Social cognitive theory (SCT), used in psychology, education, and communication, holds that portions of an individual's knowledge acquisition can be directly related to observing others within the context of social interactions, experiences, and outside media influences. This theory was advanced by Albert Bandura as an extension of his social learning theory.
The theory states that when people observe a model performing a
behavior and the consequences of that behavior, they remember the
sequence of events and use this information to guide subsequent
behaviors. Observing a model can also prompt the viewer to engage in
behavior they already learned.
In other words, people do not learn new behaviors solely by trying
them and either succeeding or failing, but rather, the survival of
humanity is dependent upon the replication of the actions of others.
Depending on whether people are rewarded or punished for their behavior
and the outcome of the behavior, the observer may choose to replicate
behavior modeled. Media provides models for a vast array of people in
many different environmental settings.
Contents
History
The conceptual roots for social cognitive theory come from Edwin B. Holt and Harold Chapman Brown's
1931 book theorizing that all animal action is based on fulfilling the
psychological needs of "feeling, emotion, and desire". The most notable
component of this theory is that it predicted a person cannot learn to
imitate until they are imitated.
In 1941, Neal E. Miller and John Dollard
presented their book with a revision of Holt's social learning and
imitation theory. They argued four factors contribute to learning:
drives, cues, responses, and rewards. One driver is social motivation, which includes imitativeness,
the process of matching an act to an appropriate cue of where and when
to perform the act. A behavior is imitated depending on whether the
model receives a positive or negative response consequences.
Miller and Dollard argued that if one were motivated to learn a
particular behavior, then that particular behavior would be learned
through clear observations. By imitating these observed actions the
individual observer would solidify that learned action and would be
rewarded with positive reinforcement.
The proposition of social learning was expanded upon and theorized by Canadian psychologist Albert Bandura. Bandura, along with his students and colleagues conducted a series of studies, known as the Bobo doll experiment,
in 1961 and 1963 to find out why and when children display aggressive
behaviors. These studies demonstrated the value of modeling for
acquiring novel behaviors.
These studies helped Bandura publish his seminal article and book in
1977 that expanded on the idea of how behavior is acquired, and thus
built from Miller and Dollard's research.
In Bandura's 1977 article, he claimed that Social Learning Theory
shows a direct correlation between a person's perceived self-efficacy
and behavioral change. Self-efficacy comes from four sources:
"performance accomplishments, vicarious experience, verbal persuasion,
and physiological states".
In 1986, Bandura published his second book, which expanded and renamed his original theory. He called the new theory social cognitive theory.
Bandura changed the name to emphasize the major role cognition plays
in encoding and performing behaviors. In this book, Bandura argued that
human behavior is caused by personal, behavioral, and environmental
influences.
In 2001, Bandura brought SCT to mass communication
in his journal article that stated the theory could be used to analyze
how "symbolic communication influences human thought, affect and
action". The theory shows how new behavior diffuses through society by
psychosocial factors governing acquisition and adoption of the behavior.
In 2011, Bandura published a book chapter -- The Social and Policy Impact of Social Cognitive Theory—to extend SCT'S application in health promotion and urgent global issues,
which provides insight into addressing global problems through a macro
social lens, aiming at improving equality of individuals' lives under
the umbrellas of SCT.
SCT has been applied to many areas of human functioning such as career choice and organizational behavior as well as in understanding classroom motivation, learning, and achievement.
Current status
Social
Cognitive Theory originated in psychology, but based on an unofficial
November 2013 Google Scholar search, only 2 percent of articles
published on SCT are in the pure psychology field. About 20 percent of
articles are from Education and 16 percent from Business. The majority
of publications using SCT, 56 percent, come from the field of Applied
Health Psychology.
The majority of current research in Health Psychology focuses on
testing SCT in behavioral change campaigns as opposed to expanding on
the theory. Campaign topics include: increasing fruit and vegetable
intake, increasing physical activity, HIV education, and breastfeeding.
Born in 1925, Bandura is still influencing the world with
expansions of SCT. His recent work, published May 2011, focuses on how
SCT impacts areas of both health and population in relation to climate
change.
He proposes that these problems could be solved through television
serial dramas that show models similar to viewers performing the desired
behavior. On health, Bandura writes that currently there is little
incentive for doctors to write prescriptions for healthy behavior, but
he believes the cost of fixing health problems start to outweigh the
benefits of being healthy. Bandura argues that we are on the cusp of
moving from a disease model (focusing on people with problems) to a
health model (focusing on people being healthy) and SCT is the theory
that should be used to further a healthy society. Specifically on
Population, Bandura states that population growth is a global crisis
because of its correlation with depletion and degradation of our
planet's resources. Bandura argues that SCT should be used to increase
birth control use, reduce gender inequality through education, and to
model environmental conservation to improve the state of the planet.
Overview
Social
cognitive theory is a learning theory based gists agree that the
environment one grows up in contributes to behavior, the individual
person (and therefore cognition) is just as important. People learn by
observing others, with the environment, behavior, and cognition acting
as primary factors that influence development in a reciprocal triadic
relationship.
Each behavior witnessed can change a person's way of thinking
(cognition). Similarly, the environment one is raised in may influence
later behaviors. For example, a caregiver's mindset (also cognition)
determines the environment in which their children are raised.
The core concepts of this theory are explained by Bandura through a schematization of triadic reciprocal causation.
