Tag Archives: law

Facebook, Privacy & Employers

Posted by on May 7, 2012 9 comments
Česky: Logo Facebooku English: Facebook logo E...

(Photo credit: Wikipedia)

There has been a minor controversy regarding employers requiring (or “requesting”) job candidates and employees to hand over access to their Facebook accounts. Those favoring this argue that employers need to know certain things about job candidates and employees and hence this is justified. Those opposed to it tend to argue that this violates privacy rights.

On the one hand, it can be argued that employers should be allowed such access. After all, Facebook accounts can provide a wealth of information about employees and candidates that would be very useful to the employer and this usefulness could be taken as justifying the intrusion. For example, a company could learn a great deal about a candidate whose posts show that he is a racist. As another example, a company could learn important information about an employee who posts photos of herself wasting time at work and stealing office supplies.

In cases in which the job involves matters of security (such as law enforcement), then having such access would seem to be even more reasonable. After all, a prison hiring guards would certainly want to know whether a candidate had photos of himself flashing gang signs.

On the other hand, there seem to be some rather good reasons against granting such access to employers. The most obvious is that the mere fact that the information would be useful to the employers does not entail that they have a right to access it. After all, access to candidates’ and employees’ personal conversations, journals, diaries, real-world photo albums, personal phone records, home, friends and so on would be very useful to employers. However, it would seem absurd to say, for example, that my university has a right to go through my house looking for information that might be useful to it. As such, it would seem that the employer’s need to know is not overriding. Naturally, there can be legitimate exceptions, such as during legal action. If I were, for example, stealing computers from my university, then the police would certainly have a right to search my house for the stolen goods-once they got a warrant, of course.

It might be objected that Facebook is not the same as these things. After all, it is online and it is intended to be a social network. As such, it is acceptable for employers to have access to these accounts. In reply, being online and being a social network does not entail a right to access. After all, personal email is online, but this hardly gives my employer the right to read my personal email.  The fact that Facebook includes personal messaging makes this a rather exact analogy. In regards to the social network access, Facebook explicitly allows users to control access-just as people can control access in the actual world. My employer does not have the right to listen in when I am running with friends or to send an agent to observe my gaming. As such,  they should not have these rights in regards to Facebook. In short, given that employers are not entitled to access to such information avenues in the real world it would follow that they are not entitled to that information merely because it is on Facebook. There is simply no relevant difference between the two and the burden of proof rests on those who would claim otherwise.

It might be countered that people do have a choice whether or not to hand over access. After all, they could refuse and not get the job or refuse and be fired. However, this is rather obviously not much of a choice. After all, a candidate or employer who is asked to trade sexual favors for a job has the choice to refuse. However, it would be absurd to say that this entails that employers can thus request sexual favors. Likewise, employers would not seem to have the right to require candidates and employees to hand over access to their Facebook accounts.

It might be countered that people who have nothing to hid have nothing to worry about. This is, of course, a fundamentally flawed reply. The mere fact that I have nothing to hide does not entail in any way that my employee should thus have the right to have access to my information. After all, I am in pretty good shape, so I have nothing to hide under my clothes. This does not entail that my employer gets to see me showering. I also have nothing to hide in my email or my house, but this hardly entails that my employer should be able to just read through my emails or wander about in my house at will.

A somewhat interesting point worth considering is that employers screened candidates and kept an eye on employees long before Facebook existed. While Facebook does provide one-stop privacy violation shopping, it would seem that the methods used before Facebook should suffice. There is also the matter of people who do not have Facebook accounts. Should they be required to get accounts so that their employers can check them?

As a final point, the state usually has to go through a legal process to get into private information (although the war on terror has changed this). As such, it might seem rather odd that employers can act with greater power than the state. Interestingly, in the United States employers often seem to have more power over peoples’ lives than the state-and this is often endorsed by the same folks who claim to be for liberty. However, we should be just as much on guard against impositions against liberty by employers as by the state.

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Contraception, Once Again

Posted by on March 19, 2012 37 comments
English: Picture Of Ortho Tri-Cyclen oral cont...

Could this get you fired?

While wars rage on and the economy continues to limp along for the working class, considerable attention is still focused on contraception. On the one hand, this can be seen as a mere distraction from what should be regarded as more important matters. On the other hand, it can be regarded as a fundamental struggle over rights.

One key conservative talking point regarding contraception coverage is that the real issue is whether or not the state has the right to require health insurance providers to cover contraception. This, of course, falls under the more general issues of whether or not the state has the right to compel health insurance providers to cover anything at all. Naturally, this falls under the very general topic of the legitimate limit of the state’s compulsive powers.

Since I just wrapped up discussing John Locke in my Modern Philosophy class, my inclination is to say that the state’s legitimate purpose is the good of the people and it is limited in what it should do on the basis of the rights to life, liberty and property. As might be imagined, this general guide is not very helpful in this matter. After all, it can be effectively argued that compelling such coverage would be for the good of the people and it can also be effectively argued that doing so would be an imposition on the liberty of the providers.  As in most such cases, my inclination is to take the stock approach of weighing the good of the imposition against the badness of said imposition. For example, some people argue that the state should have the right to use its compulsive power to ensure that a person can only marry one other person (at a time) and that the other person must be of the opposite sex. In supporting such a view, the usual argument (apart from the appeals to religion and tradition) is that same sex marriage and polygamy are harmful to society. As such, the liberty to marry as one pleases must be taken away using the compulsive power of the state. Interestingly, many of the folks who are opposed to compelling  contraceptive coverage are in favor of using the compulsive power of the state in the domain of marriage. As such, they apparently do not have a principled objection against the state compelling people in regards to their moral beliefs. Rather, their view seems to be that as long as the state is compelling the right people, then such compulsion is fine. Of course, a person can be against contraception coverage and not be against, for example, the state using is compulsory power to impose a specific moral view in regards to marriage. In fact, one way to argue against the compulsion of contraceptive coverage is to argue against state compulsion in all matters other than those that involve harming others. So, for example, a person could be consistently against the state compelling a specific religious/ethical view of marriage and against the state compelling the coverage of contraception.

