We’ve all heard it. Whether it’s “What about her emails?” applied to Hilary Clinton or “There were good people on both sides” as applied to Charlottesville or “The CIA is just as bad as the KGB” back in the day and all the way back to Lenin (pictured above), the idea that one side is just as bad as the other has had a long and unhealthy life in the political and policy debates of this country. This very brief post is about moral equivalence or whataboutism with one purpose in mind: to identify it as just what it is. A fallacy.
Just so you don’t think that Lenin invented whataboutism, this fallacy has been around long enough to have a Latin name: tu quoque, “you also”. Here’s how it works, with examples taken from the “Tu Quque” article from Wikipedia:
- Peter: “Person A is guilty of defrauding the government out of tax dollars.”
- Bill: “How can you say that when you yourself have 20 outstanding parking tickets?”
It is a fallacy because the moral character or actions of the opponent are generally irrelevant to the logic of the argument. It is often used as a red herring tactic and is a special case of the ad hominem fallacy, which is a category of fallacies in which a claim or argument is rejected on the basis of facts about the person presenting or supporting the claim or argument.
In the trial of Nazi criminal Klaus Barbie, the controversial lawyer Jacques Vergès tried to present what was defined as a Tu Quoque Defence—i.e., that during the Algerian War, French officers such as General Jacques Massu had committed war crimes similar to those with which Barbie was being charged, and therefore the French state had no moral right to try Barbie. This defense was rejected by the court, which convicted Barbie.
I think the Barbie trial example really brings the fallacy into focus. Nobody would seriously think that whatever the French forces did in Algeria, the French government does not have the right to try Barbie for crimes committed in France. But even more to the point–and this is the real problem with whataboutism–what the French did in Algeria has nothing to do with Barbie’s actions or guilt. One has no relation to the other; two wrongs (if there even are two wrongs) do not make a right or excuse one another.
Obvious, right? So why does this fallacy have such staying power? First, those who use moral equivalency/whataboutism see it as a way to duck moral responsibility or the unpleasant task of talking about what they have done, which people generally don’t like to do. Second, fallacies have been around since at least the time of Aristotle because they work; people get confused by what they think is a sound argument when in fact it is not. And in the heat of an argument, it is very difficult to try to explain fallacies to someone who just wants to shift the focus away from themselves. You end up talking past the person, who thinks they have won. As I said, fallacies work.
So moral equivalence doesn’t advance the moral dialogue: it denies that there is a moral hierarchy or it just plain avoids the issue. And we should not use the identification of the fallacy as a way of avoiding our own moral deficiencies: we don’t accomplish anything by simply turning the tables and using the fallacy ourselves. The only thing we can do is recognize whataboutism when we see it and call it out. We might not convince the users of the fallacy, but at least we will not be taken in by it.
But does it apply in the legal realm? This is a legal blog, after all. Other than general discussions of legal issues, you might not be surprised to learn that in very limited areas of the law, a version of whataboutism is not a fallacy and is, in fact, a valid argument that is actually part of the law.
Something like tu quoque (but also very different) is applicable in a very narrow slice of the law (certain negligence actions under certain laws and a few others which this post won’t cover). The key is that it is only a valid argument in the same case, For example, if I am in an auto accident, and I am at fault and the other driver is also at fault, then (assuming that it is the law where the accident happened) we compare negligence in sorting out the liability. But notice: it is the same case, not different cases. The other driver has to show that I am at fault in this case; they cannot say “Well, what about that accident two years ago?” That would be true whataboutism; comparing our respective negligence, in this case, is not.
So, even the law is wise to the whataboutism fallacy. Even where it looks like they allow it, they really don’t. You might get to compare negligence, but don’t try calling the prosecutor an embezzler during your murder trial.
Next posting; Can the President be indicted?