Scott HERSHOVITZ: So you think God is real?
Hank HERSHOVITZ: I sometimes believe in God. I sometimes don’t.
HERSHOVITZ: What situations make you believe in God?
Hank HERSHOVITZ: I don’t know. Like when the wind is crazy.
Every kid is a philosopher — until they grow up. That, at least, is what this man believes.
HERSHOVITZ: My name is Scott Hershovitz, and I’m a philosopher of law. I teach both law and philosophy at the University of Michigan.
Hershovitz got his doctorate in the philosophy of law from Oxford and then a law degree from Yale, after which he clerked for Ruth Bader Ginsburg on the Supreme Court. He has now written his first book; it’s called Nasty, Brutish, and Short: Adventures in Philosophy With My Kids. His kids are Hank, whom we heard Hershovitz speaking with a moment ago, and Rex.
HERSHOVITZ: Rex is 12 years old, and Hank is 9 years old.
Stephen DUBNER: And we should say, your wife Julie is a social worker. You are a philosopher and a law professor. Who do you think is doing more good in the world?
HERSHOVITZ: Oh, there’s no question that she is doing more good in the world. I have long hoped that when you get married, your karma merges so that I can get some of the benefit of all the ways in which she helps people.
Today on the show, the latest installment of the Freakonomics Radio Book Club. Warning: we cover a lot of ground. We discuss revenge and retribution — and what’s wrong with America’s employment system; we talk Will Smith, Taylor Swift, and what it means to literally spit in the face of justice. Most of all, Scott Hershovitz tries to persuade us not only that kids are natural philosophers, but that grown-ups can be too.
HERSHOVITZ: You might think, why worry that the world may not be what it seems when there’s laundry to do? And I just want to invite people to flip that around and ask themselves, why do the laundry if the world may not be what it seems?
So get comfortable. It’s time to philosophize.
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DUBNER: Here’s an easy question. What’s philosophy?
HERSHOVITZ: That is not an easy question. In fact, it was a question that my father asked when I first came home and said I wanted to study philosophy. And I had no idea how to answer the question. And I was stymied actually for years. And then Rex actually helped. So Rex was in second grade, and on the very first day, the teacher was memorializing what everyone wanted to be when they grew up, and she sent home a list. There were, like, doctors and firefighters and teachers. And then one of the things on the list was a math philosopher. And I knew this was my kid. I said to him, “Ms. Kind says you want to be a philosopher of math? What’s philosophy?” And just instantly, he says, to me, “Philosophy is the art of thinking.” And I think that’s a phenomenal answer. Philosophy is the art of thinking. So here’s what I think marks out a philosophical question: It’s a question that requires you to think in an effort to understand the world better.
DUBNER: You cite David Hills from Stanford saying that philosophy is, “The ungainly attempt to tackle questions that come naturally to children using methods that come naturally to lawyers.” So you are particularly well-suited to this, plainly.
HERSHOVITZ: Yeah, I think that’s just a wonderful description of professional philosophy, that here are these questions — Am I dreaming my entire life? Or: Does God exist? Or: Do I see red the same way you see red? — that occur very commonly to children. And then professional philosophers come in. They think about these questions very precisely and mount arguments, sometimes in very formal ways that look a lot like a legal brief. But as I’m keen to say in the book, I don’t think philosophy has to be the sort of thing that professional philosophers do. I think kids are having philosophical conversations. I think people in ordinary life, even grown-ups, are having philosophical conversations all the time and don’t see themselves as engaged in philosophy. And I think it’s fine that they don’t see themselves, but they are. And I wrote the book in part to call people’s attention to that.
Even if we do sometimes engage with philosophy in our ordinary lives, it has plainly lost some of its standing in society. If you go back to just 1970, nearly one of every 100 bachelor’s degrees was awarded in philosophy and religious studies; today, it’s barely half of that. Philosophers and philosophy used to figure prominently in statecraft and government — including in ancient Greece, of course, but in the formation of the United States, too. Our founders engaged deeply with the work of John Locke and Jean-Jacques Rousseau and others; today, philosophy is pretty much absent from our political and policy conversations. Hershovitz thinks that’s a shortcoming.
HERSHOVITZ: We can do philosophy about anything. One kind of question we can ask philosophically is: do we think the relationships we have with the institutions that we work for, the institutions that we purchase from — do we think that these are morally acceptable arrangements? And we can see maybe that they’re not. And so philosophy might help you imagine alternative possibilities. Is there a way to design them in ways that remove the features that are disturbing?
Hershovitz’s concern is a high-minded one; but he understands that high-mindedness doesn’t necessarily make people pay attention. Instead, he’s trying to make philosophy accessible to all. Here’s an example — an excerpt from Nasty, Brutish, and Short:
EXCERPT: Why are some words bad? The idea that they could be bothered me as a kid. Words are strings of sounds. How could sounds be bad? But of course: words aren’t just strings of sound. They are strings of sound to which we attach meaning. And yet it’s not the meaning of words that makes them bad either. Just consider this list: poop, crap, manure, dung, feces, stool. It’s all the same s**t. And yet, it’s only “s**t” we shouldn’t say. Why is that? F**k if I know.
