EU INTEGRATION & ETHICS Justice Harvard Episode 09 part 1 at 20:00 min. $ 4,500 $ 75,000 $ 300,000 $...

THE ENTREPRENEURIAL SCHOOL® 6020 Innsbruck / Austria jeanmonnet.mci.edu

MCI MANAGEMENT CENTER INNSBRUCK Universitätsstraße 15 [email protected] 1

EU INTEGRATION & ETHICS

Moral limits of markets? (4th session)

Picture source: Justice Harvard Episode 09 part 1 at 20:00 min.

http://jeanmonnet.mci.edu/

https://ec.europa.eu/programmes/erasmus-plus/node_en

http://www.justiceharvard.org/2011/02/episode-two/#watch



Agenda – 4th session

4th session (online): moral limits of markets | 17:00 - 19:15h Getting started Repetition of last session Kick off questions (incl. polls) Repetition (economic, values, morality & ethics, philosophers) Task for individual work Break Human dignity, as interpreted by German Constitutional Court Application to different examples (group work) Summary



It is always going to happen, ...

Source: http://www.gfk.com/marktdaten

purchasing power

http://www.gfk.com/de/insights/news/bild-des-monats-gfk-kaufkraft-europa-2017/



… it is quite problematic, what is possible …

• What are non-medical conditions? age, LGBTQ• What is gestational surrogacy? surrogate only as “carrier”, IVF• What is fragmented parenthood? father, mother (social vs. genetic), gestational mother, partners and children• Is surrogacy allowed throughout Europe? No: only commercial prohibited; or all prohibited; or not regulated• Why is surrogacy as a medical process described as ‘intensive’? eight steps• In which way does abortion play a role in surrogacy? In case of twins, triplets, etc.• Is the rate of C-section higher? Yes, plus potential health risk for child• In which way can warranty play a role in this context? Parents not wanting disabled child



… hard law is not very detailed, …

Is this status quo satisfying?

Picture credits: http://www.geocaching.com/seek/cache_details.aspx?wp=GC30GNP

What about the EU’s values?

• EU values

Article 2 TEUThe Union is founded on the values of respect for human dignity, freedom, democracy, equality, the rule of law and respect for human rights, including the rights of persons belonging to minorities.

These values are common to the Member States in a society in which pluralism, non-discrimination, tolerance, justice, solidarity and equality between women and men prevail.

• Are they defined?

• What do you understand by these values?

Picture source: The Economist, April 15th–21st 2017, p. 56

https://www.economist.com/news/business-and-finance/21720580-ugly-incident-provokes-social-media-storm-passenger-dragged-united-airlines



… only soft law is more concrete,

“115. Condemns the practice of surrogacy, which undermines the human dignity of the woman since her body and its reproductive functions are used as a commodity; considers that the practice of gestational surrogacy which involves reproductive exploitation and use of the human body for financial or other gain, in particular in the case of vulnerable women in developing countries, shall be prohibited and treated as a matter of urgency in human rights instruments;”

… but not binding.

http://www.europarl.europa.eu/?lg=en

http://www.europarl.europa.eu/sides/getDoc.do?pubRef=-//EP//TEXT%2bTA%2bP8-TA-2015-0470%2b0%2bDOC%2bXML%2bV0//EN&language=EN



Q&A

Any questions from your side?


Adobe Connect Q&A



Kick off question | “motivating” students

Source: Sandel, 2012, pp. 60-1

Adobe Connect Poll

(2)



Kick off question | advertisement on body

Source: Sandel, 2012, pp. 183

Adobe Connect Poll

(3)



Cost-benefit analysis

• Justice Harvard Video Episode 02 part 1

• Cost-benefit analysis

• Ford Pinto: fuel tank

• Is it worth to improve the safety of the fuel tank, or not?

• Assigning a $-value to human life

• Problem for Ford: memo disclosed in court case

Source: Justice Harvard Episode 09 part 1 at 08:00 min.

Adobe Connect Poll

(4)




Cost-benefit analysis

• Justice Harvard Video Episode 02 part 1

• Cost-benefit analysis

• Ford Pinto: fuel tank

• Is it worth to improve the safety of the fuel tank, or not?

• Assigning a $-value to human life

• Problem for Ford: memo disclosed in court case

Source: Justice Harvard Episode 09 part 1 at 08:00 min.




How much do you value it?