In regards to the matter of coverage, I am willing to accept (and in fact insist on) the principle that the burden of the proof is on the state in regards to compelling such coverage. That is, it is up to the state to show that such coverage should be compelled by law. This is a general principle that I accept, mainly on the assumption that there is a presumption in favor of liberty.

One standard way to argue for the legitimacy of state compulsion is to show that something is harmful (generally to others rather than just to oneself) and thus the state, under its legitimate role as protector of the life, liberty and property of the citizens, has the right to compel. This approach seems quite reasonable and is used to justify such things as the state compelling people to not murder, rape, or steal. As should be clear, this approach does not justify compelling coverage. After all, it is not preventing someone from wrongfully inflicting harm on another. Of course, this is a rather minimalist view of the state and one that only the most ardent libertarians seem to hold.

Another standard way to argue for the legitimacy of state compulsion is to show that compelling it creates a public good that warrants the imposition on liberty. For example, drafting people in times of war can be justified on the grounds that the public good requires such service. As another example, the compelled  paying of taxes to provide for roads, police, defense, fire departments, schools, bridges, and so on is justified on the grounds that this serves the general welfare and the common good. John Locke argues for the state using its power to serve the general good and, of course, American government is supposed to have a legitimate role in providing for the general welfare. In general, it seems fair to say that the idea that the state should compel people to act for the general good only seems odd when it is proposed that the state compel something that a person does not like (like contraceptive coverage). When the state is compelling people to do what someone wants, it generally seems perfectly reasonable to that person. However, it would be rather nice for folks to have a consistent general principle regarding under what conditions the state can compel (other than “in cases in which the state is doing what I want”).

As with all conflicts between liberty and the general good, one key part of the dispute is whether or not the imposition on liberty is warranted by the gain to the public good. For example, compelling me to pay my taxes is warranted by the fact that my contribution is needed for the general good.

In the case of contraceptive coverage, the argument rests on the assumption that preventative care should be covered (this is already a matter of law, but naturally can be challenged on moral grounds) for the general good. If this assumption is accepted, then the question that remains is factual: should contraception be considered preventative care? The experts at the bipartisan  Institute of Medicine have claimed that this is the case. Given their expertise, I am inclined to accept their opinion over that of non-experts. As such, it would seem that contraception should thus be covered.

Of course, it can be countered that the coverage preventative care should not be compelled by the state and that the insurance providers should be free to cover or not cover what they wish.

This does, of course, have a certain appeal. No doubt folks in all industries feel imposed on by the state compelling them in regards to what they can do or not do. For example, those in the food industry probably are not thrilled that the state imposes restrictions on what they can sell as meat and that they are required to divulge the contents of their products to the consumers. However, these compulsions are justified by an appeal to the common good. Likewise, the imposition of contraceptive coverage can be warranted on similar grounds. After all, such coverage is claimed to have numerous benefits for the people covered as well as the general public (such as lowering the number of unwanted pregnancies and all that entails).

It might be countered that the coverage of contraception violates the ethics of some employers (such as the Catholic Church) and thus contraceptive coverage is a very special case. In fact, Arizona is considering a bill that would seem to allow employers to fire employees for using contraception. In these cases, the argument is that this is a matter of religious liberty. As I have argued at length in other posts about this, I will not repeat my arguments here. I will, however, add that these cases are not clear cases of a cruel state imposing on the liberty a hapless church, insurance company or employer. Rather, there is also the rather important matter of the liberty of the employees and their rights.

There is, of course, a stock view that employees have no right to expect their employers to respect their rights or liberties as the state is supposed to respect them. On this view, our rights and liberties exist relative to the state and not relative to employers. However, I am inclined to follow Locke here and take the view that our rights are not merely against the state, but also against each other. As such, it is just as wrong for my employer to compel me in ways that violate my rights and liberty as it is for the state. At the very least, if the state lacks the right to compel them to provide coverage because they disagree, then they would seem to lack the right to compel their employees to conform to the ethics of their employer.

It might be countered that such rights are only for the powerful (churches and employers) and that the weaker folks (such as employees) must take it or leave it. That is, an employee who wants to work has to be willing to accept the moral imposition of his employer in this matter while his employer has a perfect right to not be imposed on in such a way by the state. If the employee doesn’t like that her employer  refuses to include coverage of contraception in the health care benefits, she can just go and find another job. If she cannot, then she will have to accept being unemployed or she must conform to the religion/morality of her employer.  This, of course, seems to be rather wrong. After all, it seems rather absurd to justify an imposition on liberty on the basis of an appeal to liberty. Of course, this is nothing new: in the pre-Civil War South people routinely argued that forcing the southern states to give up enslaving people would be a violation of their liberties.

In light of the above discussion, mandating the coverage of contraceptives does seem to be morally acceptable.