DUBNER: So you actively teach classes in both philosophy and law, is that correct?
HERSHOVITZ: I teach predominantly in the law school. Some of my classes are cross-listed, and I’ll invite philosophy graduate students to come over and take them. I sometimes say I found a loophole in life. I get to be a philosopher, but I get to teach in a law school, which has the upsides of getting paid like a lawyer and having a law professor’s teaching load, which tends to be a little bit lighter than a philosopher’s teaching load.
DUBNER: How would you describe the philosophy you teach in your law classes versus the philosophy you would teach if you were a dedicated philosophy professor?
HERSHOVITZ: So I’m interested in the context of law. A question might be like what does it mean for one person to be responsible for an injury that happens to someone else? That’s a question that tort lawyers ask, and it raises really interesting philosophical questions, like when do you have duties to other people to protect them against injury? What does it mean to be the cause of someone else’s injury? There’s a weekly lunch here at Michigan called the Ethics Lunch that a lot of the philosophers who are interested in ethical questions attend. There’ll be some issue under discussion and my philosophy colleagues will be trying to make up a hypothetical that would illustrate the issues. And I get to say, “Oh, wait a minute, we don’t need to make a story up. There’s this actual legal case where these people had this kind of conflict, and here’s what the court decided.”
DUBNER: Can you give a quick example of a case or a story or settlement that might prove really useful in that situation?
HERSHOVITZ: The very first case that I teach in my torts class is a case called Alcorn v. Mitchell. This guy, William Alcorn, sues this guy, Andy Mitchell, for trespass. And Alcorn is a very wealthy guy, and Mitchell is not such a wealthy guy. And Alcorn loses. At the end of the trial in the courtroom in front of everybody, he walks up to Mitchell, and he spits in his face. And it’s not just any spit. As Mitchell’s complaint in a later lawsuit describes, it’s whiskey and various other noisome, filthy, disgusting drugs that have been mixed by him in his mouth. I assume it’s like whiskey and tobacco and saliva.
DUBNER: Can I just say, I hope this is not 20th or 21st century?
HERSHOVITZ: No, this is 1872. But Andy Mitchell sues Alcorn for battery at the end of the first trial, and he wins a judgment for $1,000, which in 1872 is quite a lot of money. The court in Illinois approves the award, and they say that the act in question was purely malignant. It was highly provocative of retaliation by force. And the law, so far as it may, should afford liberal damages so that the necessity of resort to private violence can be avoided. So like, what was the picture that was operative in 1872 where the court thought, “Well, if we don’t award significant damages in a case like this, then it’s going to be not just attractive to Mitchell to respond violently, but necessary for him to do it?” The answer is that Mitchell’s social standing was really called into question by what Alcorn had done. And he needed some way to stand up for himself to say, “Hey, I’m not the kind of person that you can spit on.” So the court saw itself as having this really important role to play of standing up on behalf of Mitchell, who’d been spit on. Just to take us back to your original question, there’s a lot of philosophy about revenge, and some of the most seminal work treats it as a kind of irrational impulse. I think one benefit you get from reading these cases and thinking about the people involved is it brings the stories to life and helps you think in a deeper way about just what might have been driving their behavior and their views.
DUBNER: The second chapter of your book is titled “Revenge.” You argue in praise of resentment as well as anger as much better alternatives to revenge-seeking, I guess because it can get messy fast, right? Is that essentially why we should seek to not seek revenge?
HERSHOVITZ: Well, say you spit on me. That’s a way of communicating that you think you’re higher-status than me. There’s this tradition that dates back hundreds of years to this Christian thinker named Bishop Butler, who says resentment is a matter of self-respect. I’m protesting your treatment. I’m saying, “That was wrong and I’m angry about it.” You don’t want to be acquiescing in your own mistreatment. So even just having the emotion of resentment is self-protective in an important way. Revenge also does that. But as you say, it’s not just messy, it’s dangerous. It can get out of control fast. And that’s why I think legal institutions like tort law, like criminal law, or informal social practices are ways of taking the side of the victim in an interaction, vindicating their social status, saying, “Hey, we agree it’s not okay to treat this person that way.” And the hope is that removes the impetus they have to take revenge.
DUBNER: So what did you think as a legal professor and as a philosopher of the judgment passed — or some would argue, lack of judgment passed — in the Will Smith slapping at the Oscars?
HERSHOVITZ: I was disappointed that they didn’t remove him. I think that it was bad for our culture that he was seen to have slapped Chris Rock and nevertheless stayed in the room and accepted his award and was the recipient of applause. I think that we absolutely want to live in a world where people don’t think that it’s acceptable or something that you can get away with simply because you’re high-status to physically assault someone else. So I would have liked to see him removed from the event.
