Chapter 1 excerpt from Morality, Leadership, and Public Policy: On Experimentalism in Ethics Eric Thomas Weber Continuum International Publishing Group The Tower Building 80 Maiden Lane 11 York Road Suite 704 London SE1 7NX New York NY 10038 © Eric Thomas Weber, 2011 All rights reserved. No part of this publication may be reproduced or transmitted in any form or by any means, electronic or mechanical, including photocopying, recording, or any information storage or retrieval system, without prior permission in writing from the publishers. British Library Cataloguing-in-Publication Data A catalogue record for this book is available from the British Library. ISBN: HB: 978-1-4411-7311-9 Library of Congress Cataloguing-in-Publication Data A catalog record for this book is available from the Library of Congress. Typeset by Newgen Imaging Systems Pvt Ltd, Chennai, India Printed and bound in Great Britain Contents Acknowledgments vii 1 Introduction 1 Part One: Philosophy and Religion in Public Policy 2 3 On Applying Ethics Religion, Public Reason, and Humanism Part Two: 4 5 6 Experimentalism, Problem Construction, and Priorities What Experimentalism Means in Ethics Construction, Art, and Politics Philosophy and Public Policy Prioritization Part Three: 15 31 53 73 97 New Technologies and Experiments in Judging 7 Stop him! He stole my internet connection! 8 Activist or Active Judges 9 Conclusion 123 139 155 Notes Bibliography Index 159 175 185 Chapter 1 Introduction In January of 2010, I had the pleasure of accompanying three of my students to Jackson, Mississippi, where they gave a presentation before the Mississippi State Legislature’s education committee.1 My colleague, Dr. Melissa Bass, had received papers from these three students on overlapping areas of interest regarding charter school legislation. The problems of education in Mississippi are understandably of central importance to many of our students at the University of Mississippi.2 These three students were there to talk about the potential they see in some states’ charter schools experiments. We were all a bit surprised at the level of animosity they encountered. While some legislators thanked the students for their presentation and were encouraging, others were furious. “Separate but equal!” one woman exclaimed. Though she did not explain her ideas in much detail, she believed that the charter school movement is yet another way of pulling funds away from struggling public schools. Plus, schools in Mississippi remain signiicantly divided by race, in large part due to residential self-segregation and the enrollment of middle-class and wealthier white students in private and parochial schools.3 The students were impressed with the incredible success that some charter schools have had in deeply troubled regions. Geoffrey Canada in New York City has become famous for his enormously successful schools.4 Less well known are the amazing Knowledge Is Power Program (KIPP) schools in places such as Helena-West Helena, Arkansas, which I have had the opportunity to visit.5 Given Mississippi’s deep problems, people here are looking for unconventional solutions to help struggling kids and communities. 2 Morality, Leadership, and Public Policy Many criticisms of charter schools have been raised, to be sure. There is a selection process, since there are not yet enough such schools to go around, and charters are often not comprehensive schools.6 I could list many more areas of controversy about charter schools. What strikes me, however, is that charter schools are experiments. As an issue, the opportunity to open a charter school is a moral matter that introduces perfectly what is at stake in this book: the moral importance of experimentation in public policy. Part of what rankles legislators in Mississippi is the fact that charter schools would only help some select groups of students who need help. Two things need to be considered in response. The irst is that experiments generally do select groups when possible. Occasionally, some efforts cannot be tried without large-scale or systematic adoption of a matter to be tested. When that is not required, however, it is typically preferred that experiments be done on isolated groups. Selective tests allow different processes to be tested without big changes, thus reducing the cost of the experiment. Should the tests prove that a social measure is valuable, furthermore, changes can be advocated with evidence-based reasoning, making policy recommendations more defensible. On a second matter, however, it is important to consider the moral worth of incremental forms of progress, which experimentalism commonly fosters. Critics of partial measures for progress, like charter school laws, present strange moral reasoning. Consider a policy proposal that is akin to a bandage and the affected communities to be persons who are injured and suffering. If a limited number of bandages are available, the fact that we lack suficient bandages to treat all injured persons cannot be reason to deny all patients a bandage. That would be outrageous. In other words, even if charter schools represent a partial measure for progress, the fact that they do not address all deserving students ought not to prevent policymakers from trying a new idea that would help students incrementally over time. In this book, I will present a way of thinking about morality that calls into question the ideological, principle-centered, or foundationalist way of thinking about ethics. Principles are extremely important to ethics, but they are only valuable, I argue, when they help us to ameliorate problems. So, the Democrats who hotly oppose trying out new ideas in Mississippi are an excellent example of the roadblocks Introduction 3 to the experimentalist, problem-centered approach to policy that I advocate in this book. Fundamentally, they are blocking the opportunity to be open to new