Arthur Isak Applbaum is Associate Professor of Public Policy at Harvard University's John F. Kennedy
School of Government and Director of Graduate Fellowships in the Harvard University Program in Ethics and the Professions.
Sample Chapter
CHAPTER ONE: ARGUMENTS FOR ADVERSARIES
ETHICS FOR ADVERSARIES is a philosophical inquiry into arguments that are offered to defend adversary roles,
practices, and institutions in public and professional life. The adversary professions in law, business, and government
typically claim a moral permission to harm others in ways that, if not for the role, would be wrong. I shall argue
that the claims of adversary institutions are weaker than supposed and do not justify much of the harm that professional
adversaries inflict. Institutions and the roles they create ordinarily cannot mint moral permissions to do what
otherwise would be morally prohibited.
Adversary institutions are pervasive, and the arguments offered to justify such arrangements cut across professional
boundaries. The most vivid example is the adversary legal system, in which lawyers are permitted, within its rules,
to make the case for what they know to be false and to advance causes they know to be unjust. But many other practices
invoke some sort of adversary argument for their justification: competitive markets for goods and services, for
labor and capital, and for corporate control; internal competition among managers; electoral politics, interest-group
pluralism, constitutionally separated powers, and bureaucratic competition; commercial and political advertising,
investigative and advocacy journalism, and the marketplace of ideas. The practice of medicine in a for-profit and
managed health care system is becoming an adversary institution too. Though the details of these practices and
the nuances of the arguments of practitioners vary, I believe that these adversary settings have more in common
than is commonly supposed. Though I shall illustrate my view with specific examples drawn from law, business, government,
and medicine, my purpose is to develop a general account of "necessary offices" in politics and the professions.
Adversaries can line up a phalanx of arguments to defend their sharp practices, but not all arguments are good
ones. For concreteness, consider the claims that might be made by a political candidate and his campaign strategist
who, as James Madison puts it, "practice with success the vicious arts," and willfully distort an opponent's
record to smear her reputation in the eyes of voters.1 The claims are presented in pairs. The members
of each pair are easily conflated, but that would be a mistake.
EXPECTATION: Political opponents expect to be slandered, and voters expect to be deceived.
CONSENT: Political opponents consent to be slandered, and voters consent to be deceived.
RULES OF THE GAME: The rules of the game of politics permit slandering opponents and deceiving voters.
FAIR PLAY: Fairness to players in the game of politics morally permits slandering opponents and deceiving voters.
INCREASED NET BENEFIT: More benefit than burden is caused by political slander and deception.
PARETO SUPERIORITY: No one on balance is burdened, and some benefit, from political slander and deception.
NO DIFFERENCE: If I don't slander my opponent and deceive the voters, someone else will.
SELF-DEFEAT: If I don't slander my opponent and deceive the voters, someone else will slander and deceive them
even more viciously.
ROLE OBLIGATION: The rules of the role of campaign strategist require engaging in the vicious arts by any legal
means.
MORAL OBLIGATION: Morality requires that campaign strategists obey the rules of the role of campaign strategists.
SELFLESSNESS: A professional strategist serving a candidate should filter out her own self-interest.
PERSON NEUTRALITY: A professional strategist serving a candidate should filter out her own moral judgments.
Now, in each pair, the first claim might hold, but does not justify much. The second claim would justify much,
but does not hold. In no pair does the second proposition follow from the first. Substitute claims about other
adversary practices, and the upshot is the same. If you need convincing, this book is for you.
Restricted Reasons and Permissible Violation
Adversaries act for by acting against. The way that adversaries act for poses a problem about good reasons:
how to justify adopting the partial aims and point of view of the partisan, thereby restricting the range of moral
reasons that count in one's deliberations, so that some good moral reasons are excluded or discounted, and others
are given priority or magnified. What justifies such a division of moral labor?2 Call this the problem
of restricted reasons. The way that adversaries act against poses a problem about right action: how to justify
engaging in adversary tactics that harm others, especially actions that, if performed outside of one's adversary
role, would wrongfully violate persons or their rights?3 Call this the problem of permissible violation.
Adversaries offer arguments in defense of their practices that appeal to restricted reasons and that assert permissions
to violate.
