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Category: Governance

Democracy / Distribution / Duties / Education / General / Governance / Rights / Social justice / Work

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On Using Affirmative Action as a Tiebreaker

In this post, Shalom Chalson (National University of Singapore) and James Bernard Willoughby (Australian National University) discuss their article recently published in the Journal of Applied Philosophy on using affirmative action to break ties in competence between candidates for a job or university place.

Affirmative Action is consistent with merit-based selection practices. This is what we argue in our paper, “Using Affirmative Action as a Tiebreaker”, forthcoming at the Journal of Applied Philosophy.

This consistency is surprising. The idea that affirmative action is opposed to selecting the most competent candidates is a powerful motive to reject such policies. For example, when the United States Supreme Court ruled in 2023 that race-conscious affirmative action policies were unconstitutional, Justice Clarence Thomas wrote in a concurring opinion:

Meritocratic systems, with objective grading scales…have always been a great equalizer—offering a metric for achievement that bigotry could not alter. Racial preferences take away this benefit, eliminating the very metric by which those who have the most to prove can clearly demonstrate their accomplishments—both to themselves and to others.

The thought here is that affirmative action—such as in the form of race-conscious selection practices—removes opportunity for the marginalised to succeed by proving their competence. So affirmative action is, supposedly, inconsistent with meritocracy.

We disagree. There is at least one way that you can implement an affirmative action policy with no expected loss in competence. How? By using affirmative action as a tiebreaker.

First, identify all the people that, for all you can tell, are as competent as each other and more competent than everyone else. What you now face is a tie in competence. Second, apply affirmative action, say by preferring people from historically marginalised groups among the equally competent, to break the tie. Following these steps should not compromise competence.

What about those ‘objective grading scales’? If you are truly selecting for competence, then you might think that the scales are all that matter. But the fact is that our measures of competence don’t always measure actual competence. The same grades do not mean that two students are equally competent. All you can do in a meritocracy is identity the people you expect to be most competent.

Let’s think through an example. Suppose a newly admitted university student’s job is to get good grades in their first year. Now, suppose you know two things about each prospective student: their high school grades and their financial background (whether their family’s income is higher or lower than the average). How would you select the most competent candidate?

In suggesting that grading scales do all the work, Justice Thomas implied an answer: select the students with the best grades and ignore any other information. But this would not pick out the students who are most likely to get the best first year university grades.

According to George Messinis and Peter Sheehan (2015), when comparing students in Australia with roughly the same high school grades, the students from poorer backgrounds get better first year grades than students from richer backgrounds. So, if you preferred a poorer student whose grades were just a little behind the richer student, you would in fact select a student likely to get better first year grades. This is an affirmative action policy that is not only consistent with meritocracy but improves on a policy that focuses only on objective grading scales.

Above, we pretend that all a student must do is get good grades. This makes sense of using high school grades as a metric for competence. In reality, students also must gain the skills necessary for future employment. High school grades are much less likely to matter when assessing future competence.

As we get a more realistic understanding of what we are selecting for, it becomes more doubtful that our selection practices model a perfectly functioning meritocracy. In the actual world, we don’t always select the most competent people. In fact, sometimes the metrics that we use aren’t about competence at all.

In a 2009 article about the United States Space Program, Marie Lathers discusses the requirements for joining the first astronaut program in 1958. Candidates had to both be jet test-pilots and have a bachelor’s degree. However, no woman could be a jet test-pilot at the time. So no women qualified. Of the seven men chosen, two did not have bachelor’s degrees (but were taken to have ‘equivalent experience’). However, the requirement that candidates be jet test-pilots was unrelated to competence in flight. Lathers writes:

Although the first draft of the call for astronauts did not set the requirement of jet test-pilot experience, the final version did, following President Eisenhower’s opinion that those with security clearances who could be called to Washington at any time—that is, military personnel—would be NASA’s most efficient pool.