ways of thinking about the central moral problems in the state, especially education. Experimentalism is a way of thinking about ethics that takes problems as the starting point for inquiry and that sees human beings as fallible, and capable of signiicant error even when we feel sure about what we know. Given that we are fallible, we must adopt certain measures that allow learning and growth, where possible. Experiments can help us reexamine problems to see whether we ought to rethink our principles, to choose some over others, or to see whether our assumptions have been lawed. In short, experimentalism is a point of view about ethics which says we must draw on the various tools we have available and test them in different circumstances for addressing the pressing problems that we face. As I have said, principles are important in ethics. Experimentalists, however, see them as tools for human lourishing. John Dewey, one of the most important experimentalists in moral philosophy, held a view he called instrumentalism. The idea was built on insights from evolutionary theory. If human beings are continuous with other animals, biologically speaking, the reason they have come to lourish as they have on Earth must have something to do with their adaptability and powerful use of tools. Dewey saw ideas and language as crucial and immensely powerful tools for human survival and growth. In this context, he used the term instrumentalism to refer to the sense in which moral ideas help societies to survive and grow in happiness and in varied freedoms and richness. Seeing ideas as tools, as an instrumentalist would, is something that Dewey carried over into his approach to experimentalism. Practices like stoning people to death are no longer needed in society, now that we have developed intelligent procedures for justice to be sought patiently, humanely, and with careful deliberation. The problems that speedy justice were once meant to solve are today addressed with systems that seek to avoid punishing the innocent, for instance, and to minimize unnecessary or cruel pain. To the experimentalist, outdated principles, like tools, can become weapons of misuse, and division, and delays to moral progress. People who call for principles and a constant integrity 4 Morality, Leadership, and Public Policy about them often can only do so by intentionally ignoring some pronounced principles when they are not appropriate for the problems at hand. On this matter, Republicans have offered substance for criticism. In early 2009, a newly elected President Obama took ofice and was extraordinarily popular. The U.S. House and Senate were irmly won for the Democrats, and the Republican Party was at a loss for how to move forward. A vacuum of leadership among Republicans was quickly illed with a number of voices that were in competition. While some were considering big changes for the party, such as a signiicant rethinking of the party’s stance on homosexual marriage,7 others like Newt Gingrich called for returning to basic principles.8 The approach to leadership that Gingrich offered up struck me as highly interesting, yet also somewhat troubling. In his article titled “Where Does the Conservative Movement Go from Here?” Gingrich opens with predictions of a successful future if the movement does three things: 1. Advocate irst principles with courage, clarity, persistence, and cheerfulness. 2. Insist on developing solutions based on those principles and on measuring other proposals against those principles. 3. Be prepared to oppose Republicans when they are wrong and side with Democrats when they are right, but always make the decision to support or oppose a matter of irst principles and the application of those principles.9 Gingrich’s view of leadership is to see it as based on principles. In one way of thinking, that is perfectly normal. After all, when a leader represents an organization founded around central values, those can be translated into principles. This approach to thinking about ethics resembles the way many people think about social contract theory. If we could state speciically what our values and agreements are ahead of time in an ideal circumstance, we could then draw on cool reason when problems inlame anger and use those values to guide decision making. In response to Gingrich and to social contract theorists, I agree with David Hume, who argued that the “irst rudiments of Introduction 5 government . . . arise from quarrels,” that contracts originated from conlicts.10 In other words, principles and agreements arise in response to problems. They are chosen because of how they help us make life better and alleviate problems. While there are good times and places to state principles, experimentalism sees principles as ways of addressing problems. So the idea that we must always stick to a principle, while it may sound compelling, is disingenuous. After all, the frequently stated desire to “get government out of the way” (my paraphrase) of the private sector11 was not the principle to apply to the recession of 2008. Even such free-market advocates as Alan Greenspan conceded that “Those of us who have looked to the self-interest of lending institutions to protect shareholders’ equity, myself included, are in a state of shocked disbelief.”12 The language of “getting government out of the way,” in the wake of the B.P. oil spill, does not it with the call for better and more careful regulation of environmental risk factors in industry. It implies that the government should have been better at getting in the way.13 There is no doubt that businesses consider taxes and regulations in their calculations of whether and where to grow. Thus, Gingrich and others are not wrong to see the principle of seeking desirable conditions for business as an idea that should be drawn on for addressing problems, such as high unemployment. At the same time, Alabama