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Theories of Duties and Rights: Traditional Tools for Making Decisions in Business When the Means Justify the Ends

Acknowledgements

This text is a reprint of Chapter 2 from Brusseau (2011) The Business Ethics Workshop. It is copied and adapted under the terms of the Creative Commons Attribution-NonCommercial-ShareAlike 3.0 License.

Brusseau, J. (2011). The Business Ethics Workshop (1st ed.). New York: Flat World Knowledge. Chapter Overview

Chapter 2 "Theories of Duties and Rights: Traditional Tools for Making Decisions in Business When the Means Justify the Ends" examines some theories guiding ethical decisions in business. It considers ethics defined by duties and rights.

2.1 The Means Justify the Ends versus the Ends Justify the Means

Learning Objective

1. Distinguish ethical theory centered on means from theory centered on ends.

A Foundational Question

In business ethics, do the means justify the ends, or do the ends justify the means? Is it better to have a set of rules telling you what you ought to do in any particular situation and then let the chips fall where they may, or should you worry more about how things are going to end up and do whatever’s necessary to reach that goal?

Until recently, Eddy Lepp ran an organic medicine business in Northern California. His herbal product soothed nausea and remedied vomiting, especially as suffered by chemo patients. He had a problem, though. While his business had been OK’d by California regulators, federal agencies hadn’t approved: on the national level, selling his drug was breaking the law. On the other hand, not selling his remedy had a significant downside: it was consigning his clients to debilitating suffering. So when federal agents came knocking on his door, he had to make a decision.

If the means justify the ends—if you should follow the rules no matter the consequences— then when the agents ask Lepp point blank whether he’s selling the medicine, the ethical

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action is to admit it. He should tell the truth even though that will mean the end of his business. On the other hand, if the ends justify the means—if your ethical interest focuses on the consequences of an act instead of what you actually do—then the ethics change. If there’s a law forcing people to suffer unnecessarily, it should be broken. And when the agents ask him whether he’s selling, he’s going to have an ethical reason to lie.

Across the entire field of traditional ethics, this is a foundational distinction. Is it what you do that matters, or the consequences? It’s hard to get oriented in ethics without making a preliminary decision between these two. No one can make the decision for you, but before anyone can make it, an understanding of how each works should be reached. This chapter will consider ethics as focusing on the specific act and not the consequences. Theories of duties and rights center discussion. Chapter 3 "Theories of Consequence Ethics: Traditional Tools for Making Decisions in Business when the Ends Justify the Means" is about ethics as looking at the consequences instead of the act.

Key Takeaways

When the means justify the ends, ethical consideration focuses on what you do, not the consequences of what you’ve done.

Traditionally, focusing on means instead of ends leads to an ethics based on duties or rights.

Review Questions

Your mother is ill with diabetes, and you can’t afford her medicine. In the pharmacy one day, you notice the previous customer forgot that same prescription on the counter when she left. Why might the premise that the ends justify the means lead you to steal the pills?

Why might the premise that the means justify the ends lead you to return the pills?

2.2 Perennial Duties Learning Objectives

Define an ethical duty.

Distinguish specific duties.

Show how ethical duties work in business.

Consider advantages and drawbacks of an ethics based on duties.

Duties

“Should I steal that?” “No, stealing’s wrong.”

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Basic ethics. There are things that are right and others that are wrong, and the discussion ends. This level of clarity and solidity is the main strength of an ethics based on duties. We all have a duty not to steal, so we shouldn’t do it. More broadly, when we’re making moral decisions, the key to deciding well is understanding what our duties are and obeying them. An ethics based on duties is one where certain rules tell us what we ought to do, and it’s our responsibility to know and follow those rules.

The Madoff Family

If we’re supposed to obey our duties, then what exactly are they? That’s a question Andrew Madoff faced in December 2008 when he learned that some—maybe most, maybe all—of the money he and his family had been donating to the charitable Lymphoma Research Foundation and similar medical investigation enterprises was, in fact, stolen.

It was big money—in the millions—channeled to dedicated researchers hot on the trail of a remedy for lymphoma, a deadly cancer. Andrew, it should be noted, wasn’t only a cancer altruist; he was also a victim, and the charitable money started flowing to the researchers soon after he was diagnosed.

It’s unclear whether Andrew knew the money was stolen, but there’s no doubt that his dad did. Dad—Bernard “Bernie” Madoff—was the one who took it. The largest Ponzi scheme in history, they call it.

A Ponzi scheme—named after the famous perpetrator Charles Ponzi—makes suckers of investors by briefly delivering artificially high returns on their money. The idea is simple: You take $100 from client A, promising to invest the money cleverly and get a massive profit. You spend $50 on yourself, and at the end of the year, you send the other $50 back to the client along with a note saying that the original $100 investment is getting excellent results and another $50 should come in next year and every year from then on. Happy client A recommends friends, who become clients B, C, and D. They bring in a total of $300, so it’s easy to make good on the original promise to send a $50 return the next year to client A. And you’ve now got $250 remaining from these three new clients, $150 of which you will soon return to them ($50 for each of the three new clients), leaving you with $100 to spend on yourself. The process repeats, and it’s not long before people are lining up to hand over their money. Everyone makes off like bandits.

Bandit is the right term for Madoff, who ran his Ponzi empire for around fifteen years. So many people handed over so much cash, and the paper trail of fake stock-purchase receipts and the rest grew so complicated that it’s impossible to determine exact numbers of victims and losses. Federal authorities have estimated the victims were around five thousand and the losses around $65 billion, which works out to about $13 million squeezed from each client.

Madoff had, obviously, rich clients. He met them at his home in New York City; at his mansion in hyperwealthy Palm Beach, Florida; or on his fifty-five-foot yacht cleverly named Bull. He impressed them with a calm demeanor and serious knowledge. While it’s true that he was mostly taking clients’ money and sticking it in his wallet, the investments he claimed to engineer were actually quite sophisticated; they had to do with buying stock in tandem

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with options to buy and sell that same stock on the futures market. He threw in technical words like “put” and “call” and left everyone thinking he was either crazy or a genius. Since he was apparently making money, “genius” seemed the more likely reality. People also found him trustworthy. He sat on the boards of several Wall Street professional organizations and was known on the charity circuit as a generous benefactor. Health research was a favorite, especially after Andrew’s cancer was diagnosed.

Exactly how much money Madoff channeled to Andrew and other family members isn’t clear. By late 2008, however, Andrew knew that his father’s investment company had hit a rough patch. The stock market was crashing, investors wanted their money back, and Madoff was having trouble rounding up the cash, which explains why Andrew was surprised when his father called him in and said he’d decided to distribute about $200 million in bonuses to family members and employees.

It didn’t make sense. How could there be a cash-flow crisis but still enough cash to pay out giant bonuses? The blunt question—according to the Madoff family—broke Madoff down. He spilled the truth: there was little money left; it was all a giant lie.

The next day, Andrew reported the situation to the authorities.

