Originally published on Medium on May 11, 2018.

How do we actually do ethics? Do we choose a set of rules or principles and live by it regardless of the consequences? Do we make each choice based on what caused the best outcome, no matter what action it leads us to take? Do we do what feels right? Before saying what we ought to do — that is, defining a normative theory of ethics — we should spend some time looking at what we actually do. Any ethical theory that is incompatible with human psychology is, in my opinion, bunk. That is not to say that whatever people do is right. Rather, human capacity puts constraints on what an ethical system can ask of us. If an ethical theory, for example, were to claim that what is right is what the majority of humanity would consider right to do for some particular choice, it is a bad ethical theory. We are incapable of polling all of humanity whenever a decision comes up.

How we make moral decisions is a field of active study. A reasonably current state of the research is summarized in “Our multi-system moral psychology: Towards a consensus view” (pdf). It appears that our moral judgments are strongly influenced by intuitive moral responses which generate a good or bad feelings (positive or negative affect). This view, however, is challenged by the fact that people do sometimes rely on conscious, explicit moral reasoning when presented with moral dilemmas. What we are starting to see indicates that this split may arise from the brain having multiple ways of processing moral situations. When a moral choice triggers our affective response system, we tend to see the right choice as obvious and non-negotiable. When it triggers our explicit moral reasoning, we tend to see the right choice as negotiable based on the outcomes. What causes one system to be triggered over the other can be surprisingly small, such as whether a harm is the outcome of an action or an anticipated and unavoidable side-effect of an action.

For the purpose of this essay, what is important is that we do have multiple moral reasoning systems and that in many situations we rely heavily on the affect based system. Although there may well be more than just the two systems, let’s focus on the affect based and cognitive systems, since those are the most prominent. Both systems have their strengths and limitations. The affect based system summarizes a massive amount of moral experience in a way that can be applied quickly. Like all intuitive systems it is subject to bias and to a lack of transparency in understanding how a particular conclusion was reached. The cognitive based system does a better job of showing how a conclusion was reached and can make trade-offs when situations are complex. It is limited by cognitive capacity and so ends up reasoning based on a simplified model of the situation at hand (such as what rule set applies). If the wrong simplification is applied, the results can be bad.

These empirical observations have interesting consequences for normative ethical theories. One is that, in practice, much of our moral reasoning is encoded in rules — the rules that underlie our affect based system. Yet rules do not provide the ultimate end to moral reasoning. We can override those rule base judgments with reasoning based on outcomes. Yet that system is expensive, so we cannot utilize it for every moral decision. We generally use it when the affect based rules seem inadequate, often when they provide insufficient coverage or where they are conflicting. Or to put it another way, moral reasoning tends to look deontological until it is faced with a situation where a deontological rule makes it feel wrong, in which case we tend to fall back to consequentialist reasoning.

This suggests to me that a successful ethical system should be similarly multi-tiered. Deontological rules determine what is right most of the time. When these rules produce conflicts or when we encounter situations that are not covered by the rules, we fall back to consequentialist reasoning to resolve the situation, with the goal of revising the rules based on the result. Since our rule based reasoning is implicit, it is not enough to revise our consciously held set of rules, we must embed them through experience based on consistently living the right rules, in other words, we need to develop a character which encodes the virtues we wish to live by. In short, everyone is right! Or to put it another way, deontological ethics, consequentialist ethics, and virtue ethics all get at some of the right ideas, and they all need to be extended to account for the fact that moral reasoning is a living process with feedback loops.

Another consequence of this line of reasoning is that ethical systems cannot be imposed on others, whether through force or logical reasoning. It is not until an ethical theory is internalized that it actively influences moral decision making. This is obviously true for affective moral reasoning. Because of our limited capacity, it is also true for cognitive moral reasoning although the level of internalization is not as deep.

(These are not new ideas, of course. Although I come at it from a different angle, this looks very similar to what I know of Pragmatic Ethics. At the heart of Pragmatic Ethics is the idea that our set of ethical rules is an approximation of the best ethical truth and that we should revise it based on the results of lived experience. I hope to revisit this connection more in the future.)

