Keywords

We might think we could appeal to the norms of a profession to settle any issues that may arise about the conduct of a professional, but those within any profession can disagree about what it is to be a member of a profession and disagree to the point of casting out someone who adopts a different understanding of what professionals in that profession ought to do. We shall begin with an example from historians and then provide examples of other disputes within professions about the very nature of the profession.

Historians

Stephen Ambrose’s three-volume biography of President Eisenhower became the standard in part because he claimed it rested on extensive interviews he had with the President for several hours at a time twice a week over a long period. The discovery that he never met with the President alone and only met with him and others once or twice, and not in total for more than two-and-a-half hours at most, meant that his biography instantly lost all credibility as a work of history.

The judgment implicit in that loss of credibility rests on the universal agreement that historians are to tell the truth about the past. Thucydides begins his histories by saying, ‘To hear this history rehearsed, for that there be inserted in it no fables, shall be perhaps not delightful. But he that desires to look into the truth of things done, and which … may be done again, or at least their like, shall find enough herein to make him think it profitable’ (Thucydides 1989, 14). By the 17th century, the understanding that historians are to tell the truth was so embedded in the profession and elsewhere that in his extensive dictionary Pierre Bayle could ask, rhetorically, after remarking that historians can upset their readers with the truth, ‘Does this free a historian from the obligation he is under of relating the truth with all possible exactness?’ (Bayle 1826, 214). As David Hume puts it, ‘The first page of Thucydides is, in my opinion, the commencement of real history. All preceding narrations are so intermixed with fable, that philosophers ought to abandon them to the embellishments of poets and orators’ (Hume 1985, 422).

However historians may agree about the necessity of an historian’s telling the truth to be an historian, they are in disagreement, sometimes vehemently so, about how to tell the truth—and even what it is to tell the truth and whether that is ever possible. We would need an historian of historians for a full and accurate picture of the disagreements over what it is to be an historian, but it will be enough for our purposes to tease out just a few of the issues that can separate historians one from another.

One tension within the profession concerns the way in which historians write. As one historian puts it,

The gradual withering of the narrative impulse in favor of the analytical urge among professional academic historians has resulted in a virtual abdication of the oldest and most honored role of the historian, that of storyteller (Foote 1975).

This lament from an historian who writes narratives must be paired with a critique of Gordon Wood, one of the most honored of contemporary historians:

From the perception of many contemporary historians, one could argue that Radicalism was the moment at which Wood went from being a neo-Whig historian to an old-school Whig historian. One could also argue that the real change was from being an academic to a more-popularly-oriented historian (Hattem 2013).

This is not a minor disagreement, as it turns out, but a major dispute about how an historian ought to write. The Glorious Cause: The American Revolution, 1763–1789, is volume II of the Oxford History of the United States, and in his review of that work, by Robert Middlekauff, Gordon Wood is unsparing in his criticism of Middlekauff for not recognizing ‘that society and culture transcend the particular aims and purposes of individuals, that people make their social and intellectual history but are at the same time bound by what they have made.’ Middlekauff thus writes of the Revolutionary War, Wood observes, as though people ‘are free-acting autonomous moral agents whose motives and actions have clearly defined consequences.’ Personal blame and praise is thus appropriate, and what is left out are all the social and economic forces that would explain why, for instance, ‘Revolutionary Americans suddenly broke from English constitutional practice and effectively barred the subsequent emergence of parliamentary cabinet government.’ Wood sums up this particular criticism by saying, ‘Middlekauff’s account of the formation of the Constitution virtually sets back scholarship on the issue at least a century’ (Wood 1982a).

This is from one famous historian about another famous historian and is an indication of the depth of disagreement about how historians are to write and, much more important, about the very nature of history. This has been referred to as the ‘split in the American historical profession between traditional narrative and quantitative social science’ and raises, obviously, both the hackles of its competitors and serious epistemological questions about how we are to come to knowledge of the past (Wood 1982b).