Madoff sits in jail now. He’ll be there for the rest of his life. He claims his scheme was his project alone and his children had no knowledge or participation in it, despite the fact that they were high executives in his fraudulent company. Stubbornly, he has refused to cooperate with prosecutors interested in determining the extent to which the children may have been involved. His estate has been seized. His wife, though, was left with a small sum— $2.5 million—to meet her day-to-day living expenses. Bilked investors got nearly nothing.

One of those investors, according to ABC News, was Sheryl Weinstein. She and her family are now looking for a place to live because after investing everything with Madoff and losing it, they were unable to make their house payments. At Madoff’s sentencing hearing, and with her husband seated beside her, she spoke passionately about their plight and called Madoff a “beast.” The hearing concluded with the judge calling Madoff “evil.” [1]

Weinstein was well remembered by Madoff’s longtime secretary, Eleanor Squillari. Squillari reported that Weinstein would often call Madoff and that “he would roll his eyes and then they’d go meet at a hotel.” Their affair lasted twenty years, right up until the finance empire collapsed.

What Do I Owe Myself? Historically Accumulated Duties to the Self

Over centuries of thought and investigation by philosophers, clergy, politicians, entrepreneurs, parents, students—by just about everyone who cares about how we live together in a shared world—a limited number of duties have recurred persistently. Called perennial duties, these are basic obligations we have as human beings; they’re the fundamental rules telling us how we should act. If we embrace them, we can be confident that in difficult situations we’ll make morally respectable decisions.

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Broadly, this group of perennial duties falls into two sorts:

Duties to ourselves

Duties to others

Duties to the self begin with our responsibility to develop our abilities and talents. The abilities we find within us, the idea is, aren’t just gifts; it’s not only a strike of luck that some of us are born with a knack for math, or an ear for music, or the ability to shepherd conflicts between people into agreements. All these skills are also responsibilities. When we receive them, they come with the duty to develop them, to not let them go to waste in front of the TV or on a pointless job.

Most of us have a feeling for this. It’s one thing if a vaguely clumsy girl in a ballet class decides to not sign up the next semester and instead use the time trying to boost her GPA, but if someone who’s really good—who’s strong, and elegant, and a natural—decides to just walk away, of course the coach and friends are going to encourage her to think about it again. She has something that so few have, it’s a shame to waste it; it’s a kind of betrayal of her own uniqueness. This is the spot where the ethics come in: the idea is that she really should continue her development; it’s a responsibility she has to herself because she really can develop.

What about Andrew Madoff, the cancer sufferer? He not only donated money to cancer research charities but also dedicated his time, serving as chairman of the Lymphoma Research Foundation (until his dad was arrested). This dedication does seem like a duty because of his unique situation: as a sufferer, he perfectly understood the misery caused by the disease, and as a wealthy person, he could muster a serious force against the suffering. When he did, he fulfilled the duty to exploit his particular abilities.

The other significant duty to oneself is nearly a corollary of the first: the duty to do ourselves no harm. At root, this means we have a responsibility to maintain ourselves healthily in the world. It doesn’t do any good to dedicate hours training the body to dance beautifully if the rest of the hours are dedicated to alcoholism and Xanax. Similarly, Andrew should not only fight cancer publicly by advocating for medical research but also fight privately by adhering to his treatment regime.

At the extreme, this duty also prohibits suicide, a possibility that no doubt crosses Bernie Madoff’s mind from time to time as he contemplates spending the rest of his life in a jail cell.

What Do I Owe Others? Historically Accumulated Duties to Others

The duties we have to ourselves are the most immediate, but the most commonly referenced duties are those we have to others.

Avoid wronging others is the guiding duty to those around us. It’s difficult, however, to know exactly what it means to wrong another in every particular case. It does seem clear that Madoff wronged his clients when he pocketed their money. The case of his wife is blurrier, though. She was allowed to keep more than $2 million after her husband’s

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sentencing. She claims she has a right to it because she never knew what her husband was doing, and anyway, at least that much money came to her from other perfectly legal investment initiatives her husband undertook. So she can make a case that the money is hers to keep and she’s not wronging anyone by holding onto it. Still, it’s hard not to wonder about investors here, especially ones like Sheryl Weinstein, who lost everything, including their homes.

Honesty is the duty to tell the truth and not leave anything important out. On this front, obviously, Madoff wronged his investors by misleading them about what was happening with their money.

Respect others is the duty to treat others as equals in human terms. This doesn’t mean treating everyone the same way. When a four-year-old asks where babies come from, the stork is a fine answer. When adult investors asked Madoff where the profits came from, what they got was more or less a fairy tale. Now, the first case is an example of respect: it demonstrates an understanding of another’s capacity to comprehend the world and an attempt to provide an explanation matching that ability. The second is a lie; but more than that, it’s a sting of disrespect. When Madoff invented stories about where the money came from, he disdained his investors as beneath him, treating them as unworthy of the truth.

Beneficence is the duty to promote the welfare of others; it’s the Good Samaritan side of ethical duties. With respect to his own family members, Madoff certainly fulfilled this obligation: every one of them received constant and lavish amounts of cash. There’s also beneficence in Andrew’s work for charitable causes, even if there’s a self-serving element, too. By contrast, Madoff displayed little beneficence for his clients.

Gratitude is the duty to thank and remember those who help us. One of the curious parts of Madoff’s last chapter is that in the end, at the sentencing hearing, a parade of witnesses stood up to berate him. But even though Madoff had donated millions of dollars to charities over the years, not a single person or representative of a charitable organization stood up to say something on his behalf. That’s ingratitude, no doubt.

But there’s more here than ingratitude; there’s also an important point about all ethics guided by basic duties: the duties don’t exist alone. They’re all part of a single fabric, and sometimes they pull against each other. In this case, the duty Madoff’s beneficiaries probably felt to a man who’d given them so much was overwhelmed by the demand of another duty: the duty to respect others, specifically those who lost everything to Madoff. It’s difficult to imagine a way to treat people more disdainfully than to thank the criminal who stole their money for being so generous. Those who received charitable contributions from Madoff were tugged in one direction by gratitude to him and in another by respect for his many victims. All the receivers opted, finally, to respect the victims.

Fidelity is the duty to keep our promises and hold up our end of agreements. The Madoff case is littered with abuses on this front. On the professional side, there’s the financier who didn’t invest his clients’ money as he’d promised; on the personal side, there’s Madoff and Weinstein staining their wedding vows. From one end to the other in terms of fidelity, this is an ugly case.

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Reparation is the duty to compensate others when we harm them. Madoff’s wife, Ruth, obviously didn’t feel much of this. She walked away with $2.5 million.

The judge overseeing the case, on the other hand, filled in some of what Ruth lacked. To pay back bilked investors, the court seized her jewelry, her art, and her mink and sable coats. Those things, along with the couple’s three multimillion-dollar homes, the limousines, and the yacht, were all sold at public auction.

The Concept of Fairness

The final duty to be considered—fairness—requires more development than those already listed because of its complexity.

According to Aristotle, fairness is treating equals equally and unequals unequally. The treat equals equally part means, for a professional investor like Madoff, that all his clients get the same deal: those who invest equal amounts of money at about the same time should get an equal return. So even though Madoff was sleeping with one of his investors, this shouldn’t allow him to treat her account distinctly from the ones belonging to the rest. Impartiality must govern the operation.