DUBNER: But then once the moment has passed and he wasn’t removed and he was allowed to accept the award and address the global public on television, what would the next step be if you feel there should have been, let’s call it, punishment or removal in the moment? Decisions aren’t always made that you think are perfect in the moment, especially when there’s all kinds of emotion and scrutiny and so on. I think we can all understand why it was so confounding to people. What would you propose be done in the aftermath?
HERSHOVITZ: So that’s a hard question, too. There’s two different institutions, I think, that have to decide how to respond. So the Academy decided how it would respond. They accepted his resignation and then barred him from attending the Oscars for 10 years. And I think you are not welcome back at this place for an extended period of time strikes me as an appropriate sort of consequence.
DUBNER: If we backed up and said, “I think the appropriate penalty, right now, is three hours, a long time-out, and someone from your family or your management team is going to have to accept the award in your stead.” Had that happened, do you think the road to redemption or whatever it’s the road to next would have been ultimately a better road for everyone?
HERSHOVITZ: I think you want to distinguish two questions. There’s the question of what do you need to do to stand up for the victim and reassert community norms? That’s largely a function of how institutions like the Academy and the police respond to what Will Smith did. There’s another kind of question, which is: What will our attitudes towards Will Smith be? And I think that depends on something like, does Will Smith apologize? I wrote an op-ed years ago about an earlier event at an awards show, where Kanye West interrupted Taylor Swift’s acceptance speech.
Let me interrupt here to say that Kanye West didn’t just interrupt Taylor Swift.
Kanye WEST: Yo, Taylor — I’m really happy for you, I’mma let you finish.
At the 2009 M.T.V. Video Music Awards, Swift had just won for Best Video by a Female Artist. West, sitting in the front row of the auditorium, jumped up on stage, took the mic from Swift, and basically said that Beyonce should have won the award instead, for her “Single Ladies” video.
WEST: Beyonce had one of the best videos of all time. One of the best videos of all time!
So Hershovitz wrote an op-ed.
HERSHOVITZ: The essay was called “Taylor Swift, Philosopher of Forgiveness.”
His essay picked up on something Swift had said in a T.V. interview.
HERSHOVITZ: She said, look, people in our culture are always saying that you need to forgive and forget to move on. And that’s not her view. She said that sometimes you just become indifferent, and you move on. That you don’t forgive someone if your relationship has always been toxic and it’s only going to be toxic to forgive someone. There’s lots of literature in philosophy that suggests forgiveness is merited when somebody disassociates themselves from the demeaning messages that their behavior sent. So if Kanye apologized in a way that was sincere and disassociated himself from the disrespectful thing that he’d done, then I think Taylor Swift would be in a position to forgive him. And similarly, Will Smith did apologize the next day. And I read the apology as being sincere. And then sort of taking it upon himself to resign from the Academy, maybe that was further demonstration of sincerity.
DUBNER: You sound like you take Will Smith’s apology at let’s call it face value, I think you used the word “sincere.” So, I don’t just because people always apologize when they got caught for doing the thing. They may regret having done the thing because it got them in trouble. But I think that’s different than apologizing for the actual act or regretting the act fully. I think you regret that you were busted for it. And then on the Taylor Swift, the way I read it was that she wasn’t indifferent, which is the word you used. She was like, “No, screw him. He did a thing that was hostile and nasty, and I have my life. Why do I need to forgive him to get on with my life?” So, it wasn’t so much about — even if he had apologized, I liked her attitude more because it was kind of a locus-of-control attitude, which is, “I’m going to do my life, and you idiots out there, you jerks out there, whatever, you can try to invade my life. And I welcome you if you’re going to behave well, but if you’re going to behave poorly, then that’s not my problem. That’s your problem.”
HERSHOVITZ: So when people in our society are pushing the need to forgive, they’re often saying, “Hey, look, it’s bad for you to resent. It eats you from the inside. It takes control of your life.” She was saying, ‘I’m going to shake it off.’ Which is not changing my attitudes towards him. It’s just leaving it behind me. So I think that you’re basically right about that. So was Will Smith’s apology genuine? I think that it’s a really hard question to answer. There are reasons for skepticism, right? The very first thing he said in the aftermath when he accepted the award was not at all apologetic. It was only afterwards, and one imagines that lots of publicists had intervened by that point.
DUBNER: And maybe a lawyer or two, no offense.