The schema shows how the reproduction of an observed behavior is
influenced by getting the learner to believe in his or her personal
abilities to correctly complete a behavior.
Behavioral: The response an individual receives after they
perform a behavior (i.e. Provide chances for the learner to experience
successful learning as a result of performing the behavior correctly).
Environmental: Aspects of the environment or setting that influence
the individual's ability to successfully complete a behavior (i.e. Make
environmental conditions conducive for improved self-efficacy by
providing appropriate support and materials).
It is important to note that learning can occur without a change in
behavior. According to J.E. Ormrod's general principles of social
learning, while a visible change in behavior is the most common proof of
learning, it is not absolutely necessary. Social learning theorists
believe that because people can learn through observation alone, their
learning may not necessarily be shown in their performance. These are
interdependent on each other and its influence can be directly linked
with individual or group psychological behavior.
According to Alex Stajkovic and Fred Luthans it is critically important
to recognize that the relative influences exerted by one, two, or three
interacting factors on motivated behavior will vary depending on
different activities, different individuals and different circumstances.
Theoretical foundations
Human agency
Social
cognitive theory is proposed in an agentic perspective, which suggests
that, instead of being just shaped by environments or inner forces,
individuals are self-developing, self-regulating, self-reflecting and
proactive. Specifically, human agency operates within three modes:
Individual Agency: A person’s own influence on the environment;
Proxy Agency: Another person’s effort on securing the individual’s interests;
Collective Agency: A group of people work together to achieve the common benefits.
Human agency has four core properties:
Intentionality: Individuals’ active decision on engaging in certain activities;
Forethought: Individuals’ ability to anticipate the outcome of certain actions;
Self-reactiveness: Individuals’ ability to construct and regulate appropriate behaviors;
Self-reflectiveness: Individuals’ ability to reflect and evaluate the soundness of their cognitions and behaviors.
Human capability
Evolving
over time, human beings are featured with advanced neural systems,
which enable individuals to acquire knowledge and skills by both direct
and symbolic terms.
Four primary capabilities are addressed as important foundations of
social cognitive theory: symbolizing capability, self-regulation
capability, self-reflective capability, and vicarious capability.
Symbolizing Capability: People are affected not only by direct
experience but also indirect events. Instead of merely learning through
laborious trial-and-error process, human beings are able to symbolically
perceive events conveyed in messages, construct possible solutions, and
evaluate the anticipated outcomes.
Self-regulation Capability: Individuals can regulate their own
intentions and behaviors by themselves. Self-regulation lies on both
negative and positive feedback systems, in which discrepancy reduction
and discrepancy production are involved. That is, individuals
proactively motivate and guide their actions by setting challenging
goals and then making effort to fulfill them. In doing so, individuals
gain skills, resources, self-efficacy and beyond.
Self-reflective Capability: Human beings can evaluate their thoughts
and actions by themselves, which is identified as another distinct
feature of human beings. By verifying the adequacy and soundness of
their thoughts through enactive, various, social, or logical manner,
individuals can generate new ideas, adjust their thoughts, and take
actions accordingly.
Vicarious Capability: One critical ability human beings feature is
the ability to adopt skills and knowledge from information communicated
through a wide array of mediums. By vicariously observing others’
actions and their consequences, individuals can gain insights into their
own activities. Vicarious capability is of great value to human beings’
cognitive development in nowadays, in which most of our information
encountered in our lives derives from the mass media than
trial-and-error processes.
Theoretical components
Modeling
Social
cognitive theory revolves around the process of knowledge acquisition
or learning directly correlated to the observation of models. The models
can be those of an interpersonal imitation or media sources. Effective
modeling teaches general rules and strategies for dealing with different
situations.
To illustrate that people learn from watching others, Albert
Bandura and his colleagues constructed a series of experiments using a
Bobo doll. In the first experiment, children were exposed to either an
aggressive or non-aggressive model of either the same sex or opposite
sex as the child. There was also a control group. The aggressive models
played with the Bobo doll in an aggressive manner, while the
non-aggressive models played with other toys. They found that children
who were exposed to the aggressive models performed more aggressive
actions toward the Bobo doll afterward, and that boys were more likely
to do so than girls.
Following that study, Albert Bandura tested whether the same was
true for models presented through media by constructing an experiment he
called Bobo Doll Behavior: A Study of Aggression. In this
experiment Bandura exposed a group of children to a video featuring
violent and aggressive actions. After the video he then placed the
children in a room with a Bobo doll to see how they behaved with it.
Through this experiment, Bandura discovered that children who had
watched the violent video subjected the dolls to more aggressive and
violent behavior, while children not exposed to the video did not. This
experiment displays the social cognitive theory because it depicts how
people reenact behaviors they see in the media. In this case, the
children in this experiment reenacted the model of violence they
directly learned from the video.
Observations should include:
Attention Observers selectively give attention to
specific social behavior depending on accessibility, relevance,
complexity, functional value of the behavior or some observer's personal
attributes such as cognitive capability, value preference,
preconceptions.
Retention Observe a behavior and subsequent consequences,
then convert that observation to a symbol that can be accessed for
future reenactments of the behavior. Note: When a positive behavior is shown a positive reinforcement should follow, this parallel is similar for negative behavior.