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Church & State II: Discrimination

Posted by on February 20, 2012 29 comments

English: Schopfheim: Catholic Church Deutsch: ...

In the United States, the American’s with Disabilities Act makes it illegal to discriminate against people based on their disabilities. Unless, apparently, the institution doing the discrimination is a church.

A disabled woman who was teaching at a religious school was fired and filed a claim under this act. The rather clever reply by the lawyers was to rely on the ministerial exception clause.

This clause was originally intended to grant religious groups the liberty to discriminate in their hiring (and firing) practices so as to allow them to act in accord with the doctrines of their faith.  To use the obvious example, the Catholic Church is allowed an exemption to practice gender discrimination based on its doctrine that only men can be priests.

On the face of it, it seems blindingly obvious that this exception was not intended to allow religious groups to simply fire people with impunity in regards to the anti-discrimination laws. While the application of the law is certainly a matter of interest, what I find more interesting is the exception itself.

On the one hand, this exception does have a certain appeal. After all, history shows that laws can be used to oppress or otherwise mistreat religious groups and one way to afford protection for religious freedom is to provide such “escape mechanisms” in laws that might be misused. Given that freedom of belief and freedom from oppression seem to be legitimate and worthwhile freedoms, this sort of exception has some merit.

On the other hand, there is the obvious concern that the mere fact that something is a religious belief should not be grounds for allowing an exception to the general law. In the case of this specific law, if churches can simply apply the exception when they fire people, churches would be effectively immune to anti-discrimination laws. This would allow them the freedom to engage in actions that seem to clearly be immoral (such as firing people on the basis of age, gender, sexual orientation, ethnicity or any other quality) and otherwise illegal merely because they are religious groups.

It might be countered that religious groups must have the liberty to hire and fire as they wish, otherwise religious freedom is in danger.  However, handing religious groups a license to discriminate hardly seems to be a necessary step in preserving religious liberty and, as such, this sort of broad exception seems to be morally unjustified.

There is also the obvious concern that while the right to religious freedom is worth considering, there are other rights as well. In the case of hiring and firing, it would seem that people have the moral (and legal) right not to be discriminated against and it does not seem obvious that the right to religious freedom should simply trump other rights.

For example, suppose a devout group of Thugee established a church of Kali in the United States and argued that religious freedom gave them the right to be exempt from the laws forbidding murder and theft. This, obviously enough, would be regarded as absurd. After all, the right not to be robbed and murdered outweighs the right of religious freedom.

As another example, suppose that a religious group that practiced polygamy claimed an exception based on religious views. This would, obviously enough, be denied. In fact, polygamy is illegal (although apparently sometimes tolerated). As such, religious freedom would once again not trump the law.

As a third example, suppose that a religious group wanted to hire or fire people in ways that violated  anti-discrimination laws. This, oddly enough, seems to be okay. However, the obvious question must be asked: why should religious groups be given an exception here? The answer seems to be that they should not, unless we wish to allow them the other exceptions.

Another point of concern is, obviously enough, why religious groups should get such exceptions. After all, there are other groups that hold discriminatory views (racist groups, for example) and it would seem to be, well, discrimination not to allow these groups to discriminate based on their beliefs. After all, these people are no doubt as sincere and devoted in their beliefs as religious folk and it seems rather difficult to prove that their is a magical something about religious beliefs that entitle religious groups to special exemptions that are denied to other groups.

Of course, if a religious group could prove that they have got it right when it comes to their desired exemptions, then that would be another matter. For example, if Catholics could prove that just as only women can biologically be mothers only men can be metaphysically priests, then they would be justly exempt from the law regarding gender discrimination in the case of priests.

Doing this should be easy enough. When a religious group claims a special exemption, all that needs to be done is for their deity to show up and sign the appropriate form after establishing his/her/its divine identity. For the religious groups who have the true view, this should present no problem. Naturally, groups whose deity fails to make an appearance (or that fails to send a suitably divine or infernal non-human agent, such as an angel) must be regarded as having gotten things wrong and thus would not be entitled to an exception. After all, a group that cannot prove that its  exemption from the law is justified should not be allowed that exemption. Obviously, referring to made up beliefs does not count as justification.

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God’s Vigilantes

Posted by on January 2, 2012 34 comments

The Vigilantes seal from the cover of Fifes an...

In anticipation of teaching my Modern philosophy class in the upcoming spring semester, I have been perusing my notes. Since I recently did a post on God and punishment, re-reading Locke got me thinking about this matter once again.

Locke, like other political thinkers of his age, made use of the state of nature in his consideration of rights and authority. Roughly put, the state of nature is a situation in which there is no political authority: no politicians, no police, no judges, no man-made laws and so on. In short, there is no artificial society-just people existing in a natural state.

Thomas Hobbes also envisioned such a state, but he saw this as  a state of perpetual war. Since many of my students play video games, I always illustrate Hobbes as presenting a “death match” view of the state of nature: everyone against everyone, whatever you can grab is yours (until someone kills you and takes it), and so forth.  Locke, however, envisioned a nicer state in which people possessed natural rights to life, liberty and property.

Locke also contended that there is a law of nature that should be observed and that this law “wills the peace and preservation of all mankind.” Locke also noted the obvious: if there is no one to execute or enforce the law of nature, this law would be in vain.

