Two weeks ago, the California Supreme Court issued its verdict in Tarasoff v. Regents of the University of California.  The justices were divided; four found for the plaintiff, one concurred but with reservations, two for the defendants.  The majority opinion has received much attention largely focused on how it will alter the obligations of mental health professionals, superseding their established obligation to maintain confidentiality with a duty to protect potential victims of their unbalanced patients.

            The facts of the case are not so well known but ought to be because courts never contemplate questions in the abstract.  On the contrary, judges are confronted with actual human beings and their narratives.  Their black robes and high seats notwithstanding, even they are not an abstraction called “the Court”; they too are flesh and blood and have stories.  This is why the phrase “courtroom drama” is virtually redundant and why the Athenians’ delight in the to and fro of public trials must have done much to inspire the invention comedy and tragedy.

            Prosenjit Poddar, born a Dalit or “Untouchable” in Bengal, began graduate study at Berkeley in September 1967.  That semester he participated in folk dancing classes at International House where he met Tatiana Tarasoff.  They saw one another weekly thereafter and, on New Year’s Eve, Tatiana kissed Prosenjit who misread it as proof of an emotional attachment.  When Tatiana realized Poddar’s mistake, she told him she was involved with other men and made clear she had no interest in an intimate relationship with him.  Poddar cracked.  He became depressed, neglected his appearance, studies, and health; he began speaking disjointedly, and frequently broke down weeping.  During his occasional meetings with Tatiana he tape-recorded their conversations.  His purpose was to study them later and figure out why she didn’t love him.

            Tatiana went off to South America for the summer and, for a while, Poddar’s condition improved a little, though not so much as to prevent a friend from persuading him to seek help. Poddar became a patient of Dr. Lawrence Moore, a psychologist at the University’s Cowell Memorial Hospital.  During one of their sessions, Poddar confided that he intended to kill Tatiana on her return.  Moore had the campus police detain Poddar, recorded his opinion that his patient was suffering from acute paranoid schizophrenia, and recommended he be civilly committed as a dangerous person.  Poddar was detained only briefly.  It seems he gave such a good impression of being rational that Moore’s supervisor, Dr. Harvey Powelson, ordered him released and not subject to further detention. Crucially, neither Tatiana nor her family were told anything about the threat against her. 

            By October, Tatiana was back and Poddar had given up therapy but not his plan to commit a thoroughly premediated murder.  To get at Tatiana he befriended her brother, then moved in with him.  Before the month was out, Poddar murdered Tatiana. Her parents then sued Moore, Powelson, and the U.C. Regents in civil court.  As for the criminal proceedings, Poddar was found guilty of second-degree murder but his conviction was overturned on the ground that the jury was not sufficiently informed. Poddar was then released on the condition that he return to India. 

            The Tarasoff case decided this month was a civil one and had nothing to do with the murder but rather the failure of anybody to warn Miss Tarasoff of the threat to her life.

            The most difficult and influential cases, the ones we tend to retry, involve a conflict between two values, both widely respected and often cherished.  For instance, the recent affirmative action cases appear to pit merit against equality.  I expect Thomas Jefferson was certain that in the new republic equality would ensure rewards would be based on merit alone, leading to a country governed by what he called “a natural aristocracy.”  Slavery either slipped the slaveholder’s mind or he expected the nation to defer dealing with it for many generations.  In most of their controversial cases, judges have to navigate between Scylla and Charybdis, aware, for instance, that we no more wish to dispense with equal opportunity than we’d willingly give up promotion based on merit.  In the Tarasoff case the colliding values are individual privacy and medical confidentiality on the one hand,  public safety on the other.  Again, the issue has its origin in the rights and lives of real people—Poddar’s right to privacy and Tatiana’s to be warned of a lethal peril.  The cast of this tragedy is not limited to two actors; it also included poor Dr. Moore, desperate to commit a deranged patient, the arrogant Dr. Powelson, who ordered the spurned lover set at liberty, along with Ms. Tarasoff’s family—bereaved, bitter, but ably represented in court.