This split is not just between historians who write narratives and those who wrote ‘historical monographs,’ as Wood puts it, but between those who think history is created by the great individuals in history—e.g., George Washington—who make all the difference and those who think social and economic and other forces are what matter in historical change.

One obvious moral implication is that a citizenry primed with the former view is all the more likely to take seriously some self-proclaimed ‘great man’—like Hitler or Mussolini—who says, ‘I am the only one who can fix it.’ If social and economic and other forces are what matter for societal change, then appealing to a ‘great man’ means ignoring the causal factors responsible for the troubles a society is having.

This split between historians is by no means the only one. Barbara W. Tuchman once wrote that she writes history ‘not “to instruct but to tell a story”’ (Wood 1984). Some historians think one point of writing history is to instruct and could argue that there is no way historians cannot instruct when writing history. We are all familiar with the substance of Edmund Burke’s remark: ‘Those who don’t know history are doomed to repeat it.’ The point is that we are to learn from history how to avoid the mistakes others have made.

It should be no surprise, however, to find historians criticizing books of history that are written ‘not merely to impart historical information but to teach moral and political lessons.’ Such books ‘reflect an assumption that they are to serve as what are now called “modes of socialization,” as sources of values, aspirations, and models to follow whose influence lasts far beyond childhood’ (Foner 1972).

The ethical implications of such a view are obvious—with different values being hawked depending upon the differing views of individual historians. An historian who thinks Elizabeth I of England by far its best monarch is teaching moral and political lessons far different from an historian who thinks Henry VIII the best model to emulate.

We hardly need any other examples of the contested conceptions historians hold about how to write history, but here is one more. Francis Parkman wrote a seven-volume history of France and England in North America from 1865 to 1892, and though it was lauded at the time, it fell out of favor because, among other things, the histories were dominated by his belief in the inevitability of progress, by his acceptance of the Great Man theory of historical change, and by an anticlericalism so strong as to affect his judgment of events at crucial moments (Taylor 1983).

We see again the charge that an historian has adopted the ‘Great Man theory of historical change,’ but two new charges are added. One is that historians should not assume that events proceed inevitably towards progress. The other is that an anti-religious bias has affected Parkman’s objectivity.

Even with this last example, we have by no means exhausted the contested conceptions historians have of their fundamental goal of telling the truth. As Gordon Wood puts it, ‘[T]hat we historians are telling the truth is what distinguishes us from fiction writers’ (Wood 2009, 109). The seemingly universal agreement that telling the truth about the past is the role of historians—part of their role morality, what they ought to do as historians—obscures serious disputes about how historians are to tell the truth. These disputes are internal to the discipline in the sense that historians disagree with each other about what they ought to be doing as historians, but the disputes have significant consequences for the public.

Some of these are epistemic. When we discover that a famous historian like Stephen Ambrose lied about events so central to one of his major works, a lie that undercuts its historical value, we ought to be at least moderately chary of taking historians at their word. When we discover, in addition, that even they disagree about how to fulfill their overarching aim to tell the truth, we ought to wonder what we are to accept as historically accurate and what not. We outsiders have no way to judge these disputes or to determine how they affect what various historians write. So we have no way of knowing whether what we are reading has been shaped by a contested conception of history and so no way of knowing how to protect ourselves from any biases that have entered into what we are reading.

But a second set of consequences is of more immediate concern. The differing conceptions of how historians are to tell the truth about the past have moral implications. They are not just different ways of approaching the past—as though we could read a multitude of books about the Civil War, say, and simply pull their narratives together into a single coherent whole. They are different ways of understanding the past—as object lessons for what we ought to avoid, as describing individuals who model how we ought to behave, as evidence for the inevitable progress of humankind and so a directive about how we ought to behave to further that progress, and so on. These different understandings of the past have different moral implications, giving us moral guidance of different sorts.

These disputes within history are not morally neutral, that is, and in some cases at least rest on competing ethical principles about what an historian’s role is. Wood is not just saying that Middlekauff fails to provide an adequate understanding of why our constitution ended up as it did. He is saying that Middlekauff’s account is harmful, setting ‘back scholarship on the issue at least a century.’ That is a moral claim, based on the principle that historians are obligated to further the study of history, not undermine it through carelessness or negligence.

