Es gibt keine Balance von Freiheit und Sicherheit. Wie wir trotzdem sicher leben (I)

Cross-posted bei andreaswolkenstein.net

Terroristische Anschläge lösen regelmäßig öffentliche Debatten über die richtige Balance von Freiheit und Sicherheit aus. Dabei ist dieses Bild falsch: Es gibt eine solche Balance nicht. Was uns nicht davon befreit zu fragen, wie Sicherheit hergestellt wird.

Verstärkte Staatsgewalt für “Einheit, Freiheit und Sicherheit”?
Die bisher bekannten Ermittlungsergebnissen zum Anschlag auf einen Weihnachtsmarkt im Dezember 2016 in Berlin lassen vermuten, dass es sich um einen Akt des Terrorismus handelt. Zwölf Menschen kamen dabei ums Leben. Der Terrorismus hat Deutschland damit endgültig erreicht, nachdem es früher im Jahr zwar bereits mehrere Attentate gegeben hat, diese aber weniger Menschenleben kosteten. Nun wird allerorts heftig debattiert, wie die richtige Balance von Sicherheit und Freiheit herzustellen sei. Manche, wie CSU-Generalsekretär Andreas Scheuer, meinen offenbar, dass die Balance doch sehr zu Lasten der Sicherheit geht und man deswegen “eine stärkere Staatsgewalt” brauche. Man müsse auch, so Scheuer, die Themen Zuwanderung und Sicherheit in Verbindung bringen. Es gehe dabei um die großen Themen “Einheit, Freiheit und Sicherheit”. Das Bundeskabinett hat kurz nach dem Anschlag ein Maßnahmenpaket verabschiedet, das unter anderem verstärkte Videoüberwachung, inklusive Bildauswertung (sog. Intelligente Videoüberwachung), Kennzeichenlesesysteme und am Körper getragene Kameras (Bodycams) für Polizisten fordert. Auch hier steht im Hintergrund wohl die Annahme, dass die Balance von Sicherheit und Freiheit ganz schön verrückt worden sei und eine Korrektur durch verstärkte Überwachungsmaßnahmen erforderlich ist. Eine Korrektur der in dieser Perspektive gestörten Balance ist dies jedenfalls dann, wenn man die vorgeschlagenen Maßnahmen als Eingriff in Freiheitsrechte ansieht. Die Debatte um den Maßnahmenkatalog, um die angemessene Reaktion auf das Attentat sowie um den Zusammenhang von Zuwanderung und Sicherheit hält jedenfalls an und wird nicht selten durch die Metapher der nötigen Balance von Freiheit und Sicherheit geprägt.

Doch wie ist es eigentlich um diese Metapher bestellt? Macht es überhaupt Sinn, von einer Balance von Freiheit und Sicherheit zu sprechen? Treffen die grundlegenden Eigenschaften einer Balance auf die Themen Freiheit und Sicherheit zu? Gleichermaßen stellt sich aber konkret die Frage, was im Angesicht des Terrors zu tun ist. Das ist natürlich keine neue Frage, und die politischen Antworten darauf sind mehr oder weniger bekannt. Aber das heißt ja nicht, dass es nicht noch neue oder gar bessere Vorschläge geben kann. In jedem Fall ist es wichtig, sich abseits von allgemeinen Fragen nach der richtigen Balance auch mit konkreten Handlungsoptionen zu beschäftigen, um heraus zu finden, wie man sich gegen terroristische Anschläge wappnen kann.
In diesem Beitrag werde ich mich zunächst der ersten Frage – ist “Balance” die richtige Metapher? – zuwenden, um im nächsten Beitrag dann ein paar Überlegungen zu geeigneten Prinzipien der Sicherheitspolitik anzustellen. Continue reading

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How not to talk to cultural conservatives. A reply to Sven Gerst

Over at his own blog, Sven Gerst has outlined some of his thoughts about current debates concerning the events that took place in Cologne on New Year’s Eve. Both national and international commentators have drawn a very pessimistic picture about the impact the events (will) have on German and European immigration policy in general as well as the future of Chancellor Angela Merkel in particular. Furthermore, as Sven observes, a dangerous discursive mode is taking over public discourses, a mode that is characterized by “violant outrage” (as opposed to “naive ignorance”, usually the other way Germans tend to deal with political questions, according to Sven). This trend can be seen particularly within social media, as Sven notes (and which I can absolutely agree with).

Sven takes issue with the idea that nations have a “right to cultural preservation”, which he takes to mean, in its reasonable form, a “right to cultural self-determination”. He rejects views that imply an entitlement to one’s culture as “outrageous and implausible” and focuses instead on this more modest claim. This claim is then rejected on the ground that culture and its (presumed) values are in fact not lived in our (Western) societies. The argument can roughly be summarized in the following way:

(1) cultural self-determination requires a commitment to “preserving activities”;
(2) preserving a liberal culture, understood as a public good (non-excludable and non-rivalrous), prohibits coercive institutions, and
(3) no non-coercive forms of cultural preservation can be found among members of current liberal cultures, so that
(4) the contents of the liberal culture alone do not justify closing the borders an preventing others to come in.