The other side of fairness is the requirement to treat unequals unequally. Where there’s a meaningful difference between investors—which means a difference pertaining to the investment and not something extraneous like a romantic involvement—there should correspond a proportional difference in what investors receive. Under this clause, Madoff could find justification for allowing two distinct rates of return for his clients. Those that put up money at the beginning when everything seemed riskier could justifiably receive a higher payout than the one yielded to more recent participants. Similarly, in any company, if layoffs are necessary, it might make sense to say that those who’ve been working in the organization longest should be the last ones to lose their jobs. In either case, the important point is that fairness doesn’t mean everyone gets the same treatment; it means that rules for treating people must be applied equally. If a corporate executive decides on layoffs according to a last-in-first-out process, that’s fine, but it would be unfair to make exceptions.

One of the unique aspects of the idea of fairness as a duty is its hybrid status between duties to the self and duties to others. While it would seem strange to say that we have a duty of gratitude or fidelity to ourselves, it clearly makes sense to assert that we should be fair to ourselves. Impartiality—the rule of no exceptions—means no exceptions. So a stock investor who puts his own money into a general fund he runs should receive the same return as everyone else. A poor investment that loses 10 percent should cost him no more than 10 percent (he has to be fair to himself), and one that gains 10 percent shouldn’t net him any more than what the others receive (he has to be fair to others).

Modern Fairness: Rawls

The recent American philosopher John Rawls proposes a veil of ignorance as a way of testing for fairness, especially with respect to the distribution of wealth in general terms. For example, in society as Madoff knew it, vast inequalities of wealth weren’t only allowed, they were honored: being richer than anyone else was something to be proud of, and Madoff

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lived that reality full tilt. Now, if you asked Madoff whether we should allow some members of society to be much wealthier than others, he might say that’s fair: everyone is allowed to get rich in America, and that’s just what he did. However, the guy coming into Madoff’s office at 3 a.m. to mop up and empty the trash might see things differently. He may claim to work just as hard as Madoff, but without getting fancy cars or Palm Springs mansions. People making the big bucks, the suggestion could follow, should get hit with bigger taxes and the money used to provide educational programs allowing guys from the cleaning crew to get a better chance at climbing the income ladder. Now, given these two perspectives, is there a way to decide what’s really fair when it comes to wealth and taxes?

Rawls proposes that we try to reimagine society without knowing what our place in it would be. In the case of Madoff, he may like things as they are, but would he stick with the idea that everything’s fair if he were told that a rearrangement was coming and he was going to get stuck back into the business world at random? He might hesitate there, seeing that he could get dealt a bad hand and, yes, end up being the guy who cleans offices. And that guy who cleans offices might figure that if he got a break, then he’d be the rich one, and so he’s no longer so sure about raising taxes. The veil of ignorance is the idea that when you set up the rules, you don’t get to know beforehand where you’ll fall inside them, which is going to

force you to construct things in a way that is really balanced and fair.

As a note here, nearly all children know the veil of ignorance perfectly. When two friends together buy a candy bar to split, they’ll frequently have one person break it, and the other choose a half. If you’re the breaker, you’re under the veil of ignorance since you don’t know which half you’re going to get. The result is you break it fairly, as close to the middle as you can.

Balancing the Duties

Duties include those to

develop abilities and talents,

do ourselves no harm,

avoid wronging others,

honesty,

respect others,

beneficence,

gratitude,

fidelity,

reparation,

fairness.

Taken on their own, each of these plugs into normal experience without significant problems. Real troubles come, though, when more than one duty seems applicable and they’re pulling in different directions.

Take Andrew Madoff, for example. Lying in bed at night and taking his ethical duties seriously, what should he do in the wake of the revelation that his family business was in essence a giant theft? On one side, there’s an argument that he should just keep on keeping

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on by maintaining his life as a New York financier. The route to justifying that decision starts with a duty to himself:

• Develop abilities and talents. As an expert in finance, someone with both knowledge of and experience in the field, Andrew should continue cultivating and perfecting his talents, at least those he had acquired on the legitimate side of the family’s dealings.

Beyond the duty to himself, Andrew can further buttress his decision to keep his current life going by referencing a duty to others:

• Beneficence. This may demand that Andrew continue along the lines he’d already established because they enabled his involvement with cancer research. He’s got money to donate to the cause and his very personal experience with the disease allows rare insight into what can be done to help sufferers. To the extent that’s true, beneficence supports Andrew’s decision to go on living as he had been.

On the other side, what’s the duty-based argument in favor of Andrew taking a different path by breaking away from his old lifestyle and dedicating all his energy and time to doing what he can for the jilted investors the family business left behind?

Respect. The duty to treat others as equals demands that Andrew take seriously the abilities and lives of all those who lost everything. Why should they be reduced to powerlessness and poverty while he continues maximizing his potential as a stock buyer and nonprofit leader? Respecting others and their losses may mean leaving his profession and helping them get back on their feet.

Reparation. This duty advances as the proposal for Andrew to liquidate his assets and divide the money as fairly as possible among the ruined investors. It may be that Andrew didn’t orchestrate the family Ponzi scheme, but wittingly or not, he participated and that opens the way to the duty to repayment.

So which path should Andrew follow? There’s no certain answer. What duties do allow Andrew—or anyone considering his situation—to achieve is a solid footing for making a reasonable and defendable decision. From there, the ethical task is to weigh the various duties and choose which ones pull harder and make the stronger demand.

Where Do Duties Come From?

The question about the origin of duties belongs to metaethics, to purified discussions about the theory of ethics as opposed to its application, so it falls outside this book’s focus. Still, two commonly cited sources of duties can be quickly noted.

One standard explanation is that duties are written into the nature of the universe; they’re part of the way things are. In a sense, they’re a moral complement to the laws of physics. We know that scientists form mathematical formulas to explain how far arrows will travel when shot at a certain speed; these formulas describe the way the natural world is. So too in the realm of ethics: duties are the rules describing how the world is in moral terms. On this account, ethics isn’t so different from science; it’s just that scientists explore physical reality

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and ethicists explore moral reality. In both cases, however, the reality is already there; we’re just trying to understand it.

Another possible source for the duties is humanity in the sense that part of what it means to be human is to have this particular sense of right and wrong. Under this logic, a computer- guided robot may beat humans in chess, but no machine will ever understand what a child does when mom asks, “Did you break the vase? Tell me the truth.” Maybe this moral spark children are taken to feel is written into their genetic code, or maybe it’s something ineffable, like a soul. Whichever, the reason it comes naturally is because it’s part of our nature.

What Are the Advantages and Drawbacks of an Ethics Based on Duties?

One of the principal advantages of working with an ethics of duties is simplicity: duties are fairly easy to understand and work with. We all use them every day. For many of us these duties are the first thing coming to mind when we hear the word ethics. Straightforward rules about honesty, gratitude, and keeping up our ends of agreements—these are the components of a common education in ethics, and most of us are well experienced in their use.

