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Gadhafi, or any tyrant who violates the human rights of citizens, can be reckoned as weak rather than strong from a Nietzschean standpoint. Such an analysis could embolden (i.e. awaken) protesters around the world who remain under the subterfuge of a ruler's enforcement of his or her assumed dominance.

USA Today reports that “(t)roops loyal to Moammar Gadhafi may be torturing and executing rebel prisoners.” This is according to human rights workers and physicians near the front lines. Such treatment would constitute war crimes under the Geneva Convention. Physicians said the bullet wounds on one man's body weren't meant to kill, but to torture. "When you put a gun to his head, that's execution," said Mohammed Hussain, the head of intensive care at a hospital near the front lines. "When you shoot him here and here and here, that's something else. That's torture. They want him to feel the pain." This last remark struck me as particularly revealing.

What sort of mentality derives a feeling of pleasure from perceiving another person in pain? To what extent is it the other person feeling the pain that is pleasurable to the person watching? Alternatively, the inflicting of the pain could be pleasurable. The inflicting pleasure for the inflictor might involve the pleasure of having power, as in having control of another person against the other person’s will. Such a will to power is a principal motivator, according to Nietzsche. He avers that human beings are primarily motivated to feel the pleasure that comes with exercising power. Yet such pleasure is in the exercise of one’s strength rather than in cruelty itself.  It is the weak, who, in being driven to dominate beyond their innate strength, delight in cruelty as a means to enforce their domination. In other words, the weak who have an irresistible urge to dominate have to instill (or inflict) their dominance because they are not strong and thus naturally to be respected as powers.

Therefore, the troops loyal to Gadhafi were displaying their condition of weakness rather than their strength by devoting time and energy to being cruel.  With the strong, damage is incidental to the charge rather than intended; the strong relish their experience of strength in conquering and therefore they are not interested in cruelty.  That is to say, harm is a byproduct of the vanquishing by the strong, as the latter conquer out of their overflowing confidence of strength. This can perhaps be thought of in terms of stepping outside in the cold after building up a sweat from exercise—the excess heat radiates outward from one’s body such that one does not even feel the cold air. What is the cold to me?  Similarly, what are the parasites to me who fall by the wayside as I take the village?  Any intent to be cruel to a parasite would be a waste or diversion from the strong vanquisher’s self-confident feeling of power that naturally issues out in his or her strength. Only weakness with a relentless instinct to dominate would be oriented to cruelty as a means, for the feeling of pleasure of strength is not available or realizable.

For example, "Col. Gadhafi's militias are brutal," said Mustafa El Gheriany, media liaison for the Transitional National Committee according to USA Today. "They did that probably on purpose to scare our young men, to show them that they are not taking prisoners.” This motivation would be an alternative to simply wanting to inflict pain or to see another person feel it. Even so, the use of cruelty as a means is ultimately to impose one’s dominance, which means that the person’s strength is not sufficient. In other words, the person using cruelty to send a message has an urge to feel more pleasure from power than his or her weakness can proffer in itself.

Essentially then, human rights advocates point to the tactics whereby the weak who suffer from a hypertrophic drive to dominate seek to enforce, or take, beyond their native pith. This investigation can lead to the following questions. Why is it that certain persons of weak constitutions seek to dominate nonetheless, rather than simply to be content with whatever pleasure naturally issues from the power in the strength they do have? Furthermore, is dictatorship as a form of government a weak form in that autocrats do not simply lead, but are almost invariably oriented to efforts to enforce their dominance by intentionally inflicting pain on protesters?  It would be ironic were unarmed protesters in the streets stronger than the rulers whose dominance is being questioned or repudiated.  Indeed, such repudiation strikes at the core of the effort of the weak to dominate; hence such violence as was evinced by Gadhafi should be no surprise.

To the weak who are driven to dominate, the refusal of others to acknowledge the imposition or enforcement of their claim must be utterly intolerable. “How dare they!” the weak dominator is apt to exclaim even though the strong naturally rebuff the pretentions of the weak.  In fact, Nietzsche thought it remarkable that the weak are able to hoodwink the strong into taking the autocratic enforcement mechanisms seriously.  In the case of the mass protests, enough fortitude among enough unarmed protesters could simply overflow the boundaries invented by the tyrants. Were the people itself mobilized, the autocrat might realize that were the entire populous killed, he would have no one to dominate!  There would be no feeling of pleasure in exercising power over a dead city. The strength in the people as a whole lies in simply being able to say no, yet this strength is typically hid from the strong by the weak who benefit from the subterfuge.

Click to add a question or comment on human rights in Libya according to Nietzsche.

