About Rationally Speaking

Rationally Speaking is a blog maintained by Prof. Massimo Pigliucci, a philosopher at the City University of New York. The blog reflects the Enlightenment figure Marquis de Condorcet's idea of what a public intellectual (yes, we know, that's such a bad word) ought to be: someone who devotes himself to "the tracking down of prejudices in the hiding places where priests, the schools, the government, and all long-established institutions had gathered and protected them." You're welcome. Please notice that the contents of this blog can be reprinted under the standard Creative Commons license.

Thursday, December 09, 2010

When the Unethical Becomes the Unlawful

By Michael De Dora
In a recent essay here, our good friend Massimo wrote that:
“… plagiarism and cheating happen for a variety of reasons, one of which is the existence of people like Mr. [Ed] Dante and his company, who set up a business that is clearly unethical and should be illegal.”
The argument was that we as a society should not just admonish ethically but, through law, punish a man (Ed Dante, a pseudonym) who tries to, or does, sell papers to students. But why?
Now, it seems obvious to me that our ethical convictions (think: moral and ethical beliefs, values, and principles) do influence the law. These convictions — about right and wrong, good and bad, justice, virtue, happiness, and human flourishing — concern the sort of society we would like to see realized. Since laws help to secure a certain model of society, ethics will naturally inform, if not determine, the sort of laws we want. There is nothing particularly strange about this. The challenge is to get it right. Yet it also seems obvious that not everything that is unethical should be unlawful (and, of course, not everything that is unlawful is really unethical). So what makes Massimo’s case for plagiarism being both unethical and worth making illegal?
To weigh that question, we need to consider a few different cases where ethics and law influence each other in varying degrees. We regard the killing of an innocent person as unethical, and accordingly murder is against the law. Abortion opponents find abortion to be unethical, and as such, push to ban the procedure in law. On the other hand, it is generally considered unethical to have sex, or carry on a relationship with another man or woman while being in a committed monogamous relationship with your spouse, girlfriend or boyfriend. Yet, rarely do people argue that it should be unlawful as well (it used to be that way, though!). And vegans and vegetarians regard eating meat as unethical, but only a minority argue that we ought to ban eating meat.
What makes the difference in these cases? I think the answer rests mainly in two notions. The first is pragmatism: is it practical to encode a given ethical conviction into law? That is, can we actually pass this law and then enforce it? The second is the potential for real harm. How much harm has this caused or might cause? As we will see, however, harm alone — regardless of practical considerations — can be cause for action.
Let us return to the cases above, and then Massimo’s argument. Murder: it is practical to both have and enforce laws against murder, and either way, murder surely causes great harm to society. Abortion: it is rather unpractical to think we can ban abortion in the U.S. (though restrictions are another matter). But that’s less important, considering that for opponents, the perceived harm caused is so great that they must try to do what they can. Cheating: I don’t see how we could really pass and effectively enforce, bans against cheating on your boyfriend or girlfriend. And while unethical, the act causes limited harm to a select few people. So, no laws. Vegans, vegetarians and meat: again, it seems unrealistic to think we could ban meat taking into account its widespread consumption, or that the government could really enforce this. Most vegans and vegetarians believe we would be better off focusing on process (making meat production more humane) than on the act itself (banning meat eating). Furthermore, the harm caused — while worthy of action — probably pales in comparison to the harm caused in the human world daily. The point here is that not everything is equally unethical in the sense of harm. Some unethical beliefs and/or actions cause more harm, some less, and this matters insofar as we turn our ethics into law.
Now we return to Massimo’s example. I see no reason we could not feasibly outlaw selling papers for the specific purpose of plagiarism, nor why the law could not be enforced. Perhaps more importantly, as we have seen, plagiarism can cause real societal harm, as Massimo outlines in great detail. If people easily fake their way to college degrees, they would succeed when they should not, thus cheating the system; college degrees would become much less trustworthy; massive amounts of money and human effort would be wasted; and more.
In summary, my argument is that the transition from unethical to unlawful is based both on the practical aspects of the situation, and on the potential harm being caused. But I should note that these two notions could be trumped by other ethical convictions. Consider some libertarians, or even Democrats, who deem abortion unethical, but do not want to see abortions banned by law, because they value the principle of freedom (or liberty) of individual action. However, I think considering freedom above potential murder here should make us wonder in what sense such a person really opposes abortion. Regardless, these people are not denying the general link between ethics and law, nor are they rejecting considerations of practicality and harm (they’d likely still try to limit abortions through non law-regulated avenues, such as “counsel for life”). It’s just that when it comes to translating ethics into law, we value a range of principles that make for a more nuanced and complex transition.