Production refers to the symbolic representation of the
original behavior being translated into action through reproduction of
the observed behavior in seemingly appropriate contexts. During
reproduction of the behavior, a person receives feedback from others and
can adjust their representation for future references.
Motivational process reenacts a behavior depending on responses and consequences the observer receives when reenacting that behavior.
Modeling does not limit to only live demonstrations but also verbal
and written behaviour can act as indirect forms of modeling. Modeling
not only allows students to learn behaviour that they should repeat but
also to inhibit certain behaviours. For instance, if a teacher glares at
one student who is talking out of turn, other students may suppress
this behavior to avoid a similar reaction. Teachers model both material
objectives and underlying curriculum of virtuous living. Teachers
should also be dedicated to the building of high self-efficacy levels in their students by recognizing their accomplishments.
Outcome expectancies
To
learn a particular behavior, people must understand what the potential
outcome is if they repeat that behavior. The observer does not expect
the actual rewards or punishments incurred by the model, but anticipates
similar outcomes when imitating the behavior (called outcome expectancies), which is why modeling impacts cognition and behavior.
These expectancies are heavily influenced by the environment that the
observer grows up in; for example, the expected consequences for a DUI
in the United States of America are a fine, with possible jail time,
whereas the same charge in another country might lead to the infliction
of the death penalty.
For example, in the case of a student, the instructions the
teacher provides help students see what outcome a particular behaviour
leads to. It is the duty of the teacher to teach a student that when a
behaviour is successfully learned, the outcomes are meaningful and
valuable to the students.
Self-efficacy
Social
cognitive theory posits that learning most likely occurs if there is a
close identification between the observer and the model and if the
observer also has a great self-efficacy.
Self–efficacy is the extent to which an individual believes that they
can master a particular skill. Self-efficacy beliefs function as an
important set of proximal determinants of human motivation, affect, and
action—which operate on action through motivational, cognitive, and
affective intervening processes.
According to Bandura, self-efficacy is "the belief in one's
capabilities to organize and execute the courses of action required to
manage prospective situations".
Bandura and other researchers have found an individual's self-efficacy
plays a major role in how goals, tasks, and challenges are approached.
Individuals with high self-efficacy are more likely to believe they can
master challenging problems and they can recover quickly from setbacks
and disappointments. Individuals with low self-efficacy tend to be less
confident and don't believe they can perform well, which leads them to
avoid challenging tasks. Therefore, self-efficacy plays a central role
in behavior performance. Observers who have high level of self-efficacy
are more likely to adopt observational learning behaviors.
Self-efficacy can be developed or increased by:
Mastery experience, which is a process that helps an individual achieve simple tasks that lead to more complex objectives.
Social modeling provides an identifiable model that shows the processes that accomplish a behavior.
Improving physical and emotional states refers to ensuring a
person is rested and relaxed prior to attempting a new behavior. The
less relaxed, the less patient, the more likely they won't attain the
goal behavior.
Verbal persuasion is providing encouragement for a person to complete a task or achieve a certain behavior.
For example, students become more effortful, active, pay attention,
highly motivated and better learners when they perceive that they have
mastered a particular task.
It is the duty of the teacher to allow student to perceive in their
efficacy by providing feedback to understand their level of proficiency.
Teachers should ensure that the students have the knowledge and
strategies they need to complete the tasks.
Self-efficacy
has also been used to predict behavior in various health related
situations such as weight loss, quitting smoking, and recovery from
heart attack. In relation to exercise science, self-efficacy has produced some of the most consistent results revealing an increase in participation in exercise.
Identification
Identification
allows the observer to feel a one-to-one similarity with the model, and
can thus lead to a higher chance of the observer following through with
the modeled action.
People are more likely to follow behaviors modeled by someone with whom
they can identify. The more commonalities or emotional attachments
perceived between the observer and the model, the more likely the
observer learns and reenacts the modeled behavior.
Applications
Mass communication
Media contents studies
Social
cognitive theory is often applied as a theoretical framework of studies
pertained to media representation regarding race, gender, age and
beyond.
Social cognitive theory suggested heavily repeated images presented in
mass media can be potentially processed and encoded by the viewers
(Bandura, 2011). Media content analytic studies examine the substratum
of media messages that viewers are exposed to, which could provide an
opportunity to uncover the social values attached to these media
representations. Although media contents studies cannot directly test the cognitive process,
findings can offer an avenue to predict potential media effects from
modeling certain contents, which provides evidence and guidelines for
designing subsequent empirical work.
Media effects studies
Social
cognitive theory is pervasively employed in studies examining attitude
or behavior changes triggered by the mass media. As Bandura suggested,
people can learn how to perform behaviors through media modeling.
SCT has been widely applied in media studies pertained to sports,
health, education and beyond. For instance, Hardin and Greer in 2009
examined the gender-typing of sports within the theoretical framework of
social cognitive theory, suggesting that sports media consumption and gender-role socialization significantly related with gender perception of sports in American college students.
In health communication, social cognitive theory has been applied in research related to smoking cessation, HIV prevention, safe sex behaviors, and so on.
For example, Martino, Collins, Kanouse, Elliott, and Berry in 2005
examined the relationship between the exposure to television’s sexual
content and adolescents’ sexual behavior through the lens of social
cognitive theory, confirming the significant relationship between the
two variables among white and African American groups; however, no
significant correlation was found between the two variables in the ethic
group of Hispanics, indicating that peer norm could possibly serve as a
mediator of the two examined variables.