Source: Greg Campbell, “Libyan Doctors Suspect Brutal War Crimes,” USA Today, April 12, 2011, p. 6A.

As I was entering a “Bestbuy” store one summer day wearing shorts and a tee shirt and carrying my ubiquitous book bag (as you might expect), the security person, whom the manager later told me also works at a prison, walked after me as though stalking me, practially yelling “Sir! Sir!” Reaching me as I was talking to a salesperson who was treating me as though I were a customer, the lineback demanded to look in my book bag immediately. I stated matter of factly that I had had no opportunity to stash anything from the store in my bag while walking in the front door (after which he saw my every move).  Nevertheless, I opened my pouch for him and he was satisifed. After I left the salesperson, I reported the incident to a manager, whose “company apologizes” was belied by his curtness and saccarine politieness.

Can a company even apologize? That sounds anthropomorphic to me. Perhaps if an employee is rude in “correctly” following a company policy—such that the policy itself is odious—a manager could apologize for the store. But can a store apologize? That sounds a bit like corporate “spending” being counted as “free speech" and like a company being regarded, moreover, as a legal person. In my view, the legal person status of a company does not mean that “it” can speak and apologize. Perhaps it makes more sense to say that only the person who committed some act can apologize for himself.

In the case of my “Bestbuy” experience, the manager added insult to injury. After I told him about the security person’s behavior—the manager agreeing with me that the employee had been excessively zealous—the manager told me that typically people with book bags are, in his experience, thieves. When I objected to his assumption, he turned dismissive, accusing me even of “going in circles” in spite of the fact that I had not repeated myself at all in my one sentence reply.  The manager seemed utterly unaware (or indifferent) to the fact that he was adding insult to injury, even as he was apologizing for the company! This is a perfect example of the duplicity of corporate-speak.

A company is an economic organization. Hence, for “it” to apologize, there really must be some economic sacrifice involved; otherwise, the apology does not register in terms of what the company is. The vacuousness of “We do apologize for any inconvenience” (which we all have heard) is attested to by how easy it is for a manager to utter it while simultaneously insulting the customer (e.g., “you’re going in circles; can I go now?”). I contend that for a “company’s” apology to be valid, some economic sacrifice must be given up without the company benefitting in any way such as by a future purchase with a coupon. Customers, I contend, should indicate that the apologizing manager must put his or her company's money where its apology is; otherwise, the customer should say in like terms, "unfortunately the apology cannot be accepted as valid.” How, I wonder, would a manager or clerk react to being the recipient rather than the source of policy-speak? He or she would probably reply, “well, I can’t do anything about that.” His "can't" is probably disingenuous, as it is undoubtedly convenient, at least at the moment. The customer might reply, 'unfortunately I can't shop here again." This exchange evinces the sheer rigidity that is so ingrained in corporate-speak as well as the underlying mentality.  I suspect that businesses are so used to their customers accepting the rigidity as given (rather than as contingent or affected) that the managers and employees take their own rigidity as required, as though deterministically rather than by their free will. Essentially, I am arguing that only certain things—money and policies—are recognizeable to the managerial birds of prey, hence their “apologies” must be converted back into such terms by customers or rejected for what they are--mere attempts to pacify customers so they will buy something.  That it never occurs to a manager that the actual employee who had offended the customer ought to be the person to apologize suggests some strange surrogate type of apology is therefore valid. Just like if I offend someone only I can apologize for what I have said or done, so too only the offending employee can proffer a viable and thus acceptable apology.  For a customer to accept anything less is to enable weakness and subterfuge.

U.S. Sen. Rand Paul (R-KY), was the Tea Party candidate who challenged the Republican establishment to win the party’s Senate nomination in Kentucky on May 18, 2010. A day later, he publically criticized a plank of the Civil Rights Act of 1964. Specifically, he said in an interview with Rachel Maddow on MSNBC television that he supported the sections of the Civil Rights Act that applied to public accommodations but had concerns when it came to its applicability to private business. He had raised similar concerns earlier in the day about the Americans with Disabilities Act in an interview on National Public Radio. Asked by Maddow if a private business had the right to refuse to serve black people, Mr. Paul replied, “Yes.”

In citing the rights inherent in private property, Mr. Paul, an eye surgeon, was refusing to recognize the “publicness” in a business being open to the public, as distinct from someone’s house, which is not open to the public. In other words, Mr. Paul was ignoring the qualification to private property that comes into play as soon as said property is opened to the public.  Such property is quasi-public precisely because it is open to the public.  Hence, society, through its government, has a right to dictate the obligations going with that element of publicness.  Mr. Paul would have been on firmer ground had he limited his statement to private clubs, such as country clubs, which do not receive public money and are not open to the public.  However, even here, if people associate in a way that hurts others by intentionally excluding them, there might be an argument in favor of subjecting them to the Act, though such an argument seems weaker than those for freedom of association and on private property not open to the public.

