The Volokh Conspiracy

David's post on Robert Bork's effort to take advantage of aspects of the tort system that he has condemned in the past, raises a more general issue: when, if ever, is it ethical to take advantage of the benefits of policies you oppose? Public figures on both the left and the right are constantly accused of hypocrisy whenever they benefit from policies that they criticize. Consider the attacks on Al Gore's extravagant energy use (indulging in practices that he claims should be curtailed to fight global warming) or the ongoing criticism of Clarence Thomas for opposing affirmative action even though he himself probably benefited from it. Going back in history, many of the Founding Fathers (including Thomas Jefferson, George Washington, and George Mason) owned slaves, even though they recognized that slavery was an evil.

Even we bloggers are not immune to the problem. For example, I oppose the deductibility of state income taxes from federal income taxes; high-tax states should not be subsidized by the rest of the country. Yet, every year, I deduct my state income taxes on my Form 1040, and save several hundred dollars as a result.

Which of these cases are defensible and which are not? There is no easy answer, but let me suggest a helpful way of thinking about the problem.

Some policies are wrong in an absolute sense: every individual instance of the practice they promote is an evil. Even if no one else owned slaves, Thomas Jefferson's owning some was a grave evil. In cases of this kind, it is indeed wrong to take advantage of practices that you oppose. Even if Jefferson lacked the political leverage necessary to get slavery abolished throughout the country, his failure to free his own slaves was a serious injustice in and of itself.

Some actions, however, are only wrong because of their aggregate effects. An individual instance of deducting state income taxes or burning oil does little if any harm. It is only the aggregate impact of these practices that does damage. Thus, no good would be achieved by my deciding to forego my income tax deduction. Only an across-the-board policy change would do any real good. The same goes for Al Gore and his contributions to the greenhouse effect. OK, maybe this is my way to get myself off the moral hook (even at the cost of doing the same for Al Gore). But I think that the argument is sound, even if self-serving.

What about Robert Bork and Clarence Thomas? These are intermediate cases, it seems to me. Some critics of affirmative action primarily decry what they see as its harmful aggregate effects (admitting lower-qualified students; increasing racial conflict; contributing to negative stereotypes of minorities as underqualified). Others argue that each individual instance of affirmative action is itself an injustice because of the "reverse discrimination" it inflicts on white and Asian students or job applicants. Critics of affirmative action who emphasize systemic harm are not being inconsistent if they take advantage of affirmative action policies where they exist. On the other hand, those who accept the benefits of AA even though they oppose it on absolutist grounds, are indeed complicit in what they consider to be injustice. One can make a similar distinction between aggregate and absolute criticisms of the tort system.

The bottom line: Not all people who benefit from policies they oppose are inconsistent or hypocritical. It depends on the policy in question, and on the reasons for their opposition to it.

NOTE: I am not going to regulate the comments. However, I think it will be more productive if people focus on the general issue of benefiting from policies that one opposes rather than on arguments about the merits of the specific policies that I used as examples.

UPDATE: Ted Frank of Overlawyered made a related point about hypocrisy and the state income tax deduction in this November post.