These metrics ruled women out. Nonetheless, when the same metrics ruled out some good male candidates, the metrics were applied more flexibly. After all, some people can have the required knowledge for a job without having a degree. But some women can be excellent astronauts, despite not being jet test-pilots.

The metrics used to assess competence can be a result of tradition, epistemic mistake, or a direct order from a superior without appropriate justification. Our current selection practices are likely replete with errors. We argue that because of these errors, policies informed by a realistic understanding of our epistemic limitations, and that use affirmative action to break the ties in competence we are likely to encounter, can be implemented without cost in competence. 

To be sure, there are many ways to object to our proposal. One might think that employing affirmative action over a lottery in the event of a tie is simply unfair. One might worry that affirmative action harms those it is designed to help, such as by bolstering stigma. And one might question whether selectors ought to prioritise competence at all. We address objections like these in our paper.

There is a common belief that affirmative action is incompatible with meritocracy. However, we don’t live in a perfect meritocracy. Affirmative action policies can be just as good as current practices for selecting competent candidates, if not better. They can do so while making our society overall more equal, more just, and a better place to live.

Shalom Chalson is a Research Fellow at the Centre for Biomedical Ethics in the Yong Loo Lin School of Medicine, National University of Singapore. She works on philosophical issues to do with wrongful discrimination.

James Bernard Willoughby specialises in epistemology, and in particular, on epistemic instrumentalism. However, he is currently working on a range of experimental projects: counterfactuals and retraction; what makes people judge a belief as more or less justified; and assessing legal compliance of AI.

Climate / Environment / General / Governance / Public Philosophy

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Choose Your Own Philosophical Policy Role

In this interactive “choose-your-own-adventure” post, Kian Mintz-Woo (University College Cork) explores the different roles that philosophers might play in supporting the development of public policies. This is based on his recently published article in the Journal of Applied Philosophy.

[§1]

Congratulations! You have been invited to participate in a government policy-recommendation committee in [insert your research area of expertise]. You look around and see some academics (a political scientist, an economist and a [insert relevant] natural scientist), but also some political bureaucrats and some representatives of civil society. You have been jointly tasked on evaluating and recommending a policy option.

‘This is our justice theorist,’ they say in introduction. Or maybe ‘Please welcome our ethicist!’ You’re a little intimidated. You’ve never done something like this before, but you want to contribute in a way that is useful for the group—but also reflects the appropriate role for a philosopher.

When it comes time for you to contribute, do you:

  • explain, defend, and apply your substantive normative position and how it applies to this policy question (‘the partisan’): Jump to [§2]; or
  • explain what you take to be the relevant societal values and how they bear on this policy question (‘the populist’): Jump to [§3]; or
  • act as a ‘conduit for the discipline’ and explain a variety of positions and the arguments that link them to particular policy options, looking for convergence and divergence between different normative positions (‘the convergent evaluator’): Jump to [§4]?

[§2]

‘I’m a normative theorist who has considered this area extensively,’ you begin. ‘The principles and theories of [insert your normative position] are clearly stronger than the alternatives. Indeed, we can tell that those principles are useful as they show that [your preferred policy option] is highly justifiable.’

Some members of the committee, having never heard the policy options discussed in this kind of theoretical way, find that your position sounds quite plausible. Discussion continues, with the following rebuttal occasionally offered to alternative views: ‘But justice demands [your preferred policy option], according to our justice theorist!’

You find yourself squirming slightly, since you realize that [your normative opponent at a more famous university] could also have been invited instead, and, as they have a different normative position, they would have argued for [your dispreferred policy option]. But you content yourself with the thought that, luckily, you are here instead of them. Jump to [§5].

[§3]

‘We have to remember that we are here to consider and recommend public policies,’ you begin. ‘So it behooves us to consider what the public thinks. Luckily, I have a more than passing familiarity with [news opinions, polling data, historical documents, other potential sources of societal value] and I think the deep values of society are [liberal, conservative, egalitarian, xenophobic, utopian, etc.]. That is very helpful because it shows that [society’s preferred policy option] is highly justifiable.’