Rand Paul also said on ABC TV that President Barack Obama’s criticism of BP in the wake of the Gulf oil debacle sounds “really un-American.”  Paul said that the president’s response is part of the “blame game” that’s played in the United States. The game, he argued, leads to the thinking that tragic incidents are “always someone’s fault” when sometimes accidents just happen. Sen. Paul was ignoring that BP overrode Transocean in directing its employees not to use “mud” to maintain pressure in the well as cement “corks” were being inserted.  Also, managers at BP claimed to have the technology to stop any leak or spill when no such technology existed. In short, the managers at BP put the Gulf at risk in order to cut corners so as to earn more profit (as if $2 billion a month was not sufficient).  Rather than go after the mentality of shirking amid a “more, more, more” mentality wherein nothing is ever enough, Paul went after the representative of the victim–society as a whole.  That is to say, he added insult to injury by going after the victim rather than the culprit.  In so doing, he ignored key elements of the culpability.

Listening to the candidate the Maddow show on MSNBC, I was more concerned by the way he chose to evade questions than by his failure to take “being open to the public” into account in his view on civil rights law. At one point, Rachel Maddow asked him, “yes or no,”  on whether he would exclude private businesses from the Civil Rights law.  He replied that he was against the violence that took place in the 1960s in association with Walgreen’s lunch-counters. Beyond not answering the question, Mr. Paul seemed to be continuing with what he wanted to say–ignoring the question entirely as a mere interruption to be dismissed. I noticed a few times that after Maddow did indeed interrupt him, he simply picked up with what he had been saying.  Could his ignoring the questions be related to his ignoring the “open to the public” qualification and the risky shirking of BP?  In other words, might it be that Mr. Paul simply does not see what is inconvenient to his world view?  If so, I contend that this character trait is far more alarming than even his evasions and his over-simplified view on private property and the oil spill.  If you have ever tried repeatedly to tell someone something only to have your statement ignored as the other person continues on with what he or she was saying, you know what I mean. Sadly, I suspect that Rand Paul didn't notice it. This character flaw is by no means limited to him. Nor is this an invitation for partisan aspersions on the Republican Party.

Rather, I suspect that not answering questions--even asking one's own instead of given any answer to a question outstanding--is a growing attitude in modern America. I have witnessed it myself in emailing people I don't know on matters involving an actual or potential commercial transation. Does the computer come with Office 2007? Reply: When you would like to come by to look at it?  But what about Office 2007?  Or take apartment hunting:  Are utilities included in the rent? Reply: Call me to make an appointment to see the unit. Nietzsche would have a field day with such a mentality that vaunts itself as superior by "virtue" of its own assumed dominance. The basis of Rand Paul's non-answer, in other words, could have been an attempt to dominate beyond his place on Maddow's show. In other words, his non-answers could have been refusals rooted in a will to power that was biting off more than it could chew on someone else's show.

In terms of having a will to power based on strength, many of the stations or offices in modern society that we view as being entitled to dominate are in fact weak.  Nietzsche points to the modern moralist's thou shalt not as an attempt by the weak to dominate beyond their innate weak constitution. He also points to the attempts of the modern manager to dominate in such terms (and the priest as well). In watching various personalities giving non-answers while being interviewed on television, I find myself wondering if they know they are doing it. If they do, they are indeed rascals; if they do not, their stygian pathology is much deeper than I am equipped to investigate. Perhaps the modern illness is malignant narcissism to such an extent in a personality that the delimited perspective eclipses even awareness of what oneself is doing.

Sources: http://www.nytimes.com/2010/05/21/us/politics/21paul.html?ref=politics   http://www.msnbc.msn.com/id/37273085/ns/politics-decision_2010/