Thus formalized, the conclusion in (4) does not really flow from premises (1) to (3), so an additional premise is needed: (3*) only if there really is a culture that is defended and lived non-coercively is there a justification of closing borders in order to prevent a decline of that culture. Note also that Sven’s argument is a argumentative response to someone who has a conservative view and aims at closing borders on the basis of the cultural-preservation-argument. He makes this clear by directly addressing a conservative and accusing him of being a “free-rider”.

Although I absolutely agree with Sven’s conclusion about open borders, and I find his argument interesting and novel, I think some open questions and problems still remain. I will mention, without going too much into detail here, what I think are problems Sven would have to address if he wanted to fully convince me of his argument (not implying, of course, that he actually wants or needs to convince me). All this will set the scene for an outline of my own view – something I will deliver in another, near-future post.

First of all, I am not sure if the first premise is actually true, at least in the general form I present it here. Note that this premise is not spelled out directly, but Sven needs it for his argument about coercion and non-coercion as forms of preserving or determining culture to work. So why do I have doubts about the premise’s truth? Here’s one way to frame it: Cultural self-determination addresses autonomy in choosing values,  institutions and practices, but whether that is conservative or progressive is not thereby implied. Self-determination has a creative element to it, which incorporates a whole range of activities that one should be able to perform as a matter of the right to self-determination. Perhaps the problem begins when we follow Sven in interpreting the fundamental question (“is there a right to cultural preservation?”) as meaning “is there a right to cultural self-determination?”. I do not deny that self-determination includes preservation, but this is one part of it, not a different way of conceiving it. If that is true, there might be different ways of answering Sven’s fundamental question about self-preservation and the more modest question about cultural self-determination. Moreover, I have the impression that the relation between self-preservation and self-determination is the exact opposite of what Sven thinks it is: the more modest claim is about self-preservation, not about self-determination.*

Second, I find it interesting to take into question whether culture is actually a public good. This time, the premise is directly mentioned in Sven’s argument, but what about this: Culture is always a matter of subjectively living the values of that culture, a matter of individually creating it and giving life and meaning to it. Culture is thus always what an individual perceives as culture. Culture is individualistic and it can potentially include beliefs about what a culture is, without requiring that the content of these beliefs are realized. This means that there need not be any decline of what one thinks is a culture. All that counts is that people include certain beliefs in their minds for these beliefs to be part of a culture. If that is true, no public good-argument can or needs to be made. Sure, culture may involve more than one person sharing a given value, but this is not essential to culture, and it might not even be truly called culture, when what culture is, is completely determined by an individual’s view. Below I will elaborate further on this point.

However, what is more important is that I am not sure a liberal culture is opposed to coercive means to uphold itself. Personally I agree with this position, but I think in a conversation with cultural conservatives this begs the question. Cultural conservatives would disagree here and simply state that of course does a liberal culture allow for coercive means to uphold the liberal culture. Conservatives might argue that the overall amount of liberty or whatever value one cherishes is what counts, or that liberty is not as important as any other sort of cultural value, e.g. those that have historically shaped a given society. Again, I am not saying that this is true. But Sven argues directly with and against cultural conservatives, and such a conservative would flat-out deny premise (2).

The remaining argumentative strategy would be to say that closing borders is some form of authoritative, coercive act which is allowed, as conservatives say, or not allowed, as liberals say. The burden would lie on the question whether coercion is allowed, and should it not be allowed, closing borders is prohibited. But then the whole argument rests on the plausibility of this claim (which I think is plausible), and a whole new debate emerges.

In terms of premise (3) I think that this might be read as constituting a move from an individual perspective in premises (1) and (2), to a more collectivistic perspective in (3). For although there might be a decline in values such as musical art, democratic involvement or civic engagement (examples mentioned by Sven), this holds true only on the collective level, measurable by observation. It does not speak to a cultural conservative. For the conservative might join Sven in his observation – and might in fact regret it. The conservative would also point out that he himself is an example of a truly cultural human being. Whether that might be so or not is not the point. The point is rather that a cultural conservative might draw different conclusions from the collective-level observation of what Sven calls cultural free-riding.