Originally published on Medium on May 2, 2018.

The goal of ethics feels obvious… until you try to define it. What are we trying to achieve with an ethical system? Good outcomes (consequentialist)? Good actions (deontological)? Good character (virtue ethics)? We can go a level deeper and say, for example, that utilititarianism is trying to achieve good outcomes for the greatest number of people. Yet these first answers are not satisfying. They are really no more than descriptions of what a particular framework is optimizing for.

So what are we really trying to get out of an ethical system? At their most fundamental, ethical systems exist to allow people to live together successfully. At its core, this requires balancing the needs of individuals and the needs of groups. Need, in this sense, includes not just the bare needs for living but also our needs for individual fulfillment and for community. It includes all of the things that culture and society help us to achieve.

There are two key concepts here: living successfully and living together. What do they mean? Let’s start with what it means to live successfully. Few people will live their best life if they are hungry or threatened with violence. Most people will, under those conditions, live a pretty miserable life. Yet saying that a successful life is one that fails to be miserable sets a disappointingly low bar. We could set the bar higher and say that an ethical system should aim to make everyone happy. That is standard. It acknowledges that there is more to life than merely not dying. Still, it has obvious failings. We cannot make people happy. Plus, phrased this way, it’s easy to conflate happiness with the pursuit of pleasure, with a selfish hedonism that, when pursued exclusively is as insubstantial as the fog.

Eudaimonia, human flourishing, the life well lived. This gets more at a sense of meaning and fulfillment. However, as commonly described in virtue ethics, it has a problem opposite to that of hedonism. It puts too much weight on elated properties such as wisdom and moral virtue. It puts too much emphasis on living an objectively “right” sort of life. Yet human experience shows there is not one right way of living. There is not even one a singular right way of living for a single person. Sometimes we flourish when we have an experience that illuminates our understanding. Sometimes we flourish when we drink that delish hot chocolate. Flourishing and meaning are so personal that no single impersonal definition of a successfully lived can fully capture what it means to live a good life.

Perhaps, we can capture the idea of individual variation by calling our goal subjective eudaimonia. By that I mean that we should acknowledge that well being is a personally relative state, while also acknowledging that it is more than mere hedonic pleasure. There is a deeper state of well being which we should all strive to achieve, but it is not any one person’s place to define how we can each achieve it — although we can learn much that can guide our own journey from the experience and wisdom of others. For me, this striving provides the heart of what it means to live successfully. Ethical system should not try to maximize any prescribed form of happiness. They should aim to maximize the ability of each person to strive for their own happiness. As the US Declaration of Independence holds, it is the pursuit of happiness is an inalienable right, not happiness itself.

The ability to pursue happiness is harder to measure than good outcomes, good actions, or good characters. This is not just because it is harder to measure potentials than actualities. It is also because the ability to strive for well being is inherently a system property. It involves doing the right thing, aiming for the best outcomes, and the pursuit of virtue, but it is not identical to any of those things. Successful striving requires setting conditions for people to play out their lives and then trusting them to pursue those ends for themselves.

That brings us to living together. Allowing each of us to strive for a life well lived may sound like a call for a world of individuals independently pursuing their own goals. If we could all pursue our goals in isolation, we wouldn’t need ethics. However, humans are relational. Our lives are lived in groups. Thus, the real problem of ethical system is allowing us to each strive for our own well being while not diminishing the ability of others to do the same. Read one way, this may sound like a call for libertarian style minimal intervention. However, it does not follow that the best system for allowing people to pursue their own good is the one that leaves people the most to their own devices.

A system that allows the pursuit of the good should be non-interventionist in that it cannot force a particular conception of the good upon others. However, it may require shaping the system to avoid affects that systematically reduce the ability of others to pursue their own happiness. Often system shaping rules impose a burden on some while overall making it easier for people to pursue their own happiness. It is unrealistic to say that there should never be any burden. Instead, we need to look at the burdens through the lens of its impact on their ability to strive for what is meaningful to them.