Such disputes within a profession are all too easy to find, and some are perhaps of more obvious concern to the public than others. We shall look at one of prime importance to public employees.

Accountants

Accountants have the seemingly impossible task of providing an objective evaluation of what a corporation, say, is worth. It seems an impossible goal because what is required for objectivity is that accountants keep books in accordance with GAAP, the Generally Accepted Accounting Principles. The advantages are obvious. There is a single standard, supposed to be used world-wide, that allows investors and governments to compare the financial health of whatever they are providing an accounting for. The standard is also objective because GAAP requires that the value of a piece of property, say, be the price at the last transaction—an objective measure of what someone was willing to pay for the property. We know that the value of a piece of property does not stay constant: its value can go up or down depending on all sorts of variables, e.g., whether the economy is growing or not, whether some undesirable neighbors have moved in, whether the property is kept up, and so on. But using the selling price as GAAP requires ensures that accountants do not have to estimate what a piece of property would sell for were it now on the market. Estimates can vary enormously, depending on what variables someone takes to be relevant and on what judgment is made about how the property’s future will play out. The last selling price is a real number stating exactly what a buyer was willing to pay.

But as we know, that selling price need not reflect the true value of the property. A company may have purchased property to expand only to discover afterwards that the ground is toxic and the cost of recovery many times the original cost of the property. So if the company paid a million for it, it will be listed on the books as worth a million—as an asset. But the company cannot sell it for a profit or even for what it cost since its actual market value is a million minus whatever the cost of the cleanup—$30 million? The company could not give it away, that is, but would have to fork out the cost of the cleanup to get rid of it. The one million asset on the books would become a thirty million liability. An objective evaluation in accordance with GAAP requires accountants to use the last selling price of a property, its value on the books. But the book value need not be the market value.

Accounting firms have found this a less than trivial problem. They have been sued for failing to provide investors with the information they need to know about a company’s real, i.e., market, value. Audits indicated the savings and loan institutions in the 1980s were solvent because they calculated the book value, but the books hid the losses from properties those institutions purchased at prices significantly higher, in many cases, than they were worth. The institutions just kept the properties on the books and so looked solvent when, had their real worth been audited, they would have been seen to be insolvent (White 1991). Ernst & Young had to pay $400 million in 1992 because it ‘had improperly audited federally insured banks and savings institutions that later failed’ (Mills 1994). KPMG had to pay $97 million to the state of Victoria, Australia after being sued by the government for a 1988 audit of ‘the Tricontinental Group merchant bank [that] failed to disclose its problems’—liabilities that totaled $1.85 billion when it collapsed shortly after the audit. KPMG’s defense was that it followed GAAP in its audit, but following GAAP failed to disclose the bank’s market value. The state of Victoria had put money into the bank, following the auditing, and lost it when the bank collapsed shortly afterwards.

Courts effectively held that the accounting firms had failed to act in the public interest—‘clients, credit grantors, governments, employers, investors, the business and financial community, and others who rely on the objectivity and integrity of certified public accountants to maintain the orderly functioning of commerce’ (Code of Professional Conduct of the American Institute of Certified Public Accountants, 0.300.030). It is in the public’s interest to know the true worth—the market value—of a corporation, say. Investors cannot make reasonable decisions about where to invest without that knowledge.

The tension within accounting is between providing objectivity through GAAP’s requirement to use the last selling price for the value of an asset and acting in the public interest to give its market value. It appears that accountants cannot do both (Oliver and Robison 1995, 3–11).

This tension is internal to accounting and may seem unlikely to produce the kind of internecine conflict we have just examined among historians, but the same sort of problem has produced just such a conflict between members of the American Academy of Actuaries. Public pension funds keep two sets of books—the official record and the market value. The official record is the one that those with pensions and those responsible for pensions see. The book for the market value is kept private.

