The author gratefully acknowledges the fruitful conversations with Julian Cottee which helped shape these thoughts.
What is the ethical?
Searching for this elusive point of presence in an unlikely place (an essay by a post-structuralist thinker on the September 11th attacks: Jacques Derrida) yields, perhaps unsurprisingly, a twofold answer defined, primarily, in negation. The ethical cannot be a system of logical rule following, for this both forbids, and is governed by, deferral; there can be no changing one’s mind; action has begun; no decision is involved; it is no longer one’s own responsibility. The ethical also cannot be the purely dutiful for, as Kant has observed, this duty is, at base, a compulsion, a coercion. Does this situate the ethical in the realm of the impossible, beyond even a “regulative idea”? (Derrida, 133-134) While I would, by no means, cast myself as a Derridean, in this instance the writer heralded as a practitioner of “obscurant terrorism” (see Mitchell) provides a useful backing against which to conceptualise such problems.
In this micro-essay (certainly it will be impossible to comprehensively cover the issues at stake here, so instead I will adopt a stance) I would like to ask, from within a context saturated with “ethical consumerism”: to what degree of rule following and coercion are we regularly subjected? How does this impact upon the sphere of the legal? What can be done, in transition to the ethical, to halt the constant flux of deferral so that responsibility must rest in the sphere of capital?
The concrete; a case-study
Many Electricity and Gas companies offer Green Tariffs. Although all power in the UK is sourced directly from the National Grid, such tariffs purport to ensure that the share of electricity that you use is re-contributed using sustainable sources: wind, water, waves, sunshine. You can even do the same for flights – no carbon footprint as a result of the jetsetting. It all sounds like a fantastic, ethically-sound holiday. I almost signed up.
Does supply-and-demand offer a valid model for the transfer of ethical responsibility to the consumer? Is it really my power stations or my planes that are doing the damage to the environment? I own neither of these items and, were they not offered to me, I would not create demand for them. The overcrowding of the UK prison system reported since 2007 (Travis) seemingly indicates that there is a demand for the already criminalised activities of theft, assault, rape and murder, yet this does not excuse the perpetrators from culpability. Demand is not, while the demand is minority, a defence from legal or ethical responsibility. How, therefore, can it be justified to supply a product that is known to cause environmental, or human, damage? How, therefore, can it be justified to demand such an item?
It seems that the, I would argue hugely inadequate, “answers” (excuses) to such (if-only-they-were-rhetorical) “questions” are to be found in Derrida’s definitions of the unethical. Suppliers produce products that are damaging – and, in themselves, unethical – because, they argue, they are coerced and compelled by a duty to provide for the customer, a duty to provide for themselves and their family and, most insidiously – for it is inscribed in law – a “fiduciary duty” to the company, if not always to shareholders (see Cotter, 129). On the consumer side, it is a matter of rule-following. Is the product legal? Check. Does the product have a clean press record? Check. Is the product cheap? Check.
However, while legislation for climate change is pending consideration, it seems late in coming and the mechanisms of the neo-liberal capitalist system abstract responsibility; traditional models of criminality are inadequate as the suppliers defer to the consumers and the consumers back to the suppliers. In a system of reciprocal coercion, change is not possible; there is too much hostility.
In light of this hostility, what is required is the opposing force: hospitality.
Hospitality and Tolerance
Hospitality comes, according to Derrida, in two flavours: conditional and unconditional. At the polar extreme of conditional hospitality – offered “only on the condition that the other follow our rules, our way of life, even our language, our culture, our political system” – is tolerance; a form of conditional hospitality used to “limit [one’s] welcome” and “retain power”. (Derrida, 127-128) As capital is the place where change can be effected, but capital always seeks to retain power, it is here that we should locate hope.
The utopian solution, obviously, is one of pure hospitality, one which “can have no legal or political status” as “[n]o state can write it into its laws”. (Derrida, 129) Those with capital would refuse to operate unethically. The existing infrastructure would be dismantled immediately and responsibility would be transferred, willingly, to those with the power to create change.
The realistic solution is in the law as a measure for a time of transition, a state of emergency, of coming-into-being – a tolerance of the law which, were a situation of pure hospitality feasible, would not have to be tolerated. Legislation must be passed that proscribes not only the demand for the demonstrably unethical, but also the supply. Note well the twofold ban. Single-sided criminalisation has demonstrably not worked to curb prostitution; it has merely performatively re-constituted the very rejection by society that forces many into the sex industry. The same applies to business (for what is prostitution if not a system only possible inside a model of capitalism that simultaneously feels distaste for, yet operates upon, exploitation?) Criminalising only the suppliers will lead to an alienation of those with capital, who will threaten to brain-drain into less regulative economies, which neither serves the locality, nor the global as their activities will continue.