The problem, though, comes when the duties pull against each other: when one says yes and the other says no. Unfortunately, there’s no hard-and-fast rule for deciding which duties should take precedence over the others.

Key Takeaways

Duties include responsibilities to oneself and to others.

Duties do not exist in isolation but in a network, and they sometimes pull against

each other.

Review Questions

Bermie Madoff was a very good—though obviously not a perfect—fraudster. He got away with a lot for a long time. How could the duty to develop one’s own abilities be mustered to support his decision to become a criminal?

In the Madoff case, what duties could be mustered to refute the conclusion that he did the right thing by engaging in fraud?

Madoff gave up most of his money and possessions and went to jail for his crimes. Is there anything else he should have done to satisfy the ethical duty of reparation?

In your own words, what does it mean to treat equals equally and unequals unequally?

[1] Brian Ross, Anna Schecter, and Kate McCarthy, “Bernie Madoff's Other Secret: His Hadassah CFO Mistress,” ABCNews.com, April 16, 2011, accessed May 11, 2011, http://abcnews.go.com/Blotter/Madoff/story?id=8319695&page=1.

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2.3 Immanuel Kant: The Duties of the Categorical Imperative

Learning Objectives

Define Immanuel Kant’s categorical imperative.

Show how the categorical imperative functions in business.

Consider advantages and drawbacks of an ethics based on the categorical

imperative.

Kant

German philosopher Immanuel Kant (1724–1804) accepted the basic proposition that a theory of duties—a set of rules telling us what we’re obligated to do in any particular situation—was the right approach to ethical problems. What he set out to add, though, was a stricter mechanism for the use of duties in our everyday experience. He wanted a way to get all these duties we’ve been talking about to work together, to produce a unified recommendation, instead of leaving us confused between loyalty to one principle and another. At least on some basic issues, Kant set out to produce ethical certainty.

Lying is about as primary as issues get in ethics, and the Madoff case is shot through with it:

Bernie Madoff always claimed that the Ponzi scheme wasn’t the original idea. He sought money from investors planning to score big with complicated financial maneuvers. He took a few losses early on, though, and faced the possibility of everyone just taking their cash and going home. That’s when he started channeling money from new investors to older ones, claiming the funds were the fruit of his excellent stock dealing. He always intended, Madoff says, to get the money back, score some huge successes, and they’d let him get on the straight and narrow again. It never happened. But that doesn’t change the fact that Madoff thought it would. He was lying temporarily, and for the good of everyone in the long run.

Sheryl Weinstein had a twenty-year affair with Madoff. She also invested her family’s life savings with him. When the Ponzi scheme came undone, she lost everything. To get some money back, she considered writing a tell-all, and that led to a heart-wrenching decision between money and her personal life. Her twenty- year dalliance was not widely known, and things could have remained that way: her husband and son could’ve gone on without the whole world knowing that the husband was a cuckold and the son the product of a poisoned family. But they needed money because they’d lost everything, including their home, in Madoff’s scam. So does she keep up the false story or does she turn the truth into a profit opportunity?

What does Kant say about all this? The answer is his categorical imperative. An imperative is something you need to do. A hypothetical imperative is something you need to do, but only in certain circumstances; for example, I have to eat, but only in those circumstances where I’m hungry. A categorical imperative, by contrast, is something you need to do all the time: there are ethical rules that don’t depend on the circumstances, and it’s the job of the

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categorical imperative to tell us what they are. Here, we will consider two distinct expressions of Kant’s categorical imperative, two ways that guidance is provided.

First Version of the Categorical Imperative

The first version or expression of the categorical imperative: Act in a way that the rule for your action could be universalized. When you’re thinking about doing something, this means you should imagine that everyone did it all the time. Now, can this make sense? Can it happen? Is there a world you can imagine where everyone does this thing that you’re considering at every opportunity? Take the case of Madoff asking himself, “Should I lie to keep investor money flowing in?” What we need to do is imagine this act as universalized: everyone lies all the time. Just imagine that. You ask someone whether it’s sunny outside. It is sunny, but they say, “No, it’s raining.” The next day you ask someone else. Again, it’s sunny, but they say, “No, it’s snowing.” This goes on day after day. Pretty soon, wouldn’t you just give up listening to what people say? Here’s the larger point: if everyone lies all the time, pretty soon people are going to stop listening to anyone. And if no one’s listening, is it possible to lie to them?

What Kant’s categorical imperative shows is that lying cannot be universalized. The act of lying can’t survive in a world where everyone’s just making stuff up all the time. Since no one will be taking anyone else seriously, you may try to sell a false story but no one will be buying.

Something similar happens in comic books. No one accuses authors and illustrators of lying when Batman kicks some bad guys into the next universe and then strips off his mask and his hair is perfect. That’s not a lie; it’s fiction. And fictional stories can’t lie because no one expects they’ll tell the truth. No one asks whether it’s real or fake, only whether it’s entertaining. The same would go in the real world if everyone lied all the time. Reality would be like a comic: it might be fun, or maybe not, but accusing someone of lying would definitely be absurd.

Bringing this back to Madoff, as Kant sees it he has to make a basic decision: should I lie to investors to keep my operation afloat? The answer is no. According to the categorical imperative, it must be no, not because lying is directly immoral, but because lying cannot be universalized and therefore it’s immoral.

The same goes for Sheryl Weinstein as she wonders whether she should keep the lid on her family-wrecking affair. The answer is no because the answer is always no when the question is whether I should lie. You might want to respond by insisting, “She’s already done the deed, and Bernie’s in jail so it’s not going to happen again. The best thing at this point would be for her to just keep her mouth shut and hold her family together as best she can.” That’s a fair argument. But for Kant it’s also a loser because the categorical imperative gives the last word. There’s no appeal. There’s no lying, no matter what.

One more point about the universalization of acts: even if you insist that a world could exist where everyone lied all the time, would you really want to live there? Most of us don’t mind lying so much as long as we’re the ones getting away with it. But if everyone’s doing it, that’s different. Most of us might agree that if we had a choice between living in a place where

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everyone told the truth and one where everyone lied, we’d go for the honest reality. It just makes sense: lying will help you only if you’re the sole liar, but if everyone’s busy taking advantage of everyone else, then there’s nothing in it for you, and you might just as well join everyone in telling the truth.

Conclusion. The first expression of the categorical imperative—act in such a way that the rule for your action could be universalized—is a consistency principle. Like the golden rule (treat others as you’d like to be treated), it forces you to ask how things would work if everyone else did what you’re considering doing.

Objections to the First Version of the Categorical Imperative

One of the objections to this ethical guidance is that a reality without lying can be awfully uncomfortable. If your boss shows up for work on a Friday wearing one of those designer dresses that looks great on a supermodel and ridiculous everyhere else, and she asks what you think, what are you going to say? “Hideous”? Telling the truth no matter what, whether we’re at work or anywhere else, is one of those things that sounds good in the abstract but is almost impossible to actually live by.