The Problem of Restricted Reasons
Professional and political actors occupy roles that often instruct them to work at cross-purposes, furthering
incompatible ends and trying to thwart each other's plans. Prosecuting and defending attorneys, Democratic and
Republican candidates, secretaries of state and national security advisers, industrial manufacturers and environmental
regulators, investigative journalists and official sources, and physicians and insurance companies often are pitted
against one another by their missions, jobs, and callings.
Sometimes, when adversaries further conflicting moral ends, one is thought to be right and the other wrong;
or, one is thought to act for the better, and the other for the worse. But sometimes the actions of both actors
are thought to be for the good; indeed, observers often believe that both actors ought to act as they do, though
what one ought to do conflicts with what the other ought to do. But how can two political or professional actors
facing the same situation be required to act in opposing ways? How can two adversaries who act to further conflicting
purposes both have good enough reasons to do so? Why are the reasons the one has to act not reasons, or not good
enough reasons, for the other?
One reply is pervasive in both casual and considered talk in support of adversary institutions. Although the
form of the argument varies from practice to practice, the heart of it looks something like this: actors occupying
professional or public roles are not to make all-things-considered evaluations about the goodness or rightness
of their actions, but rather, they are to act on restricted reasons for action, taking into account only a limited
or partial set of values, interests, or facts. Reasons for action are restricted in two ways. First, the professional
is exempted from the broadest, most inclusive of deliberative concerns, allowing for specialized moral aims across
roles--role relativity. Second, when acting on behalf of others, the professional is precluded from counting
the most local of deliberative concerns, requiring uniformity within role--person neutrality. Each adversary
actor ought to do so (or, more modestly, is permitted to do so) because, in the aggregate, the institution of multiple
actors acting from restricted reasons properly takes into account the expansive set of reasons, values, interests,
and facts. The competitive market, the system of legal representation, and electoral politics--each turns for justification
to a version of this division-of-moral-labor argument. Adam Smith and James Madison, in different ways, appeal
to such a division. Some arguments in support of freedom of expression--notably, that of John Stuart Mill--take
a similar form.
These arguments rely on some notion of a favorable equilibrium that will result if adversaries restrict their
concerns to narrow aims. The mechanism by which a system is to arrive at this equilibrium varies, and at least
three evocative images are used to describe it. The division-of-moral-labor image itself suggests not necessarily
conflict between professionals or professions, but rather, selective attention to interests, values, and reasons
by specialized actors, whose efforts result in the efficient and possibly harmonious manufacture of social value.
The adversary-equipoise image adds to this specialization a contest between identified opponents, in which the
aims and efforts of one are poised against the contrary aims and efforts of the other in careful balance, so that
if one shirks her part, the favorable equilibrium will be upset. In contrast, Adam Smith's famous invisible-hand
image, though it too seeks to justify restricted reasons, suggests the opposite of both specialization and individual
importance of actors. In the face of competitive pressure and market reaction, actors are interchangeable, no one
has room for successful discretion, and no one's actions make a difference to the outcome.
The favorable claims made for the resulting equilibria also vary. The strongest versions of equilibrium arguments
in the professions unconditionally claim that it is better that all actors narrow their reasons for action than
if all actors tried to take the broadest range of reasons for action into account. Such first-best claims are often
made for competitive markets and for the moral doctrine known as ethical egoism. The conditional division-of-labor
argument claims that if some actors pursue restricted or partisan aims, then it is for the best that all do (though
it might be better still if none did). The conditional argument often is invoked to justify the training and deployment
of soldiers and lawyers. The weakest version claims only that adversary institutions adequately anticipate and
neutralize the bad effects of partisan action. Madison, whose arguments for separation of powers and representative
government are often misread as championing the strong argument, actually subscribes to the weakest form.4
Arguments for divided moral labor in public and professional life face both a factual and a conceptual challenge.
Factually, the equilibrium mechanism by which partial actions are said to serve impartial goods must be specified,
and the conditions necessary for a good equilibrium outcome must be shown to hold. What precisely is the route
by which manipulative and misleading commercial or political advertising is supposed to lead to market efficiency
or legitimate government? Conceptually, it must be shown why a prescription to act from filtered and partial reasons
follows from the evaluation that it would be a good state of affairs if practitioners did so. It may be good that
diverse, conflicting beliefs are held in the marketplace of ideas, but that doesn't give any actor a good reason
to adopt a false belief, and it doesn't justify circulating information one believes to be false. Good forms of
social organization do not by themselves dictate the forms of moral reasoning particular actors within institutions
ought to employ. The gap between what an institution may allow and what an actor within an institution may do is
especially great when the action in question deceives, coerces, or violates persons in other ways.
