Teubner, 1964; reprint of the edition of 1905)
  8. Cicero, “De finibus bonorum et malorum” [On the Ends of Good and Evil], from Claudio Moreschini, ed., M.Tullius Cicero Scripta Quae Manserunt Omnia Fasc. 43: De Finibus Bonorum et  Malorum (Munich and Leipzig: Saur, 2005)
  9. Diogenes Laertius, “Lives of the Philosophers”, from H.S. Long, Diogenis Laertii Vitae Philosophum (Oxford: Clarendon Press, 1964)
  10. Epicurus, kuriai Doxai [Soveregn Maxims] XXXI and XXXII, as cited in Diogenes Laertius, Lives of the Philosophers X. 150 [from the life of Epicurus], from Newmyer, S.T., (2011), Animals in Greek and Roman Thought: A Sourcebook, Routledge Press
  11. Gilhus, Ingvild S. (2006) “The religious value of animals” in Animals, Gods and Humans: Changing Attitudes to Animals in Greek, Roman and Early Christian Ideas , Gilhus, Ingvild S. , 2006 , 93-113
  12. Hesiod, The Homeric Hymns and Homerica with an English Translation by Hugh G. Evelyn-White, Works and Days. Cambridge, MA.,Harvard University Press; London, William Heinemann Ltd, 1918
  13. Homer, The Odyssey with an English Translation by A.T. Murray, PH.D. in two volumes, Cambridge, MA., Harvard University Press; London, William Heinemann, Ltd. 1919
  14. Lonsdale, S.H., (1979), “Attitudes Towards Animals in Ancient Greece”, Greece and Rome, 2nd Ser., Vol.26, No.2, (Oct., 1979), 146-159
  15. Lucretius, “De rerum natura” [On the Nature of Things], from Joseph Martin, ed., T. Lucreti Cari de Rerum Natura Libri Sex (Leipzig: Teubner, 1963)
  16. Newmyer, S.T., (2011), Animals in Greek and Roman Thought: A Sourcebook, Routledge Press
  17. Philo of Alexandria, “On Animals”, from Newmyer, S.T., Animals in Greek and Roman Thought: A Sourcebook, (2011), Routledge Press
  18. Plato, “Laws”, Burnet, J., ed., Platonis Opera (Oxford: Clarendon Press, 1901-1902; rept. 1962-1967)
  19. Plutarch, “De esu cranium” [On the Eating of Flesh), from Newmyer, S.T., (2011), Animals in Greek and Roman Thought: A Sourcebook, Routledge PressPlutarch, “On the Cleverness of Animals”, from Newmyer, S.T., Animals in Greek and Roman Thought: A Sourcebook, (2011), Routledge Press
  20. Plutarch, “De Stoicurum repugnantis” [On the Self-Contradictions of the Stoics], from Michel Casevitz & Daniel Babut, eds, Plutarque: Ouvres Morales XV (Sur les Contradictions Stoiciennes, etc.) (Paris: Les Belles Lettres, 2004)
  21. Porphyry, “On Abstinence from Animal Flesh”, from Jean Bouffartigue, Michele Patillon, Alain Segond and Luc Brisson, eds, Porphyre; De l’Abstinence (Paris: Les Belle Lettres, 1977-1995)
  22. Wittgenstein, L., (1973), Philosophical Investigations, Oxford: Blackwell
  23. Xenophon, “Memorabilia” [Recollections of Socrates], from E.C. Marchant, ed., Xenophontis Opera Omnia (Oxford: Clarendon Press, 1967)

[1] Homer, The Odyssey with an English Translation by A.T. Murray, PH.D. in two volumes, Cambridge, MA., Harvard University Press; London, William Heinemann, Ltd. 1919

[2] Lonsdale, S.H., (1979), “Attitudes Towards Animals in Ancient Greece”, Greece and Rome, 2nd Ser., Vol.26, No.2, (Oct., 1979), 149

[3] Hesiod, The Homeric Hymns and Homerica with an English Translation by Hugh G. Evelyn-White, Works and Days. Cambridge, MA.,Harvard University Press; London, William Heinemann Ltd, 1914

[4] Lonsdale, Attitudes Towards Animals in Ancient Greece, Greece and Rome, (1979), 156

[5] Gilhus, Ingvild S. (2006) “The religious value of animals” in Animals, Gods and Humans: Changing Attitudes to Animals in Greek, Roman and Early Christian Ideas , Gilhus, Ingvild S. , 2006 , 99

[6] Alcaemon of Croton, (DK1a)