  1. "Most vegans and vegetarians believe we would be better off focusing on process (making meat production more humane) than on the act itself (banning meat eating)".
    This is a bit confused: vegans (at least) can only be so called if they believe that animals have a right not to be treated as property and killed or exploited for human ends, so they are against merely fiddling with processes ("padding the waterboard")and wish to abolish animal exploitation altogether. Those who wish to alter the processes of exploitation to make it more "humane" cannot refer to themselves as vegans, so this doesn't really make for a good example.

  2. Michael, your two criteria sound reasonable to me.

    The second one ("potential harm") also sounds rather utilitarian/consequentialist, don't you think?

  3. @Cavali de Quer: It should be clear that there are many different definitions of the word "vegan" and that while there some commonalities to most vegans there is no strict limitation on who can or cannot call refer to themselves as "vegan".

    One may very rationally choose to not personally use animal products but who might still, as a matter of pragmatism, set out to ensure that laws governing the use of animals by others do so in as cruelty-free manner as is feasible.

    It would be an odd society if we required people to engage in an activity as a prerequisite for having an opinion abou it, after all.

  4. I don't suppose this post was influenced by Michael Sandel's opinion that moral reason is an unavoidable part of legal reasoning?

  5. Furthermore, the harm caused — while worthy of action — probably pales in comparison to the harm caused in the human world daily. The point here is that not everything is equally unethical in the sense of harm.

    So there is a cut-off below which unethical actions are okay, because other unethical actions are more harmful? I find that sort of spineless.

    Also, you mean to say that the harm that humans to do other humans every day is so much more harmful, and thus unethical, than the harm that humans cause other sentient species? Like pigs? There are one helluva lot of pigs in the world that are suffering intolerably at the hands of humans. As far as I am concerned, that animal cruelty is not unlawful is exclusively because I can't get everyone (or 51% of them) to agree.

  6. @Ian, where in the book is that? I got stuck for awhile due to some real-world work (CFI), and am just finishing the chapter on Kant now.

  7. @JCM,

    I wouldn't deny that sometimes in the moral reasoning process it is important to consider potential or actual harm to society. I just don't think it's the end-all, be-all of moral reasoning.

  8. @Cavall,

    My point was that I know vegans reject using non-human animals as means to an end, but that many realize the impracticality of pushing that view into law, so they move for lesser measures.

  9. @Bjorn,

    I wouldn't suggest a cut-off line. But I would propose that unethical actions are not all equally harmful, and that humans that that into account when deciding which actions to take.

  10. IN the case of abortion, the question should be, "Do you favor putting the womon who had the abortion in jail". You can find far more who will put the doctor in jail, but not the woman (I would argue that those who would put the woman in jail really believe abortion is murder and that it really should be illegal).

    Let us take the issue of this kind of plagiarism. I am sure that you would put Ed Dante in jail or fine him, but what about the students turning in the plagiarized papers? Are you really ready to send a student to jail over plagiarism? By all means, throw the student out of your class, or even out of the university -- lack of law does not mean lack of consequences -- but unless you are ready and willing to put students in jail over it, I don't believe you really want it to be illegal.

    Our laws on drugs are at least consistent here: the dealer and the buyer each get jail for possession. (Which is a separate issue from whether drugs should be illegal.)

    Here is my criteria for something being illegal: would you have the state kill the person over it? (A variation: would it be legitimate to kill the person to protect yourself and/or your property?) Murder? Yes. Rape? Yes. Robbery/Burglary/Theft? Yes. Buying and selling something you don't like? No.

    We sometimes forget how powerful social consequences are. But the culture has to "agree" that it's unethical. I think on many things like this, people will turn to government because they are too lazy to enforce things themselves, or get things enforced through social means.

  11. @Michael:
    Sorry, I forgot you were reading the book. I'm a busy student; I watched the lectures. :)

    I think it was in his last "Justice" lecture. I guess that wasn't the impetus then. Good article in any event!

  12. Determining if an unethical action should be prohibited by law involves the application of some rule which is essentially a deductive process. For example, according to libertatians, market liberals, etc., all actions that involve the initiation of the use of force or the threat of such force should be legally prohibited. Therefore, if x is an action that involves the initiation of the use of force or the threat of such force, then x should be legally prohibited.

  13. Michael, I agree that utilitarian/consequentialist reasoning is not the "end-all, be-all of moral reasoning", which is why I said back on that old thread that "a pluralistic theory of ethics seems more plausible to me."