and Mississippi have the lowest taxes in the United States,14 yet both are in the top two categories of poverty in the country.15 So what this tells me is that lowered taxation and reduced government intervention in the private sector are far from the only factors that affect economic growth. With regard to such complex issues, therefore, principles need to be drawn on carefully and with the aim of addressing particular problems. The other problem with a principle-centered approach is that it is often underdetermining. There are often new problems that arise, which our principles do not address directly. These problems for Democrats and Republicans are the reasons leaders in public policy ought to adopt an experimentalist approach to ethics. We do best when we see the problems we face as the drivers of our choice of legislation, moral principles, and most of all our experiments in leadership. Unless leaders see themselves as contributors to experiments 6 Morality, Leadership, and Public Policy in learning and trying new ways of addressing moral problems, we will only continually ight battles of political maneuvering, disconnected from citizens’ real problems. Political maneuvering disconnected from people’s real problems exempliies failures in leadership. I believe that these failures can be addressed with some careful philosophical thinking. At the same time, however, philosophers rarely write about leadership today. I have developed this book to build a bridge, therefore. It seems that philosophers often speak only to each other in their writings on ethics. In response to that trend, I write this book for philosophers, to offer suggestions about how we might develop useful ways of thinking about leadership in public policy. Clearly philosophical ideas can have profound moral importance in the real world. It is important, therefore, for some philosophers at least to try to engage leaders of public policy on issues of public importance. At the same time, this book is also meant to present a framework for thinking about actual leadership. As such, I want to speak in this book to present and future public leaders, who might take from this work some insights about how to think about the profound challenges that they face, but have little time to study. So, although there are some complex terms in this book, it is my hope to present them here in ways that are accessible and useful for people outside of departments of philosophy. While I hope that there are insights in this book about leadership that apply in a number of different contexts, it is crucially important to bring philosophy to public policy. As a philosophical Pragmatist, I see public policy as a sphere in which regular and inluential practices are shaped and remade for the beneit of citizens. It is an ideal place for the application of intelligent deliberation, especially about ethics. Plus, a long tradition in philosophy has focused on leadership, even though in the last few hundred years, the subject has been written about very little among philosophers. It is time for philosophy as a discipline to return to the issue of leadership, and the sphere of public policy is a ield of tremendous importance and opportunity in which philosophers can make a difference. When we focus on leadership in public policy, we can start with the idea that citizens and leaders have unique backgrounds and inclinations. The philosopher John Rawls has argued that there is a clear fact that we must notice, that there are many reasonable ways to Introduction 7 disagree about the big questions in life, politics, and ethics.16 This does not mean, however, that every idea or point of view is equally right. It means instead that there are several competing, and sometimes incompatible, ways of thinking about issues. Among philosophers, for example, some think that happiness, the promotion of pleasure, and the diminishment of pain are the most important moral starting points for decision making, while other very bright philosophers believe that the promotion of happiness is irrelevant to morality. The latter group worries that some might seek to violate a minority group’s rights because the majority will be happier for it. This second point of view holds that our greatest responsibilities are to do what is right (such as on the grounds of duty) regardless of the effect of those decisions on human happiness. At bottom, then, in the tradition of philosophy there are deep divides that split many people and for which no simple answer can be expected to satisfy everyone. One reaction from those who witness philosophers disagreeing is to think that philosophy has not made much progress, especially compared with the sciences. In Chapter 2, I respond to worries like this one to show what I believe philosophy has to contribute to debates about public policy. Philosopher Sidney Hook has presented a number of ideas about philosophy’s value for public policy, to which I add my own list. There are philosophers who think that although philosophy has made progress in some areas, it should not be applied in the way I would suggest. In Chapter 2, I respond to that line of criticism as well. If among philosophers there are deep divides, it is not surprising that among religious persons there are widely varied beliefs as well. For many people, religion is one of the most important things in life. If that is true, then leaders of public policy must think about what to do and say about the relationship of religion to ethics and politics. Liberal philosophers like John Rawls argue that we ought to avoid as much as possible the imposition of our religious beliefs on others. Others, like evangelical Christian Tim LaHaye, think that if they tolerated in society what their religious beliefs condemn, they would essentially be giving up what is most important to them. To address this conlict, in Chapter 3 I present a way of