I once bought a bike at Walmart.  To my chagrin, the bike had very little coasting ability. After riding down into a valley, I looked forward to some momentum on the up side. However, there was very little upside. Shortly after passing the lowest point, I would have to begin pedaling again.  In fact, if the down-hill was not steep, I had to pedal so as not to de-accelerate while going down hill.  In regard to Walmart, it could be concluded that not every product fits into a low-cost strategy (to say “cost-leadership” would gild the lily, besides engage in fad-jargon). While pedaling from the bottom of a hill just after having come down another, I constructed a young theory of business ethics.  Namely, that it was unethical for Walmart to sell the bicycle-brand (which I do not recall) because I deserved some coasting credit. You might say that if I didn’t have to pedal going down hill, I don’t deserve any “credit” in going up hill; the ease going down is paid for by the effort going up. However, even if I had not had to pedal while going downhill, I still would have believed that I deserved some “credit” on the up side. Why should I be exempted from benefiting from the laws of nature?  It is not fair if I am excluded from the phenomenon of mometentum through no fault of my own. Walmart had unwittingly put a wrench between me and momentum by essentially “spending” it by releasing it. So I was left with the impression of an asymetry that was unnatural. Of course, gravity and friction take their toll, so one can not expect to go without any effort on the up side.  But where a product eviscerates the benefits ensuing from a natural law, the product can be reckoned as inferior from the standpoint not only of quality, but as undeserved by any buyer.  There is thus a bicycle principle of ethics, which is a sort of naturalistic ethical theory based on the principles of fairness and desert–namely, that it is unfair to deprive certain people of public goods such as momentum while others indulge. An inferior product can be reckoned in such terms.

I exchanged the bike for another of the same type.  Not only was the “new” bike also without coasting ability, its back tire was warped.  Incredibly, the “bikemaker” at the store knew this and told me, “oh, that’s from the manufacturer.”  A few days later, I returned that bike; I had in the meantime bought a used Diamondback for less than half the price. I don’t think I have ever been so glad to unload a product. Besides concluding that selling bikes is too much for Walmart managers and employees, I had a general sense of low-class retail from the experience. That is to say, I had the sense of having “just said no” to a certain culture, or market-segmentation, in business. After the incidents with the bikes, I first sought to limit my shopping at Walmart to cheaper common goods, or staples. A low-cost strategy seems to work fine with such goods. Walmart’s major fault, it seems to me, lies in presuming that its strategy can apply to any product.  However, I soon bought a pair of sunglasses, only to have them fall apart on the second day of usage. I exchanged them for another pair, which began to come apart after a week. When I returned the second pair for a refund, the customer “service” clerk demanded that I retrieve a pair with a barcode. Once she had finished with the transaction, she handed the new pair to me, saying “there you go.” Not only had the fact that a second pair (i.e., exchanged) had gone bad skipped her mind, she hadn’t bothered to remember that I was returning the product.  I thought to myself: it’s down to food and the pharmacy.

Yet a few weeks after that, I ran by Walmart to pick up seven or eight food items. After waiting in a line for five minutes, I found myself waiting still longer as the cashier kept trying to weigh the three bananas even though the weighing device at his station didn’t work.  Then he wandered around to other stations to try theirs. All the while, I was wondering why it was so important to him that he not throw in the bananas as he was inconveniencing me and it shouldn’t be such a big deal to the store.  However, he couldn’t permit himself to let go of the dogma that someone must pay, and that someone must be someone else.  The pettiness involved annoyed me as much as having to wait.  It was not so much a case of greed, for there wasn’t much money involved in the transaction.  Rather, it was a small-mindedness that refuses to admit common sense.  Unfortunately, it is a mentality all too common in low-end American business. The employees are too weak to say to themselves: what are three bananas to me and to my store. Let the other person get something for nothing (actually something for waiting, as time is money).  What is it to me if someone profits a bit from me!  Such a surfeit of strength is extrinsic to Walmart, where the mentality is: better to lose a sale of seven or eight food items than let three bananas go.  In the face of such a mentality, I walked away, leaving the employee to deal with the items.  As I passed the customer service area, I briefly told the employee there that the cashier had made me wait too long as he was trying to weigh three bananas.  “I have already spent too much time on this,” I finally said.  She replied, “Here, why don’t you tell the store-front manager; there she is.”  Had I been speaking French?  I resumed walking, shaking my head in utter disbelief. As I was walking to the parking lot, I actually felt relief that I had not bought anything at Walmart.  I wondered how such a small large retail chain could survive based on low price alone.  Unlike the cashier, I would say that there is more to life than price (especially where the differences are not extraordinary).  Perspective, once found, makes those still on the ground look like ants–the red kind, that bite. Why is it that so many people are still leaving table scraps for those sordid creatures?

The First Amendment protects free speech even if it is as hurtful as signs at a Marine funeral proclaiming "Thank God for Dead Soldiers," the U.S. Supreme Court ruled on March 2, 2011. The Westboro Baptist Church celebrated the death of Lance Cpl. Matthew Snyder in Iraq with signs such as "God Hates You," along with antigay messages at his funeral in Maryland in 2006.

