I’ve recently given a handful of talks critical of the Kalven Committee Report’s (KCR) conception of institutional neutrality–three or four, depending on how you count, with one or two more to come, depending on what the referees say. My argument is pretty straightforward: it’s an adequacy-condition on any account of academic norms that the account deal with the problem of institutional complicity in wrongdoing. The KCR defense of institutional neutrality doesn’t just fail to deal with this issue; it offers complicit institutions a blueprint for evading accusations of complicity even when those accusations are recognized as true, well-documented, and incriminating.

The KCR defense is therefore a double failure. It fails first by evading a fundamental issue at the theoretical level, and then by offering a how-to guide on how to evade the issue in practice. Far from being a defensible norm, Kalven-style institutional neutrality seems to me little more than an instrument of evasion, dishonesty, irresponsibility, manipulation, and complicity itself. Though Kalven-style institutional neutrality is now being supplanted by various neo-Kalvenist spin-offs, all presumably intended to remedy the (unadmitted) failings of the original, as far as I can see, none of them do. The whole effort reminds me of a verse from an old AC/DC song, “Down Payment Blues“:

I got patches on the patches of my old blue jeans
Well, they used to be blue
When they used to be new…
When they used to be clean. 

Unlike Bon Scott’s jeans, institutional neutrality never was clean. So the patches don’t help.

This looks exactly like the main administrative building at The College of New Jersey, where I was an adjunct for seven years

I often get asked in the discussion portion of these talks to elaborate on what I mean by “complicity.” This is in one respect a legitimate, and in another respect, an illegitimate request. It’s legitimate if the questioner is asking for bare-bones clarification of what complicity is. It’s not legitimate if the questioner is asking for a worked-out theory of complicity. The objection I’ve sketched above turns on the sheer possibility of complicity: assuming that complicity can exist at all, the objection says that it’s an adequacy-condition of academic norms like Kalven’s to deal with that possibility. You don’t need a theory to generate a possibility. 

My objection to Kalven is that its “defense” of institutional neutrality doesn’t deal with this possibility even as a possibility, except to offer advice on how to evade accountability for it. The authors of the KCR are wholly indifferent to how true or well-founded an accusation of complicity may be, or how grave the wrongdoing involved. As far as KCR is concerned, if a university were invested in Auschwitz, along with Dr Mengele’s labs, and were correctly accused of doing so, institutional neutrality would advise the university to remain silent about it, and maintain agnosticism about whether anything should be done about it. Being invested in Auschwitz and Dr Mengele’s labs, and being discreetly quiet about it, is not just consistent with institutional neutrality, but arguably the whole point of the doctrine. The doctrine was (in part) a response to SDS’s demand for divestment from apartheid South Africa. The KCR “deals with” this accusation by pretending it had never been made, then offers up a doctrine that permits the university to keep pretending.

You don’t need a theory of complicity to see the problem in the Auschwitz or apartheid cases. You just need to identify the target institution’s relationship to Auschwitz as complicity in genocide or apartheid, to grasp that such complicity is morally wrong, and to grasp that it’s so wrong that action must be taken to undo it. At the very least, inquiry must be undertaken to determne whether any rectificatory action can feasibly be taken. 

Institutional neutrality consists of advice of a kind you would expect a defense attorney to give a client under arrest by the police–no surprise, as Harry Kalven was himself a lawyer, arguably more attached to legal norms than academic ones. The problem, however, is that accusations of complicity aren’t arrests. They are pure speech acts devoid of coercive power. Beyond this, there is no law-like system in place for arresting university presidents or putting them on trial even when they’re fully complicit in war crimes. There is no institutionalized system of accountability of any kind whatsoever for them. There’s just the whim of the Board of Trustees plus a bit of institutionalized concealment, deception, and impunity, plus self-righteous and self-congratulatory talk about what a great job everybody in the C-Suite is doing. I can’t help adding that self-aggrandizement of the sort habitual to university PR departments itself violates institutional neutrality. It is after all controversial whether the President, Provost, et al are doing such a great job. That never stops them from making the non-neutral claim that they are.

