The Issue Of Noncompliance

Up to this point I have tried to defend the Act consequentialist against some of Jamieson's concerns and to sketch how the Act consequentialist could approach a solution to the problems he raises. But another problem that should be addressed is that to many people not only is the problem itself seemingly overwhelming, but the demands morality seems to be placing on them to solve the problem are also overwhelming. This can lead to a sort of emotional backlash - the kind Anscombe pointed out with respect to pacifism - which leads people to reject it altogether because they feel that falling short is just completely inevitable.

However, we need to use this theory under various realistic constraints. Philosophers have suggested a number of such constraints. But the one I would like to explore here, and that I feel is helpful specifically to understanding what went wrong with respect to the U.S. position on the Kyoto Accord, is the "nonideal" constraint. So, I may believe that under certain ideal circumstances the best career choice for me would be "tap dancer.'' However, in real life, not the ideal world, I have both inadequate talent and inadequate training - so no tap-dancing career.

One non-ideal circumstance is the reality of partial compliance to norms. This helps to stifle both benevolent and obligatory activity. In a world where all persons complied with the duty to, for example, help others in need, the cost of such aid to each person is greatly reduced. Many have made this point with respect to other problems, such as famine relief. Though it may well be the case that famine could be obliterated, or at the very least, greatly ameliorated if everyone made a fairly modest contribution to famine relief efforts, most people do not contribute at all. In the real world, of course, we have only partial compliance. This can sometimes leave those who do comply feeling a bit like "suckers" and certainly feeling they need not pick up the slack for others. The thought is something like ''I'll just do my fair share'' - so, if everyone gave, let us say, $10 a month to famine relief hunger would be alleviated, well, then, I will give my $10 a month, though of course I know that others - indeed, many others - will fail to give anything at all.

Philosophers, economists, and political scientists have long recognized that practical decision making under non-ideal circumstances has serious pitfalls. One problem is that persons will at least sometimes make decisions on the basis of idealized circumstances, and fail to consider practical impediments and factor them into their calculations. Thus, Penny might choose to go to London on holiday as opposed to Cancun after seeing a flier of Big Ben under sunny skies. Actually, she may experience a few sunny days in London, whereas the chances for sun in Cancun are much greater.

This is kind of a trivial example, but my claim is that at least some government policy is flawed due to the fact that agreements will fail to be made because the current administration seems to be holding out for ideal circumstances. This is holding out for full compliance on the part of the less developed countries. The administration does not settle for what is more realistic. The less developed countries argue with justification that the ''fairness'' issue is misplaced since it is the industrialized countries, and particularly the U.S., that have engaged in wasteful practices leading up to the current problem, and thus it is these countries that have a moral obligation to rectify the situation. However, we need not endorse this approach, which looks at what has happened in the past - even simply focusing on what can be accomplished in the future, we have a compelling argument, I think, for why the U.S. should take the lead in limiting emissions. And the blow to development can be ameliorated by strategies suggested, for example, by Singer (2002, p. 44), who endorses forward-looking strategies in general. Emissions trading might allow for the industrialized nations to continue producing emissions, but also compensate less developed areas for the development that they would be forgoing.

The U.S. failure to endorse the Kyoto Accord is but one example of this, I believe, and one that will have an impact on our policies with respect to global warming. I would like to take a look at what some current philosophers have said about decision making under non-ideal conditions, and then critically evaluate those discussions and apply them to the global warming controversy, focusing on the U.S. failure to endorse the Kyoto Protocol.

Decision making that insists on conformity to ideal standards is ''practically'' untenable. While ideals can often help us sharpen our goals, and I certainly do not mean to reject them, practical decision making is just that - ''practical'' - and must take into consideration that our decisions are made, in reality, under non-ideal circumstances. Thus, the U.S. administration's mistake was to fail to comply at all because they did not have assurance that others would comply so as to also be doing their 'fair share' to reduce emissions.10 So, for example, the Byrd-Hagel Resolution, while calling on the president to refrain from any action that would harm the U.S. economy, also enjoins the following:

the U.S. should not be a signatory to any protocol to, or other agreement regarding, the United Nations Framework Convention on Climate Change of 1992, at negotiations in Kyoto in December 1997, or thereafter, which would - (A) mandate new commitments to limit or reduce greenhouse gas emissions for the Annex I Parties, unless the protocol or other agreement also mandates new specific scheduled commitments to limit or reduce greenhouse gas emissions for Developing Country Parties within the same compliance period

George W. Bush, in campaigning for president, was asked at one point what he would do about global warming and responded: "I'll tell you one thing I'm not going to do is I'm not going to let the U.S. carry the burden for cleaning up the world's air, like the Kyoto treaty would have done.''11 Thus, the administration has been fairly consistent in expressing the view that the U.S. has no obligation to live up to the accord or even to sign onto it, and at least one reason given for this is that such a scheme is not 'fair' to the U.S. My claim is that maybe it is fair, maybe it is not. But this issue is beside the point in determining the U.S.'s level of obligation in meeting emissions standards set out in agreements such as the Kyoto Accord.