In the end, Henry Wadsworth Longfellow puts it better in “A Psalm of Life” (from which the title of this post is taken):

Tell me not, in mournful numbers,
 Life is but an empty dream!
For the soul is dead that slumbers,
 And things are not what they seem.

Life is real! Life is earnest!
 And the grave is not its goal;
Dust thou art, to dust returnest,
 Was not spoken of the soul.

Not enjoyment, and not sorrow,
 Is our destined end or way;
But to act, that each to-morrow
 Find us farther than to-day.

Art is long, and Time is fleeting,
 And our hearts, though stout and brave,
Still, like muffled drums, are beating
 Funeral marches to the grave.

In the world’s broad field of battle,
 In the bivouac of Life,
Be not like dumb, driven cattle!
 Be a hero in the strife!

Trust no Future, howe’er pleasant!
 Let the dead Past bury its dead!
Act, — act in the living Present!
 Heart within, and God o’erhead!

Lives of great men all remind us
 We can make our lives sublime,
And, departing, leave behind us
 Footprints on the sands of time;

Footprints, that perhaps another,
 Sailing o’er life’s solemn main,
A forlorn and shipwrecked brother,
 Seeing, shall take heart again.

Let us, then, be up and doing,
 With a heart for any fate;
Still achieving, still pursuing,
 Learn to labor and to wait.

Originally published on Medium on April 20, 2018.

I considered making this a part of my G+ post wishing peace upon Barbara Bush after her death, but it was not appropriate there.

Why do I think it is important to respectfully acknowledge the passing of those who do not generally share my political beliefs? There are two aspects. I believe that respect for each other as human beings means that we mourn each others’ losses, no matter our differences in life. We small beings do not have the capacity to mourn each and every death, but we do have the capacity to mourn each one that touches us, even in a small way.

The other is that I have respect for the office of the President and, by extension and given what we expect of their partners, for those partners. Thus, I think it is important to acknowledge the passing of those who have dedicated a portion of their life (and often a disproportionate amount of their well being) to my country.

That said, I will admit that the current president pushes my abilities on this front. I disagreed with Barbara Bush’s son (George W, of course) as much as I do with Trump. Probably more because Bush, unlike Trump, had coherent positions and beliefs. Yet I referred to him respectfully when discussing his policies. By the time I get down to written words, I mostly refer to Trump respectfully, but unlike with Bush, it is editing at the keyboard rather than an ability to separate a respect for the office from disagreement with the positions and policies of the one holding that office.

Is that just me responding to the hyperpolarized political climate we live in? Maybe. But despite our inability to assess our own motivations, if I were to offer my own explanation, it would be that it is hard to separate respect for the office from respect for the person when he himself makes mockery of his office and the structure of the US government, when there is a reasonable basis of suspicion of corruption of a type that undermines US democracy. Yet even given that, I still try to limit my criticism to substantial disagreements with Trump’s actual policies and actions rather than making the criticism personal (outside of this post 😉).

Our ability to see others as human, especially the people we disagree with, is what makes it possible for us to live together. Even when it is hard. Especially when it’s hard.

(There’s a separate question of why an atheist thinks “rest in peace” is an appropriate way to express respect after a death. In short, talking about death is hard and stock phrases are often the best we have. When talking to someone who survived the deceased, I use “My condolences” but that doesn’t work well for undirected expressions like this was.)

Originally published on Medium on March 23, 2018

We’re learning that gender is a lot more complicated than we use to think. Perhaps the most challenging thing to those of us raised to reject traditional gender stereotypes (and rightly so!): gender does matter.

First, and I wish this went without saying, the most important reason we need greater acceptance and awareness of transgender individuals and the challenges they face is to ensure that they receive the liberties and equal treatment we all deserve. That said, a greater awareness of transgender individuals also points a much needed spotlight at how little we know about gender.