Fourth, the conclusion Sven draws from these premises is correct – although not directly derivable from the premises. The idea is that there is not much ‘real’ culture going on in our societies, so that merely finding the culture good, or valuable, is not enough to say that no other culture should come in touch with it. Sure, but where does the question of “no other culture comes in” come in? As I said above, I think Sven needs an additional premise, spelling out a principle by which it is clarified when a right to cultural self-determination exists. The premise might state that one has a right to self-determination and thus a right to preserving one’s culture if one takes pains at living and defending it. However, this appears (a) to imply an implausible view about what a culture is (essentialist vs. subjective), and/or (b) to overstate what self-determination means (as opposed to self-preservation).
(a) As I have already noted, there seems to be a problem about what a culture is. Sven seems to think that culture involves a given set of behaviors, norms, institutions, and other elements that are prevalent among the members of a cultural group. These behaviors etc. need not be objective in the sense of pre-existing human society, but they are objective in the sense of being real. Humans come together being sincerely committed to behaviors etc. in action and thought. Authenticity might be the correct label for this view, and in any case, this approach is an essentialist one since it presumes an essence of a culture (which, in Sven’s argument, is then not realized, hence the prohibition on closing border). However, there is no such essence, according to a more subjective, individualistic version of culture. Culture just is what people think of it. And importantly, it includes beliefs about what constitutes a good society, e.g. what values should be prevalent, what should be protected, etc. In this perspective, someone who acts according to values A can still hold that it is worthwhile to protect set of values B, or more particularly: the belief that B needs to be protected is part of A. As a consequence, no decline in (actual behavior of) B can be invoked in order to show that people are “free-riding” on others contribution to a culture.
(b) Another problem with premise (3*) is that it overstates what self-determination amounts to. Remember that (3*) is needed in order to make the transition from the observation about what’s going on in our culture (decline in cultures invoked by conservatives) to the conclusion that what is going on does not justify closing borders. One implication of that premise is that it would justify doing so were it the case that liberal, non-coercive means to preserving one’s culture were actually existent. What would exist here are rights to non-coercively determine the outlook of a culture. But does self-determination per se include keeping others out of one’s culture? I think if one subscribes to a view that allows only non-coercive, liberal means to determine something – a culture or any other thing (which a conservative does not) – , it is thereby implied that closing access coercively is not included in the range of available means. So self-determination does not, in the liberal sense, imply closing access. But what about a view that does not subscribe to non-coercive means only? Well, also in this case keeping others out as a matter of principle is also not allowed. The reason is that something that violates the entering person’s fundamental rights and his moral standing, must not be violated through one’s exercising one’s control rights. My point is: Even if there exists a right to self-determination, it would not call for closing borders as a means to reach one’s end (namely, to preserve one’s culture). This is so independent of whether one subscribes to a liberal view, emphasizing non-coercive means, or a conservative view, allowing for coercion. Concerning Sven’s argument this has the implication, if true, that his argument rests on a premise (i.e. 3*) which leaves us with a false alternative between the conditions when it is allowed to preserve one’s culture and when it is not.

Let me say, once more, that I absolutely do not disagree with Sven’s overall point where he is saying that no reasons to close borders exist. I really think there are a lot of arguments in favor of that conclusion. There are consequentialist ones, emphasizing the net benefit we gain from letting other people into our lives and cultures. There are moral arguments to the extent that not letting others, especially the desperately poor, in amounts to the same moral wrong as killing them. There are political ones, holding that (current) nation states do not have the appropriate shape to have the right to close borders. And there are cultural ones where the focus lies on a concept of culture as being fundamentally characterized by change, modification, evolution, progress – and where  any attempt to preserve cultures amounts to a conceptual error, so to speak (one wants to preserve something which does not exist). I will have to say more particularly about the two latter arguments in another post. Let me just briefly say that my own take on the issue is basically related to what Sven mentions at the end of his post, namely that liberal cultures thrive towards openness and liberal values. I think this is true, as it has been true in the distant past, where cultural exchange as well as trade and specialization fostered liberty and related values (and are reinforced by it). But I would like to combine this view with a story about humans as owners of social institutions, giving them a strong ownership-based right to determine their culture, and with an attempt to solve the inherent dichotomy between self-determination and open borders. In other words, using the ownership idea I would like to say that cultural self-determination and open borders are in fact not mutually exclusive, against what one would think they are.

So, as a final word on Sven’s terrific post, I would like to say that I there are good reasons to come to his conclusion, but his way to do so is not the right one. And in addition, I’d like to point out that even if there is a right to cultural self-determination, including self-preservation, there are strong reasons to favor open over closed borders.