Kant Contra Idol Worship

            One of the cases ethical philosophers are perennially litigating is the action between relativism and absolutism.  Should ethical issues be decided on principle or outcomes?  Ought we to pursue purity or be pragmatic, apply a thou shalt or an if/then?  Deontologize or consequentialize?  Socrates argued it with the Sophists, Aristotle with Plato, Idealists with Realists, Catholics with Protestants, some Jews with other Jews, Jeremy Bentham with Immanuel Kant and so on to this month.  Discussions of the Tarasoff case have so far looked at it as one about professional or applied ethics, which customarily follow theory.  But I would like to reverse this order and deduce from the majority and minority opinions the philosophical positions behind each.  This could be instructive, maybe even illuminating.

            Minority first for a change.  Justice William Clark, Jr. rejected the idea that people like Miss Tarasoff have a right to protection by professionals that trumps their obligation to confidentiality.  His approach to the clash of values is to deny a conflict exists at all.  In his view, the public will be protected only if confidentiality is strictly maintained. In making his argument, Justice Clark deploys a string of conditional verbs, revealing that he has applied what Kant calls hypothetical imperatives, future-oriented guesses at probable consequences.  He supports confidentiality but chiefly on grounds of social utility, contemplating the undesirable results of undermining it:

                        . . . a patient’s rights are violated when rules of confidentiality

                        are not observed. . . psychiatric treatment would be frustrated

                        by non-observance. . . patients would subsequently lose

                        confidence in psychiatrists and would fail to provide full

                        disclosures, and. . . violent assaults would actually increase

                        because mentally ill persons would be discouraged from

                        seeking psychiatric aid.

I make that five “woulds” in one sentence.

            A casual reader might suppose that it is Justice Clark who is the moral absolutist because he brooks no exceptions to the confidentiality rule.  Thou shalt not disclose.  And, in a sense, this is so, the sense being that he has elevated the American Psychiatric Association’s book of ethics to a kind of idol, the sort that requires human sacrifice.  But Clark’s position is not one of moral absolutism first because his argument is an instrumental one and second because a moral absolute requires something of absolute value to ground it.  According to Kant without this something

                        . . . nothing whatever would possess absolute worth; but

                        if all worth were conditioned and therefore contingent,

                        then there would be no supreme practical principle of

                        reason whatever.

            Of course, Kant believed in just such a principle and called it the categorical imperative.  This imperative Kant situated in the intellectual software issued with our mental hardware.  It is one of the programs by which Kant figured we make sense of life, knowing that a disease has a cause, for instance, that everything doesn’t happen at once, or that 2 + 2 = 4 and not 3 or 5, that they did so in ancient Egypt and do so on Saturn.  These organizing a priori principles include causality, time, necessity, universality, etc.  With his idea that the mind comes with such categories, Kant synthesized the Rationalists’ notion that all reliable knowledge comes from innate ideas with the Empiricists’ contrary insistence that everything we know must derive from sensory experience.  Kant resolved the epistemological impasse of his time by observing that for real knowledge neither innate ideas nor sense experience would be sufficient and that both are necessary.  His categories are innate, but they are mere organizing principles rather than specific ideas of bridges and doorknobs.  We pour what would otherwise be chaotic impressions and insoluble problems into these pre-existing molds.  This explains why young children learn so quickly, a crucial adaptation for homo sapiens.  A child who burns herself on a hot stove needn’t repeat the experience a dozen times to figure out what caused the pain.  According to Kant, we are also furnished with a mold into which we can pour our moral problems, a test for right action, a scale for measuring equity.  As a father, I give Kant’s view some credit.  It certainly accounts for why it didn’t take long for my daughter to register her first ethical judgment which, as it usually does, took the form of a protest:  It’s not fair. 