thinking about the divide between religious fundamentalism and the political liberals who argue for leaving private religious motivations and 8 Morality, Leadership, and Public Policy reasoning out of public debates. In Chapter 3, titled “Religion, Public Reason, and Humanism,” I argue for an approach to religion and ethics that invites discussion about religious and secular motivations for action, while supporting the ideals of tolerance and cooperative social action. Some scholars do not take religion as a moral force seriously enough, while others do not treat it with suficient openness to the differences of beliefs that are found in diverse societies. We need a way to think about both the value of philosophical inquiry into moral problems for public policy and the place of human values in contexts that include religious theists, agnostics, and atheists, all of whom come to the same table for discussion and are affected by decisions in public policy. Chapters 2 and 3 both address building blocks for supporting my theory of experimentalism in ethics. Together they make up Part One of this book, which I have titled “Philosophy and Religion in Public Policy.” Part Two is called “Experimentalism, Problem Construction, and Priorities.” In Part Two, I develop and present my proposal for thinking constructively about the problems of ethics for public policy. Part Three then offers two examples in which we can see my approach to ethics in public policy introduced in application, before concluding the book with ideas about future directions for research. Part Two progresses through three chapters on experimentalism. I start with a chapter called “What Experimentalism Means in Ethics.” In that chapter, I present an approach to morality in public policy that I develop from inspiration in John Dewey’s philosophy. The essence of my view builds on areas of human intelligence and inquiry that have been among the most successful in history. The central idea is to draw on the methods and processes that people have used to advance knowledge and to solve problems through public inquiry and experimentation. The great developments in science and in medicine are outgrowths of free thought, experimentation in the sciences, and the investment of social and private resources in funding and creating the space for their studies. We already view local policy efforts, in a sense, as laboratory experiments for policy in some spheres.17 My point here is to encourage the expansion of this idea, to soften up the hard-line approach to principles that prevents people from trying out new ideas. Introduction 9 Part Two continues with two further chapters, each of which presents unique challenges for leaders of public policy. Two fundamental concerns arise for leaders. Chapter 5, “Construction, Art, and Politics,” addresses the ways we frame problems and the fact that they often must be reframed, reconstructed. It is familiar that the way a person characterizes a problem can often appear biased. Think about a conlict between a brother and a sister who are hitting each other. We are used to the idea that hearing one version of the story may not always convey the entire truth of the matter. Similarly, when someone raises complaints about a problem to a leader, it is common that many facts and considerations need to be heard before action is taken. Thus, one of the crucial aspects of moral inquiry for leadership in public policy must be an examination of the nature of problems that people bring to leaders for consideration. When necessary, leaders can reframe problems and seek solutions for the maximal beneit of those whom they represent. Political scientists like John W. Kingdon have offered empirical studies of the policy process, including issues such as these, but philosophers have been remiss in not tackling the big problems of policy construction in terms of moral and democratic philosophy.18 Some problems need to be envisioned and conceptualized for the irst time. They can start off as inchoate groupings of bad feelings or disconnected worries. One of the powerful things that a great leader often contributes in such circumstances is a brilliant or simple framing of ideas and problems that is novel, one that offers a clear target for focusing public energies and resources in achieving a goal or in resolving a conlict. So, in Chapter 5 I discuss the experimental aspects of constructing problems, the artful process of framing and reframing the vision necessary for leaders to direct and motivate action. Equally important to framing problems, and as basic, is the process of prioritizing one’s tasks and efforts. In other words, a challenge to progress in any particular area is often the need for progress elsewhere. To address ways of thinking about this problem in ethics, Chapter 6, titled “Philosophy and Public Policy Prioritization,” covers a variety of ways in which philosophers and public leaders have, do, and ought, perhaps, to prioritize the problems that they address. 10 Morality, Leadership, and Public Policy Neither Chapter 5 nor Chapter 6 is more fundamental than the other. Rather, the processes addressed are ones that we experience and undergo simultaneously. Experimentalism as a theory must be consistent with the fact that the process of forming or reframing any problem occurs within a framework itself. There is no “view from nowhere.”19 The framing of problems and the prioritization of concerns cannot happen in smooth lockstep sequences, but are experienced in intertwined processes. Experimentalism in ethics always occurs in a ield of existing values and practices. The idea, therefore, of imagining a world outside of or before values, such as is implicit in some versions of social contract theory, is unrealistic and misleading.20 Part Three follows my presentation of elements of the theory of experimentalism in ethics with an analysis of two