 

———-

* Note that this might be wrong. Compare the concepts of self-determination and self-preservation in the case of individuals: we have a right to self-preservation which usually means a right to be let alone (for libertarians), or entitlement-rights to subsistence (for progressives and left-liberals). Self-determination is a different concept which is about how self-preserving activities can be pursued. Libertarians think that people must be left alone, whereas left-liberals think that certain equalities must be there in order for self-determination to be used by individuals. Self-determination follows self-preservation, can be curtailed in the name of self-preservation, for example. Without arguing for it, I will assume that the case of cultures is sufficiently different from the individual case so as to justify at least to raise the question whether self-determination takes precedence over self-preservation. Perhaps I am wrong. Generally speaking, though, I think it would be interesting to discuss the issue on two dimensions: one is the individual level of particpants of a culture. The questions then are, for example, what rights to individuals have when they see their culture (or their preserving activities) threatened. The other dimension is that of a group-level right to self-preservation or self-determination. The questions here are: Do groups have rights on their own, which might differ from rights individuals have? And what is the role individuals play, what rights towards the group do they have? I have no more ideas to contribute at this point beyond raising that question. It occured to me while observing that Sven follows the methodological individualist’s path, whereas the collective agency-level seems to include a couple of insights that might be relevant here.

 

 

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Life on the fast lane. In defense of net a-neutrality

Tomorrow, the European Parliament (EP) will decide about new net neutrality rules for the European Union (EU). Net neutrality has been subject to many debates around the world, not just since the introduction of net neutrality rules in the United States in spring 2015. Also, as it is often the case, debates about net neutrality are not always about the same subject. Here, when using the term “net neutrality” I refer to the question of “how data packets should be transmitted over the Internet” (Knieps & Stocker, 2015, p. 46), where net neutrality demands that “traffic service providers should be obliged by regulation to treat all traffic and thus all data packets equally” (Knieps & Stocker, 2015, p. 46). One of the main consequences of net neutrality is that there could be no “fast lanes” in the Internet. To see this imagine there would be no regulation at all: service providers would then be free to charge content providers for transmitting their data, should they be demanded by internet users (i.e. users visit these sites), faster than data from competing or non-paying content deliverers. I will refer to a state where no regulation exists or where net neutrality is explicitly ruled out as a state wherein there is “net a-neutrality”. In the case of the proposed EU legislation, critics hold that although fast lanes are prohibited, they become possible through the backdoor because certain services can be classified as special service for which fast lanes are permitted.

Here I want to briefly raise a couple of general worries with the idea that net neutrality is good and a-neutrality is bad. I will not address all problems and criticisms but focus on the problem mentioned above, that net a-neutrality introduces fast lanes. For instance, I will not take issue with a modified version of net a-neutrality where different data categories deserve different prioritization. What I will focus on is merely the idea, often heard in public, that fast lanes and commerce in the Internet world is bad.  To do this I will take issue with and comment on a range of topics brought to the table by internet researcher Barbara van Schewick who has repeatedly given some backing for critiques of the European net neutrality regulation about to become law.

 

First, net-neutrality supporters such as van Schewick often claim that creating the opportunity to offer fast lanes will eventually suppress freedom of speech and expression, it will ban NGOs and other societal actors from providing their valuable knowledge to society. For suppose a service provider such as Telekom would charge an extra fee for fast lanes so that company Buy-Me’s data would be transmitted faster than those of NGO Help-You. Van Schewick holds that “start-ups, small businesses, non-profits, educators, artists, musicians, writers, activists, faith groups, and NGOs would be at a disadvantage” because they cannot afford to buy fast lanes. Therefore, “’Fast Lanes’ on the Internet harm innovation, free expression, and democratic discourse”, says van Schewick.

However, I do not think that this is a particularly good objection to net a-neutrality. First of all, even though Help-Me’s content might load more slowly in your browser, this does not necessarily mean that it loads too slowly. It all depends, of course, on the existing and usable bandwidth. But even if it does in fact load less fast, it might still be okay for you to visit that page.

In addition, nothing prevents Help-Me from trying to get funding and spend existing resources to buy one of these fast lanes. It is an all too common rule of the game to spend one’s available resources for getting public attention, for whatever business one has. Sometimes NGOs are supposed to be more valuable or morally praiseworthy than businesses, and this might in certain cases certainly be true. But we have to keep in mind that NGOs (or churches, or private blogs, for that matter) are simply part of the social or human game to change the world, help people, make one’s living, provide services and so on and that there is no moral supremacy of NGOs over any other societal actor, at least not independently of the content of an NGOs goal. Imagine a Nazi website or a Nazi NGO, let’s call it Extinguish-You. Would we be willing to ensure that Extinguish-You should have a moral supremacy so that their data must not be disadvantaged independently from its content? I guess the answer is “no”.

Furthermore, net a-neutrality as I understand it would add competition in our societal actors’ attempt to gain public attention. And don’t we know that competition has in fact the feature that it brings us innovation and progress? Perhaps net a-neutrality would force Help-You to find new ways to publish its knowledge, or at least to get funding for buying a fast lane. Perhaps they reach our more to real people, they advertise with Netflix that, let’s suppose, was able to buy a fast lane. Of course, we cannot predict a particular outcome of the competition that results from banning net neutrality. But what we can say is that it is highly likely that innovative forces will excel under competitive rules.