The late Marine's father sought damages for emotional distress. An appellate court had reversed the $5 million award granted by a district court, and the U.S. Supreme Court concurred with the appellate court's decision.  The Wall Street Journal notes that "Chief Justice Roberts nodded to the wrenching set of facts in the case, writing that 'the applicable legal term— 'emotional distress'—fails to capture fully the anguish Westboro's choice added to Mr. Snyder's already incalculable grief.'"  Crucially, however, the justices of the majority opinion would not fall to the temptation of acting on the emotion that naturally follows hearing of such harm.

Interestingly, on the same day as the American high court's decision, the designer John Galliano was being fired by Dior's CEO and investigated by the French police (for inciting racial hatred with anti-semitic statementsm, which is illegal in at least the French and German states of the EU) for having made anti-semitic insults to a couple with whom he was arguing late at night in a trendy bar (cafe) in Paris. There, the emotions got the best of both the designer and those who reacted to the video posted of his comments (albeit showing only a part of the argument). Perhaps a grieving father at his son's funeral reading signs that thank God for dead American soldiers can be likened to a Jewish couple at a bar hearing that they are lucky their grandparents or parents were not exterminated by the Nazis. It is difficult for the rest of us to know how either feels, or how to compare the pain.


In any case, that any human being would want to hurt another so much is truly a sad commentary on our species that otherwise vaunts itself as being in the image of God. Perhaps the question is what kind of God is being envisioned here. A vengence is mine, sayth the Lord sort, which Nietzsche condemns in his writings as already discredited on account of having such a sordid divine attribute as vengence?  The deed is done, according to Nietzsche.  So too, the pain has already been inflicted on the grieving parents and the Jewish couple.  The rest is merely mopping up. 

I contend that the impulsive reaction in Europe to the fashion designer's drunken anti-semetic slurs is inferior to the majority opinion of the American court in the Westboro case because the tolerance of reason is more in keeping with a free society than is vengence or retribution against a disliked opinion. Chief Justice Roberts emphasized that speech on public issues (of which gays in the military is one) "cannot be restricted simply because it is upsetting or arouses contempt," USA Today reports. Roberts pointed out that the jury at the district court level of the case had been told that Westboro could be held liable for the intentional infliction of emotional distresss if the picketing was "outrageous." The chief justice argues that that test is "highly malleable," which is to say, it can change according to what a given person happens to think is outrageous. An old man might think noice in an apartment hallway at midnight is outrageous while a few college students down the hall might simply assume that the party has begun. In such a case, outrageous may have a physiological determinant and thus be innately different depending on the person. Quoting the 1988 case of Histler Magazine v. Fallwell, Roberts said that liability cannot be imposed on "the basis of jurors' tastes or views, or perhaps on the basis of their dislike of a particular expression." Rather, reason must trump passion in such matters. Regarding the Synder case, Roberts said that the small Topeka-based church's messages "may fall short of refined social or political commentary," but discussed "matters of public import," such as the nation's morality and gays in the military and thus are protected by the first amendment to the U.S. Constitution, which guarantees free speech.  A free society is only really free to the extent that we protect even the opinions of those we loath. Otherwise, society reduces to a primitive matter of excluding those we don't like. Such banal convenience is too decadent for a vibrant republic and society. Reason tells us this. The question is whether we have sufficient impulse-control to proffer the degree of tolerance that is requisite. So actually, the matter pivots on us--Americans and European generally--rather than on Westboro and Galliano. They can make us stronger in spite of themselves if we permit ourselves to rise to the occasion rather than satisfy our immediate gratification.  In the end, it is up to us, not them, what kind of societies we have.

In terms of federalism, the chief justice noted that states can regulate the time and place of the protests, and the church was already contesting some as too restrictive. As of the date of the court's decision, forty six states had enacted laws to minimize picketing near cemetaries during funerals. In terms of federalism, it might be that the states' respective Supreme Courts might have been the proper venue in interpreting the U.S. Constitution in such cases. Generally speaking, if there can be fifty different sets of regulations on protests, there can be fifty different decisions interpreting free speech. It would not be like fifty different foreign policies. As it is, even with fifty different regulations, the final decider is centralized in the U.S. Supreme Court.

Sources:
http://online.wsj.com/article/SB10001424052748703559604576176323629295598.html?KEYWORDS=first+amendment+protects
http://www.guardian.co.uk/lifeandstyle/2011/mar/04/john-galliano-dior-brand
Joan Biskupic and Kevin Johnson, "Westboro free-speech ruling has its limits," USA Today, March 3, 2011, p. 2A.