The two sets of books need not correspond, and problems arise when the market value is significantly less than the stated ‘official’ value. Carmel-by-the-Sea discovered that the market value of its pension fund was $48 million short of what it owed the city’s retirees—a very unwelcome and unexpected surprise since the official value showed the debt to be a quarter of that. Having two sets of books, one ‘official’ and the other the true, or market, value,

raises serious concerns that governments nationwide do not know the true condition of the pension funds they are responsible for. That exposes millions of people, including retired public workers, local taxpayers and municipal bond buyers — who are often retirees themselves — to risks they have no way of knowing about (Marsh 2016).

A small pension fund in California showed ‘far more money than it needed’ and so decided to convert to a 401(k) plan, only to discover that it owed ‘more than half a million dollars’ (Marsh 2016). The fund knew the book value, but not the market value—which the pension system kept secret. Those in the pension fund faced a risk they did not know about—and had no way of finding out until it was too late to make an informed decision.

There are two sets of books because one, the official one, calculates the value of a public pension’s funds at an average of ‘7.6% a year’ while the market value is calculated at a ‘riskless rate, currently below 3%.’ If a portfolio were to accrue in value by 7.6% per year, it would not take too many years for its apparent worth to be far more than it would be were it to accrue in value by less than 3%. Funds calculated at the higher rate are now one ‘trillion short of the money they will need to fund pension credits that workers have already earned. But if pension systems were required to use a riskless rate, currently below 3%, the shortfall would soar to more than $3 trillion.’

Using an optimistic rate of return has consequences far beyond keeping everyone but those who manage the pensions in the dark. Jeremy Gold is one of the authors of a paper that was to be published by ‘a 14-year-old task force on pension financing’ of the American Academy of Actuaries and the Society of Actuaries (the AAA and SOA). As he noted, ‘Consistent lowballing of pension costs over the past two decades has made it easy for elected officials and union representatives to agree on very valuable benefits, for very much smaller current pay concessions’ (Malanga 2016).

The thesis of the paper Gold and others wrote was that ‘many state and local retirement systems calculate their obligations using overly optimistic future rates of return. The authors want states and municipalities to adopt new valuation standards that would make projecting the cost of future benefits more predictable’ (Malanga 2016).

The task force was shut down by the AAA and SOA and denied permission to publish the paper. The paper was ‘a work product of the joint PFTF,’ they said,’intended to be published by the academy and the SOA as a jointly owned and copyrighted paper.’ But the paper will not be published or endorsed by either group, and,

Because the paper was the work of the joint task force, we do not think it would be appropriate for members of the task force, as individuals, to take the existing paper and simply publish it somewhere else. We recognize that some of the individuals who have been on the PFTF have their own personal ideas and views on these topics, and the academy and the SOA encourage those individuals to express those ideas in other forums. But they cannot use the existing paper, with the particular expressions of ideas as developed by the task force, as the vehicle to do so (Burr 2016).

An internal tension between how to calculate the value of pensions has thus split actuaries, some arguing that overly optimistic projections of the value of public pensions leave governments and those who are to get pensions ignorant of the real value of their pensions, others arguing, it appears, that optimistic projections are justified because ‘governments don’t go out of business the way private companies do,… [they have] a much longer window to recover from bad investments’ (Malanga 2016).

Whatever the cause of the tension, it has significant moral implications. We would rightly object on moral grounds were a pension fund to lie to those expecting pensions, telling them they would be paid in full, say, when the fund was about to go insolvent. Those expecting pensions would retire and discover that the money they expected to live on in retirement was not there, exposing them and those dependent upon them to poverty and all the attendant ills. But the public pension funds might as well be lying given the effects of its failure to disclose the true value of funds. The perception everyone would have rests upon what is made public, and what is made public is an optimistic projection of what the fund could be worth if it paid a high interest rate, rarely achieved.