HERSHOVITZ: That’s right. Sure. That’s actually like a kind of writ-large version of a problem that you have with all apologies. It’s especially acute when you’re the parent of multiple children, and one child has done something bad and you’ve demanded that he apologize to the other child. My colleague Bill Miller has a parenting view about this in his book Faking It. There’s a chapter on apologies, and he says, look, there’s a million ways to fake an apology. When you’ve demanded one child apologize to the other, you’re going to get an insincere apology. And Bill thinks, here’s what has to happen. You’ve got to demand a second apology. Now, the second apology is going to be as insincere as the first apology. But Bill says you have to stop. You have to declare the second apology good enough because if you keep going until you get the thing that’s sincere, you’re never going to get it and you lose this interaction. You declare the second apology good enough, and you recognize that it serves a purpose. Even if it wasn’t sincere, in Bill’s view, it kind of brought the wrongdoer low by being made to apologize, not just once but twice. And that’s the real compensation to the other kid.
In his book, Hershovitz tells another story about Taylor Swift, this one meant to demonstrate how the legal system can help reset social norms.
EXCERPT: When I pitch this point to my students, I tell them about Taylor Swift. In 2013, a radio host named David Mueller grabbed her butt as they posed for a picture. She complained about it, and he lost his job. He sued her for defamation, saying he’d never groped her. Swift counterclaimed for battery. She asked for a single dollar in damages, and she won. What was the point? Swift didn’t need another dollar. But money wasn’t what her suit was about. Swift sued to make clear that her body was not public property, available to any man who wanted to touch it. In other words, she asked the court to reject the message Mueller’s groping sent. The verdict told Mueller — and every man listening — that no one had a right to Swift’s body but her. And because the court applied general principles of battery law, it sent a message about everybody’s butt: Hands off.
And thus concludes the portion of our program today dedicated to Taylor Swift grievances. Coming up: how to exact revenge if someone murders your loved one. This is Freakonomics Radio. I’m Stephen Dubner. We’ll be right back.
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The title of Scott Hershovitz’s new book — Nasty, Brutish, and Short — may be familiar to you. It is part of a famous phrase written by the 17th-century philosopher Thomas Hobbes, in his book Leviathan. Here’s an excerpt from Hershovitz’s book, explaining why he chose the title.
EXCERPT: Hobbes was curious what life would be like without any government at all — a condition philosophers call the state of nature. He thought it would be awful. Indeed, he thought it would involve a “war of every man against every man.” In the state of nature, Hobbes said, life would be “solitary, poor, nasty, brutish, and short.” I don’t know about the state of nature. But a “war of every man against every man” is an apt description of what a house with little kids is like. We are lucky. Our lives aren’t solitary or poor. But our kids are nasty, brutish, and short. They are also cute and kind. But all kids are, at times, nasty and brutish. The kids are willing to accept the characterization, at least in part. “Are you nasty and brutish?” I asked Hank. “I can be nasty,” he said, “but I’m not British.”
DUBNER: In a chapter called “Punishment,” you argue that the U.S. imprisons too many people and perhaps even worse, that prison conditions are often really poor, sometimes subhuman. My Freakonomics friend and co- author, Steve Levitt, wrote a paper years and years ago trying to understand what drove crime up and down in the U.S., roughly from the ‘60s, when it began to really rise until, let’s say, the early ‘90s when it began to really fall. And even though he’s famous for positing the legalization of abortion is one driver, there were actually many factors that he wrote about. One of them was poor prison and jail conditions, the idea being that when the conditions were really terrible and someone was sent to one of them, they really didn’t want to go back. Now that sounds like a very brute-force argument in favor of subhuman prison conditions. But I did just want to offer that as one small empirical argument about the efficacy of miserable prisons. So, tell me your bigger thinking on that.
HERSHOVITZ: One thing that happens in the punishment chapter is I want to use punishment of kids as a kind of springboard to thinking about punishment more generally and punishment of adults. I could put my kids in really harsh conditions. And that would be a strong disincentive to their future misbehavior. So if I had one kid like, push the other down? I could say, “You’re not just going to your room, but I’m stripping the walls bare and I’m feeding you like a piece of toast a day.” I’m sure that the harsh treatment of children could be instrumentally effective, at least in the short term. I do think there’s some kind of worry that when you treat people really poorly, maybe you’re changing their psychology such that you can expect poor treatment in return is a kind of long-run worry I’d have. But it’s not actually that worry that keeps me from treating my kids harshly. It’s that I love them. And that I respect them, and that I think it’s important to respect them as people, even when they’ve behaved badly. And when we treat prisoners really poorly, when we treat them disrespectfully, we’re in an important way disrespecting ourselves and disrespecting our own humanity because we’re treating it as something that’s easily lost. So I think it’s important, even if we could achieve something that achieved better deterrence and diminished bad behavior, I wouldn’t be willing to do it at the price of treating human beings like animals.
DUBNER: So let me come back to you, Scott, with the most cliched question there is. Imagine, God forbid, that someone brutally kills your whole family. How do you think about revenge or punishment in that case?
HERSHOVITZ: It’s so interesting that you’re asking this question. You call it cliched because this was the question that was put to Michael Dukakis when he was running for president and was opposed to the death penalty.