The committee is intrigued and begins to debate about whether these are society’s real values. One member points out that it would be somewhat more convincing if a social scientist could inform the committee, muttering something under their breath about ‘empirics’ and ‘armchair philosophers’. Another member asks whether society’s values are reflected by what society does or what society says. Yet another asks whether we should really be thinking about what society did or said.

You find yourself squirming slightly, since the questions the committee keeps asking you sound like ones that maybe a social psychologist or a sociologist or a historian would have an easier time answering. Jump to [§5].

[§4]

‘What do philosophers do?’ you begin. ‘Many of you are wondering that, but you might not really know. Well, part of what we do is we try to make arguments or draw valid inferences based on various normative positions. For instance, in this particular policy context, some influential principles and theories are [you introduce some relevant positions]. While there is significant theoretical disagreement, [some policy option] can be justified from very many normative positions and [some other policy option] can be justified from quite a lot of positions. Here is how those justifications work…’

The committee pays close attention, with some members nodding sagely when certain positions are mentioned and a couple interested murmurs as you draw some subtle inferences. Afterwards, the committee discusses which principles they are drawn to and question some of the arguments you present.

You find yourself squirming slightly, since you wonder if your summary of the arguments is idiosyncratic or whether you were fair to the various interlocutors’ positions. But you comfort yourself by thinking that you gave it your best shot and that at least you didn’t give a wild misrepresentation of the debate. Continue to [§5].

[§5]

After much discussion, multiple meetings, and several reports, the committee ultimately decides to recommend [your preferred policy option]. You are surprised but pleased, although you remain unconvinced about whether your particular recommendation made any difference. You finish your committee work with a mix of inspiration and skepticism about the role of policy committees.

But you also can’t help realizing that you can’t wait to go back and try it over again, maybe a little differently.

[The (very slightly) less interactive version of this blogpost can be found at: Mintz-Woo, Kian. Forthcoming. “Explicit Methodologies for Normative Evaluation in Public Policy, as Applied to Carbon Budgets.” Journal of Applied Philosophy. https://doi.org/10.1111/japp.70047 .]

A version of this blog post was cross-posted at New Work in Philosophy website.

Economics / General / Governance / Liberty / Moral values / Punishment

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How much is too much? Why defining ‘mass incarceration’ is important – and isn’t as easy as it seems

In this post, Vincent Chiao, discusses his article recently published in the Journal of Applied Philosophy on how to understand the “mass” part of “mass incarceration.”

By Our World In Data. See English Wikipedia: Our World in Data. – https://ourworldindata.org/grapher/prison-population-rate. CC BY 4.0,

The United States incarcerates more people than any other country in the world. On a per capita basis, the United States incarcerates at a higher rate than any other democracy, with the possible exception of El Salvador. Yet at the same time, a disturbingly large share of crime is never reported much less punished. This raises the simple question: how do we know when a penal system incarcerates too many people? Even as “mass incarceration” has become a staple of both academic research and political discourse over the last decade, and even as renewed attention has been paid to glaring racial disparities, the question of scale – how much is too much – has remained surprisingly elusive.

Why defining excess is not as easy as it seems.

It is tempting to think that it is sufficient to point to the sheer scale of incarceration in the United States. Tempting—but wrong. Most crimes in the United States go unpunished, including “core” crimes of interpersonal violence. According to the National Crime Victimization Survey, a third of robberies, half of aggravated assaults, and the overwhelming majority of rapes and sexual assaults go unreported, much less punished. Strikingly, one advocacy group estimates that there are approximately 433,000 sexual assaults in the United States every year, and that ‘out of every 1000 sexual assaults, 975 perpetrators will walk free.’ This implies that each year there are approximately 422,000 instances of sexual assault in which no one is held accountable. For context, that is strikingly close to the total number of people admitted to prison in 2021.