• Edward Thorndike (1874-1949): American psychologist

Survey - list of unpleasant experiences

(median amount demanded by recipients of relief)

• Have one upper front tooth pulled out

• Become entirely bald

• Have to live all the rest of your life on a farm in Kansas, ten miles from any town

• Eat a live beetle one inch long

Source: Thorndike, 1940, pp. 168-71.

Adobe Connect Poll

(5)



How much do you value it?

• Edward Thorndike (1874-1949): American psychologist

Survey - list of unpleasant experiences

(median amount demanded by recipients of relief)

• Have one upper front tooth pulled out

• Become entirely bald

• Have to live all the rest of your life on a farm in Kansas, ten miles from any town

• Eat a live beetle one inch long

Source: Thorndike, 1940, pp. 168-71.Source: Justice Harvard Episode 09 part 1 at 20:00 min.

$ 4,500

$ 75,000

$ 300,000

$ 50,000




Thorndike




Econ. integration | fund. freedoms (repetition) ...

• Who defines these notions and how?

Defined by CJEU

Terms have always to be interpreted in the sense of EU law

That means that derogations have to be interpreted in a narrow sense

Other terms in a very broad sense

Goods: “products which can be valued in money and which are capable, as such, of forming the subject of commercial transactions“

Worker: “for a certain period of time a person performs services for and under the direction of another person in return for which he receives remuneration ”

Services

Active services: service provider crosses the border

Passive services: service receiver crosses the border

Service provider and service receiver cross the border together: e.g. tour group

Only the service crosses the border: e.g. broadcast and television, eHealth, etc.



… and the EU’s values (repetition)

• EU values


These values are common to the Member States in a society in which pluralism, non-discrimination, tolerance, justice, solidarity and equality between women and men prevail.

• What do you understand by these values?

• Are they defined?



… morality, … (repetition)

Source: Frischhut, 2015, p. 544

Cf. also CJEU judgment in Liga Portuguesa de Futebol Profissional and Bwin International, C-42/07, EU:C:2009:519, para. 57: “In that context, as most of the Member States which submitted observations to the Court have noted, the legislation on games of chance is one of the areas in which there are significant moral, religious and cultural differences between the Member States. In the absence of Community harmonisation in the field, it is for each Member State to determine in those areas, in accordance with its own scale of values, what is required in order to ensure that the interests in question are protected […].”

Territorial (regional) and cultural Temporal component (evolutionary character) Value based (remember Article 2 TEU)

Law ≠ Morality (& time)



… , as well as with ethics, … (repetition)

"In its most familiar sense, the word morality […] refers to norms about right and wrong human conduct that are so widely shared that they form a stable social compact. As a social institution, morality encompasses many standards of conduct, including moral principles, rules, ideals, rights, and virtues. We learn about morality as we grow up, and we learn to distinguish the part of morality that holds for everyone from moral norms that bind only members of specific communities or special groups such as physicians, nurses, or public health officials." (no emphases added)

Source: Beauchamp & Childress, 2013, pp. 2-3

Source: Frischhut, 2015, pp. 536f



Q&A

Any questions from your side?


Adobe Connect Q&A



Trolley car example (repetition)

What’s the right thing to do?


“Suppose you are the driver of a trolley car hurtling down the track at sixty miles an hour. Up ahead you see workers standing on the track, tolls in hand. You try to stop, but you can’t. The brakes don’t work. You feel desperate, because you know that if you crash into these five workers, they will die. (Let’s assume you know that for sure.)Suddenly, you notice a side track, off to the right. There is one worker on that track, too, but only one. You realize that you can turn the trolley car onto the side track, killing the one worker, but sparing the five. What should you do?”

To keep the trolley car going straight ahead? Turn the trolley car on to the side track?Source: Sandel, 2010, p. 21

Picture credit: https://en.wikipedia.org/wiki/Trolley_problem

Adobe Connect Poll

(6)

https://en.wikipedia.org/wiki/Trolley_problem



Trolley car example (repetition)

What’s the right thing to do?






Further questions (repetition)

Limits to Utilitarianism (the greatest good for the greatest number)?

- Is it just to shoot an airplane kidnapped by terrorists? (BVerfG 15.02.2006, 1 BvR 357/05)

- Is it ok to use the organs of one patient, in order to save the lives of others?