We can see the effects of such optimistic projections in various municipalities across the United States. Dallas has ‘a hidden pension debt of almost $7 billion,’ the result of a decision in 1993 by state lawmakers who ‘sweetened police and firefighter pensions beyond the wildest dreams of the typical Dallas resident. They added individual savings accounts, paying 8.5 percent interest per year, when workers reached the normal retirement age, then 50. The goal was to keep seasoned veterans on the force longer.’ The actuaries involved pointed out that the assumptions the legislature was making ‘were shaky.’ So they did their duty. The legislature did not, and the mayor of Dallas now says ‘his city appeared to be “walking into the fan blades” of municipal bankruptcy’ (Walsh 2016).

The problem regarding accountants with which we began this section is far more difficult to solve than this tension regarding pensions. We cannot figure out any easy—or even complex—way to solve the accounting problem. Accountants cannot obtain objectivity by guessing the worth of a piece of property were it to be sold, but when they appeal to the price at which it was obtained, they achieve an objectivity which does not reflect the current value. The value they provide is the value the property did have, not what it does have now.

Accountants are not going to split into opposing factions because of this problem. It is internal to accounting itself: the norm for achieving objectivity, GAAP, guarantees that accountants will not obtain an accurate accounting of a company’s current worth. So appealing to the norms of accounting is not going to help accountants any more than appealing to the norms of history will help historians settle the question of how to tell the truth.

The dispute between actuaries is of the same sort as that between historians. It cannot be settled by appealing to the profession’s norms because what is at issue is what the norm for calculating the value of pensions ought to be. That the dispute runs deep is evidenced by the AAA and SOA not only refusing to endorse a report of its own task force, but also insisting that the authors are not to publish it on their own.

It is more than a little unfortunate that the split has such implications for the public’s ability to make informed decisions about the future—especially for those individuals whose life savings are tied up in pensions. Their being able to live with some comfort in their old age depends upon knowing how much has really been put aside and thus whether they need to save more.

Other Professionals and Lessons Learned

The split among actuaries, as with the split among historians, cannot be settled by appealing to the profession’s norms. Those norms are just what are in question. Is it a feature of an actuary’s role to provide an accounting of public pensions that reflects a realistic rate of return or one that reflects, on average, an unrealistic 7.6% rate of return? Despite that question having a rhetorical ring to it, its answer will depend upon actuaries coming to grips with what it is to be an actuary—what obligations an actuary has to the public and how those obligations are best fulfilled. The answer depends not upon a clear understanding of an actuary’s role that we have at hand, but upon the results of a reasoned discussion within—and without—the profession about that role and an examination of the ethical implications of choosing one understanding of that role over another.

This sort of tension between actuaries and between historians can be found in many other professions. When DNA revolutionized biology, biologists trained in the old style found themselves marginalized. A biologist at the University of Wisconsin complained that he had been a professor of biology, but after DNA-savvy biologists came to dominate the department, he found himself relegated to a ‘field biologist’—a downgrading of his status, he thought, and a source of tension about the nature of biology. We are all familiar with the dispute among lawyers as to their fundamental role in defending clients: should a lawyer be a hired gun, doing whatever can be done to defend a client, including, for instance, allowing a client to lie before a jury or judge, or should a lawyer hold the integrity of the legal process of more importance?

Such a dispute about the role of lawyers obviously has ethical implications, and the dispute is grounded on either side on moral principle. If the presumption of innocence has any importance, it is argued, then surely the burden must be on the state to prove guilt beyond a shadow of a doubt—within the existing legal framework. As long as a lawyer does not break the law, anything goes in defending a client, it is claimed, because it is a moral imperative that guilt must be proved. Otherwise innocent people may be convicted. On the other hand, it is argued, although the legal system is an instance of imperfect procedural justice, with some guilty being found innocent and some innocents found guilty, the integrity of the system depends upon the trust that no one is trying to game the system and that a defendant’s lawyers are doing their best to prevent a proof of guilt—within the confines of the existing legal framework. They are not to bribe the judge or members of the jury or coerce any witnesses into recanting their testimony or making up new stories. Our trust in the integrity of the legal system depends upon our trust that members of the legal profession—the lawyers, the judges, the court stenographer—are doing what they ought to do to maintain and further that integrity.