First off, a caveat. I am not even a well informed amateur on the topic of what it means to be transgender. A few years ago, as issues of trans rights were gaining awareness, I probably would have said I was skeptical of a biological basis of gender identity. I still supported trans rights — who was I to judge how others lived — but I would likely have said it was a choice. My perspective has changed. Not, I will openly admit, because I have done research. Rather, my perspective is primarily informed by learning about the lived experiences of others. This includes experiences I have read about but, more importantly, it includes the experiences of my friends who are transgender. They have, through their lived example, shown me that there is something deeply inherent about their gender despite the fact that it does not match the sex they were born with. (And they are awesome people, like my friends generally are.)

So what I am not going to do today is try to explain how gender works. I do not know. And although they know more than me, academics and researchers in various fields that study gender do not know, activists do not know. What we do know, at this point, is that this is all much more complicated than has traditionally been assumed. Biological sex, gender, sexuality are highly correlated but not fully determinate of each other — and none of them are as simple as simple binaries would have us believe.

The lived experience of transgender people challenges the traditional view that gender, sex, and sexuality are all the same thing. Like homosexuality did for sexuality, transgender people show us that gender and biological sex are separable. Furthermore, since these are not co-determined, the visions of gender that we are socialized to believe are not nearly flexible enough to describe reality.

If you run in more progressive circles, all of that is taken as a given. The challenge to the liberal view raised by transgender people is that gender does mean something. It is not merely a social construct. Gender is not a fluid idea that we can buy into or not. The specifics of how gender is expressed is a social construct. When individuals feel that they have a gender, however, they are not just falling prey to the stereotypes of society. They are expressing something that is deeply a part of what they are.

The previous paragraph should not be taken to mean that gender is a binary. Another thing transgender people are teaching us is that gender is much more complicated than male and female. Rather, the lesson is that nonbinary gender is not the same as our being neutral slates that society writes upon. This is something that progressives are still struggling with. For example, an occasional topic in parenting newsletters is gender neutral parenting. At its heart, this is the laudable idea that we should avoid gender stereotypes when raising children. However, sometimes it is presented as a way to try to neutralize the concept of gender expression, especially in children’s appearance and play. These same articles often discuss how such a parenting style can help children discover their true gender identity. Yet if gender is a fundamental part of us, then learning how it is expressed is an important part of our development (even if that expression is largely an arbitrary cultural artifact).

We cannot just blow away the concept of gender and attain a world where everyone is equal. Instead, we have to learn how to create a world where gender can meaningful but where it is not used as a proxy for ability or opportunity. This is a much harder problem. One where I feel, we have much to learn from our fellow humans who have been forced to figure out what this all means because the default settings were not the right ones for them.

(Note: “!=” is programmer speak for “not equal”.)

Originally published on Medium on March 19, 2018.

In my last essay, I noted that utility is a useful tool to have in our mental toolboxes when formalizing ethical rules. One assumption implicit in that essay what that we do, in fact, need to systematize rules. It is worth taking some time to explore that such a need is, in fact, non-obvious.

Rules do not normally motivate us to act. Humans do not look at the rules, weigh the cost and benefits of compliance or defiance, and decide what to do. Despite the popularity of homo economicus, humans are motivated by more than maximizing self-interest. We are influenced by our social context. As Mark Granovetter writes in his book Society and Economy: Framework and Principles:

Actors do not behave or decide as atoms outside a social context, nor do they adhere slavishly to a script written for them by the particular intersection of sociocultural categories they happen to occupy. Their attempts at purposive actions are instead embedded in concrete, ongoing systems of social relations. … In ongoing relations, human beings do not start fresh each day but carry the baggage of previous interactions into each new one.

We are influenced by other people, culture, politics, religion, and all the other institutions we interact with. These influences add up to a set of norms and values where, most of the time, we do what feels right, not what some analysis tells us is right.