- Is it just to throw Christians to the lions in the Colosseum for the sake of overall excitement and amusement of the Romans? (Justice Harvard Episode 02, 32:50 min.; Sandel, 2010, pp. 37f)

- Should driverless cars rather either save two passengers or three pedestrians? (CNN, 23 June 2016 Link)

http://edition.cnn.com/2016/06/23/health/driverless-cars-safety-public-opinion/index.html

http://edition.cnn.com/2016/06/23/health/driverless-cars-safety-public-opinion/index.html



Philosophers | repetition

Aristotle (384-322 B.C.)- Nicomachean Ethics: one of the most important historical philosophical works

- Humans striving to live in a political community (“zoón politikón”) (Luf, 2014, p. 9)

- This society needs some kind of order by law (Luf, 2014, p. 10), as the objective (telos; see infra) of this political community is the ‘good life’

- Virtue ethics; virtue: golden mean between conflicting parameters

- “Aristotle taught that virtue is something we cultivate with practice: ‘we become just by doing just acts, temperate by doing temperate acts, brave by doing brave acts’” (Sandel, 2012, p. 128)

- Teleological (telos = goal, purpose) reasoning, not deontological (Justice Harvard Episode 09, part 2)-> for questions of distribution, we have to consider the goal, the purpose of what should be distributed (cf. flute example)

Picture credit: https://en.wikipedia.org/wiki/Aristotle

Picture credit: https://videographyinwords.wordpress.com/tag/goldenmean/




Charles-Louis de Secondat, Baron de La Brède et de Montesquieu (1689-1755)- Theory of the separation of powers

- Influence on the French revolution and the US Constitution

- The Spirit of the Laws (1748)

Picture credit: https://en.wikipedia.org/wiki/Montesquieu

https://en.wikipedia.org/wiki/The_Spirit_of_the_Laws




Immanuel Kant (1724-1804)- Categorical imperative: “Act only according to that maxim whereby you can, at the same time,

will that it should become a universal law.” (Link)

- “Act in such a way that you treat humanity, whether in your own person or in the person of any other, never merely as a means to an end, but always at the same time as an end.” (Link)

- “Basing morality on interests and preferences destroys its dignity.” (Sandel, 2010, p. 107)

- “For Kant, respecting human dignity means treating persons as ends in themselves.” (Sandel, 2010, p. 110)

- “Persons are rational beings. They don’t just have a relative value, but if anything has, they have an absolutevalue, an intrinsic value. That is, rational beings have dignity.” (Sandel, 2010, p. 122)

Picture credit: https://en.wikipedia.org/wiki/Immanuel_Kant

Picture credit: https://www.economist.com/news/business-and-finance/21720580-ugly-incident-provokes-social-media-storm-passenger-dragged-united-airlines

https://en.wikipedia.org/wiki/Categorical_imperative

https://en.wikipedia.org/wiki/Categorical_imperative

https://www.economist.com/news/business-and-finance/21720580-ugly-incident-provokes-social-media-storm-passenger-dragged-united-airlines




Jeremy Bentham (1748-1832)- Founder of modern utilitarianism: “it is the greatest happiness of the greatest number

that is the measure of right and wrong” (Link)

- Utility: “whatever produces pleasure or happiness, and whatever prevents pain or suffering”(Sandel, 2010, p. 34)

- Pain and pleasure are our “sovereign masters”; they govern us in everything we do and also determine what we ought to do (Sandel, 2010, p. 34)

- Has had a “powerful hold on the thinking of policy-makers, economists, businessexecutives, and ordinary citizens to this day” (Sandel, 2010, p. 34)

Picture credit: https://en.wikipedia.org/wiki/Jeremy_Bentham


https://en.wikipedia.org/wiki/Jeremy_Bentham





John Rawls (1921-2002): A Theory of Justice (1999)

- On distributive justice

- Rawls sees society as a system of collaboration, which shall foster the interests of every single member – not only of some of them (Luf, 2014, p. 90)

- In this system, justice shall be established by fairness; this can result in advantages ordisadvantages for the individual (Luf, 2014, p. 90)

- Important that there is consensus about the fundamental structure of a society (Luf, 2014, p. 91)

- Based on the classical social contract theories of Rousseau and Kant, he creates a thought experiment of a “original position”, where people forget about certain standpoints that support their actual situation; i.e. the hypothetical situation of the “veil of ignorance” (Luf, 2014, p. 92)

- This leads to two principles of Justice (to some extent egalitarian)

- “First: each person is to have an equal right to the most extensive scheme of equal basic libertiescompatible with a similar scheme of liberties of others. [= egalitarian liberalism]

- Second: social and economic inequalities are to be arranged so that they are both (a) reasonably expected to be to everyone’s advantage, and (b) attached to positions and offices open to all.”