To solve this problem, Locke claimed that in the state of nature everyone has the right to execute the law of nature by punishing wrongdoers who violate the right to life, liberty or property.  Locke, of course, grounds these rights on God. Our right to life rests on his view that we are God’s property and our right to property rests, in part, on God’s gift of the world to us. Put a bit simply, God is the legislator of the law of nature and the author of our rights. However, given what Locke claims, God respects the distinction between the executive and the legislative in that He does not enforce the law of nature nor does He act to prevent or punish (on earth) the violation of rights. He does not even dispatch angels to act as divine police. As such, on Locke’s view the state of nature is governed by divine law but God does deploy any enforcers.

In human societies when laws exist but there are no official enforcers, people sometimes turn to vigilantism. That is, people take the law into their own hands. In human societies, this practice is generally frowned upon-at least when law enforcement does exist. It is, as might be imagined, tolerated more (or even encouraged) when official law enforcement is lacking.

Given that in the state of nature there is law (the law of nature) but no official enforcers, what Locke is arguing for is vigilantism. In short, he calls upon people to serve as God’s vigilantes. Naturally, it might be wondered why God would need vigilantes rather than having official law enforcement in operation. After all, God surely cannot lack the funding or personnel to provide adequate policing. Given that He supposedly created the universe and all its contents, surely He could create a divine police force to supervise us here on earth. This force would not, of course, impede our free will anymore than our own police forces do: people are always free to chose to do wrong-they just get punished if they get caught and convicted.

As far as the view that God does not punish and hence does not need police , given what most faiths claim, God has no compunction against punishing people. He just seems rather reluctant to do so when people are watching.

It might be argued that God has deployed a police force, namely us. We are, of course, also the criminal element and the judges as well. However, this seems a rather odd way of doing things. Consider the following analogy: imagine a federation or empire with unlimited resources that is engaged in colonization. The way it colonizes is that it just dumps people on a habitable world, but provides them with no technology, no police, no education and so on. While this would make some sense for a poor empire that cannot afford proper colonization efforts, this would seem absurd for such a wealthy empire.

In the case of God, it seems absurd that He would just dump us on a planet and have us “go to it” on our own with no support or police.  This hypothesis seems, on might suspect, more absurd than the hypothesis that humans are the result of a seriously lame (or badly failed) colonization attempt by a space empire. After all, to say that we are ruled over by a God who makes rules, but provides no police or judges here on earth seems rather like saying that we are ruled over by a space empire that laid down our laws, but provides no police, judges or any contact with us.

This analogy also provides the obvious response to the claim that God punishes people in the afterlife. Imagine if someone claimed that we are part of a space empire and that just before people appear to die they are whisked away by transporters and their bodies replaced with duplicates. The supposedly dead people are then brought to the Court of the Space Empire and then tried by Space Lawyers before the Space Judges. If they are found guilty of crimes, they are cast into Space Hell to be punished. If they are found to be innocent, they are transported to Space Heaven and rewarded. Naturally, we are all really immortal-we just seem to die when we are transported away and replaced by a fake corpse (or ashes or whatever).

Just as we have every reason to think that the space empire story is just bad science fiction, it would seem that we should think that the story about God is just a bad fantasy story.

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Liberate the Corporations?

Posted by on December 9, 2011 49 comments
English: The Bill of Rights, the first ten ame...

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In the United States, corporations are considered persons and hence it was ruled that they are entitled to 1st Amendment rights, specifically freedom of speech. While I have argued in other posts that corporations are not persons, I have also played with the idea of accepting corporations as people and seeing where this leads.

Now, if it is assumed that corporations are persons and are thus entitled to 1st Amendment rights (at least in the United States) it would certainly seem to follow that they are entitled to all the rights of persons. Or, at the very least, the other constitutional rights.

Corporations can, of course, be owned. In fact, common stock is bought and sold as a matter of routine business and provides an ownership share in a corporation. Since corporations are people, this means that people are being allowed to legally own other people. Owning another person is, of course, slavery. While slavery was legal at one time in the United States, the 13th amendment is rather clear on this matter:

Neither slavery nor involuntary servitude, except as a punishment for crime whereof the party shall have been duly convicted, shall exist within the United States, or any place subject to their jurisdiction.

Now, if corporations are entitled to 1st amendment rights because they are people, it follows that they must also be entitled to 13th amendment rights. That is, corporations have a right not to be owned by other people. Thus, corporations must be set free from their owners and all such ownership must be declared null and void.

It could, of course, be argued that this is absurd. I agree-but this conclusion follows directly from the same logic used to argue that corporations are entitled to 1st amendment rights. So, if it is absurd for corporations to have 13th amendment rights it follows that it is equally absurd for them to have 1st amendment rights.

It could, of course, be argued that corporations are special sorts of people and are such that they do get 1st amendment rights (that is, they can engage in unlimited spending in politics) but they do not get certain other rights, such as not being slaves. After all, the constitution also includes the following:

Representatives and direct Taxes shall be apportioned among the several States which may be included within this Union, according to their respective Numbers, which shall be determined by adding to the whole Number of free Persons, including those bound to Service for a Term of Years, and excluding Indians not taxed, three fifths of all other Persons.

The “other persons” were, of course, slaves. Perhaps corporations can be considered a certain fraction of a person in regards not to representation but to rights. So, they get the all important right to spend money in politics on the basis of being persons while being denied the right not to be owned as slaves. I am not sure what the percentage would be or how this would work out, but I am sure that a clever lawyer could make it happen.