Moreover, as free speech is often mentioned in debates about net neutrality it must be said that outside the Internet, free speech is also closely tied to non-neutral instruments, mechanisms and forms of speaking. For example, newspapers as a very common form of speaking to the public and shaping public debates, are also not neutral in the sense that they would not work under competitive and ideological conditions. Or consider private associations (i.e. associations consisting of individual members) that come together to support a certain ideology. All of these instances of free speech depend on private and thus not neutral mechanisms. They depend on the ideology of the owners, writers, speakers and so on. Murray Rothbard, in his excellent “The Ethics of Liberty”, argues for thinking about the right to free speech as a property right. Each and every person (or newspaper, or restaurant owner) can say and allow others to say whatever she wishes simply because it is part of her property to speak out what she thinks on her premises. Additionally one might even say that there is no ideology-free speech or viewpoint, as there is no moral supremacy of anyone’s interests, at least as the political organization is touched. This means: Although I personally reject Nazism and think that holding Nazi views is immoral, I cannot say this from an ideology-free point of view. I even cannot claim moral supremacy when it comes to organizing a political order. I do fight for a political order free from Nazi ideology (and so should everyone), but I cannot claim ideology-independent moral supremacy, e.g. in the form of a neutral state that does his business according to my supposedly ideology-free point of view. What this means for net neutrality is that it is impossible to qualify certain contents as being eligible for being protected by net neutrality because they must not be disadvantaged because of their status as super-moral or ideology-free (as opposed to all other viewpoints that are thought to be ideology-laden).

 

Second, in addition to the first point that focuses more on the democratic discourse and free speech, van Schewick also thinks that net a-neutrality reduces opportunities for small start-ups. In other words, only net neutrality can secure innovation and progress.

To respond note that I have already mentioned that net a-neutrality actually enhances competition and thus provides innovation and progress in the case of actors from the NGO field (being in competition with businesses). This holds equally true in the case of businesses being in competition with other businesses, and it holds true in the case of competition between service providers. Imagine that Telekom charges too much for Help-Me. Wouldn’t this be an incentive for Komm4All, a competitor, to examine new ways to provide access to the Internet? And against the view held by net neutrality opponents, isn’t it the case that elsewhere in our economies prices for services to a company are being incorporated in anyone’s business decisions? And: prices do not restrict business activity, they rather enable it. My argument is twofold: Charging prices for a service is actually something that happens in other domains of the economy, outside the Internet, and pricing things does actually a very good job. Anyone who wants to run a business, offer a good or a service, is in need of calculating costs and benefits, and if one wants to run an online business under net a-neutrality, the business owner will incorporate the price for getting a fast lane (vs. a slower lane, for example). And this will provide her the best information available on what to do with her resources. This is what happens daily, and not just that: it serves a good end, as Nobel-prize winner Friedrich August von Hayek has found out. Prices are indispensable for coordinating mutually beneficial behavior known as market. Why would a price for lanes in the Internet be so different?

Furthermore, there is a lot of speculation involved in making claims about the negative effects of net a-neutrality. Van Schewick, for instance, writes: “Many of today’s most popular applications — Google, Facebook, Yahoo, eBay — were developed by innovators with little or no outside funding. In a world where such innovations are stuck in the slow lane, they would never have seen the light of day”. Well, that might be true – or not. The point is: we simply do not know. What we know instead is that prices and market competition typically tend to promote innovation, growth and progress, and there is no need to assume that this is not the case with the Internet. It is unfair to speculate about the existence of Facebook and Google in an imagined world without net neutrality and to derive conclusions for the real world based on these speculations.

 

Third, let me add a word on the notion of freedom because it seems that freedom is used very often to justify net neutrality. The freedom of speech and of NGO activity is threatened by net a-neutrality, we read, and the freedom of small enterprises to enter the market. But it seems that it is not freedom in its fullest sense that plays a role. To see this note that there is one freedom that is reduced, and that is the freedom of the service providers. Now, it is clear that freedoms can and must be reduced given the social and interactive nature of our living together. One’s freedom stops where the other person’s freedom begins, so we say. But the point I want to make here is another one. It seems, so I want to argue, that it is only certain specific freedoms that count as valuable, and economic freedom is not among those cherished. This is exactly what John Tomasi has shown in his “Free Market Fairness”. There he argues that liberals from the left (e.g. John Rawls) typically think that basic freedoms must be granted as a matter of justice, but that these freedoms do not include economic freedoms so that certain restrictions on one’s economic activities are justified with reference to justice. I think this is exactly what we see in the discussion about net neutrality: Opponents justify restrictions of the economy with the help of justice-based freedom. Freedom of speech is part of the story, but economic justice is not, so that we can permissibly restrict the economy for the sake of justice. In his book Tomasi argues for including economic liberties as a matter of justice, because this is part of what we do value as part of our justice-reasoning. Taking this seriously (and applying it to the case of net neutrality) it would mean that we would have to re-think our stance towards the freedom of service providers to charge (or not to charge) money for the services they provide – as a matter of justice.