Public health
Physical Activity
Albert Bandura
defines perceived self-efficacy as “people's beliefs about their
capabilities to produce designated levels of performance that exercise
influence over events that affect their lives.”
Self-efficacy is just one of six constructs that SCT is based on; the
other five include reciprocal determinism, behavioral capability,
observational learning, reinforcements, and expectations.
A lack of physical activity has been shown to contribute to heart
disease, type 2 diabetes, and cancer even in individuals without any
other risk factors.
Social cognitive theory can be helpful in identifying motivating
factors that lead to increased physical activity across age and gender. A
study by Yael Netz and Shulamith Raviv in 2004 found positive
correlations between high levels of self-efficacy when compared to
physical activity.
These findings suggest the best motivational method to increase the
rate of physical activity is one that first increases perceived
self-efficacy. As applied to public health campaigns, the first symptom
to address is low levels of perceived self-efficacy rather than low
levels of physical activity, since addressing the former may rectify the
latter.
A different study conducted in 2015 observed similar results.
The goal of this study was to identify if SCT could be used to
“…improve physical activity (PA) interventions by identifying which
variables to target to maximize intervention impact.” By following 204
overweight men over the course of a three-month weight loss program,
researchers applied a longitudinal, latent variable structural equation
model to test SCT-related constructs including self-efficacy, outcome
expectations, intention and social support as they apply toward
self-reported changes in physical activity level. Researchers found
self-efficacy as the most important indicator for physical activity,
while noting a non-zero effect of intention on increased physical
activity. As such, weight loss programs focused on increasing the
physical activity levels of participants should aim to increase
participant self-efficacy in order to achieve desirable results.
Physical activity levels, on average, decline during one’s life – particularly during adolescence.
SCT can be used to explain the most prevalent contributing factors to
this marked decrease in physical activity among adolescents and then
develop appropriate intervention methods to best change this phenomenon.
One study in particular addresses this subject through the SCT
framework.
Researchers mailed questionnaires to a random sample of 937
undergraduate students in the U.S. to measure the influence of personal,
behavioral, and environmental factors on exercise behavior change. For
both men and women, increased self-efficacy was the most important
predictor in signifying positive changes to exercise behavior and
physical activity.
SCT can be applied to public health campaigns in an attempt to
foster a more healthy public through exercise; as it relates, multiple
studies find self-efficacy as the most important variable in predicting
high- or low-levels of physical activity.
AIDS
Miller's 2005 study found that choosing the proper gender, age, and ethnicity for models ensured the success of an AIDS
campaign to inner city teenagers. This occurred because participants
could identify with a recognizable peer, have a greater sense of
self-efficacy, and then imitate the actions to learn the proper
preventions and actions.
Breastfeeding
A
study by Azza Ahmed in 2009 looked to see if there would be an increase
in breastfeeding by mothers of preterm infants when exposed to a
breastfeeding educational program guided by SCT. Sixty mothers were
randomly assigned to either participate in the program or they were
given routine care. The program consisted of SCT strategies that
touched on all three SCT determinants: personal – showing models
performing breastfeeding correctly to improve self-efficacy, behavioral
–weekly check-ins for three months reinforced participants' skills,
environmental – mothers were given an observational checklist to make
sure they successfully completed the behavior. The author found that
mothers exposed to the program showed significant improvement in their
breastfeeding skills, were more likely to exclusively breastfeed, and
had fewer problems then the mothers who were not exposed to the
educational program.
Social cognitive theory emphasizes a large difference between an
individual's ability to be morally competent and morally performing. Moral competence involves having the ability to perform a moral behavior, whereas moral performance indicates actually following one's idea of moral behavior in a specific situation. Moral competencies include:
what an individual is capable of
what an individual knows
what an individual's skills are
an individual's awareness of moral rules and regulations
an individual's cognitive ability to construct behaviors
As far as an individual's development is concerned, moral competence
is the growth of cognitive-sensory processes; simply put, being aware of
what is considered right and wrong. By comparison, moral performance is
influenced by the possible rewards and incentives to act a certain way.
For example, a person's moral competence might tell them that stealing
is wrong and frowned upon by society; however, if the reward for
stealing is a substantial sum, their moral performance might indicate a
different line of thought. Therein lies the core of social cognitive
theory.
For the most part, social cognitive theory remains the same for
various cultures. Since the concepts of moral behavior did not vary much
between cultures (as crimes like murder, theft, and unwarranted
violence are illegal in virtually every society), there is not much room
for people to have different views on what is morally right or wrong.
The main reason that social cognitive theory applies to all nations is
because it does not say what is moral and immoral; it simply states that
we can acknowledge these two concepts. Our actions in real-life
scenarios are based on whether we believe the action is moral and
whether the reward for violating our morals is significant enough, and
nothing else.
Limitations
Modelling and mass media
In
series TV programming, according to social cognitive theory, the
awarded behaviors of liked characters are supposed to be followed by
viewers, while punished behaviors are supposed to be avoided by media
consumers. However, in most cases, protagonists in TV shows are less
likely to experience the long-term suffering and negative consequences
caused by their risky behaviors, which could potentially undermine the
punishments conveyed by the media, leading to a modeling of the risky
behaviors.