MODERATOR: Governor, if Kitty Dukakis were raped and murdered, would you favor an irrevocable death penalty for the killer?
HERSHOVITZ: And he answered very flatly, without much emotional affect at all, that he was opposed to the death penalty.
Michael DUKAKIS: No, I don’t Bernard. And I think you know that I’ve opposed the death penalty during all of my life. I don’t see any evidence that it’s a deterrent, and I think there are better and more effective ways to deal with violent crime.
HERSHOVITZ: And I remember my older brother at the time who was more engaged in politics than I was when I was 12, thinking that this was a really terrible moment — that people wanted to see his emotion. And one thing that he might have said that I’d be inclined to say in response to the question you asked is, “Of course, I would be vengeful, angry, want to see this person suffer. But that’s why we have a society that doesn’t put victims solely in control of the most serious, most consequential punishments that we have at hand” — that part of building a society that treats people with dignity is finding ways to constrain these extraordinarily understandable emotions that people have when they’re significantly injured, or their loved ones are.
DUBNER: Pretend for a minute that 12-year-old Scott Hershovitz had been, let’s say, 25 at the time and was actually an adviser on the Dukakis campaign and had actually prepped him for that question and that you had given him that answer. What do you think would happen next?
HERSHOVITZ: Well, I think it would have made him seem less alien. It’s important in these conversations where you’re suggesting restraint to honor the emotions that are leading people to want to be unrestrained. I think that sometimes criminal-justice reformers fail at this task. We need to find a way to speak to the people who are satisfied with the present state of affairs because they see it as a proper response and to honor the emotions that make them feel that way. And then make the argument for nevertheless rising above things and treating other people with dignity, even when they haven’t treated us with dignity.
DUBNER: Early in the book, you write the following: “Every kid, every single one, is a philosopher. They stop when they grow up.” I’d like some evidence for both those statements. Let’s tackle first that “every kid is a philosopher.” I could imagine two ways in which that’s wrong. It could be that your kids are philosophically inclined, which would not be that surprising since their father is a philosopher. Or perhaps your statement is a piece of false self-deprecation. It’s you trying as a professional philosopher to say that “anybody can do what I do.” So give me the evidence first for every single kid is naturally a philosopher.
HERSHOVITZ: A lot of the evidence comes from a philosopher named Gareth Matthews, who dedicated his career to talking about philosophy with kids. And he was brought to do that by a surprising conversation he had with his daughter. Their cat, Fluffy, had fleas, and his daughter, Sarah, who was four, asked, “How did the cat get fleas?” And Matthews said, “Well, fleas must have jumped from another cat onto Fluffy.” And Sarah said, “Well, how did that cat get fleas?” And Matthews said, “Well, they must have jumped from another cat onto that cat.” And Sarah said, “Well, Daddy, that can’t go on and on forever. The only thing that goes on and on forever is numbers.” And Matthews was floored by the conversation. He was teaching a class at the time. The class covered what’s called the cosmological argument for the existence of God. And the argument goes like this: Every event has a cause, but that can’t continue all the way back forever. There had to be some first cause, which was itself uncaused. And that’s God.
So he was struck by the parallel of reasoning. And then eventually, what he started to do is he started to visit schools. And he would tell the kids a story that set up a kind of philosophical question, then he posed the question to them. And he just listened to the debate that ensued. What he discovered is these kids are really sophisticated thinkers, capable of much more than what the developmental psychologists at the time had given them credit for. All the evidence for Matthews is anecdotal, but the weight of the anecdotes becomes at a point overwhelming. So I think it’s totally worth approaching me with some skepticism and approaching Matthews with some skepticism — “Hey, look at these philosophers who think their kids are philosophers” — but if there’s something to that, here’s what I think it is: because I have some training in philosophy and I’m familiar with the questions, I’ll hear the thing my kid says as connecting up to some question or topic in philosophy that’s been debated for hundreds of years, whereas somebody else might pass it by or think, “Oh, that was cute,” but not really be able to situate in the literature. So, the claim I want to make is your kid is thinking philosophically. And it may just be that you haven’t noticed yet.
DUBNER: On the second point, that kids stop being philosophers when they grow up. I’m not going to ask you necessarily for evidence of that because I think that’s fairly evident to all of us who live life. But let’s assume that we all could extend our philosophical energy much further into life and that just the ebb and flow of life and the needs and necessities of life take us away from that, and push us toward utilitarianism versus philosophy, let’s say. I can empathize with your argument that we should all be more philosophical generally or at least that we should all spend a little bit more time thinking. But I could also argue that as you get older, you have people to provide for, you have work to get done. What kind of loss do you think that is?