    But didn't you label yourself a "virtue ethicist"? If so, then would you say that virtue ethics is the "end-all, be-all of moral reasoning"?

  14. @jcm,

    I did call myself that, didn't I. I guess that was a mistake. I do consider myself *mostly* a virtue ethicist, but I'd never say I'm 100 percent in any moral/ethical camp. Or does leaning hard one way make you part of that camp?

    I might tackle this in an upcoming post.

  15. @Troy, you wrote:

    "Here is my criteria for something being illegal: would you have the state kill the person over it?"

    I hope I'm misreading you, but anyway: do you really think the only things that ought to be illegal are those things worthy of capital punishment?

  16. Well, first, let me state clearly that I am against capital punishment -- so let's move on from there.

    What I mean by that is this: for what are you willing to send people with guns to force another to live in a cage under threat of death if they do not comply?

  17. Michael, I would appreciate it if you did address that topic in a future post.

    I personally find it difficult not to evaluate a moral rule or trait without consideration of the likely consequences of adherence to it. But then I'm no different than others, who demonstrate a "revulsion to manhandling an innocent person" (to quote Steven Pinker in reference to research surrounding the Trolley Problem), or who (more generally) disapprove of using others as a means to an end.

    I suppose that, if I were committed to one camp, I might try to rationalize these instincts in rule utilitarian terms (e.g. by arguing that respect for individual rights is a necessary rule for bringing about the greatest happiness for the greatest number). But I'm not big on orthodoxy.

  18. So, I've come across a third deciding notion that I clearly missed in this essay, and this one is surely not consequential in any way: rights.

    For example, consider the so-called Ground Zero mosque. Many Americans thought it was unethical for those behind the project to put up the building in that location. Yet most people did not want the government to stop the project. This decision -- to keep ethics from translating into law -- largely did not involve either practicality or harm. Instead, it had to do with the public's recognition of the inherent right of those behind the project to put up that building, as much as they might disagree (of course, one might argue it would not be practical to ban the construction, but that would only be because of the inherent right).

  19. Thought provoking post Michael - a nice addition to Massimo's article, and I though some extra analysis was needed. I have a bit of a long reply - if you'll hear me out :)

    From my POV, I think that individual freedoms should come first as a general principle - as the benefits to individuals and to society are so great - and then exceptions should be added to this where individual freedoms impose a significant cost on society and individuals.

    However, this needs to be assessed against both the costs imposed on society by banning an individual freedom, and the costs of NOT doing something.

    I think a 'pure' economic perspective provides some additional insights alongside your own (I'm a professional economics, and so I guess this is what I feel more confident in discussing). These do overlap with yours however.

    First would be so-called Externalities (or neighbourhood effects) - does an action impose a cost on others in society, to the extent that other things in society are under provided? (This is one way of defining it anyway, that is appropriate for this discussion).
    Addressing your examples:
    - I think murder is pretty obvious. The cost is probably immense.
    - Does the possibility of cheating reduce future relationships from developing? I would say hardly.
    - Does plagiarism reduce quality university education? I would agree with Massimo's assessment, yes, totally.

    However, these should also be considered against the possibility of a society 'self-regulating' against such things - without legislation or central planning (which has its own significant costs)

    So my second point comes from what might be called a Coasian perspective (after economist Ronald Coase). Coase argued that any free exchange between individuals should be assessed against the transaction cost of doing so. If the transaction costs are too high, to the point in which it doesnt occur - or results in an undesirable outcome - then there may be justification in intervening.

    With plagiarism, is the cost of the teacher investigating plagiarism - or creating assessment that is not prone to plagiarism - too high? That could be argued I suppose - but I don't really know. If it ISN'T too high, then I think a reasonable solution is for the teachers and school administrators to take on that roll.

    Because banning plagiarism in universities would be a costly exercise - not only ex-post enforcement of it, but ensuring that it encompassed the right people.

    So thats my 2 cents.

  20. Sure it is in the university's best interest to assess for plagiarism - if it is perceived that its students get away with plagiarism, or its students leave the university with poor knowledge - then it will hurt the university's funding over the long-run.
    Surely the teacher and/or university administration is also then in the best position to assess for plagiarism in its classes? If we make it illegal to plagiarize - or for people to provide a 'plagiarism service' - are other authorities going to be able to account for plagiarism any better?

    I just don't see how making it illegal will somehow solve the problem - as it does not take into account the natural incentive for universities to reduce plagiarism itself.


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