Nabi and Clark conducted experiments about individual’s attitudes and
intentions consuming various portrayals of one-night stand sex– unsafe
and risky sexual behavior,
finding that individuals who had not previously experienced one night
stand sex, consuming media portrayals of this behavior could
significantly increase their expectations of having a one night stand
sex in the future, although negative outcomes were represented in TV
shows.
A conflict of interest (COI) is a situation in which a person or organization is involved in multiple interests, financial
or otherwise, and serving one interest could involve working against
another. Typically, this relates to situations in which the personal
interest of an individual or organization might adversely affect a duty
owed to make decisions for the benefit of a third party.
An "interest" is a commitment, obligation, duty or goal associated with a particular social role or practice.
By definition, a "conflict of interest" occurs if, within a particular
decision-making context, an individual is subject to two coexisting
interests that are in direct conflict with each other. Such a matter is
of importance because under such circumstances the decision-making
process can be disrupted or compromised in a manner that affects the
integrity or the reliability of the outcomes.
Typically, a conflict of interest arises when an individual finds
himself or herself occupying two social roles simultaneously which
generate opposing benefits or loyalties. The interests involved can be pecuniary
or non-pecuniary. The existence of such conflicts is an objective fact,
not a state of mind, and does not in itself indicate any lapse or moral
error. However, especially where a decision is being taken in a fiduciary
context, it is important that the contending interests be clearly
identified and the process for separating them is rigorously
established. Typically, this will involve the conflicted individual
either giving up one of the conflicting roles or else recusing himself
or herself from the particular decision-making process that is in
question.
The presence of a conflict of interest is independent of the occurrence of inappropriateness. Therefore, a conflict of interest can be discovered and voluntarily defused before any corruption
occurs. A conflict of interest exists if the circumstances are
reasonably believed (on the basis of past experience and objective
evidence) to create a risk that a decision may be unduly influenced by other, secondary interests, and not on whether a particular individual is actually influenced by a secondary interest.
A widely used definition is: "A conflict of interest is a set of
circumstances that creates a risk that professional judgement or actions
regarding a primary interest will be unduly influenced by a secondary
interest." Primary interest
refers to the principal goals of the profession or activity, such as
the protection of clients, the health of patients, the integrity of
research, and the duties of public officer. Secondary interest
includes personal benefit and is not limited to only financial gain but
also such motives as the desire for professional advancement, or the
wish to do favours for family and friends. These secondary interests are
not treated as wrong in and of themselves, but become objectionable
when they are believed to have greater weight than the primary
interests. Conflict of interest rules in the public sphere mainly focus
on financial relationships since they are relatively more objective, fungible, and quantifiable, and usually involve the political, legal, and medical fields.
A conflict of interest is a set of
conditions in which professional judgment concerning a primary interest
(such as a patient's welfare or the validity of research) tends to be
unduly influenced by a secondary interest (such as financial gain).
Conflict-of-interest rules [...] regulate the disclosure and avoidance
of these conditions.
Conflict of interests have been described as the most pervasive issue facing modern lawyers.
Legal conflicts rules are at their core corollaries to a lawyer's two
basic fiduciary duties: (1) the duty of loyalty and (2) the duty to
preserve client confidences.
The lawyer's duty of loyalty is fundamental to the attorney-client
relationship and has developed from the biblical maxim that no person
can serve more than one master.
Just as fundamental is the lawyer's duty to maintain client
confidences, which protects clients' legitimate expectations that they
can make full disclosure of all facts to their attorneys without fear of
exposure.
The basic formulation of the conflicts of interest rule is that a
conflict exists "if there is a substantial risk that the lawyer's
representation of the client would be materially and adversely affected
by the lawyer's own interests or by the lawyers' duties to another
current client, a former client, or a third person."
The duty of loyalty requires an attorney not to act directly adverse to
an existing client, even on an unrelated matter where the lawyer has no
client confidences. Such a loyalty conflict has been labeled a concurrent conflict of interest. The duty of confidentiality is protected in rules prohibiting so-called successive conflicts of interest, when a lawyer proposes to act adversely to the interests of a former client.
A lawyer who has formerly represented a client in a matter is precluded
from representing another person in the same or a substantially related
matter that is materially adverse to the former client.
These two basic formulations – that a lawyer may not act directly
adverse to a current client or adverse to a former client on a
substantially related matter – form the cornerstone of modern legal
conflicts of interest rules.
Concurrent conflicts of interest
Direct adversity to current client
An attorney owes the client undivided loyalty. The courts have described this principle as "integral to the nature of an attorney's duty."
Without undivided loyalty, irreparable damage may be done "to the
existing client's sense of trust and security – features essential to
the effective functioning of the fiduciary relationship…"
A key feature of the duty of loyalty is that an attorney may not act
directly adverse to a current client or represent a litigation adversary
of the client in an unrelated matter. The damage done is to the client's confidence that the lawyer is serving his or her interests faithfully. The most obvious example of a lawyer acting directly adverse to a client is when the lawyer sues the client.