[7] Plato, Laws, 766a

[8] Aristotle, Politics 1332b3-8

[9] Aristotle, Metaphysics, 980a28-981a4

[10] Philo of Alexandria, On Animals, 85

[11] Augustine, De civitate dei [The City of God] , 1.20

[12] Philo of Alexandria, On Animals, 17; 45

[13] Plutarch, On the Cleverness of Animals, 960D-E

[14] Porphyry, On Abstinence from Animal Flesh III. 13.1-3

[15] Diogenes Laertius, Lives of the Philosophers VII.55 [from the life of Zeno the Stoic]

[16] Aristotle, History of Animals, 488a20-26;588a16-18-588b3

[17] Philo of Alexandria, On Animals 44

[18] Newmyer, S.T., (2011), Animals in Greek and Roman Thought: A Sourcebook, Routledge Press, 28

[19] Philo of Alexandria, On Animals 29

[20] Plutarch, On the Cleverness of Animals, 960D-E

[21] Plutarch, De Stoicurum repugnantis [On the Self-Contradictions of the Stoics] 1038B

[22] Newmyer, (2011), Animals in Greek and Roman Thought: A Sourcebook, 28

[23] Cicero, De finibus bonorum et malorum [On the Ends of Good and Evil] II. 109-110

[24] Epicurus, kuriai Doxai [Soveregn Maxims] XXXI and XXXII, as cited in Diogenes Laertius, Lives of the Philosophers X. 150 [from the life of Epicurus]

[25] Xenophon, Memorabilia [Recollections of Socrates] 1.4.11-14

[26] Diogenes Laertius, Lives of the Philosophers VII.55

[27] Aristotle, Parts of Animals 660a35-660b2

[28] Philo of Alexandria, On Animals, 98

[29] Lucretius, De rerum natura [On the Nature of Things] V. 855-877

[30] Plutarch, De esu carnium [On the Eating of Flesh] 994E; Porphyry, On Abstinence from Animal Flesh III.2-4

[31] Wittgenstein, L., (1973),Philosophical Investigations,  Oxford: Blackwell, XXxi

[32] Chryssipus, SVF 2.821

[33] Aristotle, Politics 1256b15-23

[34] Augustine, De civitate dei, 1.20

[35] Gilhus, (2006) “The religious value of animals” in Animals, Gods and Humans: Changing Attitudes to Animals in Greek, Roman and Early Christian Ideas, 99

Nicholas Georgouras, 2005, Carrara marble, 250cm x 100cm

“We do not inherit the earth from our ancestors, we borrow it from our children.”

Native American proverb

Sorrell and Hendry define a narrow code of ethics within business as that which is restrained only to its employees or shareholders[1]. A broad code of ethics is that which includes responsibilities to the wider community and environment[2]. Although most codes of ethics define responsibilities to communities, some businesses find that their particular responsibilities to the pursuit of profit for shareholders constrain and conflict with these policy objectives[3]. However, businesses operate in and rely upon the communities where they are situated. The people within these communities expect to be treated equally and fairly by governments and businesses. This essay will argue that a broad code of ethics is needed in the application of inclusive principles, such as the concepts of equal opportunity and affirmative action, and that such inclusive principles can benefit the businesses that apply them.

The expectations and ideals of equality do not reflect the real differences between peoples’ physical and psychological abilities. When these types of real inequalities are transferred to a business environment so that it can reflect political equality, these issues can become problematic[4]. A narrow ethical objection could be: Why is it the responsibility of business to compensate individuals for these real inequalities? To consider these responsibilities, it is useful to consider the laws that are in place and how they are enacted.

The anti-discrimination laws, such as the Anti-Discrimination Act 1977 (NSW), legislate that all employers must fairly treat their employees and potential jobseekers[5]. As such, they reflect the impartiality of the law and appeal to normative ethical approaches of equality and fairness. All employees are entitled to equal opportunities and employers must not allow prejudices or stereotyped views to influence their decisions about hiring or treating people that they employ[6]. The only reason that an employer can legally justify an action of discrimination is if it would cause unjustifiable hardship to them[7]. This type of legislation recognizes the equality of people but also preserves fairness to business.

This legislation means that businesses must operate with a broad code of ethics when it comes to dealing with equal opportunity. These policies began to be enacted in the 1980s as a response to the disadvantages women suffered in the workforce[8], and were extended and implemented by the human resources department of some organisations as a program entitled Managing Diversity (MD)[9]. The main concept of an MD program is to increase competitive advantage through being able to access a diverse workforce. This is supposed to meet employee needs, reduce turnover costs and give the best customer service[10]. At the same time, governments have relaxed the legislative requirements and penalties for breaches[11] and affirmative action legislation has been negated to a certain degree[12].