Such a dispute about the role of lawyers comes to a head when a lawyer is told by the client of an intent to lie upon the witness stand. The lawyer ought to try to convince the client that lying is a mistake, that the prosecuting attorney is bound to catch the client out, and that the consequence will surely be a conviction when the jury becomes convinced the client is lying. But if the lawyer is unable to persuade the client, what ought a lawyer to do?

Lawyers disagree, some arguing that a lawyer has what amounts to an absolute obligation to defend a client even if the client lies under oath, others arguing that as an officer of the court a lawyer cannot let a client lie without telling the judge of the client’s intent, effectively ensuring a mistrial since the attorney/client relationship has then been breached. We cannot appeal to a legal norm to determine who is right because it is the norm that is in question.

We can provide one more brief example. Physicians are trained to learn how to look at patients as mechanisms, as it were, like bicycles that have some failing or other or have been in some accident and are mangled. We want that objectivity from physicians. The last thing we would want is for our physicians to turn red with embarrassment upon seeing us undressed for an examination. But physicians must also relate to us as human beings, not as mechanisms, with a bedside manner quite at odds with the attitude of a bicycle mechanic telling us about what needs to be done to our bike to make it serviceable again.

It makes a moral difference, obviously, how our physicians treat us. If our physicians cannot see us as mechanisms subject to breakdown and breakage, they will not assess our condition properly and will not provide us with the medical care we need. But if our physicians cannot communicate to us, person to person, with the care and compassion we rightfully expect from a caregiver, we will properly feel objectified—not a patient, but an object for inspection. The necessary communication between physician and patient will suffer accordingly.

There is more to say about such internal disputes within the medical profession and legal profession and, indeed, many other professions, but we have enough to conclude that:

  • Not all disputes can be settled by a profession’s norms since there can be internal disagreements within each profession about its nature and thus about its norms.

  • These disagreements are not ethically neutral and, indeed, often rest on competing ethical principles about what a profession’s role is.

  • How these disputes are settled, if they are, is a matter of ethical concern not just to those within a profession, but to the public at large since no matter how they are settled, they will have a great impact on the public, with some settlements causing great harm.

The bottom line is that the norms of a profession do not provide definitive answers to what those within a profession ought to do. As we saw with historians over their disagreements about how to tell the truth and with actuaries with what rate of return is reasonable to project, the norms can be contested. Such contests cannot be decided by appealing to what is itself being contested, the norms of the profession. Those contests must be determined on other grounds, the reasons for adopting one conception over another.

Perhaps a more dramatic way of putting this is that appealing to the codes of ethics of the various professions will not, in itself, settle any moral issue. The codes are at best a guideline to what, at some particular time, those, or some of those, in a profession think the profession and members of the profession ought to do. That a profession has reached enough of a consensus at a particular time to agree on a code of ethics is no guarantee that the code is exhaustive of all the ethical issues those in a profession will meet or even a guarantee that what it says about any one ethical issue is definitive.

The requirement that a profession reach agreement about its code pushes its provisions towards an acceptable generality that is of little help in specific cases. Even a provision that may seem obvious on its face—as we saw with the fiduciary rule that financial advisors are to act in their clients’ best interest—can be contentious and contested within a profession.

Whenever we have a serious ethical issue, we cannot just appeal to the norms or the code of ethics of a profession. We must instead provide reasons for making whatever decision we make, reasons that presuppose an objective understanding of what is at issue. Getting that objectivity can be itself the most difficult of undertakings. Serious ethical issues generally involve cases where both sides in the case have what they take to be good ethical reasons for deciding in favor of their side rather than the other. Objectivity requires that we hoist ourselves out of our own position to put ourselves in the position of those on the other side who think themselves in the right, letting go of the passion that underlies our commitment to our side to see how others could be as passionate about theirs. Judges do this in considering cases where two parties care enough about an issue to spend the time, the energy, and the money to go to court and risk losing it all. A judge is obligated to understand thoroughly the reasons each side has for its view and then adjudicate between the two. Making moral judgments in serious cases requires the same of us.