At the other end of the spectrum is when a lawyer represents business
competitors of the client who are not adverse to it in a lawsuit or
negotiation. Representing business competitors of a client in unrelated
matters does not constitute direct adversity nor give rise to a loyalty
conflict. As one state bar ethics committee has noted:
An attorney's representation of one client will often have indirect
effects on other existing clients. For example, simultaneously
representing business competitors on unrelated matters may indirectly
impair the interests of each. It will be rare indeed when an attorney's
representation of a client will not have numerous indirect adverse
effects on others. Obtaining a benefit for a client will often mean
disadvantaging another person or entity, and indirect consequences may
follow to all who may be dependents or owners of the attorney's
opponents.
The attorney's duty of loyalty, however, extends only to adverse
consequences on existing clients which are 'direct.'…Of the numerous and
varied consequences which a representation of one client may have on
other clients, well-established legal authority interpreting the duty of
loyalty limits the scope of ethical inquiry to whether the other
affected clients are parties to the case or transaction in which the
attorney is acting.
--CALIFORNIA STATE BAR ETHICS OPINION 1989-113.
Direct adversity may arise in litigation when an attorney sues a
client or defends an adversary in an action his or her client has
brought.
It may also arise in the context of business negotiations, when a
lawyer negotiates on behalf of an adversary against a current client,
even if the matter is unrelated to any matter the lawyer is handling for
the client. However, merely advocating opposite sides of the same legal issue does not give rise to direct adversity.
Even if a lawyer's advocacy in an unrelated matter may make unfavorable
law for another client, such effects are only indirect and not subject
to the conflicts rules.
There is no conflict in advocating positions that may turn out to be
unfavorable to another client so long as the lawyer is not directly
litigating or negotiating against that client.
Identity of the client - corporations
One
of the most frequently arising questions in corporate practice is
whether parent corporations and their subsidiaries are to be treated as
the same or different entities for conflicts purposes.
The first authority to rule on this question was the California State
Bar Ethics Committee, which issued a formal opinion ruling that parent
corporations and their subsidiaries are to be considered distinct
entities for conflicts purposes.
The California committee considered a situation where an attorney
undertook a representation directly adverse to the wholly owned
subsidiary of a client, when the lawyer did not represent the
subsidiary. Relying on the entity as client framework in Model Rule 1.13,
the California committee opined that there was no conflict as long as
the parent and subsidiary did not have a "sufficient unity of
interests." The committee announced the following standard for evaluating the separateness of parent and subsidiary:
In
determining whether there is a sufficient unity of interests to require
an attorney to disregard separate corporate entities for conflict
purposes, the attorney should evaluate the separateness of the entities
involved, whether corporate formalities are observed, the extent to
which each entity has distinct and independent managements and board of
directors, and whether, for legal purposes, one entity could be
considered the alter ego of the other.
-CALIFORNIA STATE BAR ETHICS OPINION 1989-113.
As one commentator has noted, "For a state ethics opinion, California
Opinion 1989-113 has been unusually influential, both with courts
there, with ethics committees elsewhere, and through the latter set of
ethics committee opinions, with… recent decisions in other
jurisdictions."
The California opinion has been followed by ethics committees in such
jurisdictions as New York, Illinois and the District of Columbia, and
served as the basis of ABA Formal Ethics Opinion 95-390.
The law in most jurisdictions is that parent corporations and their
subsidiaries are treated as distinct entities, except in limited
circumstances noted by the California ethics committee where they have a
unity of interests.
The Second Circuit has adopted a variation of the California standard. In GSI Commerce Solutions, Inc. v. BabyCenter LLC,
the court ruled that parent corporations and their subsidiaries should
be treated as the same entity for conflicts purposes when both companies
rely "on the same in-house legal department to handle their legal
affairs." However, the court ruled that the lawyer and client can contract around this default standard.
The court quoted with approval the opinion of the City of New York
Committee on Professional and Judicial Ethics, which stated, "corporate
family conflicts may be averted by ... an engagement letter ... that
delineates which affiliates, if any, of a corporate client the law firm
represents..."
Material limitation conflicts
A
concurrent conflict will also exist when "there is a significant risk
that the representation of one or more clients will be materially
limited by the lawyer's responsibilities to another client, a former
client or a third person or by a personal interest of the lawyer."
Comment 8 to Model Rule 1.7 states, by way of example, that an attorney
representing multiple persons forming a joint venture may be materially
limited in recommending the courses of action that any jointly
represented client may take because of the lawyer's duty to the other
participants in the joint venture.
The Supreme Court of Minnesota found a material limitation conflict in In re Petition for Disciplinary Action Against Christopher Thomas Kalla. In Kalla,
an attorney was disciplined for representing a borrower bringing suit
against her lender for charging a usurious interest rate while
simultaneously representing the mortgage broker who arranged the loan as
a third party defendant in the same lawsuit. Although neither client
had brought an action against the other, the court found a material
limitation conflict: "Advocating for Client A would potentially harm
Client B, who was potentially liable for contribution. Kalla's ability
to fully advocate for both was materially limited by Kalla's dual
representation."
Consent to concurrent conflicts of interest
Consent to current conflicts
A concurrent conflict of interest may be resolved if four conditions are met. They are:
the lawyer reasonably believes that the lawyer will be able to
provide competent and diligent representation to each affected client;
the representation is not prohibited by law;
the representation does not involve the assertion of a claim by one
client against another client represented by the lawyer in the same
litigation or other proceeding before a tribunal; and
each affected client gives informed consent, confirmed in writing.
Informed consent requires that each affected client be fully advised
about the material ways that the representation could adversely affect
that client.