The norms and values of groups are intimately intertwined with those of individuals. Individuals interact with each other. Repeated interactions in sufficiently dense networks give rise to norms about behavior. Morals, those norms that separate right from wrong, give rise to broader values about what defines the good in life and in society. Yet because people are embedded in social context, societal ethics is not merely the sum of the individual morals. Individual morals are shaped by the broader societal ethics and are enforced (usually informally) by the members of the networks we are embedded in.

Most of the time, this is good enough. Nearly all of the actions we take each day are influenced by informal norms, not by consciously deciding a course of action based on rules. When we do make decisions consciously, they feel wrong unless we align them with our internalized norms. When necessary, people will find ways to do this…often by finding a way to justify our own behavior as a special exception.

The organic emergence of norm and values does not work as well when we are designing systems which will influence the behavior of others. These systems of influence can be command oriented, such as the law. Such explicit rules are not the only, or best, way to influence behavior. In many cases, it works better to structure the choices people make. In their book, Nudge, Richard Thaler and Cass Sunstein call ways of influencing behavior not based on explicit rules choice architectures. The important thing to realize about influencing the behavior of others is that there is no neutral choice. It may not seem like it should, yet the way items are shelved at the grocery store influences behavior. It is also worth noting that we cannot get away from systems which influence our behavior. They include more than government programs and policies. Anytime someone makes a decision that influences the choices of others, they are a choice architect, although not necessarily an effective one.

Designed systems have an interesting relationship with norms and values. Sometimes they merely formalize existing values. Laws against murder formalize commonly held values against murder and set expectations about how violations of those values will be punished. Other designed systems create new norms, although not always intentionally. It use to be normal to only text someone after asking their permission. As more people switched to plans where they did not pay per text, the norm changed and now texting is something we assume we can do. Designed systems are least successful when they try to impose behaviors that conflict with existing norms. Homeless shelter policies often break up families because facilities often take women and children or men. As a result, homeless families may refuse services because the system design conflicts with the value they put on their family.

What these brief examples tell us is that we need to be aware of how behavioral systems interact with norms. Awareness is what is required, not honoring the norms. Sometimes the goal is to change norms, such as programs to reduce drug use and violence in urban youth. Even when change is the goal, programs and policies will only be effective if existing norms are understood. To change norms we must understand norms.

Another interesting connection between organic values and designed systems is that organically arising values do not aim to improve an explicit goal. Systems designed to influence behavior do (at least, they should). This includes the direct goal for the system (e.g., helping homeless families), but it also needs to include our broader sense of how the system influences the greater good. This good, however, is not some externally imposed system of values. It is derived from the organic norms and values that inform the target audience.

Utility still matters. An effective choice architect will explicitly think about how their system increases or decreases it. The relationship is more complicated than a straight forward application of utility to decide what rules to create or what actions to take. Without taking our norms and values into account, utility directed decisions will ring false, leading in the worse case to situations where making the “right” choice pits us against what we hold most dear. Instead, utility is better thought of as a way of comparing options when creating behavioral systems.

At this point, I have spent two essays not actually saying what I think utility is. Don’t panic, that‘s next! (Or, at least, next in this informal series. I reserve the right to get distracted.)

(Today’s title is inspired by an excellent example of social context influencing individual behavior, Bonnie Raitt’s Something To Talk About.)

Originally published on Medium on March 14, 2018.

I sum up my feelings about utilitarianism this way: utilitarianism is good ethics but bad morals.

First off, I need to clarify that the difference between morality and ethics is vague and inconsistent. This is one of those times where I’m artificially pushing two terms apart to make them easier to think about. For the most part, I use the terms interchangeably. The distinction I will focus on here is that “ethics is about society but morality is about you”[1].

If consequences could actually be predicted and values assigned, the idea of maximizing aggregate utility makes pretty good sense. When looking at things from a societal level, it often makes sense to analyze the consequences of the system in utilitarian terms. In this sense, utilitarianism is a good ethical theory. Under the surface, most ethical systems are either utilitarian or oracular. That is, they are either looking to increase some good or they come from some oracular source (usually the divine or evolution, both of which are problematic oracles, although for very different reasons). I do not mean to claim that everything is Utilitarianism-with-a-capital-U. Rather, that when we push hard on the “why?” of an ethical system, we can generally say that the reason is to enhance well being. Pinning down what that means is a much harder thing. So for the moment let’s leave aside exactly what utility is.