            Kant knows that the bulk of our decisions aren’t made with the use of his categorical imperative, but with hypothetical ones.  He acknowledges that if/then decisions are just fine when choosing what route to take to from Berlin to Königsberg for instance, where to invest our savings, whether to add just a bit more oregano, or whether to ask out a supermodel.  But they will not do for moral matters where, according to him, our lodestar must be a categorical imperative founded on something of “absolute worth.”

            Suppose we do have a pair of inborn scales.  Suppose we place in one the APA’s book of professional ethics and in the other the life of Tatiana Tarasoff.  Which will weigh more?  Perhaps idol worship is just choosing the less certain and more mutable, the lighter and lesser.  Tatiana Tarasoff’s life is singular, rulebooks of professional ethics legion.  Among the dozens of biblical condemnations of idol worship there is this one which Ezekiel claims to have taken down from his jealous God’s dictation:

                        . . . I the Lord will answer him that cometh according to

                        the multitude of his idols; that I may take the house of

                        Israel in their own heart, because they are estranged from

                        me through their idols.

            Justice Matthew O. Tobriner, who wrote for the Court’s majority, is a man after Kant’s heart. Not only does he use the categorical imperative; he applies both Kant’s first and second formulations of it.

                        When a therapist determines, or pursuant to the standards

                        of his profession should determine, that his patient presents

                        a serious danger of violence to another, he incurs an obligation

                        to use reasonable care to protect the intended victim against

                        such danger.

            The first form of the categorical imperative, the sure-fire moral test, is to pretend the principle behind your choice becomes the rule for everybody and then to see if you’d like to live with it.  This, it seems to me, is precisely what Judge Tobriner has done.  He states what the law should be and, because he’s a Supreme Court Justice writing a majority decision, he has indeed universalized it, at least in the State of California.  It’s certainly a principle Tatiana Tarasoff might have lived with.

            In his second formulation of the categorical imperative Kant’s fulfills the promise he made to himself after reading Rousseau shook him out of his Ivory Towerness, his belief that intellectual attainment constituted the whole “honor of mankind.” Kant couldn’t give up on being an intellectual, of course, but he could have a bad conscience about it.  And so, living at the time of the Revolution that was also inspired by Rousseau’s ideas, he determined that the one way to redeem his privileges as a university professor would be to “advance the rights of man.” This he does by stating his imperative in a way that has clear social and political implications:

                        So act as to treat humanity, whether in thine own person

                        or in that of any other, in every case as an end withal, never

                        as means only.

            Justice Tobriner implies that the U.C. mental health professionals did not treat Miss Tarasoff as an end but a means.  A means to what?  To upholding the stricture against violating Poddar’s privacy, it would seem.  The Justice grants that confidentiality must generally be respected by physicians, but firmly declares that it ought to have been overridden in the Tarasoff case by a duty to Tatiana and, more generally, to the “protection of persons from violent assault.”  The word person is likewise an echo of Kant who used the word to distinguish between a means and an end.  A hammer is a tool, a thing.  We manufacture hammers as a means of pounding in nails.  But an airline stewardess, for instance, should not be simply a means for beguiling middle-aged businessmen into buy tickets.  I am thinking of those ads National Airlines recently ran in print, on TV, billboards, and radio:  “I’m Cheryl.  Fly Me.”  Well, Cheryl is not a hammer, not a thing or an object of any sort, not created by our will as a means to our ends.  Like Tatiana, she is a rational being and

                        [r]ational beings. . . are called persons, because their very

                        nature points them out as ends in themselves, that is as

                        something which must not be used merely as a means,

                        and so far therefore restricts freedom of action. . .

Kant was writing in a world without airline stewardesses, but with plenty of servants and lots of slaves.

Kant’s Idol Worship

            A few weeks ago I got a call just after dinner. I left my nine-year-old daughter watching TV in the living room to answer the phone which is on the kitchen wall.  The caller, a distressed friend, wanted me to have dinner with him on Saturday and then go to a baseball game.  I wasn’t keen to do either; however, I also didn’t want to offend my friend or, worse yet, hurt his already bruised feelings.  His departed wife’s infidelity was still a bleeding sore; in fact, in his fragile, self-doubting state he was unable to talk about anything else.  I’d spent hours on the subject with him which is why the prospect of more of the same, even seasoned with home runs and hot dogs, wasn’t appealing.  So I said I couldn’t come Saturday night because I’d be taking my daughter to New York for the weekend, to visit relatives.  We said goodbye after agreeing on a vague raincheck. He was disappointed, but not hurt.

