I haven’t been monitoring the New York Times’ “The Ethicist” column as much as I once did. After the original author of the feature, Randy Cohen, was jettisoned, the various ethicists, pseudo-ethicists and imaginary ethicists the Times recruited to fill his slot have ranged from inconsistent to incompetent, and I stopped checking regularly until recently. Now the column has a real ethicist, for once: Kwame Anthony Appiah teaches philosophy at N.Y.U., and wrote “The Honor Code: How Moral Revolutions Happen.” He seems to be thorough and explains his analysis using valid ethical systems. He’s a vast improvement over his immediate predecessors, but he goofs too.
A questioner asked about how he should handle scammers who tricked his father out a check. He wrote offering a threat and a settlement. They were to return half the money, or he would report them to the consumer-affairs division of their state’s attorney general’s office and the Consumer Financial Protection Bureau, register complaints on websites and generally see that they suffered for their fraud. His demand: send a certified check, made out to his father, by the deadline. It worked; he got the amount requested, and the check cleared.
“But it was not certified, and it arrived after the due date,” he wrote. “Do I have an obligation to uphold my end of the deal, by not registering complaints about an outfit that is clearly scamming elderly people?”
The Ethicist answered..
“Because they didn’t honor the terms of the deal, you’re not bound to keep it. You can go ahead and report them. In fact, you should. Doing so may help other people they plan to exploit — people like your elderly father, who are particularly vulnerable to their wiles.”
He then went into a long dissertation about whether the writer was obligated to do as he promised even if the terms had been met exactly. You can read that with the rest of the post here, but it’s irrelevant and superfluous, since he’s wrong to begin with.
Any court would find that the initial demand was materially met, and that a settlement of the dispute has been accomplished with offer and acceptance. Since the manner of the acceptance was not exactly as demanded, the inquirer would have been justified in returning the check uncashed and declaring the offer void. Since he cashed the check, however, he consented to the variants of a later date and a non-certified check. The date was a deadline, not part of the settlement offer. The certified check was to ensure that the money was received, not a material aspect of the deal: the writer didn’t have a fetish for certified checks, he just wanted the money. He got the money. Offer, counter-offer (later date, non-certified check), acceptance of counter-offer. Deal complete.
Contract law applies even when you are dealing with a scamster. This time, the victim’s father is the one considering a scam, and the Ethicist, who is clearly not a lawyer, is telling him that it’s okay to make a promise, for that is what a contract is, and to break it because of the prior acts of the party the promise was made to. Wrong. Legally wrong, and ethically wrong. Two wrongs don’t make a right. Stealing from a thief is still stealing (O.J. Simpson is in jail because he didn’t grasp this principle.)
The writer had a dispute with the scamster. He had many options, including pursuing civil or criminal action: it was fraud, after all. Yes, that is time consuming and uncertain. In the alternative, he may negotiate a settlement, in good faith. I agree that the most ethical course is to “go ahead and report them” because “doing so may help other people they plan to exploit — people like your elderly father, who are particularly vulnerable to their wiles.” However, if that is the plan, you cannot ethical use that as a bargaining chip to get any of the money back. That would not be bargaining in good faith. That would be lying, and promising something to induce the payment of money, when in truth there was no intention to keep the promise. That’s exactly what the scammers did to the writer’s father!
This evokes two related rationalizations…
2 A. Sicilian Ethics, or “They had it coming”
The other familiar, equally absurd but even more corrupting manifestation of Rationalization 2 is the “They had it coming” variation or essentially the ethics of the Mob, “The Godfather” and Hollywood revenge fantasies. This argues that wrongdoing toward a party isn’t really wrong when the aggrieved party has aggrieved the avenger. The victim of the unethical conduct no longer deserves ethical treatment because of the victim’s own misconduct.
But the misconduct of a victim never justifies unethical conduct directed against that victim.
7. The “Tit for Tat” Excuse
This is the principle that bad or unethical behavior justifies, and somehow makes ethical, teh same unethical behavior in response to it. The logical extension of this fallacy is the abandonment of all ethical standards. Through the ages, we have been perplexed at the fact that people who don’t play by the rules have an apparent advantage over those who do, and “If you can’t beat ’em, join ’em!” has been the rallying cry of those who see the abandonment of values as the only way to prosper.
The very concept of ethics assumes that winning isn’t the only thing, Vince Lombardi to the contrary, and that we must hold on to ethical standards to preserve the quality of civil existence. Although maxims and aphorisms cause a lot of confusion in ethical arguments, this one is still valid in its simple logic: “Two wrongs don’t make a right.”
I find it strange that an ethicist would see the mistake in endorsing this conduct. He’s endorsing vigilantism, by-passing the remedies society has developed under the rule of law for dishonesty and chicanery. Appiah’s only support is utilitarianism, but in order to justify this “balancing,” he must apply Kant’s tests. If this was always our response to wrongdoing, the rule of law and societal ethics would collapse. That’s the true end this means risks. It’s not worth it.
I will assume that the professor will do better in the future.