The Problem of Permissible Violation
Imagine a society, Badland, where people are motivated by self-interest alone, and where everyone pursues his
or her own advantage in every interaction with intense vigor. In those pursuits, no one avoids harming another
unless there are penalties discouraging such harm, and all craftily engage in manipulation and deception if doing
so will advance their ends. In Badland, Avarice talks Bully into buying a worthless painting, Bully dumps toxic
waste near Cutthroat's backyard, and Cutthroat refuses to repay the loan borrowed from Avarice. Now, if there are
stringent enough rules in place to govern the pursuit of self-interest, Badland might be a just society.
Kant held that just laws could be written even for a nation of devils. But Badland would not be a good society--its
inhabitants would be vicious, not virtuous, and we would not admire such people or their character.
Across the border, in Roland, people have the same motivations, but do not pursue their own advantage. Rather,
each appoints a trustee who pledges to advance the trustor's interests through a blind trust, and each trustor
also is someone else's trustee. Exactly the same conflicts are fought, the same manipulations occur, the same harms
inflicted, but each actor is acting as a faithful professional in fulfilling obligations to a client. In Roland,
Comity sells Arista's worthless painting to Bono, and thinks that she has a duty to Arista to get the best price;
Arista lobbies the legislature to pass a law permitting the expeditious disposal of Bono's poisons despite the
risk to Comity's health, and believes that it would be wrong not to seek a rule most favorable to the polluter;
Bono is required by the rules of his profession to extricate Comity from her debt to Arista through the skillful
manipulation of Roland's legal system. The people of Roland believe that it would be wrong not to meet their fiduciary
responsibilities, distasteful as they are. Because they devote their days to fulfilling their professional obligations,
they pride themselves on their virtue.
The puzzling self-understanding of the inhabitants of Roland (which perhaps is no more puzzling than the self-understanding
of our marketers, lobbyists, and litigators) raises what we might call the problem of hired hands: how can a professional
have an obligation to do on a client's behalf what would be wrong if done on the professional's own behalf? The
answer cannot simply be that the professional has promised. Whether the promissor is a contract killer or a contract
liar, a promise to wrong another has no moral force. One response is to redescribe the doing, so that the action
of the professional is said to be "fulfilling professional responsibilities" or "realizing social
values served by the division of moral labor," rather than "lying," "poisoning," or "stealing."
Another is to redescribe the actor so that it is the professional role that performs the nasty acts, not the person
who occupies the professional role--a response to the hired-hands problem we might call the no-hands solution.
The problem of hired hands is an instance of a more general problem. How can acts that ordinarily are morally
forbidden--violence, deception, coercion--be rendered morally permissible when performed by one who occupies a
professional or public role? Occupants of adversary roles claim such a moral permission when the rules of their
profession permit, and claim to be morally required to exercise these permissions when the rules of their profession
require. But why do the conventional rules of a practice have the power to create moral permissions and requirements?
True, adversary roles direct practitioners to filter out moral reasons that count against harming others, but why
are practitioners morally allowed, let alone morally required, to follow such directions?
Précis
To begin, I examine in some detail a professional role that Montaigne counts among his necessary offices: the
executioner of Paris.5 Charles-Henri Sanson is appointed by Louis XVI, and serves the punitive needs
of the ancien régime for decades. What becomes of the King's Executioner come the French Revolution?
He becomes Citizen Sanson, the king's executioner. Sanson adapts seamlessly to the Revolution and its new technology,
the guillotine, and ministers with professional detachment to each defeated political faction throughout the Terror
and its aftermath. First, the historical record of what is known about Sanson, how he was viewed, and how he wished
to be viewed is reconstructed. Then, the most plausible arguments that might have been made in his defense are
constructed. The claims that can be made on Sanson's behalf strikingly resemble the claims made by politicians,
bureaucrats, lawyers, business executives, and journalists to justify their commitments to their professional roles
when the roles ask them to act in ways that ordinarily would be wrong. By exploring one extraordinary professional
career and the arguments from the morality of roles that can be offered in its defense, unsettling doubts are raised
about arguments in defense of less sanguinary professions and their practices. These doubts are explored more systematically
in subsequent chapters.