Criminalising only the demand side will do nothing to placate a form of proletarian Marxist resentment. If an action is to be condemned, it must be condemned unilaterally. Admittedly, outlawing the supply and demand of drugs has done little to curb either side in that chain; perhaps this is because, in a liberal democracy, kratos does not have to be executed through the polls, but rather on the streets; perhaps an activity is being criminalised needlessly (but please bear in mind, the next time you snort a line, that you will need to use a great deal fewer plastic bags to offset, in your ethical account book, the horrific damage inflicted upon many human lives by the drug trade. Fair trade cocaine?)
This situation in no way indicates that there is no hierarchy of responsibility. Quite simply, those with the resources and the means (commonly referred to as “power”) must be held more accountable. This hierarchy is obviously complicated by corruption, in which resources and means are no longer viable as discrete categories (see Chevron’s political policies for instance. Also note that, in the UK, Peter Mandelson’s role as business secretary ensures this integration although, to be certain, this will only increase under the, hugely likely, arrival of the next Conservative government), but the chain of responsibility should be comprised of government (means), then capital and supply (resources) and then consumers.
Science, Freedom and Regulation
The concept of a legal solution has, of course, been greatly undermined recently by the government’s appropriation of science only where it suits a predetermined agenda; once more in relation to drugs. Yet, a legal framework for the prohibition of the unethical cannot be implemented without empirical, quantified determination of both the damage an activity causes and the limits that must be imposed. A simplified concretion. Empirical determination: Xmg per person per year of CO2 emissions will, with all probability in light of current evidence, lead to irreversible climate damage. The legal: energy firms must apply, for every customer they have, for an allowance to produce an amount of CO2 less than X. It is, therefore, imperative that impartial scientific advisers consult the contemporary material from experts and, erring on the side of the over-restrictive , relay these findings to a government that will listen.
Already there are accusatory cries of “bureaucrat!”, “regulator!”, “nanny-state!” But you, who cry, have already accepted an incursion into your freedom. You may not murder; you may not rape; you may not steal. A government exists to prevent individuals from harming one another. Capitalism is a system through which it is possible to harm others, yet, the reification of this, fundamentally abstract, concept, leads to a responsibility that is merely deferred.
The harm is, supposedly, impossible to stop because the buck rests on capitalism; concrete in its ostensive definition as the object of blame, abstract, smoke-like and spectral in its ability to receive punishment. Capitalism seemingly acts as the non-punishable excuse that bridges the gap between culpability and criminality. Increased regulation in the sphere, not only of the corporate, but also of the individual is necessary so that, when we look back, the worst history will be able to record is that we were over-restrictive of freedom, based on our principles of caution and, as of yet, undiscovered scientific principles. Let it not record that, through a reckless determination that all and sundry be free, we murdered, raped and stole from the planet, at the expense of the environment and other human beings, without a single care but that our own lives were satisfied.
In terms of freedom there is here, of course, a cyclical aporia best exemplified in the philosophies of anarchism; while rights must be restricted to protect others and the self, this proliferation can seem at odds with fundamentally liberal – laissez-faire – principles. In the case of anarchism this plays out over the spectrum of political alignment. While philosophers of egoistic anarchism, for instance Max Stirner, exemplify freedom for the self – which corresponds to a contemporary stance of economic neo-liberalism – others, such as William Godwin, tend more towards the socialist end of the spectrum (indeed, there are socialist anarchists) of which a contemporary interpretation would see regulation as a necessary component. Legislation is termed in the generalised and relative, yet the limits of legislation must somehow be made absolute within the contemporary, even against the backdrop of Utopian (always remember: no-place) aspirations.
As a final note, then, the law cannot be, in Derrida’s terms, “the last word in ethics, politics, or anything else,” (Derrida, 115) yet, in the self-modifying paradigm of a utopia that can never come, or be recognised (but for which we will strive – the transcendental bridge of the Kantian play in my title), increased regulation of those individual freedoms which – where supported in good faith by multiple informed and independent panels (and, again, always subject to future revision) – cause damage to others, is a viable superscription, or meta-law, to govern the behaviour of governments; a teleology which ensures that its own target is a horizon, rather than an abyss.
How this model of supply and demand can work internationally – can a legislative economy be created where other nations will “demand” a similar framework? – and what meta-law would govern this disparate collection of meta-laws, is a question best deferred, if I may use this term, until another time.
Anne-Marie Mooney Cotter (ed.), Banking & Corporate Financial Services (London: Cavendish, 2003)
Jacques Derrida, “Autoimmunity: Real and Symbolic Suicides: A Dialogue with Jacques Derrida,” in Giovanna Borradori, Philosophy in a Time of Terror: Dialogues with Jurgen Habermas and Jacques Derrida, trans Pascale-Anne Brault and Michael Naas (Chicago: University of Chicago Press, 2004)
W. J. T. Mitchell, “Dead Again,” Critical Inquiry, Vol. 33, No. 2 (Winter 2007)
Max Stirner, The Ego and His Own, trans. by S.T. Byington (London: Jonathan Cape, 1921)
Alan Travis, “1,500 to be released early as prison crisis bites”, The Guardian, 20 June 2007, <http://www.guardian.co.uk/uk/2007/jun/20/politics.ukcrime> [accessed 8 November 2009]