            When I hung up the receiver I saw that Maya had not been watching TV but me.  She stood in the doorway very still, looking at me with big, troubled eyes, arms crossed.

            “We’re going to New York?”

            “No, sweetheart.”

            “We aren’t?”

            “Not this weekend.”

            “Then. . . you lied?”  This was about ten percent question and ninety percent accusation.

            There was nothing for it but to take one of those leaps parents sometimes have to risk.  I began to draw for Maya the distinction between what I called “social lying” and “real lying.”

            “Let’s say Julie just got a new party dress. Julie just loves this dress.”

            “Is it pink?”

            “Blindingly.  That’s the trouble.  You see, this electric pink of Julie’s dress makes her look awful.”

            “Like a big pink pig?”

            I nodded.  “But remember, Julie really loves the dress.  She thinks she looked just terrific in it.”

            Maya looked down sadly.  “Poor Julie.”

            “Yes.  But here’s what I want to ask:  Would you tell Julie her dress is horrible and that she looks awful in it?”  

            Maya considered the matter.

            “Just suppose,” I encouraged her.

            “Well. . . I might.  I mean you said I should always tell the truth.”

            “I know, Sweetheart.  But maybe not always always.  How would it make Julie feel if you told her that pink dress she loves so much makes her look like a pig?”

            “Pretty bad, I guess.  But maybe somebody should tell her so she won’t go around looking so piggy with people laughing at her.”

            I got down on the floor.  “Remember when Aunt Rachel gave you a set of blocks for your last birthday?”

            “I’m way too old for silly blocks.”

            “I know.  But you thanked her anyway.”

            “You told me I had to.”

            “And that was right.”

            “Even though it was a lie?”

            “Remember when you said it was Freddy who broke that platter—that wasn’t a good lie, a social one, was it?  It was a real lie.”

            Maya giggled.  “It was a whopper.  You got so mad.”

            “Well, sometimes we tell fibs if it’s going to hurt people not to.  But the rest of the time we always tell the truth.”

            “Isn’t a fib just the same as a lie?”

            “Yes, it is.”

            Maya crossed her arms the way her mother used to and contemplated me with an alarmingly knowing look.

            “You use me as an excuse to get out of things, don’t you?  Tell the truth, Daddy.  I promise it’s not going to hurt my feelings.”

            How could I deny what she’d just witnessed me doing? “Yes.”

            Maya uncrossed her arms, the frown disappeared, and she brightened right up. “Fine!  Then I can use you too, can’t I?  That’s just, like, I mean, fair.”

            And so we made a pact, my daughter and I:  if there’s some invitation we want to reject, something social that we don’t want to do, each of us has carte blanche to use the other as an excuse.  We actually shook on it.

            In the penultimate chapter of Kafka’s Trial, a priest relates to Joseph K. the parable “Before the Law.”  The two then engage in a dialogue of exasperating Talmudic exegesis.  After turning the story every which way, the priest at last tells K., “it is not necessary to accept everything as true, one must only accept it as necessary.”  To this K. objects sadly and perhaps a little indignantly, “A melancholy conclusion.  It turns lying into a universal principle.”  This is just what Kant said any liar does when lying is subjected to his moral test.  Just as a universal law that made fulfilling promises optional contradicts the idea of a promise so, for Kant, a lie contradicts the aim of communicating.  Lies not only fail the universalizing test of the first form of the categorical imperative but also the second. To deceive a person is to turn him or her from subject to object, from end to means.

            In 1797 when Kant was 73, his attention was directed to an article by Benjamin Constant in the periodical France 2.  Kant correctly perceived that Constant was directly challenging his own absolutist position against lying.  Constant’s position is the same one I was compelled to take with my daughter.