In fact, it  could be argued that enslaving persons is just a return to an old American tradition-only now we are enslaving corporation-Americans rather than African-Americans. This is not to trivialize the brutal treatment of those toiling under the lash of slavers, but to make the point that it is absurd to think of corporations as people.  If it is not absurd and corporations are people, I demand that the corporations be set free!

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Do we need laws banning polygamy?

Posted by on November 28, 2011 15 comments

This is the hot topic for the week, following the judgment of a Canadian court upholding a ban on polygamous marriages.

Here are two online articles criticising the outcome of the case: one by Kate Heartfield, writing for The Province; the other by Stephanie Zvan in a post on her blog at freethoughtblogs.com.

I have a lot of sympathy for both of these pieces. That’s not to say that the case is wrongly decided as a matter of law – I think that’s quite a difficult question, and I’d like to think about it further. In particular, I would like to – *sigh* – read the 300+ page judgment in its entirety (does anyone have a link for it?).

One interesting issue for legal theorists is this: what if a statute was initially enacted to achieve a purpose that was in breach of such concepts as freedom of religion (which might have constitutional protection), but is now, generations later, best rationalised on some other, seemingly legitimate, basis? Should we now see the statute as serving a legitimate secular purpose? Perhaps … but it’s not just obvious. What if the constitutional protection of freedom of religion came along after the statute was enacted? Does that make a difference? I don’t see a clear philosophical answer to questions like that. Maybe it’s just a policy question. I’m open to hearing some views.

In any event, public policy on this issue in Canada will now be in a mess. It’s clear that the state won’t register polyamorous relationships (polygynous, polyandrous, or more complicated) as marriages. I could agree with this – in fact, I argue for exactly this in Freedom of Religion and the Secular State (though not with any great enthusiasm … see for yourself if you don’t mind shelling out).

But that doesn’t mean that all such relationships are prohibited. You’d think it might end there, in fact: in Canada, polyamorous relationships are not prohibited, but nor are they registrable as marriages with whatever social and legal benefits that might entail. Full-stop. I could go along with that. But it seems that there is going to be a middle category of relationships that are actually prohibited, if they show sufficiently marriage-like properties – perhaps including extra-legal recognition as marriage through a religious ceremony. If so, that is just a mess. I don’t necessarily mind the state deciding what relationships it will extend its blessing – and certain legal privileges – to. But I don’t want it getting into the bedrooms of consenting adults with criminal bans on their private erotic arrangements, for which they are asking for no particular privileges from the state.

We should try to avoid dogma … especially if we haven’t read a legal judgment in its entirety, so as to see the full argument. I’d like to know more about the judge’s reasoning. But at the moment, I’m very sympathetic to Heartfield and Zvan.

What do you think?

Corporations as People

Posted by on November 21, 2011 37 comments
Immanuel Kant developed his own version of the...

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Due to some oversight in my education, I had read various philosophical accounts of person hood before I was exposed to the seemingly absurd notion that corporations are persons. Of course, corporations are legally persons-they would generally fail to meet most philosophical definitions of person. Being a legal person is, as might be imagined, rather different from being a person in the philosophical sense. Philosophical accounts of what it is to be a person are generally subject to rather demanding criticisms based on intuitions, logic and so forth. In the case of legal persons, this seems to be largely a matter of getting a law or ruling that says that X is a legal person. There is, as far as I know, no requirement that such a law be well founded, well argued or even intuitively plausible. In theory, then, anything could be made into a legal person-subject to the whims of voters, lawyers or judges.

While I have argued elsewhere that corporations should not be considered persons, I am going to (at least for the sake of this short essay) reverse my usual view and instead say that the person hood of corporations should be embraced. They should be regarded as persons like any other person and accorded to full moral and legal status as persons (including rights, duties and obligations).

This would, on the face of it, entail that corporations should be treated just like any other person for tax purposes. After all, for me to fall under special tax laws because I am a Mohawk-French-English American would seem unfair to other Americans. Likewise, the fact that someone is a corporate-American (no doubt with multiple citizenships) should not thus entitle them to special treatment in this regard. As such, if a corporation really is a person, then they should fill out the standard tax forms and be entitled only to the standard deductions and so on. Alternatively, we should all receive the same tax (and other legal) rights as the corporation-Americans (or corporation-Australians or whatever). Given the benefits corporation receive, the rest of us would seem to be second class people in comparison. This seems to be wrong.

It might be replied that corporations, the legal people,  are special and thus entitled to benefits that lesser “meaty people” are not entitled to. This would seem to be a rather hateful sort of discrimination against us meaties in favor of the legalies. Then again, it could be accepted that the corporation is merely a legal fiction that is perpetuated because of its benefits to certain people (someone would need to break the news to Mitt Romney, though).

This view would also seem to entail that corporations would need to be citizens and thus entitled to all the benefits and responsibilities. To deny corporation-Americans the right to vote would seem to be a gross violation of their person hood. They should also be obligated to serve on juries, to register for selective service (well, at least the male corporations), and they should be counted in the census. There is, of course, the obvious problem of how the corporation-person would actually engage in voting or serve on the jury. After all, unlike other persons, the corporation person seems to have no actual nexus of person hood that could be in a specific location. There is also the problem that the corporation-person cannot actually think, talk, or write-unless it is accepted that it takes possession of employees and speaks through them. If so, the corporation could thus send a possessed member to vote, to serve on the jury or to serve in the military if it is drafted in times of war. Or perhaps the whole entity is the corporation-a collective person. In that case, the whole thing would seem to be the person. This would make the jury room rather crowded, should a corporation get summoned for duty.