The use of MD programs has become an answer for corporations subject to equal opportunity requirements. It is seen to broaden the ethical requirements rather than restricting them to the narrow environment of legislated affirmative action[13]. MD programs are also considered to focus upon the positive aspects of diversity rather than the negative aspects of disadvantage[14]: ‘“Managing diversity- the new paradigm” is internally driven, rests on a business case and perceives MD as an investment and difference is perceived as an asset’[15]. Therefore, it seems that business has broadened the scope of the ethics involved in equal opportunity and lobbied to narrow the legislative requirements that were brought about to give access to work for the disadvantaged. Has this broadening of the ethical scope resulted in better access for those who potentially benefit from equal opportunity legislation?

It has been alleged that many companies, such as Microsoft and Coca Cola, simply pay lip service to their espoused equal opportunity policies, with suspicions that policies are a process in image management and are not enshrined in practice[16]. In Britain, while Equal Opportunity (EO) policies have been adopted by many companies, only a quarter of companies surveyed arranged to consult disabled employees, and only half allowed time off for rehabilitation and treatment[17]. It is asserted by Jewson et al.[18] that the four reasons that companies adopt EO policies are:

  1. 1.      as an ‘insurance policy’ against future claims against their reputation;
  2. 2.      to demonstrate employer responsibility;
  3. 3.      as a response to problems created by community pressure; and
  4. 4.      to access a wider talent base or to expand the customer client base.

It is the final reason, that of accessing an expanded base of talent and customers, that should be considered the most important reason for a company to properly attend to equal opportunity policies. It is simply good business.

While EO legislation allows for a company to object to employing someone if it would cause them unjustified hardship, not employing people on the basis of gender, reproductive capability, ethnic origin, disability or age is also unjustified. It denies those effected access to life’s opportunities. Objections to EO policies on the grounds that they do not address primary societal differences in housing and education[19] fail to recognise that having work helps to relieve people from the trap of poverty and allows them access to quality housing and education.

The broadening of the ethics of business to include EO policies is in line with many other policy implementations that have occurred throughout the last century. Businesses have to deal with wage issues that reflect true living costs and conditions that enable workers to be able to have enough security to be a secure workforce. These issues are regulated and are beneficial to businesses because they ensure access to a reliable workforce. Health and safety regulations are also issues that businesses now have to deal with and they benefit through not having to pay for lengthy court cases and compensation claims that can occur after the event. This is similar to anti-discrimination regulations. These regulations give businesses access to a diverse workforce that truly represents the societies in which these businesses operate.

The concept of using a MD program has the advantages for businesses and the community of being internally-driven policy that can be linked to organisational objectives, and being less restrictive than an external EO agenda that demands a set of minimal targets[20]. The main concept of EO policies is that they use a white, heterosexual male as the norm and try to fit other groups into this, whereas MD is about diversity and expects that the mainstream will be a diverse group[21]. It responds to objections to EO policies, being reverse discrimination towards white males[22], by highlighting demographic difference. In this way, MD is able to be sensitive to labour needs and clientele differences which can improve productivity, employee commitment and profitability[23].

A broad ethical approach by any business to concepts of equal opportunity and affirmative action are based upon good reason. These concepts reflect the principles of equality and fairness in our society. They also reflect good business judgments about acting within the self-interest of a company and its shareholders, in that they broaden the scope of access to employees and customers. Finally they reflect the intuitive and universal Kantian concept of acting towards others as you would have them act towards you. It must be remembered that all of us can be affected, broadly or narrowly, by such inequalities as gender difference, ethnicity, disability or age.