 

The points just mentioned and discussed are by no means all there has been discussed in relation to net neutrality. But the problem of fast lanes is frequently mentioned when it comes to rejecting net a-neutrality and it figures prominently in popular accounts of net neutrality. I hope to have shown that the arguments invoked are not as strong as the intuitive noblesse of the idea of neutrality might suggest. Let me, however, close with two more points that I cannot address in a more detailed manner at this point.

The first is to say that net neutrality regulation can be analyzed in terms of a very elegant and powerful theory of regulation, i.e. the Bootleggers-and-Baptist-theory. The idea behind this theory is that regulation is often successful when two specific parties team up, intentionally or not, to provide a large supporting basis for a certain piece of proposed regulation. On the one hand, representatives of a widely supported moral goal or ideal (the Baptists) argue for a certain kind of regulation. On the other hand, when some parties with an economic stake in the issue (the Bootleggers) join the Baptists, they can provide the necessary money and other instruments to convince politicians to pass a law according to the shared interests. Take, for instance, the case of prohibiting Marihuana: both representatives of, say, churches and the alcohol industry will vote and lobby for legislation that prohibits Marihuana. The former group provides the moral ideal, whereas the second group benefits directly and contributes the instruments to convinces legislators. I guess it is not hard to identify Bootleggers and Baptists in the case of net neutrality: electronic freedom fighters, valuable as they are, provide the moral ideal of neutrality, and companies that fear competition through net a-neutrality provide the necessary means to convince law-makers. It is thus of no surprise that large companies such as Netflix and others support the campaign for net neutrality (well, sort of, at least with Netflix the issue isn’t as clear as one might wish).

The second point relates to a more fundamental idea. We are so accustomed to the fact that we have lawmakers that decide in our name in for the sake of a higher, a noble good or ideal and thus do what is best for us that we do not see how problematic it is what they do. The main problem, in this view, with net neutrality is not that the Internet is neutral and that free speech as well as direct democracy and full information for everybody reigns. The problem rather is that there is a body of people who think they can restrict voluntary interaction, evolving processes, contracting, mutual benefit and cooperation because the assume they have political authority. I would just say that regulating Internet commerce and interaction is simply not something a bunch of people in capital cities can and should decide upon. It is the partners to the interactions taking place that can and should decide upon the rules governing their interactions, not politicians in Berlin, Brussels, Strasbourg or Washington. They must not because they lack political authority to do so. And they should not because we know so well from Public Choice literature, among others, that those people are not in the position to decide what’s best for us. But to show in detail how this affects net neutrality is another issue.

 

To sum up: The specific rules the EP is about to decide upon have seen a lot of criticism, mainly because they allow, in the eyes of the opponents, for too much net a-neutrality. More generally speaking, there is a large coalition of supporters of net neutrality all over the globe. In my view, the reason for this is partly to be found in the presumably noble idea of neutrality as such and a more general rejection of commercial activity and capitalism that is considered to take over once net neutrality is banned. Net a-neutrality is supposed to be bad because large companies and more broadly agents with profit-only interests will rip customers off, they will suppress free speech and we all will hear only those opinions and truths that the oligarchy of large companies will want us to hear. Well, good ol’ anti-capitalism. Doesn’t the idea of a neutral net sound so much more noble, morally praiseworthy and desirable, now that we have found, with the Internet, a means to meet and speak up in freedom and openness, bringing us closer to the truth, morality, God or what have you. I hope to have shown that this reasoning is flawed.

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Commercially assisted suicide – what’s wrong with it, if at all?

So let’s kick off this blog with a topic that is not really at the center of my interests. But I have discussed it quite regularly with a friend of mine, Roland Kipke, over lunch and he has succeeded in publishing a paper on it in Bioethics (open access). Since it has provoked a lot of criticisms ahead of and after final publication, leading to several online discussions where Roland himself took actively part in, I want to take the chance and note a few points. I always enjoyed our discussions and I like Roland’s ideas in general and this paper in particular very much. Still, we typically end up with having very different positions on almost everything.