The argument I’m making in this post is parallel to an argument I made here about four years ago, on so-called “cancel culture,” in which the example was not a hypothetical university’s investment in Auschwitz but the historical example of American corporate investment in Franco’s Spain. Both examples, no matter how “inflammatory,” are clear and paradigmatic, and I see it, exemplify sufficient conditions for action. 

There is, in any case, nothing outré or outlandish about them. One of them, the Franco case, incontestably happened in just the way I described it. The other, the Auschwitz one, is hypothetical and therefore more contestable, but arguably parallels what happened at German institutions in the 1930s, what happened in American institutions during Vietnam, and what is happening now at American, Israeli, German and British institutions vis-á–vis Gaza.

A spitting image of C Floor of Princeton’s Firestone Library back in the 80s. Supposed to be sinister, but ends up being nostalgic

Whether you agree with the latter parallels or not, the case is entirely realistic and plausible, much more so than any number of wild thought-experiments that are debated ad nauseum in academic philosophy. My Auschwitz example is certainly more plausible than the suggestion that we’re zombies or brains-in-a-vat, and more realistic than trolley examples or the suggestion that human fetuses can be likened to plant spores. If the latter can be considered possibilities, so can the former.

So far, no defender of Kalven-style institutional neutrality has successfully contested my argument. I invite them to try, with the proviso that asking me to elaborate on the nature of complicity, or asking for a worked-out theory of complicity, doesn’t respond to my objection. Either you acknowledge that complicity exists, or not. If you do, we can discuss paradigm cases, and ask how Kalven-style institutional neutrality applies to them. If not, we have to discuss the moral status of paradigm cases. In neither case do I need a full-fledged theory of complicity to make my case.

One place to begin in discussing cases might be accomplice liability in criminal law, which consists of nothing but cases of complicity–thousands of them, across centuries–but it’s not the only place to begin, and maybe not the best place. Both history and ordinary life are full of cases. Read any history of any large-scale injustice, and ask how it achieved scale. The answer will be: in part through the efforts of the complicit. No other hypothesis will suffice. 

I recently re-read Gregory Mellema’s very short book, Complicity and Moral Accountability, simply marking out the cases that Mellema discusses. The book is a mere 163 pages long, 159 pages of text, but I counted at least 122 prima facie cases of complicity. You might not regard all 122 as bona fide cases of complicity, but it’s impossible to deny that some substantial fraction of that total are plausible candidates. The standard texts on complicity–Kutz’s Complicity, Lepora and Goodin’s On Complicity and Compromise–consist of hundreds more pages, and hundreds more examples. Add the accomplice liability cases to the ones in Mellema, Kutz, Lepora and Goodin, plus the references in their footnotes; then add those that come up in any good faith reading of history; then add those to the ones anyone might encounter in ordinary life. Now try to deny that complicity is possible. Good luck. 

There are, as I see it, three ways of doing that. You either have to (1) espouse skepticism about the very fact of wrongdoing, or (2) reduce all of complicity to primary wrongdoing, or (3) treat all complicity as non-culpable. In other words, you either have to say that there are no evil acts or agents; or you have to say that there are, but they are all equally on a par; or you have to say that while there is wrongdoing, the only people responsible are the primary wrongdoers, who do what they do without culpable assistance of any kind, leaving all of their would-be helpers a bunch of hapless, helpless innocents who couldn’t help anything they did. 

All of these moves are certainly possible. People have tried them all. Option (1) seems plausible until someone wrongs you. Then it becomes absurd. QED. 

This is supposed to be Heidelberg.

Among philosophers, Jaspers tried a particularly silly version of (2), arguing that everyone in the world was and remains culpable for everything done by the Nazis.(1) So Hitler was culpable, Eichmann was culpable, as was Heydrich, my mom, Rammstein, Mr Rogers, etc. Unsurprising that this view manages to flatten the moral universe while quietly getting the Nazis off the hook–if Hitler = Mr Rogers or even = my mom or Rammstein, how bad could he have been?–but willkommen in Deutschland, where crypto-Nazi apologetics are par for the course, and have been for awhile. 

Forget Jaspers. Here’s a short list of what option (2) entails.