real-world scenarios. I present the irst scenario in Chapter 7, regarding the development of new technologies, which raise problems for moral theory. Consider the fact that the American Founding Fathers had no plans for the future aviation industry, given that powered human light had not been achieved in their day. Thus, new possibilities and ways of living that will come in 50 or 100 years or further in the future appear to be inevitably underdetermined in today’s laws and principles much in the same way that laws from the eighteenth century could not reasonably be expected to fully address today’s problems. Chapter 7 is titled “Stop him! He stole my internet connection!” This title is meant to be playful, because the thing stolen is so unlike the objects of conventional theft. Nevertheless, internet bandwidth is a new thing that some people are concerned about having taken from them or used in tandem with them without the owner’s consent. The issue is interesting for my purposes, since policy is needed for the resolution of present and developing claims. The example of internet bandwidth as property is useful, since it shows that how we establish standards for internet connections and related tools will have clear implications for what looks like theft versus free sharing. Regarding broadband internet access, we need to consider three things. The irst is a variety of options for establishing standard practices. The second concerns the implications and costs, broadly understood, of each option to be weighed. The third regards Introduction 11 the consequences that will arise for people. This example, therefore, reveals the ways in which the development of best practices is important and relevant to the moral sphere of public policy. It also offers a way of understanding the potential for multiple environments to try varied methods for proceeding, such that best practices can emerge naturally through individuals’ private experiences. Developments in electronics reasonably seem to call for new ideas about relevant moral norms, but in other spheres of law and policy that we think of as traditional, there are also changes that serve as excellent examples of experimentalism in ethics. The second scenario that I will address in Part Three concerns the United States Supreme Court. I attend to the Supreme Court in Chapter 8 to offer an excellent example of an arena in which public experimentation is undertaken regularly. Policies that appear to conlict in rulings from lower courts are brought for consideration in the highest court with the intention of resolving future conlicts about the law. Of course, future conlicts can be expected to arise regarding earlier decisions, thus the court serves as a mechanism for public inquiry into the best ways to apply and respect constitutional law. One central problem discussed in Chapter 8, “Activist or Active Judges,” is that the court cannot possibly address every case that is brought to it for consideration. It must decide what cases will be addressed. The reasons why certain cases should be selected and tried rather than others are morally important matters. I address this issue in an initial way in Chapter 6, while examining the subject of policy prioritization. The ultimate purpose of Chapter 8 is to offer an example of an institution in which experimentalism appears clearly to be at work in intelligent deliberation about moral principles, political processes, and public justiications. Regarding the Supreme Court, there are those who argue that judges ought not import their own moral codes into the process of interpreting the U.S. Constitution. Gary L. McDowell’s recent book, The Language of Law and the Foundations of American Constitutionalism, argues this point, challenging the idea of the Constitution as a living document.21 I must clarify, therefore, that my point is not to argue for the imposition of judges’ moral theories in creative reinterpretations aimed at stretching the law. Rather, an experimentalist would 12 Morality, Leadership, and Public Policy challenge McDowell’s idea that values can be separated out from interpretation in the irst place. We must recognize and control for the fact that our selections and interpretations will always exhibit some valuation, especially if we are to follow McDowell’s point about avoiding overreaching on the court. At the same time, how cases are selected is something that takes consideration and experimentation. Also, the tyranny that McDowell fears in judges who might go too far is itself a matter that legislators can address through the use of Constitutional amendments. In the 2008 presidential campaign, Sarah Palin’s response to the Supreme Court’s stand on abortion was to call for a Constitutional amendment outlawing the practice.22 Thus, where courts appear problematic or tyrannical to some, like McDowell, the living quality of the Constitution—as a document that can be amended—is itself a mechanism for responding politically to judges’ decisions. My point, of course, is not about any particular position on the Supreme Court’s decisions, but rather that it presents a helpful case for considering the role of experimentalism in ethics. In the end, I hope that this book offers a useful exploration and defense of experimentalism as a way to think about and address the moral challenges for leaders of public policy. There may always be hard-line defenders of absolutist moral positions. Experimentalists can take heart, however, in the fact that there are many areas in which enough freedom for inquiry can be opened for there to be real trials for new ideas. When experiments work, resulting in moral growth and societal beneit, furthermore, replication in other arenas becomes easy to justify. In this way, even in the face of political posturing, experimentalism can offer small positive steps forward that achieve true moral progress in public policy.