The three chapters of Part II, "Roles and Reasons," assess arguments in defense of adversary practices
that invoke role as an important moral concept. Roles claim to change the morally apt descriptions of actions (lawyering
isn't lying) and to restrict the moral reasons that properly enter into a roleplayer's deliberations (defense attorneys
are not to consider the consequences of setting a dangerous offender free). Do these bids to filter descriptions
and reasons succeed?
Chapter 3, "Doctor, Schmoctor," introduces the concept of a social and professional role and discusses
the various ways that roles can generate moral obligations and permissions. I argue for practice positivism,
the idea that the rules of practices, roles, and institutions do not have any necessary moral content--they simply
are what they are, not what they morally ought to be. There is nothing incoherent about a role that can be performed
well only by being bad, as Sanson demonstrates. Practice positivism has two upshots: first, roles can demand too
little, because a practitioner might not have acquired a moral obligation to comply with a good role. This, I argue,
is the challenge new institutional arrangements for the delivery of medical expertise, such as health maintenance
organizations, present to the traditional doctor-patient relationship. Second, roles can permit too much, because
a practitioner can acquire a moral obligation to comply with a bad role--or so it might seem.
Roles characteristically claim to generate moral prescriptions that vary from professional role to role (role-relative
prescriptions) but that do not vary by the personal attributes of those who occupy the role (person-neutral prescriptions).
Chapter 4, "The Remains of the Role," explores the argument, often heard from British civil servants,
that the demands of person neutrality properly filter out the substantive moral objections that persons occupying
roles might have to what the role requires. The standard view of the civil service is compared with a butler's
view of private service in Ishiguro's novel, The Remains of the Day. I argue that public servants must make
political philosophical judgments about both the justice and legitimacy of public policies, and that sometimes
those judgments will justify disloyalty and disobedience. The political actor must not defer to the authority of
his role obligations without exercising judgment about the legitimacy of the role or of the content of the actions
it prescribes.
Chapter 5, "Are Lawyers Liars?" examines the claim that professional practices create new ways of
acting that can be judged only by the rules of the practice. If this strategy of redescription succeeds, then the
central question of this book is misposed. To the question, How can a professional role morally permit actions
that otherwise would be morally wrong? the response is, There is no otherwise. The argument of redescription seeks
to short-circuit the moral evaluation of both actions and actors by redescribing them in practice-defined terms.
But the argument does not work, because act and actor descriptions persist. Whichever way a practice describes
an action, preconventional descriptions do not disappear, and so actions can always be evaluated under multiple
descriptions. The rules of the practice of business might claim to redescribe the breaking of a promise so that
it is no longer the breaking of a promise, but merely the nonperformance of a contract, and the practice of lawyering
might claim to redescribe lying so that willfully causing beliefs one knows to be false is no longer a lie, but
merely zealous advocacy. Still, these claims fail.
The harms that adversaries cause cannot be redescribed away or filtered out--the claims of the target not to
be mistreated pierce the masks that role players wear. The three chapters of Part III, "Games and Violations,"
consider arguments that address directly the complaints of those harmed by adversary practices and institutions.
In Chapter 6, "Rules of the Game and Fair Play," I assess several arguments claiming that presumptively
wrong actions, if permitted by the rules of a game, for that reason are no longer wrong, and so become morally
permitted. Arguments from consent and tacit consent are explored, and shown either to fail to justify sharp tactics
or to require stringent conditions that are unlikely to be met in practice. The most promising argument in support
of at least some deceptive, coercive, and violent practices is grounded, surprisingly, on the principle of fair
play, which obligates us to do our fair share in schemes of social cooperation from which we willingly benefit,
and not to free-ride on the burdens shouldered by others. The fair-play argument is here employed in a new way,
to establish a moral permission that otherwise would not exist, rather than to establish a moral obligation that
otherwise would not exist. Necessary and sufficient conditions for the fair-play argument to work in establishing
a permission are developed, and the question of whether various games in business, legal practice, and politics
meet these conditions is explored.