Rawls, J. (1999). A theory of justice (Rev. ed.). Cambridge, Mass.: Belknap Press of Harvard University Press., p. 53

Picture credit: https://en.wikipedia.org/wiki/John_Rawls




Michael Sandel (1953- )- “I do not think that freedom of choice – even freedom of choice under fair conditions –

is an adequate basis for a just society. What’s more, the attempt to find neutral principles of justice seems to me misguided. It is not always possible to define our rights and duties without taking up substantive moral questions; and even when it’s possible it may not be desirable.” (Sandel, 2010, p. 220)

- “A just society can’t be achieved simply by maximizing utility or be securing freedom of choice. To achieve a just society we have to reason together about the meaning of the good life, and to create a public culture hospitable to the disagreements that will inevitably arise.” (Sandel, 2010, p. 261)

- “Justice is not only about the right way to distribute things. Its also about the right way to value things.” (Sandel, 2010, p. 261)

Picture credit: http://www.justiceharvard.org/

about/michael-sandel/



2nd and 3rd session (repetition)


Can you provide a content related solution

on how to determine “fairness”?

Can you provide a content related solution

on how to determine “human dignity”?


Picture source: https://changefromwithin.org/2012/06/06/are-white-students-being-disadvantaged-by-affirmative-action/ Picture source:

http://www.biopoliticaltimes.org/article.php?id=5393

https://changefromwithin.org/2012/06/06/are-white-students-being-disadvantaged-by-affirmative-action/



Individual task

Now try to answer the questions on

this work sheet:15 min time


• N.B. The above work sheet, content wise, should be seen as part of the overall “EU & ethics” worksheet (where the latter should help you for working towards presentations / reflection papers).

• No group work, but individual work• Same task for everyone• At the end, one participant (having a functioning microphone) should be

able to present the bottom line of her / his reflection.• One participant can be randomly chosen by lecturer• To be presented at the end: see work sheet




4th session (online): moral limits of markets | 17:00 - 19:15h Getting started Repetition of last session Kick off questions (incl. polls) Repetition (economic, values, morality & ethics, philosophers) Task for individual work Break Human dignity, as interpreted by German Constitut. Court Application to different examples (group work) Summary



Follow-up

Not let’s have a brief look at the solution of this

example.


Consider the following example: four terrorists have kidnapped a huge aircraft with ten innocent people (two pilots, two other members of the crew and six passengers) and they want to launch this airplane into a building with an even bigger number of innocent people (roughly 150). Suppose for whatever reason, you cannot evacuate this building, but up in the sky there is an F-15 Eagle tactical fighter that could easily shoot the kidnapped aircraft. How would you decide as the responsible politician to take the final decision?

Is it just to shoot this airplane kidnapped by terrorists? (BVerfG 15.02.2006, 1 BvR 357/05)



Solution of German Constitutional Court

“Human life is the vital basis of human dignity as the essential constitutive principle, and as the supreme value, of the [German] constitution […]” (para. 119)

“All human beings possess this dignity as persons, irrespective of their qualities, their physical or mental state, their achievements and their social status […]. It cannot be taken away from any human being.” (para. 119)

“the obligation to respect and protect human dignity generally precludes making a human being a mere object of the state […]” (para. 121)

Source: BVerfG 15.02.2006, 1 BvR 357/05 (N.B. English version of this judgment available at: http://www.bundesverfassungsgericht.de/SharedDocs/Entscheidungen/EN/2006/02/rs20060215_1bvr035705en.html;jsessionid=39C5363FCDC23F1DBCCC34FE8EEC74DC.2_cid394)

http://www.bundesverfassungsgericht.de/SharedDocs/Entscheidungen/EN/2006/02/rs20060215_1bvr035705en.html;jsessionid=39C5363FCDC23F1DBCCC34FE8EEC74DC.2_cid394



Solution of German Constitutional Court

“the passengers and the crew are typically in a desperate situation. They can no longer influence the circumstances of their lives independently from others in a self-determined manner” (para. 123)

“[…] the crew and the passengers of the plane cannot escape this state action but are helpless and defenceless in the face of it with the consequence that they are shot down in a targeted manner together with the aircraft and as result of this will be killed with near certainty. Such a treatment ignores the status of the persons affected as subjects endowed with dignity and inalienable rights. By their killing being used as a means to save others, they are treated as objects and at the same time deprived of their rights; with their lives being disposed of unilaterally by the state, the persons on board the aircraft, who, as victims, are themselves in need of protection, are denied the value which is due to a human being for his or her own sake.” (para. 124)

Source: BVerfG 15.02.2006, 1 BvR 357/05

• EU values




Your tasks

What about applying the findings so far to the following examples?