In joint representations, the information provided should include the
interests of the lawyer and other affected client, the courses of action
that could be foreclosed due to the joint representation, the potential
danger that the client's confidential information might be disclosed,
and the potential consequences if the lawyer had to withdraw at a later
stage in the proceedings. Merely telling the client that there are conflicts, without further explanation, is not adequate disclosure.
The lawyer must fully disclose the potential impairment to the lawyer's
loyalty and explain how another unconflicted attorney might better
serve the client's interests.
Prospective consent to future conflicts
It
is not unusual in the current legal environment of large multinational
and global law firms for the firms to seek advance or prospective
waivers of future conflicts from their clients.
A law firm is particularly likely to seek a prospective waiver when a
large corporation seeks the specialized knowledge of the firm in a small
matter, without a high likelihood of repeat business. As the ABA stated in its Ethics Opinion 93-372:
when
corporate clients with multiple operating divisions hire tens if not
hundreds of law firms, the idea that, for example, a corporation in
Miami retaining the Florida office of a national law firm to negotiate a
lease should preclude that firm's New York office from taking an
adverse position in a totally unrelated commercial dispute against
another division of the same corporation strikes some as placing
unreasonable limitations on the opportunities of both clients and
lawyers. -ABA Formal Opinion 93-372 (1993).
Prospective waivers are most likely to be upheld by the courts when
they are given by sophisticated corporate clients represented by
independent counsel in the negotiation of the waiver. However, in Sheppard, Mullin, Richter & Hampton, LLP v. J-M Manufacturing Co.,
the California Supreme court held that a prospective waiver that did
not make specific disclosure of an actual current conflict was not
effective to waive that conflict. As the court said,
By
asking J-M to waive current conflicts as well as future ones, Sheppard
Mullin did put J-M on notice that a current conflict might exist. But by
failing to disclose to J-M the fact that a current conflict actually
existed, the law firm failed to disclose to its client all the 'relevant
circumstances' within its knowledge relating to its representation of
J-M. 6 Cal. 5th 59 (2018) at p. 84.
The Sheppard Mullin case does not invalidate prospective waivers in California.
It only holds that waivers of current and actual conflicts must
specifically disclose those conflicts, an unremarkable conclusion.
The hot potato doctrine
If
a client will not consent to a conflict and allow a lawyer to take on
another representation, the lawyer cannot then withdraw from the
existing representation, thus turning the existing client into a former
client and ending the duty of loyalty. As the courts have stated, the lawyer cannot "drop a client like a hot potato" to cure a conflict. This label has stuck, and the doctrine is now aptly called the "hot potato" doctrine.
However, as one commentator has pointed out, the reasoning underlying
this line of cases has been sparse, and few courts have attempted to
justify this result through an analysis of the ethics rules.
The unstated rationale behind the Hot Potato doctrine is that a
withdrawal attempted without good cause under Model Rule 1.16(b) is an
ineffective withdrawal, which does not successfully terminate the
existing attorney-client relationship.
When viewed in this light, a withdrawal accomplished with good cause
should be an effective withdrawal that does permit a lawyer to take on a
representation that would otherwise be conflicting, as long as there is
no substantial relationship with the prior matter. The standard used to assess conflicts involving such former clients will be discussed in the next section.
Successive conflicts of interest
The substantial relationship test
Conflicts
of interest rules involving former clients are primarily designed to
enforce the attorney's duty to preserve a client's confidential
information.
Model Rule 1.9(a) sets forth this doctrine in a rule that has come to
be known as the substantial relationship test. The rule states:
A
lawyer who has formerly represented a client in a matter shall not
thereafter represent another person in the same or a substantially
related matter in which that person's interests are materially adverse
to the interests of the former client unless the former client gives
informed consent, confirmed in writing. -MODEL RULES OF PROF'L CONDUCT
r. 1.9(a).
Without the substantial relationship test, a client attempting to
prove that its former lawyer possesses its confidential information
might have to disclose publicly the very confidential information it is
trying to protect. The substantial relationship test was designed to protect against such disclosures.
Under this test, the attorney's possession of the former client's
confidential information is presumed if "confidential information
material to the current dispute would normally have been imparted to the
attorney by virtue of the nature of the former representation."
The substantial relationship test reconstructs whether confidential
information was likely to imparted by the former client to the lawyer by
analyzing "the similarities between the two factual situations, the
legal questions posed, and the nature and extent of the attorney's
involvement with the cases."
Imputation of conflicts
The
conflicts of an individual lawyer are imputed to all attorneys who "are
associated with that lawyer in rendering legal services to others
through a law partnership, professional corporation, sole
proprietorship, or similar association."
This imputation of conflicts can lead to difficulties when attorneys
from one law firm leave and join another firm. The issue then arises
whether the conflicts of the itinerant lawyer's former firm are imputed
to his or her new firm.
In Kirk v. First American Title Co.,
the court ruled that an itinerant lawyer's conflicts are not imputed to
his or her new law firm if that firm timely sets up an effective ethics
screen preventing the lawyers from imparting any confidential
information to the lawyers in the new firm.
An effective ethics screen rebuts the presumption that the itinerant
lawyers shared confidential information with the lawyers in the new
firm. The components of an effective ethics screen, as described by the court in Kirk, are:
physical, geographic, and departmental separation of attorneys;
prohibitions against and sanctions for discussing confidential matters;
established rules and procedures preventing access to confidential information and files;
procedures preventing a disqualified attorney from sharing in the profits from the representation;
continuing education in professional responsibility.