On the reaction to John Galliano in Europe, see the essay in this blog at: http://thewordenreport.blogspot.com/2011/03/on-march-1-2011-sidney-toledano-ceo-of.html

Structural, or institutional, conflicts of interest are of great significance in applied ethics, even though they are often disregarded or ignored. Far more salient are personal conflicts of interest, such as when an employee pockets money meant rather than declares it as revenue for his or her company. Structural conflicts of interest are institutional in the sense that organizational arrangements inherently evince a conflict of interest such that people in them are necessarily subject to a conflict in their interests simply by participating in one of the organizations in the arrangement. An organizational or institutional conflict of interest, whether within one organization or involving relations between organizations, is not any less unethical than a personal conflict of interest because in both cases people are subject to a conflict of interest--only one being valid.  I present two cases and an argument that “firewalls” in an organization to prevent it from a conflict of interest are insufficient.

In the EU, the European Commission (the executive branch of the EU Government) sued four elevator companies that were part of a cartel in Belgium and Luxemburg.  Essentially, the Commission was seeking anti-trust damages—a first in EU jurisprudence.  Benoit Allemeersch, attorney for one of the companies, argued that the jurisdiction of the the commercial court of Brussells, the Tribunal of Commerce, violated the jurisdictional clauses in the contracts between the companies and the Commission.  He argued that the Commission acted as “police officer, prosecutor, jury and sentencing judge” in finding the existence of a cartel, and then used its own decision to make a private claim for itself before the commercial court. He argued that “the mere statement by the Commission that they respected their own ‘Chinese walls’ in making their decision and bringing the claim is not a sufficient guarantee to the defendants nor to any other citizen.” He maintained that in the case being argued, there was no “equality of arms” between the two sides, given the commission’s privileged position. According to Allemeersch, “the European Court of Human Rights requires that justice is not only done, but is also seen to be done.”  In other words, even the appearance of a conflict of interest, which can be in an institutional arrangement even if not acted upon, is enough to dismiss claims. The existence of “firewalls” within an organization does not sufficiently mitigate either the dismissal or, more generally, the institutional conflict of interest.

Even though the commission had previously argued that its own “Chinese walls” ensured the independence of the claim, Allemeersch correctly maintained that these safeguards could not be proven, tested or substantiated. I contend that the counsel is correct. Even if the Commission could show policies and procedures that act as its safeguards, such internal guidelines do not have the force of law and thus are insufficient to be relied upon—especially by external parties.  It can not be assumed, moreover, that an organization’s policies and procedures outweigh whatever internal interest happens to be dominant in the organization, given the nature of power to overflow its boundaries.

To say that the most powerful person a room is constrained by parchment alone is to be woefully ignorant of the reality of human nature.  Even if there are two equally-powerful people in the room with antipodal objectives, institutional checks and balances can only work as long as too great of a power imbalance does not exist.  If a US President is intent on invading a country, for example, and the Congress does not have sufficient power over his, the separation of powers institutionally could not be counted upon to keep Congress from rubber-stamping the President’s declaration of war.  For the President to be able to effectively declare war while being the commander in chief of the US military and the armies of the union’s republics is itself a structural conflict of interest.

Essentially, I am making a Nietzschean and Hobbesian argument that the most powerful person in the room is not apt to be constrained by invisible ”firewalls” in the room that are intended to level the powers of that person and a weaker person.  As Nietzsche writes, the strong must be strong and the weak cannot be other than weak.  To ask the strong to be weak or treat the weak as though it were strong goes against the nature of power.  In my analogy of the room, the two persons can represent heads of departments whose respective goals are at odds with each other. A “firewall” of policies and procedures is not sufficient to inhibit the more powerful head from pressuring the other.  Furthermore, the existence of a person whose authority includes both departments relativizes the firewall.  To bring in this element, I turn to the roles of rating agencies and Goldman Sachs in the American financial crisis of 2008. In the case of Goldman, the bank sold what its salespeople referred to as “crap” because the bank’s own proprietary position profited by the sales. In the case of the rating agencies, they were paid by the issuers of the securities that they were rating.  That either of these conflicts of interest were allowed to exist at all points to a proclivity among the general public to ignore institutional conflicts of interest—focusing instead on personal ones involving someone’s compensation and job.

In listening to and reading about the banks and rating agencies culpable in the American financial crisis, I doubted the “firewalls” argument given by the rating agencies.  The CEO of Moody’s for example, stated in Congressional testamony that he placed an equal emphasis on market-share and the quality of the ratings.  However, several of his former employees testified that they had been pressured not to lose a client to a competitor.  They stated that when ratings were changed, it was typically to protect the firm’s market-share (i.e., out of fear of losing the issuer).  The CEO’s faith in his own equipose as well as his firm’s “firewalls” was mistaken, even if he didn’t realize it.  To be sure, he may not have been aware of a more-powerful department putting such pressure on a less-powerful one.  It is possible, however, that the CEO was actively pushing his subordinates behind the scenes for more market-share, essentially profiting from the conflict of interest in the issuer-pays system.