Since predicting effects and assigning values is not possible in practice — complex systems are inherently chaotic and unpredictable — it is not feasible to apply utilitarian thinking to individual moral choices. Acts have second, third, Nth order consequences that we cannot predict. Even worse, humans have consistent biases which make us bad at predicting consequences, and our assignment of utility tends to follow our biases about our friends and foes. In other words, we think we are better than we are, others are worse than they are, and acts that hurt those we like less damaging than acts that hurt those we dislike. I tend to be rather hard on variants of act utilitarianism for this reason. Maybe if we were perfectly fair oracles, we could make correct decisions based on utility. Sadly, we are not. This imperfection is also why I tend to categorically reject ends justifies means thinking, which has the same predictability failings as act utilitarianism while also ignoring the side effects that achieving a particular end may have.

We tend to do better with rule based systems where the rules are those that cause the right things to happen most of the time. We can justify these rules using utilitarian reasoning (e.g. rule utilitarianism variants). We can justify them on the basis of what makes a person good (e.g. virtue ethics). We can make the rules a matter of personal duty (à la Kant). There are as many ways of thinking about these rules as there are systems of ethics. The superiority of these systems over act utilitarianism is that they simplify decision making. Just follow the rules.

That seems to leave little room for utility in day-to-day decision making. Maybe the deep thinkers who try to understand what rules should be will spend time thinking about trade-offs in human flourishing. For the rest of us, we will just keep on doing as we are told.

Like that? I didn’t think so.

The problem with this view is that we do not want to have our personal moral rules handed to us by distant ethical thinkers. We may take some system, whether it be secular or religious, as a starting point, but when that system does not make sense to us, we should question it and tweak it to be meaningful for us. This is where utility becomes important again. If we are going to be creators of our own moral systems, and if we are going to work with others to try to influence the ethical systems of the society we live in, we need to be able to get down to the root of why one rule is better than another.

We also need to understand how to think in terms of utility because rule systems are never complete. They will never cover every situation. “Don’t lie” is a good rule in groups that need a general level of trust to function effectively. It is not useful when a lie can save your life. We need to understand that rules come with (usually implicit) contexts that define when they apply. In situations where that context does not apply, we will essentially be relying on act utilitarian style analysis to make a decision in the moment. We can then use that new experience to modify the old rules.

And that, at length, is why I think that utilitarianism is a valuable tool to have in our ethical toolkit even though it does not provide a useful guide to individual moral choices.

[1] Christopher Panza, PhD & Adam Potthast, PhD, Ethics For Dummies (Wiley Publishing, Inc., 2010), 10

Free as in speech or free as in…$5, please

Originally published on Medium on March 9, 2018.

Is it ever okay to refuse service to another person because doing so would violate your deeply held beliefs? There is certainly some point at which it is okay to refuse. It seems hard to argue that a person should be forced to participate in a ceremony that violates their beliefs.

Maybe that is the relevant distinction: a person cannot be physically forced to participate, but they cannot control how someone uses a thing they created. This seems intuitive. A seller should not be able to refuse selling an item because they disagree with how it should be used (nor do they have any right to know how it will be used). Yet this distinction does not feel quite right. If a buyer asks for a poem to be read at a ceremony, then the poet is, in a sense, being forced to participate in the ceremony. The words are not coming out of the poet’s mouth, but they are their words created for this ceremony. Maybe the distinction then, is based on how expressive the creation is. This gives a broad basis for a right of refusal. In the United States, what constitutes an act of protected speech has been interpreted broadly. A poem certainly counts as speech, but so do aspects of appearance, other creative acts, and more.