It is true that people tend to be incarcerated for longer in the United States than in other parts of the world, but that alone does not show that the United States incarcerates “too many” people. In part, this is because punishments of varying degrees of severity might all be in some sense “proportionate,” and in part because the large number of unpunished crimes creates significant headroom in incarceration rates. The United States could incarcerate many more people, and potentially incarcerate them for longer, without violating basic rights against punishing the innocent or disproportionate punishment of the guilty.

Otherwise put: incarceration rates tend to be driven more by policy than by crime. What makes this into a philosophical problem is principled disagreement about what we are trying to do when we punish people for committing crimes. Crime prevention? Reparation? Symbolic vindication? Rehabilitation? Something else? We tend to be more confident that criminals should be punished than we are as to why they should be punished. But that makes it difficult to say if what we are getting is too much, too little, or just about right.

What about crime prevention?

Crime prevention is the most common, and most popular, answer to “why do we punish criminals?” But it is easy to see why one might hesitate. “Is incarceration an efficient way of preventing crime?” quickly leads to comparing the interests of the innocent in not being victimized against the interests of the guilty in not being imprisoned. Not only is that a hard question to answer objectively, but it also involves intrusive value judgments that liberals have reason to eschew. Telling people that their safety isn’t “worth the cost” can easily sound condescending, particularly when the costs mostly fall on those who choose to break the law.

Three conceptions of excess

This presents a difficult, though not insurmountable, challenge. For starters, we could define excess incarceration in strictly Paretian terms: can we release people from jails and prisons without increasing crime? Since this approach makes some people better off without making anyone worse off, it does not require trading off different people’s interests.

Alternatively, we could consider whether alternative modes of preventing crime could substitute for incarceration, again holding crime constant. By holding crime constant, we would only be asking whether there are ways of controlling crime that have a less malign impact on people’s lives than prisons. This too does not involve weighing competing interests.

The main limitation of these approaches is that they take existing levels of criminal victimization as sacrosanct. As a result, a quite substantial degree of incarceration could potentially be justified if it prevented trivial increases in crime. That might lead us to seek a more demanding conception of excess. That will, however, require weighing competing interests – those of potential victims in not having their rights violated and those of potential prisoners in not being incarcerated. As noted, this can easily come across as condescending, and worse, as involving intrusive judgments of worth.

That said, it’s worth noting that very few people are absolutists about crime. Most of us regularly make practical trade-offs between convenience and safety, for instance, which routes we will walk, where to lock our bikes, whether to install a security system. These mundane decisions – along with jury awards, tangible costs, and survey data – reveal how people subjectively value safety versus other goods.

Such information would, of course, need to be carefully considered to control for morally salient biases. Nonetheless, the broader point is that a utilitarian conception of excess is not committed to paternalistically evaluating whether people are wrong to fear crime as much as they do. Its theory of value can be constructed from the bottom up rather than imposed from the top down. Doing so can help mitigate concerns about condescending or intrusive value judgments.

So what?

Mass incarceration is unjust. This is in part because the burdens of incarceration are unfairly distributed, but it is also in part because those burdens are excessive in absolute terms. The moral critique of mass incarceration thus depends on an analytical metric—a theory of what it is to incarcerate too many people. The metric we choose will tell us what it means to truly bring the era of mass incarceration to an end.

Vincent Chiao’s research interests are in public law, with a particular focus on the philosophy of criminal law. He is the author of Criminal Law in the Age of the Administrative State (OUP 2018). Themes in his work include the place of law in formal and informal social orders, punishment and the evolution of cooperation, and the rule of law as a social technology.

Climate / Distribution / Economics / Environment / General / Governance

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Quo vadis carbon tax?

