Obama’s Pledge to Reform Ethics and the Principle of Epikeia

Liberals and conservatives are outraged at Barack Obama’s apparent contradiction of his campaign promises to clean up Washington and initiate sweeping ethical reform. The most recent complaint is over President Obama’s unwavering support for Tom Daschle’s nomination as the new head of Health and Human Services, despite the fact that Mr. Daschle has failed to pay $128,000 in federal income taxes (and the questionable ways in which Mr. Daschle spends his money).

The problem people have with President Obama is that he is making exceptions to the rule, despite the fact that he presented on the campaign trail an uncompromising message of ethical reform. Those who defend Obama say that the exceptions are necessary because certain people who the rule would exclude (lobbyists, e.g.) are needed for their expertise and skill set. Jody Powell, Obama’s press secretary, puts the conflict nicely: “If you set standards, you’re going to fall short on occasion and you’re going to have to compromise on occasion. But you’re probably also going to get more done.”

Seems like a perfect opportunity to talk about the principle of epikeia. Laws, says Aquinas, deal with human actions. As such, laws are about “contingent singulars,” meaning particular situations with particular circumstances. Because laws are about the particular, it is impossible to make laws that can exhaust the possibilities for moral action in every single conceivable case. Legislators, rather, make laws according to what usually happens.

However, there will be cases where even the best law, if applied to a certain case, will do harm to the common good than would be considered just. And since it is the law’s job to protect the common good, the application of the law in the particular questionable situation would be antithetical to its purpose. The example Aquinas gives is the law that all deposits should be returned. It is a good law–if I put a deposit in the bank, I expect to get it back. But, posits Aquinas, what if a madman gives his sword as a deposit, and if he gets it back, plans on going on a murderous rampage? To give him the sword back would be contrary to the common good. The law about returning deposits is still a good law and will have good effects in the majority of cases. In this case, however, applying the law would be injurious and so it is probably better not to follow it.

Another classic example is the person hiding Jews from the Nazis who is confronted by a Nazi and must either lie (and break the rule against lying), or tell the truth in accordance with the law and risk the death of a number of innocent people.

In situations like this, Aquinas says the letter of the law should be set aside in favor of following the dictates of justice and the common good. This decision to set aside the letter of the law is called epikeia, and with Aristotle, Aquinas calls it a virtue. Specifically, it is a subjective part of justice (meaning that it is a part of justice but doesn’t fully encapsulate the meaning of justice) and its object is equity.

Now, epikeia does not set aside the application of a law that is just in itself because of inconvenience or severity. Epekeia, for example, does not allow a person to set aside the letter of the law regarding lying because if he tells the truth, he is going to lose his reputation or suffer some other punishment. Aquinas recognizes that following the law will often be arduous and sometimes will have unpleasant effects. Epikeia simply assures that we see the purpose of the laws as serving the common good and justice, rather than viewing obedience to the law as a good in itself.

To return to Obama. He might have made a rule that no lobbyists would be given political positions in his administration, but if the application of that rule would harm the common good, it would be consistent with epikeia to break it. The burden of the question, therefore, is if the nomination of William J. Lynn III, an ex-Raytheon lobbyist he nominated as deputy defense secretary, is really for the common good.

In a political leader, a healthy sense of epikeia is a good thing, and Obama seems to have it. In fact, his ethics reforms, especially those regarding lobbyists, were not as hard-lined as you might have assumed based on his campaign rhetoric. His rules regarding lobbyists in reality do not ban all lobbyists outright, but rather set conditions on their employment. Obama seems to have been aware that a hard-lined rule against lobbyists would have been counter-productive.

So I think that all the claims that Obama is a hypocrite are unfounded. I think that our president is simply trying to do what all people do–find out how to apply a rule in any given situation so that it is conducive to the common good. As Aquinas says, “Without doubt he transgresses the law who by adhering to the letter of the law strives to defeat the intention of the lawgiver.” However, I think it prudent that President Obama make as few concessions as possible, especially this early in his administration, in order to keep the hope in his constituents alive, and keep people believing that goodness and politics are not antithetical. Is it really necessary for the common good to select Raytheon lobbyist William Lynn for deputy defense secretary, or are their others, less questionable candidates just as suited to the job? I’m betting on the latter. Similarly with Tom Daschle. Obama pledged his “absolute” support for Daschle’s nomination, but I think the common good demands that Obama exercise epikeia here . . . And reverse his support for a far-too questionable candidate.


2 comments so far

  1. texpat on

    I doubt that Barack ever intended to have an administration free of lobbyists. Most lobbyists help the legislative process by representing groups of people with common interests and by providing needed information to lawmakers. The general public, of course, is blind to this reality, believing that lobbyists are per se corrupt. That’s why politicians trot out their opposition to lobbying every few years (along with their opposition to earmarks — another unremarkable feature of American lawmaking) and it’s why the idea of purging his administration of lobbyists fit so well with Obama’s themes of purity and change.

    So I don’t think Barack is practicing epikeia because I don’t think the rule every really existed. What’s the Greek word for misrepresentation?

  2. M Palin on

    What’s the Greek word for Lobbyist masquerading as a citizen who believes the current system isn’t wildly out of control?

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