In general, because an organization has an official above its firewalls, it is possible, even legitimate in terms of that position’s authority, for that official to put pressure on one side of the wall to capitulate in the interest of the whole (i.e., the entire organization).   Consider, for example, Lloyd Blankfein, who was CEO of Goldman Sachs at the time of the financial crisis.  He was over both the market-making and proprietary-trading units.  He could therefore have put pressure on the units selling securities to do so in a way that complements the bank’s own proprietary holdings.  For example, he (or his VP’s) could have pushed shorting sub-prime mortgage-backed derivatives in market-making (the clients taking long positions) because the proprietary interests of the bank would benefit from a fall in the housing market.  The bank’s sales people did indeed clients to go long even as the bank itself was going short in the belief that the housing market bubble was headed for a hard landing.  Before a US Senate committee, Blankfein claimed that the market-making and bank’s trading on its own books were unrelated unless the bank took out a position on its books as a counter-party needed by a client.  However, the bank sold clients on taking long rather than short positions on the housing-based securities even as the bank was taking a net short position on its own books above and beyond what was necessary to be a counter-party to its clients’ transactions.  This conflict of interest manifested in the duplicity involved in selling clients on what the sales people knew privately was “crap.”  As one of them wrote, if the clients knew the bank’s reason for going short, that would interfer with the bank’s ability to profit from the shorts.  Structural conflicts of interest are designed such that there is an incentive in favor of duplicity. Given a company’s overall interest and the fact that senior managers have authority over the entire firm, firewalls should not be relied upon by outside parties (or by those inside).
In the end, given the nature of human beings and power, we ought not be blindsided by claims of the efficacy of paper “firewalls.”  We ought not assume that the most powerful person or coalition in an organization will necessarily be voluntarily restrained by a weaker party in the same organization.  Moreover, we ought to take more seriously institutional or structural conflicts of interest in how we design and reform arrangements between institutions.  Where the status quo contains a structural conflict of interest, that condition ought to be put on a limited lifeline, with a deadline set for changing the arrangements.  Even if the alternative is not as efficient (it would doubtlessly not be flawless), it would be better than the status quo.  Charges of an institutional conflict of interest can be treated as red flags that instantly move to the front burner on people’s agendas.  We need not be hoodwinked by the duplicitous and self-interested into believing their asseverations concerning their own paper “firewalls.”

Typically, responsibility is something people working in a business presume applies to the other guy…whether a customer, supplier or distributor.  The idea is that then the other guy will pay for the problem.  That someone working in the business might have been at fault is not even considered, at least outwardly, in this mentality of otherness-responsibility.  Responsibility here means “I won’t pay; you must pay!”  It is essentially immature self-centeredness and cheapness used as a weapon.

In general terms, responsibility follows, or depends upon, there being some action thought to be required of someone.  Only if Susan is to pick Billy up at practice at 4:30pm is it her responsibility to do so.  The attribution of responsibility depends on the premise that Susan is required, or has agreed, to make the pick-up.  Were it unclear whether she or say Mary were to make it, Susan could reply to someone’s claim that she is responsible for picking up Billy that she is not responsible because it is Mary’s turn.  The attribution of responsibility depends on an agreement as to function or action coupled with a particular agent.   In the case of a businessperson telling a customer what the customer’s responsibility is, the customer could reply “I did not agree to do X so I am not responsible for it; in fact, you are responsible for it because your advertisement states that your firm does X.”  So disagreements about responsibillity are actually disagreements as to who does what.

Corporate Social Responsibility as a movement presumes that managers do X beyond their respective firm’s maximizing or satisficing shareholder returns.   The managers have a fiduciary responsibility to act in the interests of the owners of the wealth that is the corporation because it is a requirement that the managers do so.  Expanding the managers’ functions beyond maximizing returns (and minimizing cost consistent with those returns) is a matter on which reasonable people can disagree because the question is really about what sort of society we want.   However, using responsibility as a way of imposing such an expansion beyond that which has been agreed to is to use the term prescriptively—meaning that there is over-reaching involved.   I would like managers to do Y as well as X, so I declare managers to have a responsibility to do Y (as well as X).   Responsibility really isn’t the right word here because the underlying agreement on the agent-function matter has not been established.  In other words, responsibility properly follows from a given agent-function rather than institutes it.   Claiming that corporations have a responsibility to act in concert with public opinion or extant social norms—to the extent that it goes beyond the business profit calculus—is to use responsibility in a way that presumes more than is presently the case.  This use of the term is really an instance of ideological prescription rather than a reminder of an agreed social contract that has modified the corporate fidicary duty to the owners of the private property.    Using the term responsibility to create an agent-action foundation puts the horse before the carriage.