Then the problem gets worse. A deranged addict storms into your office announcing that he’s just received a message from the heavens. While chewing manically on dirty fingernails, he relates that he’s supposed to attack someone named Jones—anyone named Jones. “What,” he suddenly demands, “is your name?” Unfortunately, you happen to be named Sam Jones. Now what?

Second Version of the Categorical Imperative

The second expression of the categorical imperative is: Treat people as an end, and never as a means to an end. To treat people as ends, not means is to never use anyone to get something else. People can’t be tools or instruments, they can’t be things you employ to get to what you really want. A simple example of using another as a means would be striking up a friendship with Chris because you really want to meet his wife who happens to be a manager at the advertising company you desperately want to work for.

It’d be hard to imagine a clearer case of this principle being broken than that of Madoff’s Ponzi scheme. He used the money from each new investor to pay off the last one. That means every investor was nothing but a means to an end: every one was nothing more than a way to keep the old investors happy and attract new ones.

Madoff’s case of direct theft is clear cut, but others aren’t quite so easy. If Weinstein goes ahead and writes her tell-all about life in bed with Madoff, is she using him as a means to her end (which is making money)? Is she using book buyers? What about her husband and the suffering he would endure? It can be difficult to be sure in every case exactly what it means to “use” another person.

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Another example comes from Madoff’s son, Andrew, who donated time and money to the cause of treating cancer. On one hand, this seems like a generous and beneficial treatment of others. It looks like he’s valuing them as worthwhile and good people who deserve to be saved from a disease. On the other hand, though, when you keep in mind that Andrew too had cancer, you wonder whether he’s just using other peoples’ suffering to promote research so that he can be saved.

Summarizing, where the first of the categorical imperative’s expressions was a consistency principle (treat others the way you want to be treated), this is a dignity principle: treat others with respect and as holding value in themselves. You will act ethically, according to Kant, as long as you never accept the temptation to treat others as a way to get something else.

Objections to the Second Version of the Categorical Imperative

The principal objection to this aspect of Kant’s theory is that, like the previous, it sounds good in the abstract, but when you think about how it would actually work, things become difficult. Almost all businesses require treating people as means and not as ends. In the grocery store, the cashier isn’t waiting there to receive your respectful attention. She’s there to run your items through the scanner and that’s it. The same goes for the guy in the produce section setting up the banana display. Really, just paying someone to do a job—no matter what the job might be—is treating them as a means to an end, as little more than a way to get the work done.

If that’s right, then you’re not going too far by wondering whether the entire modern world of jobs and money would unravel if we all suddenly became Kantians. Paying a janitor to clean up after hours, a paralegal to proofread a lawyer’s briefs, a day-care worker to keep peace among children at recess, all these treatments of others seem to fail Kant’s test.

Defenders of Kant understand all this perfectly and can respond. One argument is that providing someone with a job is not treating them as a means to your ends; instead, by allowing them the opportunity to earn a living, you’re actually supporting their projects and happiness. Seen this way, hiring people is not denigrating them, it’s enabling. And far from being immoral in the Kantian sense, it’s ethically recommendable.

Key Takeaways

The first expression of Kant’s categorical imperative requires that ethical decisions be universalizable.

The second expression of Kant’s categorical imperative requires that ethical decisions treat others as ends and not means.

Kant’s conception of ethical duties can provide clear guidance but at the cost of inflexibility: it can be hard to make the categorical imperative work in everyday life.

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Review Questions

Imagine Madoff lied to attain his clients’ money as he did, but instead of living the high life, he donated everything to charity. For Kant, does this remove the ethical stain from his name? Why not?

Think back to your first job, whatever it was. Did you feel like you were used by the organization, or did you feel like they were doing you a favor, giving you the job? How does the experience relate to the imperative to treat others as an end and not a means?

2.4 Rights Learning Objectives

Define an ethical right.

Distinguish specific rights.

Show how ethical rights work in business.

Consider advantages and drawbacks of an ethics based on rights.

Rights

An ethics based on rights is similar to an ethics based on duties. In both cases specific principles provide ethical guidance for your acts, and those principles are to be obeyed regardless of the consequences further down the line. Unlike duties, however, rights-based ethics concentrate their force in delineating your possibilities. The question isn’t so much What are you morally required to do; it’s more about defining exactly where and when you’re free to do whatever you want and then deciding where you need to stop and make room for other people to be free too. Stated slightly differently, duties tend to be ethics as what you can’t do, and rights tend to be about what you can do.

My Property, My Religion, My Nonprofit Organization, My Health Care, My Grass

Charles Edward “Eddy” Lepp is in jail now, in a prison not too far away from the site of the business that got him in trouble: Eddy’s Medicinal Gardens and Ministry. What was Eddy Lepp the gardener and minister up to on his twenty-acre property near a lake in California, about a hundred miles north from San Francisco? Here are the highlights:

Ministry. Lepp claims—and there doesn’t seem to be anyone who disputes him— that he’s an authentic Rastafarian reverend.

Rastafarianism. Developed over the last century in Africa and the Caribbean, the religion works within the basic structure of Christianity but contains important innovations. Haile Selassie I was the emperor of Ethiopia from 1930 to 1974 and, according to the faith, was also the reincarnation of Jesus Christ. Further, marijuana—called ganja by believers—accompanies religious meetings and ceremonies; it brings adherents closer to God.

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Lepp’s Medicinal Gardens. In fact, this wasn’t a garden so much as a collective farm. Lepp oversaw the work of volunteers—their numbers totaling about two hundred—and did some harvesting and planting himself. Many of the farm’s marijuana leaves were smoked by the 2,500 members of his zonked-out church as part of Rastafarian celebrations and meetings, and the rest was, according to Lepp, distributed to individuals with serious health problems.

Marijuana and health care. Studies indicate that in some patients marijuana may alleviate nausea and vomiting, especially as connected with chemotherapy. There’s also a list of further symptoms and maladies the drug could relieve, according to some evidence. It should be noted here that many suspect the persons conducting these studies (not to mention the patients receiving the testing) are favorably predisposed toward marijuana in the first place, and the prejudice may contaminate conclusions. What’s certain is that from a strictly medical perspective, the question about marijuana’s utility remains controversial. Among those who are convinced, however, smoking is a good remedy. That’s why in California patients have been granted a legal right to possess and use marijuana medicinally, as long as they’ve got a doctor’s approval. Unfortunately for Lepp, California law can’t bar federal prosecutions, and it was the US Drug Enforcement Administration from all the way out in Washington, DC, that eventually came after him. [1]

About retirement age now, Eddy Lepp is one of those guys who never really left Woodstock. Before being incarcerated, he slumped around in tie-dyes and jeans. He liked wearing a hat emblazoned with the marijuana leaf. Out on his semirural farm, he passed the days smoking joints and listening to Bob Marley music.

Everyone seems to like the guy. A longtime activist for the legalization of marijuana, he’s even something of a folk hero in Northern California. At his sentencing, the crowd (chanting “free Eddy!”) spilled out into the courthouse hallways. The judge didn’t seem to mind the spectacle, and she went out of her way to say she didn’t want to hit him with ten years of jail time, but federal guidelines gave her no choice. Now there’s talk of a pardon.