Roland’s basic point in his paper is to say that if you argue for the permissibility of physician-assisted suicide (PAS), you are thereby committed to make commercial assisted suicide (CAS) permissible. The problem, then, is one that many proponents of PAS presumably have: typically they do not favor CAS, although they support PAS. Roland himself is critical of assisted suicide (AS), but in his paper he does not take a stance on this question, but rather examines the argumentative coherence of supporting AS. His strategy consists in (1) showing that CAS has in fact some advantages over PAS (e.g. some of the arguments against PAS cease to exist if AS is accomplished by non-physicians in a business-like manner), and (2) in showing that the arguments against CAS, from the perspective of a proponent of PAS, are either not convincing, or they speak against PAS itself. He concludes that “[t]o reject CAS while endorsing PAS is […] not ethically justifiable: it is not a coherent ethical position. Therefore, the position of the liberal advocates of PAS has to be revised. Either they have to expand their advocacy to include CAS and therefore radicalize their position considerably or they have to revise their rejection of some arguments that are generally raised against assisted suicide. In both cases, it would no longer be the same position” (p. 522). In what follows, I will raise a few points about Roland’s overall strategy and comment on some details of his argument.

Let me note at the beginning that I share Roland’s conclusion. I think that he is right in saying that there are very good argument for CAS and that once you are in favor of the permissibility of AS, you have good reasons to organize its provision through markets. For me, then, the most natural response to Roland’s conclusion is to agree with him and simply allow CAS. There might be several ways to come to this conclusion, even for those who think that the idea of CAS runs counter to some of their firmly held beliefs. One is based on the idea of a reflective equilibrium (RE) as a guide to our moral reasoning. RE tells us that when we try to find normative standpoints on a given question, or more theoretically, when we want to find a theory of X, we should proceed by both reasoning from premises to conclusions (deductively, inductively), and comparing these results with other firmly held beliefs, principles, judgments or intuitions. During that process, we will constantly re-order and revise our theories and other beliefs so as to finally reach a coherent conclusion. Sometimes we revise the argumentative reasoning, at other times we abandon some of our principles or intuitions. In the case of PAS/CAS we might say that whereas our intuitions are against legalizing CAS, in light of Roland’s argument we are forced to abandon our rejection of CAS and finally allow it. This would constitute a major step in the mind of a PAS-proponent-and-CAS-opponent, and it would, to quote Roland, “no longer be the same position”. But this fact alone would not be relevant on the way towards a coherent system of ethics.

However, there is one crucial assumption in Roland’s essay that I want to raise some doubts about. Roland thinks that we need to be coherent when it comes to an ethical position on any given topic (here: assisted suicide). He starts off by assuming that proponents of PAS typically or oftentimes reject CAS, but notes that (1) CAS might even be a better way of organizing AS, and that (2) criticisms raised against CAS do not provide us with good reasons to reject CAS. But in light of the RE as guide to our reasoning we are not determined to immediately bring coherence to our thinking. In the case of AS, for instance, we might well hold on to PAS and continue to reject CAS and be inconsistent. Perhaps we have not found a striking argument yet, but this does not mean that there is none. We might even reject the idea that ethics must be a coherent whole, consisting of mutually compatible norms and judgments. Moreover, perhaps our ethical thinking, our ethical compass, is such that it allows for some level of incoherence. Roland has not given us a reason to assume that we need to be “rational” in the sense of coherent. What he has given us are very good reasons to prefer CAS over PAS. But there is nothing in his paper that should convince us that we absolutely need to be coherent in his sense. He simply assumes that we need to and want to be coherent. But in ethics we often hold diverging and incompatible views, and sometimes we even lack the knowledge of why this is so. But this provides us with reasons to think harder, or to simply accept it, and not necessarily to revise our belief system to make it more coherent. Of course, once we can come up with a justification for why we accept A but reject B, this system will exhibit the feature of being coherent. What I would like to take into doubt is the idea that if we detect an incoherence, we need to revise our beliefs immediately.

As I said, I think it is time to open the markets for such services. But if you oppose to CAS and simultaneously accept PAS, you might want to follow up on the search for arguments against CAS by first attacking Roland’s rejection of arguments against CAS. So, for instance, you might want to take into question his point that opposing to CAS by insisting on negative features of commercialization is wrongheaded. Roland says that those who think that commercialization makes suicide (or AS) more common and normal are using a contested conception of the good (i.e. of what a good society is) as basis for making binding laws, which he rejects. However, this line of argument is itself based on a conceptual confusion. By making this claim one is not arguing for binding laws, but making an ethical judgment (together, of course, with some empirical assumptions). And there is nothing wrong with making ethical judgments based on an idea of the good. The opponent of CAS says that there will be some negative consequences such as the increased availability and even presence of something he or she simply rejects on the basis of what he or she thinks is good or valuable. He or she will then have to go on and show why an increase in the availability of even presence of suicide is a bad thing. But we can be assured that there will be points that the opponent is putting forward when asked. It is a question, of course, how we organize our society given a plurality of values and judgments. But at the point of an ethical search for what is right or good, we need not be concerned with whether the grounds for our rejection is widely shared or not. Back to the overall line of criticism, I want to maintain that whether or not you think CAS should be allowed does indeed and legitimately so depend on your overall evaluation of being at liberty to commit suicide. So the critique who opposes CAS but holds on to PAS might have a point.