Yet relying on whether or not a particular creation should count as protected speech gets messy fast. A baker may have put a lot of thought and meaning and skill and effort into creating a cake that they sell straight off the shelf without any modification. Yet once created, it does not seem as if the baker can restrict who it can be sold to. Anyone can just waltz in and take it home. Conversely, if someone asks a baker to stick a cake topper on a Twinkie, that at least arguably seems like expressive speech despite the lack of creative value.

The obvious difference between these two examples is the timing. In the first case, the expressive labor was performed without any knowledge of how it would be used. In the second case, that knowledge was there. However, it seems wrong to say that timing alone is enough to turn a creative act from non-protected speech to protected speech. If that were the case, a creator could create a right of refusal merely by switching to just-in-time production. Whether or not free speech concerns pertain to a sale could vary based on whether or not the creator has recently run out of stock. These consequences seem ridiculous.

(As an aside, I feel like my daughter during storytelling. To stretch out bedtime, whenever I set up a solution to the problem set up in the plot, she interjects, “But that didn’t work!”)

It seems to me that what matters is whether or not the usage could be considered expressive and that expression seen as forced participation in something they may disapprove of.

To just briefly touch on the first requirement, I think that a use is likely to be expressive if (1) the creation itself is seen as the expression of the creator(s), not a company and(2) the use is an expression of the person who received the item or service. In other words, an expressive item put to a non-expressive use (a custom knife used to cut bread) or a non-expressive item put to an expressive use (a mass produced candle used in a wedding candle lighting ceremony) is not problematic. In particular, what matters is how the service or item will be used, not who will be using it. Sometimes the how and the who are hard to separate — most people by now will probably have figured out that lawsuits involving wedding services for gay couples inspired this train of thought — but it is important to note that, at least in theory, the two are different. Determining when (1) and (2) are met is non-trivial, but I will take as a given that they are fulfilled in the discussion bellow.

My focus, for the rest of this essay, is trying to determine when an expressive usage of an expressive item can be seen as forced participation. (Note that I talk mostly about items because services are often more clearly participation. However, the ideas below apply just as much to services as as items.)

There are two principles I want to preserve: items available for general sale should not come with a right of refusal, and a seller should not be able to create a right of refusal merely by shifting the time of creation. As the examples above illustrate, preserving these properties means that neither creation time nor the amount of work that went into the creation can be what matters. I propose that what matters is that the final form of an item was fundamentally created for a particular use — not because of timing but because the buyer’s requirements for the use helped determine the final form of the item ordered.

Let’s note how this distinction might make various people unhappy. Those who have an interest in preventing discrimination will likely be unhappy that this means that even small customizations can be refused — putting the cake topper on the Twinkie to go back to an earlier example. Those who have an interest in protecting people from participating in ceremonies they disapprove of will likely be unhappy that this could mean that a dressmaker or baker cannot refuse to sell to a couple if they were merely fulfilling an order from a fixed menu of choices.

Taking an item’s having been fundamentally created for a particular use as the relevant factor, how can we practically distinguish the cases where there is a right of refusal from ones where there are not? It is not based on time of creation. It is not based on what sort of thing is being created. It is not based on amount of effort or skill or creativity.

My proposal is that what matters is the form the order takes. Define a transactional sale as a sale where the item or service ordered is chosen from a fixed menu and the seller is expected to fulfill that order exactly as specified with no further input from the buyer. Note that this can include customized items if the customization menu is predefined. Define a commissional sale as a sale where the final form of the item or service purchased depends on a conversation between the buyer and the seller. Note that this conversation need not actually happen (the buyer could be happy with the default). All that matters is that the buyer had an opportunity to influence the final form of the item or service ordered that goes beyond choosing from a fixed menu. There is no right of refusal for transactional sales. There is a right of refusal for commissional sales (that also fulfill the other criteria mentioned above).