Like Bernie Madoff, Lepp was touched by cancer. Madoff’s son Andrew was stricken and so was Lepp’s wife. She died. Also, like Madoff, Lepp was a businessman. Madoff made millions and lived in luxury while robbing investors; Lepp made enough to scrape by from his ministry and farming enterprises.

What’s a Right?

One definition of a right in ethics is a justified claim against others. I have the right to launch a gardening business or a church enterprise or both on my property, and you’re not allowed to simply storm in and ruin things. You do have the right, however, to produce your own garden company and church on your property. On my side, I have the right to free speech, to say whatever I want no matter how outrageous and you can’t stop me. You can, however, say whatever you want, too; you can respond to my words with whatever comes into your head or just ignore me completely. A right, in sum, is something you may do if you wish, and others are morally obligated to permit your action.

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Duties tend to be protective in nature; they’re about assuring that people aren’t mistreated. Rights are the flip side; they’re liberating in nature, they’re about assuring that you’re as free as possible.

Because rights theory maximizes choices in the name of ethics, it’s not surprising that Lepp built his court defense on that ground. Lepp fought the law by maintaining that his medical gardens business and church operations involved his land and his religion. It wasn’t that he had a right to grow pot or pray to a specific God; that had nothing to do with it. The point is he had a right to do whatever he wanted on that land, and believe in whatever he wanted in his mind. That’s what rights are about. As opposed to duties that fix on specific acts, rights ethics declares that there are places (like my land) where the acts don’t matter. As long as no one else’s rights are being infringed on, I’m free.

Finally, duties tend to be community oriented: they’re about how we get along with others. Rights tend to center on the individual and what he or she can do regardless of whether anyone else is around or not. That explains why a duty-based ethics coheres more easily with a scene like the one Madoff provoked, a situation that involves winners and losers, criminals and victims. On the other side, an ethics based on rights is more convenient for Lepp and his gardening and religious enterprises. Though he ended up in jail, there were no obvious victims of his crimes; at least no one complained that they’d been mistreated or victimized as individuals.

What Are the Characteristics of Rights?

English philosopher John Locke (1632–1704) maintained that rights are

Universal. The fundamental rights don’t transform as you move from place to place or change with the years.

Equal. They’re the same for all, men and women, young and old.

Inalienable. They can’t be taken, they can’t be sold, and they can’t be given away.

We can’t not have them. This leads to a curious paradox at the heart of rights theory. Freedom is a bedrock right, but we’re not free to sell ourselves into slavery. We can’t because freedom is the way we are; since freedom is part of my essence, it can’t go away without me disappearing too.

What Rights Do I Have?

The right to life is just what it sounds like: Lepp, you, and I should be able to go through our days without worrying about someone terminating our existence. This right is so deeply embedded in our culture that it almost seems unnecessary to state, but we don’t need to stretch too far away from our time and place to find scenes of the right’s trampling. Between the world wars, Ukraine struggled for independence from Joseph Stalin’s neighboring Russia. Stalin sealed the borders and sent troops to destroy all food in the country. Millions died from starvation. Less dramatically but more contemporaneously, the right to life has been cited as an argument against capital punishment.

The right to freedom guarantees individuals that they may do as they please, assuming their actions don’t encroach on the freedom of others. In a business environment, this assures

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entrepreneurs like Lepp and Madoff that they may mount whatever business operation they choose. Lepp’s garden and ministry were surely unorthodox, but that can’t be a reason for its prohibition.

Similarly, within a company, the right to freedom protects individuals against abuse. No boss can demand more from an employee than what that employee has freely agreed— frequently through a signed contract—to provide.

On the other side, however, there are questions about how deeply this basic right extends through day-to-day working life. For example, the freewheeling Lepp probably wasn’t too concerned about the clothes his volunteer workers chose to wear out in the garden, but what about clothes in Madoff’s investment house? He was serving wealthy, urban clients in suits and ties. What would their reaction be to a junior investment advisor just out of college who shows up for a meeting in a tie-dye and jeans? Some clients, it’s safe to say, would head for the exit. Now, what recourse does boss Madoff have when the casual employee says, “Look, it’s a free country; I can wear whatever I want”? Within a rights theory of ethics, it must be conceded that the employee is correct. It’s also true, however, that Madoff has rights too—specifically, the freedom to fire the guy. What can be taken from this is that, as a general rule, the enabling side of a rights ethics is that you can do whatever you want, but the limiting and controlling side is that the same goes for everyone else.

From the right to freedom, other rights seem to derive naturally. The right to free speech is tremendously important in the commercial world. Lepp’s messages to his Rasta flock may have provoked skepticism in some listeners, but no one doubts that he had a right to voice his ideas. The same goes for Madoff’s exuberant claims concerning his investing strategy. Crucially, the same also goes for those on the other side of Madoff’s claims; the same freedom Madoff enjoyed also allowed whistle-blowers to answer back that it’s impossible to legitimately realize such constant and high profits. In fact, in the case of Madoff’s investment company, whistle-blowers did say that, repeatedly. No one listened, though. The right of free speech doesn’t guarantee a hearing.

The right to religious expression also follows from basic freedom. It guaranteed Lepp the space he needed to pioneer his particular brand of gardening Rastafarianism in Northern California. His is, obviously, a weird case, but the right works in more traditional workplaces, too. USA Today [2] reported a case where Muslim workers were fired from their jobs in several meatpacking plants in the Midwest because they left the production line in the middle of the day without authorization to go outside and pray. The workers’ response? They filed a lawsuit claiming their right to religious expression had been violated.

No doubt it had been.

But the company’s response is also weighty. According to the article, “The problem with the Muslim prayer request is that it’s not one day or annual, it’s every day and multiple times. Further, those times shift over the course of the year based on the sun’s position.”

The result, according to the company, is that scheduling becomes very difficult, and those who aren’t Muslim find it nearly impossible to keep working when they’re getting abandoned so frequently during the day. Here we’re confronted with a very basic conflict of rights. While no one doubts that freedom exists to practice a religion, isn’t it also true that

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the company—or the company owners if we want to cast this in personal terms—have a right to set up a business in whatever manner they choose, with breaks scheduled for certain times and worker responsibilities strictly defined? In the end, the question about Muslim workers leaving the work floor to pray isn’t about one kind of religion or another; it’s not Christians against Muslims or something similar. The question is about which right takes precedence: the owners’ right to set up and run a company as they wish or the employees’ right to express their beliefs how and when they choose.

From an ethical perspective—which doesn’t necessarily correlate with a legal one—the resolution to this dilemma and any clash about conflicting rights runs through the question of whether there’s a way to protect the basic rights of both groups. It runs that way because rights are fundamentally about that, about maximizing freedom. In this case, it seems that firing the workers does achieve that goal. The owners’ initiative inside their company is protected, and the workers are now able to pray when they desire.