HERSHOVITZ: I want to answer the question in a few ways. So first is, I want to resist the idea that in all the activities we should engage in, we should be thinking, “What’s in it for me? What’s the utility of this activity?” I think it can be really rewarding to think about something that you find puzzling and try to understand it in a deeper way. Part of what I hope the book will do is it will help people recapture a sense of puzzlement at the world that I think all of us had when we were kids. Another kind of practical upshot I would see is — philosophy yields really important insights into the world. So let me give you one example. My colleague Elizabeth Anderson wrote a book a few years ago called Private Government. She argues that the most oppressive government that most of us interact with is not actually the state. We’re hyper-concerned about the government and our constitutional rights and whether the government’s respecting our rights. And she says, but wait a minute, I want you to look somewhere else. Your employer has a ton of power over you, and you have, as things stand now in our society, very few rights. And many of our employers treat us in just the ways that we’re worried about governments treating us. One reason to do philosophy is it can help us see the world differently and imagine different possibilities. And so, many people have found Liz’s work just revelatory. It’s opened up a new way of thinking about what’s bothersome about the structure of workplaces in our society and given us a different model. Maybe we should think about our relationship with our employer in the way that we think about our relationship with the government, and that we need something like a Bill of Rights for employees.
DUBNER: When writing about this, you bring in the university setting, and you bring in tenure. You’ve got tenure, so you’ve got the form of protection that you argue all employees should have with their employers. But it’s a relatively rare relationship. So it sounds to me like you would essentially like to flip this. You’d like to not take tenure from professors, which some people argue should happen, but rather give some form of tenure, some form of protection, at least, to all employees. Can you talk about some things that would need to happen to make that a reality?
HERSHOVITZ: Let’s just back up a little bit and think about the context in which I approach the question. I’m not approaching it as a policy person or as an economist. I’m approaching it as a philosopher, in particular a philosopher who’s interested about authority. So why is it ever the case that one person gets to boss somebody else around? One answer that’s very natural to give in the context of our work relationships is the employee has consented to the boss’s authority. You signed up for this job and you could walk away from this job if you wanted to. That’s, of course, a much different answer than we would give about parental authority. My kids did not sign up. When we think about workplace authority, people will often point to the choice that the employee has to exit the relationship. And then I’ve got a concern about that, which is: I think in our society that’s not a genuine option for most employees. They have all sorts of reasons that they have to work, right? They need to work to acquire the basic resources that they need to live: food and shelter.
DUBNER: And healthcare, which is in this country usually connected to your employment, which is a rarity in the world.
HERSHOVITZ: For sure. And we know, of course, that many people work because of the need for healthcare or stay with jobs longer than they would like to stay with them, because they can’t run the risk of being without healthcare for a period of time. And so at best, they might be in a situation where they can choose their boss, but they’re not in the situation of whether they can choose whether to have a boss altogether. So I look at the employment relationship and I think, well, how do we think that this boss has the right to tell the employee what to do? The story was supposed to be consent, but the relationship actually seems to be one that people are forced or coerced into. So this doesn’t look to me like people are relating on morally acceptable terms. So the question is, what would you have to change about the context in which we work in order to bring it about that the relationship between boss and employee was structured in a way we could morally approve of? I know you think a lot about universal basic income, and I don’t at all have a view on whether as a matter of economics this is promising, but I think here is an underappreciated upside: I think when people do genuinely have a realistic option to walk away from a job, then their consent to be in that job really counts for something.
Here’s an excerpt from Nasty, Brutish, and Short on the relationship between employer and employee.
EXCERPT: Change won’t come easy, but there are many ways to make things better. We could limit at-will employment. We could give workers a role in workplace governance, so that their interests are taken into account. We could also change the context in which we work, by guaranteeing a basic income and healthcare, so that no one feels forced to work for an abusive employer. Somehow, lots of Americans have been convinced that government “handouts” hamper freedom. The truth is, providing for people’s basic needs promotes freedom. It makes it possible for people to say “no” to a boss who would treat them badly. Americans talk a good game about freedom. We love our constitutional rights. But if you care about freedom, the American workplace should seriously disturb you.
DUBNER: How would you think about achieving the proper balance between the needs of the firm — and its customers and shareholders — with the needs of the employees? Because as I hear you speak, one thought that comes to mind is as labor becomes more expensive or more complicated, firms are just increasingly incentivized to substitute away from humans and toward machines, toward robots, other technology. So, if you had your say in making labor law much more pro-employee, would that not be a concern for you as well, that you’d encourage firms to simply have fewer human employees?
HERSHOVITZ: I have a couple of thoughts about that. One is when we look around the world, we see that other countries have struck this balance differently. And people seem to live well and maybe also don’t have the extremes of inequality that we do. So that makes me think we have room to move before we undermine people’s opportunities to work. The second thing I think is that we should aim to structure our society, our relationships in society, in ways that we think are morally acceptable and then work around whatever problems that raises in further ways that we think are morally acceptable?