This definition is far from perfect, from anyone’s point of view. Some sales may fall into a grey area between these. In fact, I think that defining what really counts as a commission or not is a significant problem in its own right (should the cake topper on the Twinkie count?). At least this gives us a semantically meaningful way to classify different cases. This definition still allows situations that are less than desirable. For example, it can be hacked. Having a fixed menu of color choices would result in a transactional sale in this model. Offering the same set of color choices indirectly via a statement, “Other choices available upon request” would be commissional. On the other side of the debate, this definition allows someone to transactionally buy an item whose creator is readily identifiable and use it in a ceremony the creator would refuse to participate in. The buyer can even make it a core part of their ceremony to identify the creator, if they so desire. (This might seem unrealistic. If the item in question is, say, a dress, “I’m wearing a Minnie Mouse creation” strikes us as rather too shallow for a meaningful ceremony. A small modification, such as naming the author of a passage read in the ceremony, makes it more realistic.)

Still, this gets rid of the impact of arbitrary differences in timing. It does not require judgment of where the threshold of expressive vs non-expressive creation lies (although I suspect that there is a correlation and expressive creation is more likely to be offered commissionally than non-expressive creation).

Compared to the ideas tried at the start, this division more directly captures the intuition that it is forced participation that makes it reasonable to sometimes allow a right of refusal in a commercial context. A commissional order, an order that was created through a conversation, is a type of participation in an activity the seller finds morally abhorrent. In a transactional order, the item may be used in a way the seller would object to, but they themselves never were made to participate.

Plus, an idea that makes everyone a little unhappy is more likely to be right than one that makes everyone happy, right? (I kid!)

(Note: The title is an allusion to the common open source distinction between free as in speech or free as in beer. And, because you need random children’s show trivia, wearing a Minnie Mouse creation comes from the episode of Minnie’s Bow-Toons where Penelope Poodle visits Minnie’s Bowtique.)

Credit where credit is due: The core of these ideas were developed in a discussion hosted by Christof Harper on Google+. This in no way implies that he endorses these ideas. The views contained are solely my own.

Originally written and shared on Facebook in October 2016.

I was — and am still — uncertain about sharing this.

Today I picked up baby Flora’s remains. 23 days ago I had an abortion at 22 weeks. 37 days ago, I learned my baby had almost no brain.

For two weeks, I weighed the balance between the life of my much wanted and much loved little girl against the suffering that life would bring.

What it would really be like to have a child that may never be self aware? Would my child, as an adult, be neglected and abused when I was no longer there to protect her? Would she experience sexual abuse because a child’s mind in a woman’s body is an easy target? Would I be able to live through a pregnancy constantly wondering if my beloved baby would die?

I wished against my deepest desires that my sweet darling would die soon to take the choice away from me. I hoped one of the doctors would utter the phrase “incompatible with life” to get rid of the uncertainties.

My husband and I thought through many scenarios and the impact that this baby, if she even lived, would have on our first daughter, on our marriage, on him, on our financial stability, and least of all, on myself. We had only unknown probabilities and most likely scenarios based on sparse and imprecise data. I do not even have the comfort of knowing that my baby’s life, if she had survived to birth, would have certainly brought mostly hardship and pain; I can only say that such an outcome was most likely.

Until you’ve thought through these types of scenarios, not in the abstract but as a choice you have to make — and make quickly — you probably won’t understand how heartbreaking it is. Every angle I took on the problem — emotional or rational, focused on the baby or on our family — led to the same conclusion: the most loving and compassionate thing we could do is let her go.

Some might yell at me for using a euphemism, “let her go”. They might tell me to say what I mean — terminate my baby, abort my baby, kill my baby, murder my baby. These terms hurt. They hurt not because I feel guilt but because I hated having to make this choice at all. But as much as it hurts, none of the guilt you throw at me hurts as much as the pain of choosing for my baby to die.

Late term abortion is a terrible thing, and it is most terrible to the parents who have to make these heartbreaking choices. We have to make the terrible decision about where to draw the line between life and death. We won’t all draw the line in the same place, but it’s better to have parents draw this line, parents who for the most part will try to draw the line as much in favor of life as they possibly can, than to have it be drawn by politicians and bureaucrats based on what will win the most votes.