BIBLIOGRAPHY

  1. De Cieri, H. and R. Kramar, 2003, Human Resource Management in Australia, McGraw Hill, Sydney
  2. Gaze, B. 1998, “The Ambiguity of Affirmative Action in Australia”, in Law in Context, (1998), vol. 15 no. 2
  3. Grace, D. & Cohen, S. 1995, “Ethical reasoning in business” in Business Ethics , Grace, Damian; Cohen, Stephen, 1995, pp.1-51
  4. Hettinger E.C. 2001, ‘What is Wrong with Reverse Discrimination?’ in W. Michael Hoffman, Robert E. Frederick & Mark Schwartz (eds.) Business Ethics: Readings and Cases in Corporate Morality, 4th edition (McGraw-Hill, New York, 2001), pp. 315-322
  5. Hoque, K. & Noon, M. 2004, “Equal Opportunities Policy and Practice in Britain: Evaluating the ‘Empty Shell’ Hypothesis”, in Work, Employment & Society,British Sociological Association, September 2004, vol. 18 no. 3, pp. 481-506
  6. Jewson, N., Waters, S. and Harvey, J. 1990, “Ethnic Minorities and Employment Practice: A Study of Six Employers”, Research Paper No. 76, Sheffield: Employment Department
  7. Jewson, N., Mason, D., Lambkin, C. and Taylor, F.,1992,  “Ethnic Monitoring Policy and Practice: A Study of Employers’ Experiences”, Research Paper No.89, London: Department of  Employment
  8. Jewson, N., Mason, D., Drewett, A. and Rossiter, W., 1995, “Formal Equal Opportunities Policies and Employment Best Practice”, Employment Department Research Series No. 69, Sheffield: Employment Department
  9. Pojman, Louis P. “The modern workplace: transition to equality and diversity: The moral status of affirmative action” in Business Ethics: Readings and Cases in Corporate Morality , Hoffman, W. Michael; Frederick, Robert E.; Schwartz, Mark S. , 2001 , 303-315
  10. Sorell, T. & Hendry, J. 1994, “Narrow and broad business ethics” in Business Ethics , Sorell, Tom; Hendry, John , 1994 , pp. 28-54
  11. Strachan, G., Burgess, J. & Sullivan, A. 2003,  Affirmative Action or Managing Diversity- What is the future of Equal Opportunity Policies in Organisations? Faculty of Business and Law, University of Newcastle, NSW
  12. The Anti-Discrimination Board, “Discrimination and the Anti-Discrimination Board of NSW”, ADB factsheet, viewed on: 30 July 2012 http://www.lawlink.nsw.gov.au/lawlink/adb/ll_adb.nsf/vwFiles/Disc_ADB_0311.pdf/$file/Disc_ADB_0311.pdf


                [1] Sorrell & Hendry, 1994, “Narrow and broad business ethics” in Business Ethics, Sorrell, Tom; Hendry, John,1994, p.28

                [2] Sorrell & Hendry, 1994, p.28

                [3] Sorrell & Hendry, 1994, p.28

[4] Grace & Cohen, 1995, p.144

[5] The Anti-Discrimination Board, “Discrimination and the Anti-Discrimination Board of NSW”, ADB factsheet, p.1, viewed on: 30 July 2012 http://www.lawlink.nsw.gov.au/lawlink/adb/ll_adb.nsf/vwFiles/Disc_ADB_0311.pdf/$file/Disc_ADB_0311.pdf

[6] The Anti-Discrimination Board, 2012, p.1

[7] The Anti-Discrimination Board, 2012, p.2

[8] Strachan, G., Burgess, J. & Sullivan, A. 2003,  Affirmative Action or Managing Diversity- What is the future of Equal Opportunity Policies in Organisations? Faculty of Business and Law, University of Newcastle, NSW, p.1

[9] Strachan et al. 2003, p. 1

                [10] De Cieri, H. and R. Kramar, 2003, Human Resource Management in Australia, McGraw Hill, Sydney, pp. 28-29

                [11] Strachan et al. 2003, p. 3-4

                [12] Strachan et al. 2003, p. 5

                [13] Strachan et al. 2003, p. 5

                [14] Strachan et al. 2003, p. 5

                [15] Strachan et al. 2003, p. 6

[16] Hoque, K. & Noon, M. 2004, “Equal Opportunities Policy and Practice in Britain: Evaluating the ‘Empty Shell’ Hypothesis”, in Work, Employment & Society,British Sociological Association, pp.481-482

[17] Hoque & Noon, 2004, p. 483

 [18] Jewson, N., Waters, S. and Harvey, J. 1990, “Ethnic Minorities and Employment Practice: A Study of Six Employers”, Research Paper No. 76, Sheffield: Employment Department; Jewson, N., Mason, D., Lambkin, C. and Taylor, F.,1992,  “Ethnic Monitoring Policy and Practice: A Study of Employers’ Experiences”, Research Paper No.89, London: Department of  Employment; Jewson, N., Mason, D., Drewett, A. and Rossiter, W., 1995, “Formal Equal Opportunities Policies and Employment Best Practice”, Employment Department Research Series No. 69, Sheffield: Employment Department

[19] Pojman, Louis P. “The modern workplace: transition to equality and diversity: The moral status of affirmative action” in Business Ethics: Readings and Cases in Corporate Morality , Hoffman, W. Michael; Frederick, Robert E.; Schwartz, Mark S. , 2001 , p.314

[20] Strachan et al., 2003, p.6

[21] Strachan et al., 2003, p.6

[22] Hettinger, E.C., 2001, ‘What is Wrong with Reverse Discrimination?’ in W. Michael Hoffman, Robert E. Frederick & Mark Schwartz (eds.) Business Ethics: Readings and Cases in Corporate Morality, 4th edition, pp. 315-322

[23] Strachan et al., 2003, p.6