(20 min time)


1. Egg donation (Breakout 1)2. Sperm donation (Breakout 2)3. Pay drug addicted woman to get sterilized (Breakout 3)4. Prison cell upgrade (Breakout 4)5. Immigration (Breakout 5)6. Motivating students (Breakout 6)7. Advertisement on body (Breakout 7)

Adobe Connect

Break Out Session



Group 1: egg donation

https://www.centerforhumanreprod.com/egg-donation/donors/faqs



Group 2: sperm donation

http://www.spermbank.com/why-donate/sperm-donor-pay



Group 3: sterilization




Group 4: prison cell upgrade




Group 5: immigration




Group 6: “motivating” students




Group 7: advertisement on body




Your tasks

Adobe Connect

Break Out Session

• 7 groups (à approx. 6 participants); 20 min• Different task for all groups• At the end, one participant (having a functioning

microphone) should be able to present the bottom line of the discussion.

• One group can be randomly chosen by lecturer• To be presented at the end: main conclusions in four

sentences, …• … i.e. what do the findings of our discussion so far mean for

the different examples • Important: findings need to be supported by arguments

1. Egg donation (Breakout 1)2. Sperm donation (Breakout 2)3. Pay drug addicted woman to get sterilized (Breakout 3)4. Prison cell upgrade (Breakout 4)5. Immigration (Breakout 5)6. Motivating students (Breakout 6)7. Advertisement on body (Breakout 7)



Summary

1. Egg donation Medical intervention Commodification of the human body

2. Sperm donation Less of a problem?

3. Pay drug addicted woman to get sterilized Human rights Vulnerable people Right to procreate?

4. Prison cell upgrade Public vs. private sphere

5. Immigration Vulnerable people Human rights

6. Motivating students to get good grades or read books Corroding motivation

7. Advertisement on body Human dignity affected?



Summary

We do have wide definitions for the fundamental freedoms, but these economic freedoms have to be interpreted in line with the EU’s values, especially human dignity.

Based especially on the German understanding, human dignity refers to the Kantian idea that humans are subjects and shall not be treated as objects.

Thus, surrogacy would be against human dignity.

Utilitarian perspectives, treating humans as objects, would thus be against human dignity.

While it might be easy to apply this understanding to some examples, it might be challenging to identify the moral limits of markets for others.

Putting an economic value on certain goods / services can corrode their intrinsic value.

Again, law and ethics are two perspectives which should be considered together.



Final question

How would you now define ethical

(respectively moral) limits to free markets?


• All invited to participate• Same task for everyone• If you have a good contribution, just raise your hand

Adobe Connect Q&A



Further reading (etc.)

• Sandel, M. J. (2012). What money can't buy: The moral limits of markets (1st ed.). New

York: Farrar, Straus and Giroux.

• Thorndike, E. L. (1940). Human nature and the social order. New York: The Macmillan

Company.

Picture credits: • https://pixabay.com/de/film-kino-video-motion-picture-158157/• https://www.flickr.com/photos/brenda-starr/5076790282

• Sandel, M. J. (2010). LSE speech, https://www.youtube.com/watch?v=ZafL7_CaMbg

(5:13-35:25 min)

https://www.youtube.com/watch?v=ZafL7_CaMbg



Thank you for your attention!MCI MANAGEMENT CENTER INNSBRUCKTHE ENTREPRENEURIAL SCHOOL®

Dr. Markus Frischhut, LL.M.Jean Monnet Chair “European Integration & Ethics”Professor & Study Coordinator European Union Law

Management & Law (BA)Strategic Management & Law (MA)

Universitaetsstrasse 15, 6020 Innsbruck, AustriaPhone: +43 512 2070 -3632, Fax: -3699mailto:[email protected], www.mci.edu

http://jeanmonnet.mci.edu/

https://ec.europa.eu/programmes/erasmus-plus/node_en

mailto:[email protected]

http://www.mci.edu/

EU INTEGRATION & ETHICS Justice Harvard Episode 09 part 1 at 20:00 min. $ 4,500 $ 75,000 $ 300,000 $...

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