Justice, Markets, Values, Consent Part I Dr. Schmid, Ph.D. Philosophy and Religion, UNCW

Political Philosophy LIBERTARIAN Individuals have rights Social contract  minimal constitutional state Just or Minimal state –Does not have the right to pass paternalist, moralizing or redistribution laws –Majority acts coercively (tyrannically) if it passes them and taxes to pay for them LOCKEAN Individuals have rights Social contract  democratic – constitutional state Just state –May not pass laws restricting rights of life, liberty, property –Majority has right to determine the extent of such protection e.g. liberty in war taxes for common goods or to benefit the needy

Two Questions What does the social contract model imply in relation to what things are doneWhat does the social contract model imply in relation to what things are done –By the government? –In the free market?  Is a free market model right for all goods and services? –Military service? –Reproductive services? –Health care? (e.g. organ transplants) –‘Public goods’ (e.g. fire departments)

I. Military Service A commodity to buy on the market?

Justice and Military Service Does the stateDoes the state –have the right to demand military service? –Or does the threat to life put the citizen back in the “state of nature” with the right to resist? On Locke’s view, a state based on majority consent has the right to demand military service of citizensOn Locke’s view, a state based on majority consent has the right to demand military service of citizens

If enlistments go down, how should the military be filled? 1. Increase pay and benefits 2. Conscription (e.g. a lottery- based draft or national service) 3. Mercenaries (foreign citizens)

Which system of military procurement do you prefer? Conscription Army (draft) Voluntary Army Mercenary Army All citizens are eligible, even if not all selected e.g. through a lottery. Only those citizens serve who volunteer for pay or other reasons. Service is for pay, and may include non national service members.

Civil War Conscription During the Civil War, both sides instituted conscription and allowed substitution. In the South, some believed the Confederacy had no right to conscript them. After 1862, the South forbade substitution and conscription was mandatory. “I’m a union man; I don’t believe in your Confederacy.” “Damn your Union! You’ll fight for us or be hung for treason!”

Civil War Conscription In the North, there was a draft after 1863, which allowed for substitution.In the North, there was a draft after 1863, which allowed for substitution. The law also later allowed for commutation for $300 (this was partly done to keep the cost lower).The law also later allowed for commutation for $300 (this was partly done to keep the cost lower). This level of fees drew many men in the army.This level of fees drew many men in the army. Was this just?Was this just?

Questions about the Substitute System Does this system “set a price on life” and is that wrong? Was this a free exchange? Or was consent “coerced” due to the economic disadvantage of the substitutes? Should military service be –Open to a market system based on monetary values? –Motivated by other aims, like duty or patriotism? –Required of all citizens? William Earhardt, substitute for Jacob Lesh

Which system of military procurement is the most just? Volunteer Army versus Conscription Army or Mercenary Army Only those citizens serve who volunteer for pay or other reasons. All citizens are eligible, and the ‘reason’ for service is civic duty or patriotism. Service is for pay, and may include non national service members.

Case for Volunteer Army Libertarian : Conscription is coercive, vs. self-ownership “Conscription is slavery, plain and simple. One may well be killed as a military draftee, which makes it a very dangerous kind of slavery.” – Sen. Ron Paul Utilitarian : Conscription limits personal choice, thus diminishes happiness People are free to gain advantages of pay, benefits from VA, i.e. increases happiness

Case for Conscription Argument #1 : Fairness Volunteer army is coercive, vs. poor “The great majority of people bearing arms in Iraq and Afghanistan are from the poor and minority communities. For people for whom college is an option, even bonuses of $30,000 are no incentive.” – Rep. Charles Rangle Argument # : Civic duty Military service is a civic duty like jury duty “Without a large proportion of the population bearing the costs of war, it has become too easy for voters to withdraw from responsibility and pursue their own careers unbloodied and undistracted.” --Historian David Kennedy

Case for Mercenaries The logic of the market approach Hiring can be done outside government (Iraq 2007: 180,000 mercenaries, 160,000 U.S. soldiers) “We’re trying to do for the U.S. military what Federal Express did for the U.S. Postal Service.” – Erik Prince, Blackwater

Questions about a Draft today Does the volunteer army contribute to making war “too easy,” by making military death and injury “somebody else’s suffering”? Are we paying others to do what is actually our “dirty work”? If the War on Terror protects us all from military attack, should we all have the duty to serve in the national defense? Is the ‘Volunteer Army’ unjust?