DUBNER: Wow, that’s a big statement. I need to metabolize that a little bit. It stuck out to me because even though the D.N.A. of America quite explicitly states its moral premise and reckoning, that’s not a part of the conversation we typically have anymore when we talk about our politics or our economics. Does that make you feel a bit out of step with the mainstream?
HERSHOVITZ: It does. I worry about the degree to which economic concerns and economic tools as a discipline dominate our public conversation, and that we’ve lost a vocabulary for worrying about a different set of concerns. Like, are people in the workplace being treated with dignity? Are they relating to each other as equal members of society, even in circumstances where organizations may be arranged hierarchically? Because we’ve lost this vocabulary, we’re no longer accustomed to having these conversations in public. There’s a lot that’s disturbing about the way our society is arranged that’s just invisible and I think it would be great if that changed. I was listening to the episode that you had about scale and voltage. And one thing that I was thinking about as I was listening to it is the ways in which institutions scale. They stop interacting with their customers or their workers as people and start to see them as assets, or entries in the spreadsheet, or contacts. And many of the frustrations I think of modern life are because these institutions that you have to interact with don’t see you as a person really or care about you as a person.
The episode Hershovitz just mentioned, on scaling and voltage, was Freakonomics Radio episode 494, “Why Do Most Ideas Fail to Scale?” Coming up after the break: what if the U.S. had a Secretary of Philosophy, and what if Scott Hershovitz were it?
HERSHOVITZ: Oh, wow.
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Scott Hershovitz, who teaches philosophy and law at the University of Michigan, is the author of Nasty, Brutish and Short: Adventures in Philosophy With My Kids. What does he see as the purpose of this book?
HERSHOVITZ: I wanted to introduce people to real philosophers, from history and also some of the super-cool contemporary philosophers. And I wanted to teach them about what their work is really like and why their ideas and arguments are important. But I thought I could also do that in a way that’s going to be really engaging and fun. I like hanging out with these philosophers. I should be able to convey that to other people.
DUBNER: This book of yours is plainly written for a broad audience. It’s got a commercial publisher; it’s not an academic press. And it doesn’t read at all like what most people think of as a philosophy book. Certainly not if you study philosophy at a university level. It’s funny. It’s full of stories. It’s accessible. I’m not saying it doesn’t have philosophy in it, it does. Are you concerned, though, that writing a book like this will somehow damage your reputation in the eyes of the cohort you perhaps care a lot about, which is your philosophical and legal peers?
HERSHOVITZ: I think it’s a bad thing about the academy that there is this concern that if you’re speaking to a broad audience and you’re doing it in a way that people are going to find fun and accessible, that maybe it shows that you’re not serious, or maybe it shows that you are willing to dumb things down. I sort of made a commitment to myself when I wrote the book that nothing was going to be dumbed down. Nothing was going to be repackaged as if it’s self-help, which is how a lot of popular philosophy books are often written. I think that there’s a generational shift happening, certainly in philosophy, maybe in academia more broadly. A lot of my colleagues my age and younger are looking around at all the awful things in the world, and they’re thinking to themselves, how can I speak to that? How can I be engaged with that? So I think that among my older, more staid colleagues, they may think, “Oh, this is an indication that Scott’s less serious.” I don’t think my younger colleagues will have that reaction. But it’s definitely a trade-off I’m willing to make because I reject the judgment. I think that philosophy matters to people’s lives. And so, if we can’t talk to a broad audience about these questions, then we’re not doing our jobs fully.
DUBNER: Okay, last question: Imagine there is a U.S. Department of Philosophy and that you are the first Secretary of Philosophy. What are your first three directives.
HERSHOVITZ: Oh, wow. Hang on, I’m just trying to wrap my head around what’s a really — it’s a hard question. So, I’ll say this. I think philosophy is an important part of education. And I think it’s disappointing to some extent — for me, frustrating — that Americans have lost sight of that. I think that thinking about philosophical questions, thinking about one’s life, what’s a good life, can be a richly rewarding and valuable activity for people, and we ought to encourage it. So I suppose I’m not recoiling from the idea of a Department of Philosophy, maybe just like an office that encourages philosophy education as part of the Department of Education.
DUBNER: So maybe one of your first directives would be to require that every elected official at least have some reading of basic philosophy. Would that be a directive or is that too harsh?
HERSHOVITZ: I don’t think exposure to philosophy is going to make those people better at their — I mean, it might. It might make them better thinkers. But, I don’t think it’s guaranteed to make them — you know, Plato certainly thought that we ought to be ruled by philosophers. I think that that’s actually probably a really bad idea.
DUBNER: Because why?
HERSHOVITZ: I think that to make good decisions, you have to draw on wide bodies of knowledge. Sometimes it’s economics, sometimes it’s sociology, sometimes it’s psychology. Sometimes it will be philosophy. I suppose most of my edicts would be directed towards having it feature in a kind of standard package of education that we expected everyone in a democracy to receive.