Similarly, the opponent of CAS can doubt Roland’s thesis that examples such as having markets in organs are not comparable to CAS. In fact, they are, because in both cases, so the opponent says, there will be an incentive for a person to do something that the opponent thinks is wrong or bad. In the organ-market case, bad actions such as violations of bodies out of market incentives will occur, whereas in the CAS case, the number of suicides will increase, which the opponent thinks are bad actions. So he or she uses some empirical assumptions, together with a value judgment, to argue for his or her negative evaluation of the practice of CAS. This is what both cases, contrary to what Roland thinks, share.

As a side note: Whether or not the opponent of CAS (and proponent of PAS) has a point in rejecting markets because of their tendency (if there is one) to increase the number of suicides depends on whether she is right in holding the increase of suicides to be a bad thing. The opponent as I have pictured her, is a person who thinks that commercialization of AS leads to an increase in suicides, which in turn she evaluates negatively. Should we, on the contrary, have a positive attitude towards people’s liberty to commit suicide, we would not see an increase in suicides as something negative. (This assertion certainly needs some qualifications. For instance, an increase in suicides because of, say, an extremely bad political environment is not something we want to evaluate positively. But for now let me simply assume that the reasons for why people commit suicide are totally legitimate, people decide autonomously etc., so that, given the assumption that suicide is not to be judged as a bad thing, an increase in suicide numbers should not worry us.). When it comes to discussing, then, whether or not there should be markets in AS, we might want to proceed by using the following principle: If an action is ethically permissible, there is nothing wrong with providing it via markets. I will have to say more about this point in some future posts, so let me now merely say that in putting forward this idea I am obviously making use of Jason Brennan and Peter Jaworski’s approach in “Market without limits“.

It is important to note that presumably Roland would not oppose to what I say here. His own view is precisely that we cannot separate the legitimacy of CAS from that of PAS and that it all hinges on our stance towards AS or suicide in general. He would agree with me that when it comes to judging CAS, we need to be clear about whether we want to permit AS in general. Once we are clear, we can judge PAS and CAS equally. My point, however, is merely that there is still room for holding PAS as legitimate but not CAS, even if one rejects AS because of CAS’s tendency to produce more of a bad thing. Thus, we need not be incoherent if we reject CAS but accept PAS.

There is one final point I wish to make. Roland could have made his life much more easier if he had pointed out that those who think that PAS is okay but not CAS are wrongfully comparing two different things as being conceptually distinct, where in reality they have a much closer relation to each other. It is not the case, as Roland’s unreflectively shares with those he criticizes, that there are two separate types of AS, one being PAS, the other being CAS. Rather it is the case that PAS is a special form of CAS. To see this consider that physicians are typically not thought to work for free. Even though we do not pay directly to the doctors when we see them, this does not mean that they are working without getting paid. And once this is seen, the question is not so much whether or not we should allow only physicians to offer suicide services but not other (commercial) agents (which could also be physicians, of course), but rather how we should organize the system once we agree that AS is something perfectly justifiable. Physicians work in a field that is highly regulated, where what they can and cannot do is politically determined and codified. So putting AS in the hands of physicians gives society more control over the things being done, which might at least partly explain why many accept PAS. In a market environment, however, people fear that things go out of control, and that all the bad things that critiques put forward will occur. So they prefer PAS over CAS. Now, should there be something to it, those whom Roland criticizes might indeed have a point without being necessarily incoherent. But my view is that the fears are not necessarily realistic. I cannot here and now defend this satisfactorily, so let me just say that what we want of an AS-industry is consumer protection which critiques think can only be guaranteed if the industry is put in the hands of doctors. Consumer protection, however, does not depend on safety regulation nor on a professional monopoly. As this little video shows, consumer protection can perfectly arise in a free-market environment.

Let me sum up. I think that there are wonderful points in Roland’s essay that speak loudly in favor of the permissibility of CAS. Unfortunately, we have not been provided with a reason to think that we need to be coherent in our ethical reasoning and reject/accept CAS when we reject/accept PAS. I have opened the path for somebody who opposes CAS to defend herself against Roland’s attacks so as to make it more credible to accept PAS and reject CAS. It all depends on whether we generally are in favor of AS. Whether or not there should be commerce in AS services can be, I suggested, answered by using a principle borrowed from Brennan and Jaworski. This principle connects with the idea that CAS can or cannot be problematic, depending on how we judge AS. In any case, the problem of incoherence is not something we need to care about too much. In addition, even if we accept PAS and reject CAS, we are not comparing thereby two things located along the same dimension. What we are referred to by Roland’s argument and the questions he raises, and which I absolutely appreciate, is that we need to examine more thoroughly (1) whether we think people should be at liberty to commit suicide, and (2) if they should be, how we best organize the system of AS.

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