II. Surrogate Mothers A commodity to buy on the market?

Justice and Reproductive Services Both the libertarian and Lockean state encourage a robust free marketBoth the libertarian and Lockean state encourage a robust free market But are there goods and services that should not be open to a free market?But are there goods and services that should not be open to a free market? Should services relating to reproduction be open to a free market of exchange?Should services relating to reproduction be open to a free market of exchange? –Sperm and Egg Banks? –Surrogate Motherhood?

Egg Donation Egg donors can contract to be paid for a viable egg.Egg donors can contract to be paid for a viable egg. Specifications:Specifications: –Education –5’10” lbs –SAT Pay = ?Pay = ? –$500 –$5,000 –$50,000

Sperm Donation Donors can also contract to be paid for sperm.Donors can also contract to be paid for sperm. Specifications:Specifications: –Health issues –Appearance issues –Intelligence Service and PaymentService and Payment –“Time and effort” –Payment for service

Surrogate Motherhood Mary Beth Whitehead contracted with William Stern, to have his child, for $10,000. (Mrs. Stern could not have children.)Mary Beth Whitehead contracted with William Stern, to have his child, for $10,000. (Mrs. Stern could not have children.) In March 1986, Whitehead gave birth to a daughter.In March 1986, Whitehead gave birth to a daughter. But a few days later, Whitehead refused to turn the baby over to the Sterns, and fled the state.But a few days later, Whitehead refused to turn the baby over to the Sterns, and fled the state. In the trial, the decision focused on the question: Was this an enforceable contract?In the trial, the decision focused on the question: Was this an enforceable contract?

Arguments for and against It is voluntary contract and must be enforced; “a deal is a deal”It is voluntary contract and must be enforced; “a deal is a deal” The claim of coercion can apply to too many exchangesThe claim of coercion can apply to too many exchanges She could have informed herselfShe could have informed herself These services provide real benefits and need contract protectionThese services provide real benefits and need contract protection Whitehead was motivated by economic need; it was coerced, not free Whitehead did not know the feelings she would have for the baby; she lacked critical information to make the contract This kind of service simply should not be enforced.

The Lower Court Decision This was a valid and binding contract.This was a valid and binding contract. Each participant was sufficiently informed of the conditions of the contract.Each participant was sufficiently informed of the conditions of the contract. One of the participants complied with the provisions, the other did not.One of the participants complied with the provisions, the other did not. “Contracts must be kept.”“Contracts must be kept.”

The Higher Court Decision Tainted consent “Under the contract, MBW was irrevocably committed before she knows the strength of her bond with the child. She never made a truly voluntary decision, for any decision prior to the baby’s birth is, in the truest sense, uninformed.” Inhumane “The contract is the sale of a child, or at least of the mother’s right to her child... Whatever idealism may motivate the participants, the profit motive ultimately predominates, permeates and governs the actual transaction.”

When is a deal not a deal? Tainted Contract When is a contract “tainted?” How would that be? –Coercion (e.g. extreme financial hardship) –Lack of relevant knowledge (e.g. ignorance of real cost of the exchange) De-humanizing When is the exchange “de-humanizing” ? When it involves de- valuing human life –Are violent sports (e.g. boxing) de-humanizing? –Is prostitution de- humanizing?

Anderson’s argument “By requiring the surrogate mother to repress whatever parental love she feels for the child, these conditions convert a woman’s labor into a form of alienated labor…her labor is alienated because she must divert it from the end which the social practices of pregnancy intend to promote— an emotional bond with the child.”“By requiring the surrogate mother to repress whatever parental love she feels for the child, these conditions convert a woman’s labor into a form of alienated labor…her labor is alienated because she must divert it from the end which the social practices of pregnancy intend to promote— an emotional bond with the child.”

What is right? Libertarian Justice State does not have the right to prohibit MBW and WS from entering contract; they are “free consenting adults” State has the duty to enforce the contract, as there is no reasonable argument that it was tainted by coercion or by lack of knowledge Lockean Justice State has the right to decide that some contracts and exchanges, free or not, are “de- humanizing” and immoral State has the right to declare the contract will not be enforced, on the grounds –Consent was tainted (she couldn’t know her feelings) –Contract was illegitimate