In focusing on this particular issue, I do not by any means intend to ignore the other factors that led to the U.S. failure to sign onto the accord. Instead, I simply want to focus on the one issue of fairness that has been raised vis-a-vis emissions. The U.S.'s insistence that the developing world first make a commitment to reductions does not acknowledge that the U.S. still has an obligation to limit reductions no matter the behavior of other countries (with one caveat). Indeed, we may even be able to make a stronger claim: the U.S.'s obligation to comply may be "even greater'' if other countries fail. If we are to make use of 'fairness' considerations at all, then the developing world has a greater case for insisting on initial U.S. compliance with emissions standards. This translates into an obligation on the part of individuals to do what they can as well to lower emissions.

Philosopher and legal scholar Murphy (2000, p. 117) has recently articulated a principle he believes best captures obligations under non-ideal circumstances. He calls the principle "The Collective Principle of Beneficence'':

Everyone is required to perform one of the actions that, of those available to her, is optimal in respect of expected aggregate weighted well-being, except in situations of partial compliance with this principle. In situations of partial compliance, a person's maximum level of required sacrifice is that which will reduce her level of expected well-being to the level it would be, all other aspects of her situation remaining the same, if there were to be full compliance from that point on. Under partial compliance a person is required to perform either an action, of those requiring no more than the maximum level of required sacrifice, that is optimal in respect of expected weighted aggregate well-being, or any other action which is at least as good in respect of expected weighted aggregate well-being.

What he is suggesting, basically, is a permission to fail to optimize under the non-ideal circumstance of partial compliance. Thus, the moral agent may act responsibly in not optimizing under conditions of partial compliance.

The moral agent still ought to help others, but her obligation ends when she has done her 'fair share'; that share is determined by looking at what her optimal option would be under conditions of full compliance.12 Note that Murphy's strategy is possibly in opposition to Jamieson's, since Murphy clearly intends that we factor in how many others there are in determining our level of obligation.13 Our level of obligation cannot exceed what would be sufficient for the maximal outcome under full compliance.

However, Murphy's principle best applies to cases like famine relief, where agents with an obligation to give 'their fair share' are not the cause of the calamity. Development in the U.S. is a major cause of the problematic emissions that are responsible for global climate change. Thus, one could argue that it is only fair that the U.S. bear the primary responsibility for lowering emissions. One could argue that Murphy's standard is not applicable, since he is talking about obligatory sacrifices to prevent harms from occurring - harms that are either caused by others or not the result of agency at all. However, if the U.S. has an obligation it is to avoid causing harm, and surely that obligation would be much stronger than the obligation to prevent a harm from occurring.

However, it is worth pointing out that there are competing standards of fairness. One standard would claim that the country that caused the problem, even if initially not aware that its actions were harmful, is the country with the primary responsibility for dealing with the problem. Yet people also think that it is not fair to let someone develop a resource, and then take away what they have developed or grown to depend on. This is why some will argue that it is only fair to ''grandfather'' consumption levels so as to minimize the impact on those who have grown to depend on them. For example, a town may decide to restrict the building of three-car garages, and yet not insist that those who already have three-car garages replace them with smaller ones. Typically, the larger ones would be grandfathered since it is not considered fair to coerce someone into wasting the investment they have already made. The same argument might well be made for grandfathering certain emissions standards that are due to previous investments in factories, automobile design, and so forth.

Back to the Kyoto protocol. The U.S. position, either exemplified by the Senate or through the executive branch - Clinton and Bush - has been that the U.S. does not commit unless other nations and, specifically, developing nations, commit (they hold developing world commitment to be crucial). The optimal course of events would have been to have full compliance on emissions standards. But this is not realistic, and to refuse to act in the face of partial compliance shows an inappropriate disregard of the good to be achieved by one's compliance. Leaving aside the issue of causation and its impact for obligations under conditions of noncompliance, Murphy's point applied to this case is that the U.S. would still be under an obligation to comply with emissions standards even if others did not comply. Further, even on his somewhat relaxed standard the U.S. would still have an obligation to do ''a lot,'' because the problem is such an enormous one. However, the compliance standard set for the U.S. should be determined by the effective rate of compliance for everyone - for example, one might take the number of persons living and determine effective emissions standards for those persons, and then multiply by the number of persons living in the U.S. to help determine some compliance standard for the U.S.. I am not actually suggesting this as a standard - just trying to give an idea of one way it might work. Murphy's point is simply that, however we determine 'fair share,' the U.S. should do its fair share even if others are not - just as an individual may have an obligation to donate to famine relief, even when others are not giving.14