If some ways of treating others never are morally permissible, however, then arguments in defense of some adversary
permissions cannot get off the ground. Chapter 7, "Are Violations of Rights Ever Right?" establishes
the conceptual possibility of morally permissible violations. I distinguish violating persons from violating the
rights of persons not to be violated. Though it may be a contradiction to violate a right in order to express the
inviolable status of rights, persons, not rights, have that status, so it is no contradiction to violate a right
in order to express the inviolable status of persons. I explore a number of conditions under which the violation
of persons could meet a test of reasonable acceptance--for example, when constraints against violation are self-defeating
or Pareto-inferior. But adversary professions and practices typically do not meet these conditions, and so the
violations they inflict typically do not meet the test of reasonable acceptance.
Chapter 8, "Ethics in Equilibrium," assesses appeals to the overall good of a system of adversaries
pursuing partial and partisan purposes. A few pages ago I sketched the forms that such appeals take--to an invisible
hand, to a division of labor, or to equipoise. In this chapter, I examine both the claim that harmful actions taken
under an equilibrating mechanism produce good consequences and the claim that such actions pass the test of reasonable
acceptance. Adversaries in equilibrium might argue that, because of the institutional structure in which they act,
the harms they cause fall on the easier-to-justify side of two distinctions: the difference between intentional
and accidental harm and the difference between doing and allowing harm. Both moves fail. The adversary cannot redescribe
his aims in a way that makes the violation he inflicts an accidental effect of the overall good aims of the institution.
Invisible hands don't violate people--people violate people. And, though the designers and rule makers of an adversary
institution can be understood to allow certain activities, practitioners do them, and actions that are not wrong
to allow might be wrong to do. Failure to note this asymmetry leads to the conflation of justified forms of social
organization with justified forms of moral reasoning by practitioners within institutions.
If institutions may permit or even require actions that practitioners within those institutions ought not to
do, then a different sort of adversary relation arises--not one designed by governments, markets, or professions,
but one that follows from the conflict between the authority of these institutions and the judgment of practitioners.
Part IV, "Authority and Dissent," takes up this conflict.
Chapter 9, "Democratic Legitimacy and Official Discretion," considers the conditions under which the
occupant of a political role may take adversary action against superiors or constituents in the face of substantive
political disagreements. When may government officials create and exercise effective discretion to pursue policies
that dissent from the wishes of superiors or of most citizens? I argue that neither the obedient servant nor the
catch-me-if-you-can entrepreneur are proper models of official discretion. Criteria for justified discretion are
offered, drawing on accounts of legislative representation and civil disobedience. Conclusion: dissenters ought
to make judgments about the common bads or injustices at issue and about the legitimate jurisdiction and the legitimate
reasons of the sources of political mandates. These conditions of democratic legitimacy are matched with possible
strategies of dissent--persuasive, incentive, or deceptive. In the end, it is not the role-relative prescriptions
of divided government institutions that justify adversary action by political actors, but rather, dissenting political
judgments about justice and legitimacy.
Chapter 10, "Montaigne's Mistake," illustrates the book's main arguments through an analysis of an
event important in shaping American views of authority and dissent under a division of constitutional labor,
the conflict between President Richard Nixon and Special Prosecutor Archibald Cox over the Watergate tapes. I assess
various ways that a claim for a division of labor in moral reasoning, given an institutional separation of powers,
can be pressed, so that both those who brought about Cox's dismissal and those who refused are justified. I conclude
that, under plausible assumptions, to obey the president is to violate political liberties in a way that fails
to meet any of the tests of morally permissible violation.