Carbon taxes represent a key part of humanity’s current strategy to avoid global warming above 2 degrees Celsius. They work by making carbon-intensive activities more expensive, thus encouraging individuals to reduce these activities. Given the existential threat climate change poses to our societies, one would hope that such a key policy tool was both effective and enjoyed broad public support. Neither of these things are true today. Why is that and what needs to change?

The carbon tax is a so-called steering tax. Its goal is to change people’s behaviour, not to raise revenue for the government. The current version of the carbon tax in place in most countries does not change people’s behaviour as effectively as it could and should. To see why, consider two frequently ignored facts.

First, rich people emit considerably more than the average person. Studies on socioenvironmental inequality estimate that the top 10% of emitters are responsible for about 50% of individual carbon emissions. Think of private jets, which emit up to 4.5 tons of CO2 equivalent (tCO2e) per hour, that is three times as much as the average human on the planet can emit per year if we want to meet our climate targets. Second, someone who falls in this category will usually not even bat an eye at a carbon price of, say, 100 Euros per tCO2e, let alone change their consumption habits. For context, the price of carbon in the European Union Emissions Trading System has oscillated around 80 Euros per tCO2e over the last three years.

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Economics / General / Governance / Health / Liberty

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What I Really, Really Want: Why True Preferences Matter for Nudging

In this post, Bart Engelen (Tilburg University) and Viktor Ivanković (Institute of Philosophy, Zagreb) discuss their recently published article in the Journal of Applied Philosophy, where they explore what it means to have ‘true preferences’ and how this affects our understanding of autonomy and nudging.

Failing to do what we really, really want seems all-too familiar in everyday life. You might want to lead a healthier lifestyle or aspire to a career in a girl band but turn out to be too sluggish to go for a run or practice your singing and dancing skills. If you really are committed to those aims, these are clear instances where you fail to satisfy your ‘true preferences’.

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Democracy / General / Governance / Social justice

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‘Flooding the zone’ and the politics of attention

Steve Bannon and Charlie Kirk speaking with attendees at the 2022 AmericaFest at the Phoenix Convention Center in Phoenix, Arizona. Photography by Gage Skidmore.

This is a guest post by Zsolt Kapelner (University of Oslo).

‘Flooding the zone’ is a term often used to describe the strategy Trump and his team have followed in recent weeks. This strategy involves issuing a torrent of executive orders, controversial statements, and the like with the aim of overwhelming the opposition and the media and creating confusion. Many have criticized this strategy and, in my view, rightly so. But what precisely is wrong with it? In this short piece I want to argue that ‘flooding the zone’ is not simply one of the, perhaps dirtier, tricks in the toolbox of democratic competition; instead, it is an inherently antidemocratic strategy which deliberately aims at exploiting one of our crucial vulnerabilities as a democratic public, i.e., our limited attentional capacity.

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Democracy / Governance / International / Liberty

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The Return of Parliaments? On France and South Korea’s resistance to authoritarian executives

On Wednesday 4 December 2024, French Prime Minister Michel Barnier was forced to resign after 3 short months in office – the shortest government in recent French history. On the very same day, in South Korea, President Yoon Suk Yeol was threatened with impeachment. What unites these two cases are attempts to ascertain power and bypass parliaments, in a context of budgetary disagreements. These cases remind us of the importance and democratic value of parliamentary assemblies, which have frequently been sidelined in favor of executives in recent decades.

National Assembly, Seoul
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Democracy / Governance / Liberty / Public Philosophy

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Free Speech for Political Campaign Lies?

On Tuesday, November 5, citizens of the United States will vote for who they want to serve as their president for the next four years. They will also vote for federal congressional representatives as well as a host of other state and local government officials.

U.S. political campaigns—especially presidential campaigns—are exhausting. This is in part because they are much longer and more expensive than the political campaigns in many other nations.

Another reason why many seem to have found the last three presidential campaigns exhausting is the sheer volume and brazenness of the lies told by Donald Trump and many other Republicans who have come to mimic his campaign style. Trump’s lies have reinforced partisan epistemology while simultaneously creating epistemic chaos that he seeks to use to his advantage.