To be sure, other ethical approaches will yield different outcomes, but in the midst of rights theory where individual liberty is the guiding rule and the maximization of freedom is the overriding goal, it’s difficult for other concerns to get traction. So it may be that the community as a whole is better served by looking for a solution that allows Muslims to maintain their prayer schedule while also allowing the plant to continue functioning in a normal way. Even if that’s true, however, it’s not going to affect a rights-theory resolution very much because this kind of ethics privileges what you and I can do over what we can do together. It’s an ethics of individualism.

The right to pursue happiness sits beside the right to life and the right to freedom at the foundation of rights ethics. The pursuit gives final direction and meaning to the broad theory. Here’s how: it doesn’t do much good to be alive if you’re not free, so freedom orients the right to life. It also doesn’t do much good to be free if you can’t pursue happiness, so the right to pursue happiness orients freedom. That’s the organizing reasoning of ethical rights; it’s how the theory holds together. This reasoning leaves behind, however, the difficult question as to exactly where the pursuit of happiness leads.

In an economic context, one way of concretizing the pursuit of happiness is quite important: it’s our right to possessions and the fruits of our work. What’s ours, along with what we make or earn, we have a right to keep and use as we wish. Among rights theorists, this particular right attracts a staunch group of advocates. Called libertarians, they understand liberty as especially reflected in the right to dominion over what’s ours.

Libertarianism is arguably the most muscular area of rights theory, and it’s the one where most conflicts—and most stands in the name of personal rights and the pursuit of happiness—take place. This is definitely where Lepp made his stand. A frequently viewed YouTube video reveals exactly what standing up for libertarian rights looks like. In the clip, police have been called to Lepp’s Medicinal Gardens. The squad car pulls up the long dirt road, and Lepp goes out to stop it. This is their conversation:

Lepp:	I am demanding that if you do not have a warrant that you leave. You are illegally on my property and I am demanding that you leave!
Police	(Into his radio) Can I get some help up here?

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officer: Lepp:

Police officer:

Lepp:

Police officer:

This is the kind of scene that makes libertarians’ blood boil. Lepp, decked out in a t-shirt emblazoned with a marijuana leaf, actually stays fairly mellow, but he makes his point. He makes two points actually, and they need to be distinguished. The first is a legal point, it’s the question about whether the officer has a warrant. The officer doesn’t, but the second point—“under what authority are you violating my rights”—goes beyond the legal and into the ethical. Lepp believes the land is his and he’s not infringing on anyone else’s freedoms, and therefore, he can do what he wants and the police should leave him alone.

The officer isn’t quite sure how to reply to this, which is understandable. It is because this case displays a clear separation between the law on one side and an ethical reality on the other. Moreover, the two appear not only separate but also incompatible; it’s difficult to see any way to bring them together. With respect to the law, the case is clear: Lepp was growing massive amounts of marijuana on his farm and growing it for distribution. Federal law explicitly prohibits both the growing and the distributing. It’s unambiguous. It’s also clear that Lepp was doing it since you could see the crop from the public highway passing by his fields. Everyone saw that marijuana was growing, that people were harvesting it, and that they were planting more. As far as the law goes, Lepp really had no leg to stand on. Once the DEA found out about him, they didn’t have any choice but to bring him in. But ethically— and in terms of rights theory—there seems to be equal clarity going in the other direction. There were few complaints about Lepp’s activities. No one was hurt, and it was his land. It’s hard to see within a libertarian perspective any way to justify the police harassment, the legal proceedings, or the jail term Lepp ended up getting. This doesn’t mean Lepp was treated unjustly; it only means that whatever justice was served on him, it wasn’t libertarian.

Libertarianism in the Economic World

Lepp wasn’t a big-time businessman. His medicinal garden enterprise produced enough income to get him through the day and little more. When he went to court, he needed a public assistance attorney (not that it would’ve made any difference). But the issues he brings forward reverberate through the business world. Here are a few hypothetical scenarios where libertarian ethics comes into play:

This is private property. This is a church function. Again, I am asking, if you do not—

You can ask all you want, Mr. Lepp, but I’m not leaving. Please leave my property! Under what authority are you standing here? Sir, I

am demanding that you tell me under what authority are you violating my rights!

Under no authority, Mr. Lepp. As soon as my sergeant gets here, he’ll advise you of whatever he wants to advise you of.

Fine, then I suggest you go down and wait for him at the bottom of my property! The officer stands there silently.

Lepp:

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A massive brewery is constructed upstream from farmland and soaks up most of the water to make beer, leaving the downstream farms with almost nothing for irrigation. It’s the brewery’s land, so can’t the owners do what they want with the water running through it?

A strong libertarian argument offers a reason to say yes. Even though it’s true that others will be severely harmed by the act, an ethics that begins with the freedom to have what’s mine doesn’t buckle before the demands of others. Now, compare this outcome with the guidance offered by Kant’s categorical imperative, the idea that any act must be universalized. Within this framework the opposite conclusion is reached because if everyone just dammed up the water channeling through his or her land, then the brewer wouldn’t even have the choice: no water would be flowing across the land in the first place. So a duty-oriented ethics leads toward a solution that is more favorable for the larger community, where a rights-based perspective leaves more room for individuality but at the cost of the interests of others.

Bernie Madoff didn’t start off rich. His father was a plumber in Queens. Even before launching his Ponzi scheme, he became wealthy by working hard, being smart, and investing wisely. He grew an investment house from scratch to being among the most prominent in New York. His annual income hit the millions even without the Ponzi stuff. Possibly, there was an administrative assistant of some kind there with him from the beginning. She was hired at, say, $32,000 annually. Years later, Madoff is rich, and she’s at $36,000. She still arrives at work in her beater car while Madoff gets the limousine treatment. Is this fair?

A strong libertarian position gives Madoff a reason to say yes. The wealth did accumulate from his efforts, not hers. If Madoff hadn’t been there the money wouldn’t have come in, but, if she’d quit on the first day, he would’ve hired someone else and the end result probably wouldn’t have been much different. The money, in other words, grew because of Madoff’s efforts, therefore it’s his, and therefore there’s no ethical obligation to spread it around.

On the other hand, a duty-based orientation would generate concerns about gratitude and respect. These perennial duties leave room for wealth redistribution. The argument is that Madoff owes the assistant a higher wage not because of her work performance but as a show of gratitude for her contribution over the years. Similarly, the duty of respect for others doesn’t demand that everyone be treated equally. It doesn’t mean everyone should get the same wage, but it does demand that people be respected as equals. This implies taking into account that the assistant’s efforts were prolonged and significant, just like Madoff’s, and therefore she should receive a salary more commensurate with his.

Negative and Positive Rights

The ethics of rights can be categorized as negative rights and positive rights. Negative rights are fundamental. They require others to not interfere with me and whatever I’m doing. The right to life is the requirement that others not harm me, the right to freedom is the requirement that others not interfere with me, the right to speech requires that others not

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silence me, the right to my possessions and the fruits of my labors requires that others let me keep and use what’s mine.

Positive rights, by contrast, are closer to traditional duties. They’re obligations others have to help protect and preserve my basic, negative rights. For example, the right to life doesn’t only require (negatively) that people not harm me, but it also requires (positively) that they come to my aid in life-threatening situations. If I’m in a car wreck, my right to life requires bystanders to call an ambulance. So if an individual with a rights-based philosophy and an individual with a duty-based philosophy both arrive on a crash scene, they’ll do the same thing—just for different reasons. The rights person calls for help to protect the victim’s right to life; the duties person calls to fulfill the duty to beneficence, the duty to look out for the welfare of others.