• A murderer is morally on par with the person who keeps the murder secret. 
• A murderer is morally on par with the bystander who fails to stop the murder. 
• A robber is morally on par with the person who gives him a bottle of water after the fact. 
• A kidnapper is morally on par with the family who, out of pity for the kidnapped infant, gives the kidnapper infant formula and a blanket to keep the kidnapped infant alive, lest she die, but fails to report the kidnapper to the police. 
• A rapist is morally on par with the family that acquiesces in his plan to lie about it. 
• A burglar is morally on par with those of his friends who suspect him of the burglary but fail to turn him in to the police. 

In each of these cases, two very different sorts of culpability have been collapsed into a single category and treated as morally equivalent, i.e., the primary wrongdoer has implausibly been equated with his accomplice(s). Obviously, both sets of agents are culpable, but it’s equally obvious that they’re culpable to different degrees, in different ways. Doing something and helping someone do something are different acts. 

As for option (3), just take the same bulleted list above, and treat the second person in each item as a helpless innocent. In this case, culpability has been reserved only for the most blatantly obvious form of it. Meanwhile, the less blatantly obvious form of culpability is given immunity simply because it’s not as blatantly obvious as the obvious form. This is like arguing that cancer of the stomach is a disease, but stomach ulcers are not, because, well, stomach ulcers aren’t cancerous–which is true as far as it goes, but won’t win any prizes for epidemiology.

I should add that I’ve actually been in three of the situations on the bulleted list, and once I get the legalities sorted out, I’ll blog about them here. My point is that I know what I’m talking about from first-hand experience. Primary wrongdoing and assistance rendered to a primary wrongdoer are both bad, but not the same thing. So it’s wrong to equate them but also wrong to excuse them. Some cases are tricky, others are not, but the distinctions themselves should be clear enough. 

In short, if you accept the reality of wrongdoing, but reject the reality of complicity, the only thing you can do with the category of complicity is either to to reduce all of the would-be complicity to primary wrongdoing, or to treat all of the would-be complicity as unavoidable and innocent. Once you do, you’re forced into arguing one of the following: either helping a murderer is wrong because it is murder, or helping a murderer isn’t wrong because it’s not murder. There is an alternative. It’s to say that helping the murderer, while not murder itself, is still wrong; then to invent a word for this secondary, auxiliary form of wrongdoing, calling it “complicity.” With that foundation in hand, you can then work out of the further complexities involved. 

The overarching lesson here is this. To understand the nature of complicity, we need a four-fold taxonomy. Call the relevant categories within this taxonomy primary wrongdoing, complicity, entanglement, and innocence. 

Pure innocence!

Primary wrongdoing is the full-fledged and fully culpable effectuation of some injustice.

Complicity is assistance given to primary wrongdoers that somehow falls short of full-fledged effectuation of the injustice and full culpability for it, while still making either a less culpable causal contribution to it, or culpably signaling approval for it.

Entanglement is assistance given to primary wrongdoing that for whatever reason is not culpable. If causal contribution and/or approval are involved, they are rendered non-culpable by facts about the entangled as agents (or patients) or their circumstances, or both.

Innocence is a status that falls entirely outside of the target wrongdoing, making no causal contribution to it, whether culpable or non-culpable, and signaling no approval, implicit or explicit. 

Both primary wrongdoing and complicity are culpable, but in different ways, to different degrees. Both entanglement and innocence are non-culpable, but differ by degree of involvement. The innocent are not involved; the entangled are. 

Take a lynching.(2) The primary wrongdoers are those responsible for the killing of the victim (regardless of the division of labor involved, e.g., knocking him out, finding a tree, stringing him up, etc). The complicit might include the knowing and willing members of the crowd watching the lynching and cheering it on, plus the sheriff who permits the event to happen without interference, plus those who stay home but know all about it and fully approve. The entangled might include those who disapprove of the lynching but find themselves in a dilemma about what to do about it. The innocent include, say, a neonate born that day at the local hospital, along with household pets and non-human wildlife. 