                        To tell the truth. . . is a duty, but is a duty only with regard

                        to one who has a right to the truth. But no one has a right

                        to a truth that would harm others.  The moral principle

                        stating that it is a duty to tell the truth would make any

                        society impossible if that principle were taken singly and

                        unconditionally.  We have proof of this in the very direct

                        consequence which a German philosopher has drawn from

                        this principle.  This philosopher goes as far as to assert

                        that it would be a crime to tell a lie to a murderer who

                        asked whether our friend who is being  pursued by the

                        murderer had taken refuge in our house.

            The story of the inquiring murderer presents an emergency like the one Dr. Moore encountered in his office when his patient divulged his determination to kill Tatiana Tarasoff.  The stories with actual people in them tend to blow away wispy philosophical abstractions; they can leave sticky matters of life and death.

            Old as he was, the Prussian professor couldn’t let this French challenge pass.  Kant responded with a whole pamphlet but his lengthy answer is epitomized by its title, On A Supposed Right to Tell Lies from Benevolent Motives.

            I certainly don’t want to be unfair to Kant.  He will, I think, allow that a “social” lie may be, to use his word for acts aimed a positive results, “praiseworthy.”  But he will not permit even a well-intended fib to be deemed “moral.”  If we agree with Constant that “social lies” are essential to get along with one another, then Kant’s insistence that scanting the truth is immoral would mean that social life itself is not moral.  I’m entirely willing to grant this, especially when I consider how many of my own vices are social and how few virtues—and how close the latter can be to vices.  But perhaps a little face-saving hypocrisy is the blush on the cheek of a healthy civilization.  Would you readily invite a remorseless truth-teller to be your houseguest for a long weekend, even if it were Socrates himself?  Kant understands that sympathy, cunning, prudence, and calculation are praiseworthy qualities in doctors, hunters, financial advisors, and accountants. Efficient professionals with such qualities deserve appreciation, he says, just not respect.  Well, respect is not a notably warm emotion.  It seems to me a sort of amalgamation of love and fear—like one of Kant’s own syntheses, made of both yet the same as neither.

            And so Herr Doktor Professor Kant stamps his foot and insists that not to tell the murderer that Heinrich’s hiding down in the cellar would be to heap the vice of lying atop the sin of homicide.  Really, one wants to blush for Kant, to excuse him by claiming he must have been affected by the dementia that did soon to overtake him.  But, in fact, in defending himself against Constant the good professor wrote forthrightly and with his usual precision:

                        The “German philosopher” will not take as one of his principles

                        the proposition:  “To tell the truth is a duty, but only to him

                        who has a right to the truth.”  He will not do so, first, because

                        of the ambiguous formulation of this proposition, for truth

                        is not a possession the right to which can be granted to one

                        and denied to another.  But he will not do so chiefly because

                        the duty of truthfulness. . . makes no distinction between

                        persons to whom one has this duty and to whom one can

                        exempt himself from this duty; rather, it is an unconditional

                        duty which holds in all circumstances.

            No doubt Kant would feel awful if a murderer he’d informed should find and kill his friend.  I’m sure he’d be miserable, but then Kant associates morality with misery. He is not the first thinker to divorce being good from being happy; but he is the first to recommend being good especially when it makes you unhappy. Is there a more melancholy sentence about ethics than this:  “Morality is not properly the doctrine of how we should make ourselves happy, but how we should become worthy of happiness”?  He seems nearly to say that only the unhappy deserve to be happy, like an abused orphan who suffers for hundreds of pages in a Dickens novel but comes into money at the end.

            The only way to win respect and moral authority is to pay for them.  If you are so fortunate that your moral duty corresponds to your inclination, then, for Kant, there’s little credit in carrying out that duty.  We all think this way from time to time; for instance, I don’t like to feel the University is paying me just to talk to young people about books, something I enjoy doing; so I suppose the monthly check is for grading papers and remaining conscious through faculty meetings.  Still, what Kant says is a formula for tragedy.  It goes far beyond Shaw’s quip about the Englishman who “thinks he is moral when he is only uncomfortable” or using Listerine and iodine because one tastes bad and the other stings.  Kant opposes love to duty.