Positive rights can be drawn out to great lengths. For example, the argument is sometimes made that my basic right to freedom is worthless if I don’t have my health and basic abilities to operate in the world. This may lead a rights theorist to claim that society owes its members health care, education, housing, and even money in the case of unemployment. Typically, these positive rights are called welfare rights. Welfare, in this context, doesn’t mean government handouts but minimal social conditions that allow the members to fully use their intrinsic liberty and pursue happiness with some reasonable hope for success.

The hard question accompanying positive rights is: where’s the line? At what point does my responsibility to promote the rights of others impinge on my own freedom, my own pursuit of happiness, and my own life projects?

Rights in Conflict

The deepest internal problems with rights ethics arise when rights conflict. Abortion is a quick, hot-button example. On one side (pro-life), support comes from the initial principle: a human being, born or not, has a right to life, which may not be breached. On the other side (pro-choice), every person’s original freedom over themselves and their bodies ends all discussion. Now, one of the reasons this debate is so intractable is that both sides find equally strong support within the same basic ethical framework. There’s no way to decide without infringing on one right or the other.

A complementary case arose around Lepp’s Rasta religious gatherings. Though many of his neighbors didn’t care, there were a few who objected to having what were essentially mini- Woodstocks on the land next door. It was impossible, of course, for Lepp to entirely contain the noise, the smoke from fires, the traffic congestion, and the rest entirely on his property. The question is, when does my right to do what I want on my land need to be curtailed so that your right to dominion over yours isn’t soiled?

Broadening further, there’s the question about Lepp growing marijuana for medicinal purposes. On one side, a rights theory supports his inclination to grow what he wants on his land and sell the fruits of his labors to other adults for their consenting use. His is a farming business like any other. But on the other side, a theory of rights can extend into the realm of positive requirements. The right to the pursuit of happiness implies a right to health, and this may require government oversight of medical products so that society as a whole may

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be protected from fraudulent claims or harmful substances. The question of marijuana shoots up right here. What happens when socially sanctioned entities like the US Food and Drug Administration decide that marijuana is harmful and should therefore be prohibited? Which rights trump the others, the negative right to freedom or the positive right to oversee medical substances?

A similar question comes up between Madoff and his investors. A pure libertarian may say that individuals have the unfettered right to do as they choose, so if Bernie Madoff lies about investing strategies and his clients go along with it, well, that’s their problem. As long as they weren’t forced, they’re free to do whatever they wish with their money, even if that means turning it over to a charlatan. Again here, however, a broader view of rights theory answers that in the complex world of finance and investment, the right to the pursuit of happiness is also a right to some governmental oversight designed to make sure that everyone involved in the financial industry is playing by a single set of rules, ones prohibiting Ponzi schemes and similar frauds.

Examples multiply easily. I have the right to free speech, but if I falsely yell “fire!” in a crowded theater and set off a life-threatening stampede, what’s happening to everyone else’s negative right to life and positive right to health? Leaving the specifics aside, the conclusion is that, in general, problems with rights theory occur in one of two places:

I have negative rights to life, freedom, and my possessions but they infringe on your rights to the same.

I have a right to freedom and to do what I want but that right clashes with larger, society-level protections put into place to assure everyone a reasonable shot at pursuing their happiness.

What Justifies a Right?

One justification for an ethics of rights is comparable with the earlier-noted idea about duties being part of the logic of the universe. Both duties and rights exist because that’s the way things are in the moral world. Just like the laws of physics tell us how far a ball will fly when thrown at a certain speed, so too the rules of rights tell us what ought to happen and not happen in ethical reality. The English philosopher John Locke subscribed to this view when he called our rights “natural.” He meant that they’re part of who we are and what we do and just by living we incarnate them.

Another justification for an ethics of rights is to derive them from the idea of duties. Kant reappears here, especially his imperative to treat others as ends and not as means to ends. If we are ends in ourselves, if we possess basic dignity, then that dignity must be reflected somehow: it must have some content, some meaning, and the case can be made that the content is our possession of certain autonomous rights.

Advantages and Drawbacks of an Ethics Based on Rights

Because of its emphasis on individual liberties, rights theory is very attractive to open- roaders and individualists. One of the central advantages of a rights ethics is that it clears a broad space for you and me and everyone else to be ourselves or make ourselves in any way

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we choose. On the other side of that strength, however, there’s a disadvantage: centering ethics on the individual leaves little space of agreement about how we can live together. An ethics of rights doesn’t do a lot to help us resolve our differences, it does little to promote tolerance, and it offers few guarantees that if I do something beneficial for you now, you’ll do something beneficial for me later on.

Another strong advantage associated with an ethics of rights is simplicity in the sense that basic rights are fairly easy to understand and apply. The problem, however, with these blunt and comprehensible rights comes when two or more of them conflict. In those circumstances it’s hard to know which rights trump the others. In the case of Lepp’s business—the Medicinal Gardens—it’s hard to be sure when his use of his land infringed on the rights of neighbors to enjoy their land, and it’s difficult to know when the health product he offered—marijuana—should be prohibited in the name of the larger right to health for all individuals in a society. Most generally, it’s difficult to adjudicate between claims of freedom: where does mine stop and yours begin?

Key Takeaways

Rights are universal and inalienable.

Basic rights include those to life, freedom, and the pursuit of happiness.

Rights theory divides negative from positive rights.

Ethical rights provide for individual freedom but allow few guidelines for

individuals living and working together in a business or in society

Review Questions

How does the right to pursue happiness license Lepp’s Medicinal Gardens?

What is a libertarian argument against imprisoning Lepp?

One justification Lepp cited for his farm was the health benefits marijuana could

provide. Assuming Lepp was right about those benefits, how could they be

combined with a rights-based ethics to justify his activities?

How could the rights to freedom and the pursuit of happiness be set against Lepp’s

10.

business?

11.

12.

What are positive rights and how could they be mustered against Lepp’s farm?

13.

14.

If someone drives away from Lepp’s farm high as a kite and soon after drives off the

15.

road and into a tree, does Lepp bear any ethical responsibility for this within a rights ethics?

16.

[1] Elizabeth Larson, “Lepp Sentenced to 10 Years in Federal Prison for Marijuana Case,” Lake County News, May 18, 2009, accessed May 11, 2011, http://lakeconews.com/content/view/8703/764/; Bob Egelko, “Medical Pot Grower Eddy Lepp Gets 10 Years,” Cannabis Culture Magazine, May 18, 2009, accessed May 11, 2011, http://www.cannabisculture.com/v2/content/medical-pot-grower-eddy-lepp-gets-10-years.

[2] Emily Bazar, “Prayer Leads to Work Disputes,” USA Today, October 16, 2008, accessed May 11, 2011, http://www.usatoday.com/news/nation/2008-10-15-Muslim_N.htm.