It might be replied that this is all rather silly. Corporations are not some sort of mind that can possess individuals (as the gods were said to possess the oracles at Delphi) nor are they a collective mind composed of the people that work for them and the things they own. After all corporations have no minds, no personalities, no feelings, no thoughts, no beliefs, no desires, no perceptions, no life and so on. There would seem to be, to steal a bit from Nagasena, no self in regards to corporations. This, one might suspect, would seem to entail that they cannot be people-after all, nothing cannot be a person. Then again, perhaps it is wisest to again take them to be mere legal fictions rather than people in any meaningful sense. This would, of course, include granting them constitutional rights on the basis of being actual people.

However, I am committed to trying to treat corporations as people. Perhaps they can be treated as people in terms of their moral status and moral obligations. Of course, if they are morally people, then this would seem to have some interesting implications for moral theories. Since corporations apparently cannot possess virtues, then virtue theory would be out as a moral theory. The same would also apply to many forms of utilitarianism. Since, for example, corporations do not feel pleasure or pain, they would not count morally, so these theories would need to be rejected. Kant’s theory would also be right out-his account of persons and the role they play in morality would be completely incompatible with the corporation-person.  Of course, there is always the option of arguing that there are persons and there are corporation-people. They are both persons, but different sort of persons in fundamental ways. So different that one might suspect that corporations are not people.

I will be writing more about taking corporations to be people in the moral sense.

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Marriage, A Few Modest Proposals

Posted by on November 10, 2011 23 comments
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Like many people, I got married with surprisingly little understanding that marriage is essentially a financial merger. Unfortunately, this became all too clear when my wife filed for divorce. Although I had made all the payments on the house and had far less debt, I had to buy “her” half of the house from her and ended up being financially broken (but not bankrupt) by this process. Based on my own experience, I agree with William Quiqley’s modest proposal that potential spouses receive a full disclosure of their legal and financial obligations before they have their merger.

His proposal makes excellent sense. After all, people should be aware of their responsibilities when entering into any legally binding arrangement-especially one that involves their entire financial life (or at least a large portion of it). While people are supposed to know about what they are getting into and everyone has heard the horror stories about divorces, it seems that most people do not fully understand the legal aspects of marriage and it is clearly remiss that the state grants licenses without providing such information.

Interestingly, Mexico  City law makers have proposed a bill intended to address the court clogging legal battles between divorcing couples. This bill would require couples to create a pre-nuptual  agreement that would create a contract specifying what would occur if the couple divorces. This would include financial matters as well as issues regarding children. The intent is, of course, to reduce the burden on the courts and allow divorces to be settled quickly. Since the divorce rate about 40%, this certainly makes sense. It also makes sense because the couple would know what their exact obligations will be and they will not be going into a serious financial contract blindly.

One rather controversial aspect of the proposal is that the marriages are supposed to have predicted timed of termination. Couples can, of course, use the traditional termination: “until death do us part” or they can opt for a shorter contract. Since other financial  contracts can have termination dates, this seems sensible enough. Not surprisingly, the Catholic Church in Mexico is outraged by this. However, they have little moral authority from which to argue and the reasons in favor of the bill seem far more compelling than the usual vague appeals to God and family values. After all, it hardly seems to enhance family values to have brutal legal battles over divorces.

The bill also requires couples to take classes about marriage. This also makes sense. After all, people are required to learn how to drive before getting a driver’s license because driving is dangerous. Marriage is also dangerous: as a friend of mine puts it, you have a 50% chance of losing 50% of your stuff. Hence, people should go into that potential disaster with all the preparation they can get.

At this point, someone will probably raise the matter of love and the subject of religion. After all, marriage is supposed to be about love and there is often a religious element.

In regards to love, love has as much to do with the legal aspects of marriage as it has to do with any financial contract: none at all. There is, as people point out, no love test or even a love requirement for marriage. There is often an assumption of love, but this has no bearing in terms of the license. This might seem heartless of me, but you can check into the matter yourself. Lest I be considered a cold beast, let it be known that I think love is great. Like running and friendship, it is one of the great goods in human life. However, people can marry without being in love and people can be in love in every meaningful way without being married.

But, one might say, does not marriage serve to show the ultimate commitment to love? My reply is that people do think this, but marriage is a legal contract that is primarily financial in nature. A person can commit in every emotional way without such a legal merger. But, one might say, how can couples express their love? Well, my obvious reply is that they can treat each other with love and do all those things that show love. In fact, I propose that their be a Love Oath or Union of Love created in which couples can make a (non-financial) bond of love. They can have a ceremony (with cake, of course) and it can even be recognized by the state with a certificate of love. However, it would have no financial or legal aspects to it-it would be pure love.

But, one might cry, what about all the legal rights of marriage? My modest proposal here is actually two proposals. The first is that couples could do the traditional legal marriage with all the legal obligations and rights. My second is that the various legal obligations and rights could be selected and put into a specific contract. It is absurd that the marriage merger is a one size fits all deal when any other contract can be custom made. As such, I propose that a Civil Contract of Union be created that would allow couples to specify the legal aspects of their legal contract. I also contend that many of the rights should be open to non-”married” people. For example, people should be able to designate the people who get to visit them in the hospital. This Civil Contract of Union would satisfy people who marry for the sake of the legal rights and obligations. Naturally, it can be combined with the Union of Love.