            I think the idol Kant ended up worshipping was his own theory; but what bothers me more is that, in elevating consistency above humanity, Kant betrayed that theory, that he commits, in effect, the very error he claims to abhor:  inconsistency.  His stubbornness is a reminder that virtue persisted in to excess may turn into its opposite.  The same Kantian argument that values the life of Miss Tarasoff more than the APA’s rule book ought to make the life of Heinrich, cringing down in the cellar, outweigh the imperative to tell the truth, the whole truth, and nothing but the truth to everybody all the time.  A dozen years before his reply to Benjamin Constant Immanuel Kant wrote this:

                        If there is a categorical imperative, it must be one which,

                        being drawn from the conception of that which is necessarily

                        an end for everyone because it is an end in itself, constitutes

                        an objective principle of will, and can therefore serve as a

                        universal practical law  The foundation of this principle is; 

                        rational nature exists as an end in itself.

Editor’s Note

            The California Supreme Court released its decision in the Tarasoff case on July 1, 1976, three days before the country’s two hundredth birthday.  As Fein says he was writing it a couple of weeks later, this piece can be dated to the middle of the month.

            It is rare for Fein to respond to current events.  The issue at stake in the Tarasoff case clearly stimulated him, perhaps because he connected it with being caught in a lie by the nine-year-old Maya.  Above all, though, I think it was the connection he made to Kant that led Fein to organize his thoughts.

            The title, “On Idol Worship,” is mine.  Fein merely scribbled “Tarasoff” at the head of his manuscript.

            Sidney Fein thought highly of Kant whom he included in all his philosophy courses.  In fact, the syllabus of an introductory ethics survey he taught in the Fall of 1975 indicates that he devoted two and a half weeks to Kant, as much as he gave Socrates.  Everybody else, from Plato to Nietzsche, got only one.  According to the syllabus, the first week was reserved for “Kant’s Epistemology and Kant and Rousseau.”  There are echoes of the classroom in this piece.  According to some notes he made for a lecture, Fein felt a need to explain Kant’s epistemology before his ethics:  “Two hours just so they’ll know what the categorical in categorical imperative means.”  Fein believed that reading Rousseau was a turning-point in Kant’s life.  He thought Rousseau’s challenge to intellectuals provoked “the greatest mid-life crisis in the history of philosophy.”  It is typical of Fein that he was at least as interested in why the philosopher thought what he thought as in what he thought.  The second week was given over to The Foundations of the Metaphysics of Morals.  The extra half-week was spent discussing a movie, Peter Ustinov’s film of the Coxe and Chapman play based on Melville’s Billy Budd (1961).  Fein, who called Kant “our first tragic philosopher” in “Three Pedagogical Pieces,” evidently saw in Captain Vere the ideal Kantian hero.

            Idol worship seems also to have been on Fein’s mind that summer.  Accompanying his manuscript, in addition to a copy of the Tarasoff decision, quotations from Kant and Constant, are biblical passages from Exodus, Leviticus, Isaiah, Daniel, Jeremiah, 1 Kings, and 2 Chronicles.  Perhaps Fein chose to cite only Ezekiel, Chapter 14, because it best suggests the broader, secular meaning of worshipping idols.

            Though distinctive in some ways, in others “Idol Worship” has much in common with other of Fein’s posthumous papers.  Kafka is a familiar touchstone; an anecdote about Maya is not so rare, and the flexible but coherent structure is exceptional only for its two-part form.

            As an instance of ethics applied as law, the Tarasoff case has turned out to be as consequential as Fein anticipated.  By establishing a “duty to protect” that trumps medical confidentiality it altered the obligations of mental health professionals and has made familiar the trigger phrase:  “a danger to oneself or others.”