He has successfully used lies to undermine public trust in U.S. elections. This is starkly exhibited by the fact that nearly 30% of Americans—including roughly two thirds of Republicans—say they believe that the 2020 U.S. Presidential election was stolen.

At least part of the reason that so many Americans believe this patent falsehood is because Trump and his allies have told this lie repeatedly. However, it seems that Trump and his allies don’t really believe it because they have been unwilling to make these same claims in court or in other contexts in which they could face legal sanctions for lying.

In the United States, freedom of speech protects one’s right to lie on the campaign trail but not in the courtroom. In the latter context, liars can be convicted of perjury.

This helps explain the truth-revealing power of courts. The best explanation for why Trump and his co-conspirators refuse to make these false claims about the 2020 election in court where they realize that lying can have significant legal consequences is that they know they are lying.

If significant legal consequences for lying are enough to stop Trump and his co-conspirators from lying in court, one might naturally conclude that the best course of action might be to create similarly significant legal consequences for lying as part of political campaigning. This is a reasonable thought, but it’s not that simple—at least not in the United States. This is because such a course of action conflicts with contemporary social and legal understandings of the First Amendment of the U.S. Constitution’s protection of free speech.

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Democracy / Governance / International / Social justice

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At last, justice for the Chagos Islanders?

Aerial photograph of the coconut plantation at East Point, Diego Garcia. Photograph shows strip of land between both ocean and lagoon, with the dilapidated plantation buildings sitting in a lawn surrounded by coconut trees.
Aerial photograph of an abandoned coconut plantation at East Point, Diego Garcia. See page for author, Public domain, via Wikimedia Commons

Last week, the news that the UK has agreed to return the Chagos Islands to Mauritius was widely reported. The agreement was denounced by many in the British press and political establishment – including by all current candidates for leadership of the Conservative Party. On the other hand, in other quarters the deal was greeted with cautious optimism. US President Joe Biden welcomed the agreement as a “clear demonstration that … countries can overcome longstanding historical challenges to reach peaceful and mutually beneficial outcomes”. In a joint statement, UK Prime Minister Keir Starmer and Mauritius Prime Minister Pravind Jugnauth called it “a seminal moment in our relationship and a demonstration of our enduring commitment to the peaceful resolution of disputes and the rule of law”.

Among Chagossians the feelings seem more mixed. Some see it as a step in the right direction, suggesting that Mauritius is more likely to put resettlement plans in place. Others, however, have criticised the fact that, even in a decision like this, Chagossians have been systemically excluded from the discussion. One group representing Chagossians in the UK, Mauritius and the Seychelles claimed that “Chagossians have learned this outcome [of the negotiations] from the media and remain powerless and voiceless in determining our own future and the future of our homeland”. Others, speaking to the BBC, expressed frustration that, once again, decisions about their future were made without their input.

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Democracy / Distribution / Economics / General / Governance / Punishment / Social justice

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From the Vault: Justice, Democracy, and Society

While Justice Everywhere takes a short break over the summer, we recall some of the highlights from our 2023-24 season. 

A person casts a vote during the 2007 French presidential election. Rama, CC BY-SA 2.0 FR https://creativecommons.org/licenses/by-sa/2.0/fr/deed.en, via Wikimedia Commons

Here are a few highlights from this year’s writing on a wide range of issues relating to justice, society and democratic systems:

Stay tuned for even more on this topic in our 2024-25 season!

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Justice Everywhere will return in full swing in September with fresh weekly posts by our cooperative of regular authors (published on Mondays), in addition to our Journal of Applied Philosophy series and other special series (published on Thursdays). If you would like to contribute a guest post on a topical justice-based issue (broadly construed), please feel free to get in touch with us at justice.everywhere.blog@gmail.com.