Lastly, a religious person might note that nothing has been said about religion and marriage. As I see it, God can sort this out. After all, He is omnipotent so He can make it so marriage works anyway He wants. For example, He could make it so that couples who are not marrying for love are unable to complete their vows or their rings shatter. He could make it so that when same sex couples try to get married, their clothes catch on fire and the wedding cake is consumed by locusts. So, until God says otherwise, we can go with my proposals.

But, one might yell, what about the religious fol? Am I not being a bit of a jerk about this? Surely I cannot be so cynical as to truly believe such things? In reply, I do admit the importance of religion to some people and this should be acknowledged. As such, I propose a third union, the Theological Union. This would be a ceremony designed and conducted by the relevant religious institutions to sanctify unions. It would have no legal status at all (that would require the Civil Contract of Union) but could be given whatever religious significance the religious authorities wished to put into it. They could even make a nifty certificate and there should, of course, be cake. I am sure God likes cake. The Theological Unions also have the advantage that the various religious groups and people who are very worried about traditional marriage can make their Theological Unions as traditional as they like. Since these unions would have no legal weight, those authorizing them can exclude whoever they want and presumably be free of any legal worries (or not, maybe people could sue if a church, for example,  banned white people from getting a Theological Union).

I believe that my proposal provides a rational solution to the marriage problem and one that can make everyone unhappy-which is a mark of a good compromise.

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Stem-cell research patents – the case of Brüstle v. Greenpeace

Posted by on November 3, 2011 9 comments

On 18 October 2011, the European Court of Justice handed down a ruling in a case about German patents relating to isolated neural precursor cells, their production from embryonic stem cells, and their therapeutic use. The court’s judgment has received much discussion, a fair bit of it unfavourable. It raises important questions about bioethical principles, the regulation of biotechnology, and the role of the state in these controversial areas.

Let’s try to get the facts and the nature of the case reasonably clear, as these are obscured in much of the discussion that I’ve seen. The case was brought by Greenpeace in the German courts, seeking the annulment of a patent held by Mr Brüstle. The German courts referred certain questions of law to the European Court of Justice, and the answers to these are likely to determine the overall outcome: in the event, it appears that the patent cannot survive. In effect, the court has all but struck down the patent, though it seems that the formal determination of this will have to be made by the German courts. In any event, we can ignore the technicalities of court procedures for current purposes.

What was the European court asked to do? Basically, it answered three questions, which I’ll come to, relating to a rather complex body of legal instruments that regulate biotech patents in Europe. The immediate source of regulation in the case was Germany’s Patentgesetz (law on patents), which forbids patents on “inventions whose commercial exploitation would be contrary to ordre public or morality”; this is then elaborated at paragraph 2(2)(3) to include “uses of human embryos for industrial or commercial purposes”.

The Patentgesetz provisions are, in turn, supported by a Directive of the European Parliament relating to the legal protection of biotechnological inventions (i.e. to biotech intellectual property). The Directive excludes a wide range of innovations from being patentable and its preamble includes the words: “uses of human embryos for industrial or commercial purposes must also be excluded from patentability”. Article 6 expressly forbids patenting of “uses of human embryos for industrial or commercial purposes.” This elaborates on the statement in Article 6(1) that, “Inventions shall be considered unpatentable where their commercial exploitation would be contrary to ordre public or morality.”

In turn, a European convention relating to intellectual property requires that Eurppean patents not be given for “inventions the commercial exploitation of which would be contrary to ‘ordre
public’ or morality.”

I trust that the pattern is clear – at the respective levels of international conventions, a European Directive, and national (in this case German) law, we see an exclusion of patents whose use would supposedly be contrary to ordre public or morality. Where biotechnology is addressed more specifically, including in the Patentgesetz, it is made clear that such forbidden patents include those on “uses of human embryos for industrial or commercial purposes”.

The questions addressed by the court were basically as follows:

1. Were the early embryos to be used in the processes envisaged by the patent “human embryos” for the purpose of the Directive, and hence of the Patentgesetz? Answer, yes – though this would not necessarily apply to actual cells extracted from embryos (it would depend on whether they were capable of developing into fully formed human beings).

2. Were the scientific and therapeutic uses described in the patent application “uses of human embryos for industrial or commercial puposes”? Answer, (basically) yes.

3. Did the exclusion also apply to processes that did not directly employ human embryos, but relied on the previous destruction of human embryos? Answer, yes.

These answers render the patent untenable.

I suggest that the first two answers are actually quite plausible. The third is less so, as it does not conform to the literal wording of the relevant legal instruments. Still, it is at least arguable that this is a legitimate extension: the court appears to have believed it necessary to achieve the provision’s purpose, and specifically to avoid contrived evasions. Hence, I don’t wish to argue that the court was wrong as a matter of law. It seems to me that any problems are with the provisions themselves rather than with their interpretation by the European Court of Justice. To be clear, I do see problems.

Before getting to that, let me set aside another set of issues. There are arguments in the relevant literature that some kinds of biotech patents should not be granted for other reasons: for example, because they are economically inefficient (as is sometimes said of patents on DNA sequences) or because they are too much like patents on discoveries or mere products of nature, rather than on inventions or humanly-devised processes. However, no argument along these lines was employed in the case we’re considering.

The issues I see relate to the inclusion, at various levels of the law, of a requirement that patents not be given for inventions or processes whose use would be against “ordre public or morality” and the specific inclusion within that requirement of patents on uses for human embyros.