There is at least one caveat to this claim: if the U.S. thought or had good evidence to think that its emissions reductions would actually encourage or cause other countries to increase their own emissions, then there would be a legitimate complaint against those controls. But I see no evidence for this. It may be true that if the U.S. dramatically cuts oil consumption the price would fall and thus encourage a lot more consumption elsewhere, though this is simply an argument for a more graduated process of reduction. Thus, a mere correlative increase in emissions does not establish a causal connection between U.S. reduction and an increase in other areas. Another argument would have to be given, and, off-hand, a causal argument seems quite unlikely. Those who are doing things that, as a side effect, produce emissions, are not waiting around to see what the U.S. is going to do before they act. Indeed, the causal connection is more likely to be in the other direction - countries will feel that the U.S. is finally behaving in a responsible manner and feel encouraged to respond in kind.

One possible problem for the Murphy suggestion is epistemic. Tim Mulgan has pointed out that a principle such as Murphy suggests can have some problematic implications. Consider the following, which has been adapted from a case presented by Mulgan:

GW does not know how many people will be harmed through toxic emissions and their side effects; he only knows that one of the following is true:

1. few people - relatively speaking - will be harmed (less than 1 million)

2. a moderate number of people will be harmed (5 million)

3. a very large number of people will be harmed (10 million or more).15

His obligation, on Murphy's principle, is limited to the total good divided by the number of agents there are who can do something about it - in this case, emitters who are in a position to stop and/or curtail their emissions. Let us suppose for the sake of argument that a 10% reduction in emissions would do the trick, and that this would require of GW that he simply buy a hybrid car and make modest adjustments to his standard of living. But one implication of Murphy's principle is that GW is not obligated to do more if others fail in their obligations - indeed, that is the point of Murphy's principle, to get people off the moral hook in these cases. But writers like Mulgan believe that this approach leads to the view that a person's level of obligation, even in the face of disaster, is determined by how many others there are to share it with, and this seems counterintuitive. Suppose that Mary and Susan see two people drowning in a lake. Suppose also that Mary jumps in, swims out and saves one of the people, though she could have saved both. Using Murphy's principle, she decides that her level of obligation is determined by how many others there are to share the burden, and in saving one person she has done her fair share, even if Susan fails to act to save the second person. This seems like the wrong judgment to make in this case. The force of this case suggests that what matters is not simply how many others are there to share the burden, but what they are actually doing, or could be expected to do.

Here is a case that helps illustrate the point in another way. Suppose that Alice is sitting in a crowded subway. At the next stop the subway doors open and a little old lady gets on. No one gets up to give her their seat; even the young and healthy people sitting in the seats that are reserved for the elderly do not budge. Alice, who is seated far from the subway doors, must make a choice. Under ideal circumstances, it is true, the person in the reserved seat closest to the door would get up and give his seat to the little old lady. But he is not moving. Given that, what should Alice do? She should offer her seat to the little old lady. It is not the optimal outcome under ideal conditions, but it is the optimal outcome under real-world conditions.16

Similarly, it would be best if the Kyoto Accord could be formulated so as to get full compliance from all emitters right away. But given that it cannot, the U.S., like Alice, still has a responsibility to help solve the problem. Underlying my claim in this chapter is the utilitarian commitment to some form of negative responsibility. Roughly, the idea is that moral agents are responsible for what they fail to do as well as for what they do. If an agent could act in such a way as to prevent something bad from happening, but fails to do so, then the agent is at least partly responsible for the bad effect. This is true even when the bad effect is also the result of another's agency.

The U.S. consumptive practices both produce the greeenhouse emissions and the failure to cut emissions. There is a consumer inertia, or even acceleration, that resists cutting and reducing consumptive practices. If the U.S. administration fails to act in such a way as to reduce them then it still shares some responsibility for the outcome. How we go about apportioning praise, blame, reward, and punishment will all be justified on consequen-tialist grounds, just like any other action. And it is worth noting that in this view everyone in a position to help has some responsibility to do so -but the wealthier nations can do so with less detrimental effect to themselves.

The U.S. administration cannot argue that global warming is not its problem when its actions can help alleviate the problem, and, further, when the activity of its citizens is a major cause of the problem in the first place. In this particular case, the fact that other nations may not comply is not relevant, given the view that compliance on the part of the U.S. would have a major impact on alleviating the problem. The U.S. can, and does, appeal to reasons of prudence - but these alone are not moral reasons. People who live outside the U.S. matter morally, too.

Again, of course, there is still the caveat mentioned earlier. If U.S. compliance were taken to license unbridled emission growth in noncompliant countries then the U.S. should refrain from complying. In that scenario, U.S. compliance with emissions standards would be counterproductive. However, there is no evidence that this would be the case. While there may be emissions growth in developing countries, there is no evidence of a causal connection between this growth and the potential for the U.S. to curb its own emissions.

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