DUBNER: But would you want it to have a seat at the table in the policy shops?
HERSHOVITZ: Yeah, for sure. Somebody who is thinking about what American workplaces should look like that isn’t wrestling with the work of Elizabeth Anderson, or somebody who’s thinking about what a taxation system should look like that isn’t familiar with the work of John Rawls, these folks are just missing rich resources for understanding how we can make the world more just.
DUBNER: Would you want to issue any directives in the realm of, let’s say, crime and punishment?
HERSHOVITZ: Uh, so —
DUBNER: I have to say — just from the tone of your voice, you sound very reluctant to accept the Secretary of Philosophy position. Am I reading you right or are you maybe overwhelmed by the opportunity?
HERSHOVITZ: I think I need to understand the job better. Is the job to support philosophy education? Then I absolutely want that job.
DUBNER: We’re not asking the Secretary of Agriculture, the Secretary of Commerce, to support education. We’re assuming that those are foundational pillars of a successful society. So, let’s just assume that you get over your slight reluctance and maybe self-deprecation about the value of philosophy and just say, “Heck yeah, philosophy should be everywhere that agriculture is,” let’s say.
HERSHOVITZ: In the Kennedy administration, there was somebody who was given the role where the idea was there should be somebody in the White House who should be like the guy who is going to offer the dissenting view or play devil’s advocate. And I do think it’s desirable to have people familiar with philosophical ways of thinking and with the history of philosophical ideas involved in conversations, whether we’re making decisions about wars, or agriculture, or whatever it might be.
DUBNER: So you could be a roving sage through the halls of Congress, into the White House once in a while, you drop into D.O.D., the Pentagon. Do you like that role?
HERSHOVITZ: Sage seems a bit arrogant, but gadfly is maybe a role more suited to me.
Gadfly, maybe. But there is another role that seems to suit him well: father to Hank and Rex, the inspirations for Nasty, Brutish, and Short. Here’s a bit of tape from the three of them, having the kind of conversation that led to the book:
Rex HERSHOVITZ: If God is all-powerful, can he create a stone so heavy he himself cannot lift it?
Hank HERSHOVITZ: Oh, I like that question.
HERSHOVITZ: What do you think, Hank? If God is all-powerful, can he create a stone that he can’t lift?
Hank HERSHOVITZ: I like it because there’s, like, not a right answer.
HERSHOVITZ: Why do you say there’s not a right answer?
Hank HERSHOVITZ: Because, like, if God’s so powerful, you could say, no, he can’t, but you could say yes, he could, and both answers could be true.
HERSHOVITZ: Well, let’s just think out all the answers one at a time. If God creates a stone, but then he can’t lift it, is he all-powerful?
Hank HERSHOVITZ: In some ways, yes, because he created a stone he couldn’t lift. But, like, he can’t lift it, so it kind of makes him a little bit less powerful. But he did create the stone, even though he can lift, like, all the stones but that stone.
Rex HERSHOVITZ: I just think about it over and over again. In the constant loophole, because if he can do one thing, he can’t do the other.
That was Hank, Rex, and Scott Hershovitz; the book is called Nasty, Brutish, and Short: Adventures in Philosophy with My Kids. Thanks to them and thanks to you for listening. Thanks also to Penguin Random House Audio for the excerpts of Nasty, Brutish, and Short, read by Scott Hershovitz.
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Freakonomics Radio is produced by Stitcher and Dubner Productions. This episode was produced by Jacob Clemente. Our staff also includes Neal Carruth, Gabriel Roth, Greg Rippin, Zack Lapinski, Rebecca Lee Douglas, Morgan Levey, Julie Kanfer, Ryan Kelley, Jasmin Klinger, Eleanor Osborne, Emma Tyrrell, Lyric Bowditch, and Alina Kulman. Our theme song is “Mr. Fortune,” by the Hitchhikers; the rest of the music this week was composed by Luis Guerra. You can follow Freakonomics Radio on Apple Podcasts, Spotify, Stitcher, or wherever you get your podcasts.
- Scott Hershovitz, professor of law and philosophy at the University of Michigan.
- Nasty, Brutish, and Short: Adventures in Philosophy With My Kids, by Scott Hershovitz (2022).
- “Taylor Swift, Philosopher of Forgiveness,” by Scott Hershovitz (The New York Times, 2019).
- “Gareth Matthews and the Philosophy of Childhood,” by Marella Ada V. Mancenido-Bolaños (Budhi: A Journal of Ideas and Culture, 2017).
- “Tort as a Substitute for Revenge,” by Scott Hershovitz (Philosophical Foundations of the Law of Torts, 2014).
- “Prison Conditions, Capital Punishment, and Deterrence,” by Lawrence Katz, Steven D. Levitt, and Ellen Shustorovich (American Law and Economics Review, 2003).
- “Why Do Most Ideas Fail to Scale?” by Freakonomics Radio (2022).