So we over-reach when we say that the bankers of the commerical and investment banks that are too big to fail have a responsibility to act within public opinion on the bailout (e.g., concerning bonuses and trading on the banks’ own books).  Even if it is in the long term interest of the financial institutions that the financial system remain viable, the managers correctly point out that their responsibility (i.e., agreed upon actions) is to act in their stockholders’ interests.   To say that the big banks had a responsibility to rescue Lehman Brothers in September, 2008 even if doing so is not in their respective stockholders’ interests is essentially to express the public’s (and government’s) wish that Wall Street step up to the plate and do what is good for the system.   To make saving a bank too big to fail part of the big banks’ responsibilities, there would have to be a requirement that they do so (unless they agree that it is part of their activities).   That is to say, there would have to be a law or regulation because otherwise there is not apt to be the sort of mutual agreement out of which responsibilities can be extracted.  A person can say, “the law says you must do Z, therefore it is your responsibility to do Z.”  The response can’t very well be “Well, the law doesn’t apply to me so it is not my responsibility to do Z because I haven’t agreed to do it.”  This is not to say that a typical manager wouldn’t like to use such a line if he or she could get away with it.  Such a self-maximizing mentality makes the legal foundation of responsibility all the more important.

On the question of whether more government regulation is needed for banks too big to fail (as well as health insurance companies), I would shelve the use of the term responsibility and look instead at the mentality of managers in general (as well as in the industry in question).   Whereas the Senate can be likened to a herd of cats instinctively unwilling to be managed, a corporation can be likened to cats circling tuna.   The tuna is their required function: to act in the interests of the stockholders (typically short term).  To expand a business manager’s function to include working against systemic risk (banking) and working so all American citizens are covered (health-insurance) is an excercise in futility unless these functions dovetail with the stockholder/profit interests.  So in addition to government regulation being necessary (as responsibility is not sufficiently viable as a constraint because the agent-action foundation has not been established),  regulators would have to monitor the companies to keep the managerial feet to the fire.  Also, the regulators would have to be monitored because of the managers would have an incentive to capture the agencies that otherwise pin in the firms.  The managers will constantly be trying to turn toward the tuna.  Whether hardwired or socialized by managerial culture to do so, managers can be expected to incessantly strive for more tuna.

As an example of such striving being at the antithesis of constraint, logging companies that sold forests to the US National Parks in the mid-twentieth century continued logging even after the managers knew the sales had gone through.  Also, the managers of the banks too big to fail fought financial regulatory reform in the wake of the banks’ own culpibility in the crisis of 2008.  In addition to reading this as presumption to excess, it can be interpreted as the allure of the tuna always there.  Even if a cat could feel guilty for having knocked over a vase on the way to the food, the animal would turn right around and fight efforts to thwart it from the tuna.  The guilt is extrinsic to the animal as it pursues the tuna.  That is to say, we impose ought on an activity that is simply an “is” to the cat.   As Hume points out, you can’t get ought from is.  The cat’s mentality is essentially to keep striving for tuna, which ideally (to the cat) means ignoring constraints (if possible).   If managers could routinely ignore the law when it is in their interest, it is futile to believe that they would be the sort of creatures that would allow themselves to be guiled into acting within the contours of social norms.  What I am getting at is this: In the CSR movement, there is far too much reliance on the good faith of managers of companies—as if they can be lured away from the tuna, even for a minute for a good cause. The CSR movement ignores the managerial nature, or mentality, or tries to modify it with insufficient force.   The mentality is far too intractable and the use of responsibility far too over-reaching for CSR to be viable in the real world. Essentially, the CSR movement, even in its beginnings in the 1950’s by a few well-meaning though naive businessmen, presumes Hume’s naturalistic fallacy as somehow invalid (meaning that extant societal norms can be taken as normative on their own basis and managers can be presumed to have a responsibility to act in sync with them even if doing so is not in the stockholders’ interest).

We should not rely on CSR or good corporate citizenship in lieu of government regulation when business firms (or entire industries) put us or our society at risk of harm.  The business calculus understands requirements, not “oughts,” and responsibility follows (rather than establishes) the requirements.   To presume otherwise is mere wishful thinking along with a dash of imposing, which is really the self projecting itself on to the world—making the world in its own image.