First, we might ask is all this really the proper role of the state. Should it be singling out as unpatentable certain inventions and processes that might be socially useful merely because their use would be contrary to some concept of morality? The notion of ordre public appears difficult to apply in this case, since it is difficult to see how the social structure or its functioning could be damaged by the use of the patented processes. This really seems to be a case where a particular, somewhat esoteric, and certainly contested, morality is being given legal effect. The destruction or commercial/industrial use of human embryos is being treated as immoral because it is repugnant to a particular conception of human dignity rather than, for example, because citizens’ civil interests in life and health are threatened, or because suffering is being inflicted on sentient creatures. Should the state really be getting into this?

Second, even if it should be … isn’t it more plausible that conducting embryonic stem-cell research or employing cells in new therapies is actually morally good? This kind of research and therapy appears to be in the public interest, and it is difficult to see how the state could decide otherwise unless it adopted some sort of reasoning based on otherworldly considerations, or at least on an esoteric morality whose official endorsement would be inconsistent with liberal ideas of social pluralism. Is that what we want the state to be doing when it enacts its laws?

We seem to have grounds to protest about the immediate case, even if the fault is with the legal instruments rather than the court’s interpretation of them. Beyond this, however, perhaps it’s time to revisit the widespread invocation of ordre public and morality in legal instruments, especially in international conventions. Though the word “morality” tends to be read somewhat narrowly by courts and other official bodies, since some moral code or another could be used to justify almost any law, there remains the prospect that esoteric, perhaps religously-based, moral ideas will be imposed by force of law. That should give us pause. Is it really something we want?

The role of Greenpeace in this case might also give us pause. In what way could the patent be considered damaging to the natural environment? It may be inconsistent with some systems of environmental ethics, but that’s not the same thing. How attractive is Greenpeace as an organisation deserving our support if it is going to seek judicial enforcement of a rather esoteric moral system that is not usually considered compulsory in modern liberal democracies?

At the least, there seem to be grounds here to consider whether the sweeping protection of human embyros in European patent law is really justified. Even if a case can be made out for discouraging certain uses of human embryos, the current provision in patent law appears far too unnuanced. There is a prospect that it will discourage valuable research and delay new therapies. This case merits all the scrutiny that it’s getting – time, I think, to change the law. At the very least, the law needs some fine-tuning to avoid such harsh outcomes. I suggest you make up your own mind about Greenpeace; in my case, this litigation doesn’t make me feel more friendly to it.

Police & Protests

Posted by on October 12, 2011 1 comment
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Protests are often marred by senseless violence and the recent protest on Wall Street was no exception. One incident that has gotten extensive attention is the pepper spraying/macing of penned in women by Anthony Bologna, a relatively high ranking member of the NYC police. These sorts of incidents raise questions about the legitimate role of the police in regards to protests. My discussion is limited to the context of democratic states, such as the United States.

First, it is rather important to acknowledge that the police do have a legitimate role to play at protests. While protests are intended to draw attention and often aim to do so by creating a disruption of the normal course of events, a state of protest does not grant protestors a carte blanche right to interfere with the legitimate rights of others. As such, the police have a legitimate right to prevent protestors from violating the rights of others and this can correctly involve the use of force. Obviously, if it is argued that protestors have a right to protests, this would entail accepting that people have rights and intuitively the right to protest does not automatically trump other rights-especially the core rights of life, liberty and property. Those who claim otherwise would seem to have the burden of proof upon them.

To use an obvious example, people protesting a decision by the parliament or congress do not gain the right to loot the businesses along their path of protest and the police would act correctly in stopping these acts of theft.   To use a less extreme example, protestors who are disrupting a legitimate business can legitimately be prevented from doing so by the police.

Second, while protestors do not gain a carte blanche right to violate the rights of others, peaceful protest is a legitimate form of expression and is certainly a form of free speech (far more so than spending money on political campaigns and some rather ludicrous “free speech” defenses launched by corporations such as Google). As such, the right of protest should be respected by the police.

Even when protestors act in ways that are technically illegal, provided that their crimes do not involve violence or property damage (that is, the protests are peaceful), they should be handled with minimal force. After all, the force used by the police should be proportional to the crime and the resistance being offered. Exceeding this would be, by definition, excessive force and hence a wrongful action. The police, after all, have the right to use the force needed to enforce the law. Force beyond that would go beyond their rights and hence cross over into assault and beyond (after all, once they cross the boundary of legitimate force, they have ceased to enforce the law and are engaged in needless violence and may rightfully be regarded as criminals-albeit with badges). Spraying women that have been penned in and are offering no resistance would be, from a moral perspective, an assault with a dangerous weapon and not a legitimate act of law enforcement. The fact that the perpetrator is wearing a uniform does not change this-except to make it an even worse action-a crime committed by someone who is supposed to prevent crime.

Naturally enough, violent and destructive protests can be met with legitimate force. As an example, protestors who are looting or attacking innocent citizens can be treated as the criminals they are and handled accordingly.

Third, there are cases in which violent and destructive protest can be justified. These would involve cases in which the wrong being done was such that it warrants such a response and there is no recourse to an objective, impartial and fair legal redress. In such cases, the police should be acting in defense of the people driven to such acts rather than fighting against such people. These situations are not common in the Western democracies, but have (and no doubt will) occur.

Thus, both protestors and police have moral obligations they should respect.

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