The last two examples may seem superfluous, but aren’t. If the primary wrongdoers bring a dog along to the lynching, the dog is innocent, but even if the wrongdoers train the dog to kill the victim, the dog remains innocent. I underscore this point because people often liken vicious humans to animals–think of the common equation (by different people) of Palestinian militants or Israeli soldiers with “savage animals”–but this gets things wrong both ways around. Non-human animals are innocent, no matter what they do. And to liken human malfeasance to “vicious animals” is to misunderstand both human and non-human behavior. “Vicious” means “having vices,” which applies to human beings, but not to non-human animals. There are no morally vicious non-human animals; a fortiori, morally vicious humans are not like them.

Also pure innocence! 

The unfortunate tendency of equating human immorality with non-human “viciousness” pervades the entire history of Western philosophy, starting with Plato and Aristotle; it’s confused and confusing in many different ways, and should stop.(3) In fact, it’s part of the reason why I insisted on having a category of innocence in the first place. Cynics may deny that anyone is innocent, but some of us really are. Some may deny that non-human animals are included within “us,” but that’s a substantive assumption, not a truism, and I reject it. Non-humans aside, human infants really are innocent in the full-fledged sense; they’re not entangled in adult dilemmas, even non-culpable ones, and should not be treated as though they were. They’re full members of the moral community, yet live outside the compass of obligation and responsibility, and are therefore neither wrongdoers, nor complicit, nor entangled. They’re innocent. I get why people are jealous of them, but that doesn’t change their status.

The lynching example is a simple case, and even the simplest case will involve some borderline situations. But I think it works to get the basic point across. 

Getting straight on these concepts is less a matter of deductive argument than of working through confusions involved in applying them in real life. In my experience, two confusions are notable. People either conflate complicity with primary wrongdoing, or conflate complicity with entanglement (or both). Both together serve to confuse the issue. Complicity is its own thing, and has to be seen for what it is. 

In my next post on this topic, I want to work through an example of the first confusion–the conflation of complicity with primary wrongdoing. The example comes from a review by Kwame Anthony Appiah of Fara Dabhoiwala’s recent book, What Is Free Speech? The review accuses John Stuart Mill of “complicity” in imperialism. 

I regard this as a variation on mistake (1) above. Mistake (1) conflates primary wrongdoing with complicity, usually by treating cases of complicity as though they were cases of primary wrongdoing. This mistake does the reverse: it conflates primary wrongdoing with complicity, but treats a case of primary wrongdoing as though it was a case of complicity. John Stuart Mill was not “complicit” in imperialism. He was an imperialist. In other words, if imperialism is a form of wrongdoing, then the greatest exponent of liberalism was a primary wrongdoer, not just complicit in it. To get this wrong is to get many things wrong at once: complicity, imperialism, Mill, liberalism, and the relations among them. 

The first step toward the reform of higher education is to ignore the nonsensical pseudo-debates currently taking up so much air, space, and energy, and to get complicity, particularly institutional complicity, right. What is currently being discussed when it comes to higher education is largely a distraction from what ought to be discussed, and largely a function of the resources possessed by those currently setting the agenda. At a certain point, one has to ignore their agenda, set one’s own, and let others worry about the rest. 

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Notes

1. Discussed in Mellema’s Complicity and Moral Accountability, p. 121, citing Karl Jaspers, The Question of German Guilt (1961), p. 36. For extremely valuable commentary on the “crypto-Nazi apologetics” I mention in this paragraph, see the writing (particularly on Instagram) of Nathaniel Flakin.
2. For a useful discussion, see Philip Dray’s At the Hands of Persons Unknown: The Lynching of Black America (2003). 
3. We get the problematic concept of “bestial evil” from Aristotle, who eventually passes it on to Dante (but arguably not to Aquinas, whose view more closely resembles Kant’s than Aristotle’s). 

Thanks to Kate Herrick, Hilary Persky, and Michael Young for bearing the brunt of my incessant hectoring on this subject, and to Susan Gordon (and Hilary) for insisting on the claims of the non-human world. Thanks also to my MTSP buddies–John Davenport, Eric Kramer, Roderick Long, David Potts, and once again Michael–for hearing me out on institutional neutrality.