Philosophical Commitments
I hope that there is something in this book for readers who come to it with a variety of foundational views
in moral and political philosophy. Chapter 2 and Part II raise questions and reject answers in a way that travels
fairly light. But obviously one cannot be completely ecumenical in one's philosophical commitments and still say
something. As will become clear in Parts III and IV, I believe that some version of contractualism owing much to
Kant is the right account of moral philosophy, and some version of liberalism owing much to Rawls is the right
account of political philosophy. But it is not my project here to demonstrate the correctness of contractualism
or liberalism in general. Whatever the correct view is about divisions of moral labor, surely there is room for
a division of intellectual labor. I leave those more foundational pursuits to others.6 Nor is it my
purpose to enter into intramural discussions about just which formulation of contractualism or liberalism is most
promising--on that, except for occasional lapses, I am intentionally noncommittal. I hope that what I have to say
about adversary roles and institutions is sufficiently robust to hold water, with some minor plugging, under any
plausible version. Rather than argue for, I argue from a contractualist sensibility, in the hope that, if
you are not already convinced, you will feel enough of its tug to question whether morality is, at bottom, simply
about the summing up of benefits and burdens across persons. If utilitarianism or a straightforward consequentialism
is the correct moral theory, then there are no deep moral objections to an adversary profession or institution
that, all things considered, breaks even on benefits and burdens.7 If, instead, moral justification
is about giving reasons to each person burdened that she, if reasonable, would accept, an appeal to good consequences
alone is not likely to meet the test of reasonable acceptance. This book is a search for acceptable reasons adversaries
could give to those they deceive, coerce, and otherwise violate. Though there is truth in many arguments for adversaries,
these truths are far more limited in scope and setting than is often claimed. The task ahead is to draw these limits.
Review
"A masterful, artful book, this set of arguments and persuasive dialogue aims to inquire into, sometimes
justify, and limit vicious actions by people in adversarial roles in professional and public life."
--Choice
"Ethics for Adversaries is a sustained but reasoned attack on harmful adversarial tactics common in professions,
business, and politics. . . . Applbaum's attack is systematic and deep. It is systematic because he concentrates
on possible justifications for adversariness across the board. . . . It is deep because it develops its arguments
from a wellarticulated moral framework. . . . Very knowledgeable, well written and argued."
--Alan Goldman, Ethics
"This is an important and original contribution to moral philosophy and, in particular, to professional ethics.
The argument is rigorous and well developed and the book is written with energy, flair, wit, and grace."
--Alan Wertheimer, University of Vermont
"This is a brilliant approach to the vexing questions about ethical requirements of certain leading professions.
No serious treatment of these issues will be able to proceed without considering Applbaum's thorough and pointed
arguments. This book is, on the one hand, literate, witty and fun to read, and on the other, rigorous, careful,
and technical when the argument requires it."
--David Estlund, Brown University
"Ethics for Adversaries is a pathbreaking book. With a rare combination of rigorous theory and relevant examples,
Arthur Applbaum presents a fairminded and hardhitting critique of professional ethics. He dissects the best arguments
in favor of relaxing moral standards for lawyers, politicians, and adversaries in competitive practices of all
kinds, and perceptively exposes their fundamental flaws."
--Amy Gutmann, Princeton University
Submitted by the Publisher, March, 2002
Summary
The adversary professionslaw, business, and government, among otherstypically claim a moral permission to violate
persons in ways that, if not for the professional role, would be morally wrong. Lawyers advance bad ends and deceive,
business managers exploit and despoil, public officials enforce unjust laws, and doctors keep confidences that,
if disclosed, would prevent harm. Ethics for Adversaries is a philosophical inquiry into arguments that are offered
to defend seemingly wrongful actions performed by those who occupy what Montaigne called "necessary offices."
Applbaum begins by examining the career of CharlesHenri Sanson, who is appointed executioner of Paris by Louis
XVI and serves the punitive needs of the ancien regime for decades. Come the French Revolution, the King's Executioner
becomes the king's executioner, and he ministers with professional detachment to each defeated political faction
throughout the Terror and its aftermath. By exploring one extraordinary role and the arguments that can be offered
in its defense, Applbaum raises unsettling doubts about arguments in defense of less sanguinary professions and
their practices. To justify harmful acts, adversaries appeal to arguments about the rules of the game, fair play,
consent, the social construction of actions and actors, good outcomes in equilibrium, and the legitimate authority
of institutions. Applbaum concludes that these arguments are weaker than supposed and do not morally justify much
of the violation that professionals and public officials inflict. Institutions and the roles they create ordinarily
cannot mint moral permissions to do what otherwise would be morally prohibited.
Table of Contents
Acknowledgments
Pt. I Necessary Offices
Chapter 1 Arguments for Adversaries
Chapter 2 Professional Detachment: The Executioner of Paris
Pt. II Roles and Reasons
Chapter 3 Doctor, Schmoctor: Practice Positivism and Its Complications
Chapter 4 The Remains of the Role
Chapter 5 Are Lawyers Liars? The Argument of Redescription