Judicial disqualification, also referred to as recusal,
refers to the act of abstaining from participation in an official
action such as a court case/legal proceeding due to a conflict of
interest of the presiding court official or administrative officer. Applicable statutes or canons of ethics
may provide standards for recusal in a given proceeding or matter.
Providing that the judge or presiding officer must be free from
disabling conflicts of interest makes the fairness of the proceedings
less likely to be questioned.
In the practice of law, the duty of loyalty owed to a client prohibits an attorney (or a law firm)
from representing any other party with interests adverse to those of a
current client. The few exceptions to this rule require informed written
consent from all affected clients, i.e., an "ethical wall". In
some circumstances, a conflict of interest can never be waived by a
client. In perhaps the most common example encountered by the general
public, the same firm should not represent both parties in a divorce or
child custody matter. Found conflict can lead to denial or disgorgement of legal fees, or in some cases (such as the failure to make mandatory disclosure), criminal proceedings. In 1998, a Milbank, Tweed, Hadley & McCloy partner was found guilty of failing to disclose a conflict of interest, disbarred, and sentenced to 15 months of imprisonment.
In the United States, a law firm usually cannot represent a client if
the client's interests conflict with those of another client, even if
the two clients are represented by separate lawyers within the firm,
unless (in some jurisdictions) the lawyer is segregated from the rest of
the firm for the duration of the conflict. Law firms often employ
software in conjunction with their case management and accounting
systems in order to meet their duties to monitor their conflict of
interest exposure and to assist in obtaining waivers.
Generally (unrelated to the practice of law)
More
generally, conflicts of interest can be defined as any situation in
which an individual or corporation (either private or governmental) is
in a position to exploit a professional or official capacity in some way
for their personal or corporate benefit.
Depending upon the law or rules related to a particular
organization, the existence of a conflict of interest may not, in and of
itself, be evidence of wrongdoing. In fact, for many professionals, it
is virtually impossible to avoid having conflicts of interest from time
to time. A conflict of interest can, however, become a legal matter, for
example, when an individual tries (and/or succeeds in) influencing the
outcome of a decision, for personal benefit. A director or executive of a
corporation will be subject to legal liability if a conflict of
interest breaches his/her duty of loyalty.
There often is confusion over these two situations. Someone
accused of a conflict of interest may deny that a conflict exists
because he/she did not act improperly. In fact, a conflict of interest
can exist even if there are no improper acts as a result of it. (One way
to understand this is to use the term "conflict of roles". A person
with two roles—an individual who owns stock and is also a government
official, for example—may experience situations where those two roles
conflict. The conflict can be mitigated—see below—but it still exists.
In and of itself, having two roles is not illegal, but the differing
roles will certainly provide an incentive for improper acts in some
circumstances.)
conflict of interest is a situation in which an internal auditor,
who is in a position of trust, has a competing professional or personal
interest. Such competing interests can make it difficult to fulfill his
or her duties impartially. A conflict of interest exists even if no unethical
or improper act results. A conflict of interest can create an
appearance of impropriety that can undermine confidence in the internal auditor, the internal audit
activity, and the profession. A conflict of interest could impair an
individual's ability to perform his or her duties and responsibilities
objectively.
A few examples of conflict of interest are:
When a member of the commissioners of a state highway commission
owns a piece of property where the state will have to condemn it. The
conflict of interest comes in because the commission will want to
acquire the property at the lowest possible price (subject to it being
at least fair market value) while as the property owner, they are going
to want the highest possible price they can get.
When an officer or director of a corporation owns a patent or
copyright which either was developed before they were involved with the
corporation (which means it cannot be subject to a contractual right of
assignment or work for hire) or that it was developed for a type of
product not related to the scope of their employment. As an author or
inventor, they are going to want a large license fee or royalty, while
as an officer of the corporation they are expected to offer as little as
possible.
A judge deciding a bench trial or arbitrator in binding arbitration
must not decide a case where a relative, acquaintance, or business
partner is a party. Because they may give overly favorable terms to that
party, or where they might impose excessively harsh terms (such as a
judge having their estranged child, parent, or ex-spouse as a criminal
defendant being sentenced before them.)
An organizational conflict of interest (OCI) may exist in the same
way as described above, for instance where a corporation provides two
types of service to the government and these services conflict (e.g.:
manufacturing parts and then participating on a selection committee
comparing parts manufacturers).
Corporations may develop simple or complex systems to mitigate the risk
or perceived risk of a conflict of interest. These risks can be
evaluated by a government agency (for example, in a U.S. Government RFP)
to determine whether the risks create a substantial advantage to the
organization in question over its competition, or will decrease the
overall competitiveness of the bidding process.
The influence of the pharmaceutical industry
on medical research has been a major cause for concern. In 2009 a study
found that "a number of academic institutions" do not have clear
guidelines for relationships between Institutional Review Boards and
industry.
In contrast to this viewpoint, an article and associated editorial in the New England Journal of Medicine in May 2015
emphasized the importance of pharmaceutical industry-physician
interactions for the development of novel treatments, and argued that
moral outrage over industry malfeasance had unjustifiably led many to
overemphasize the problems created by financial conflicts of interest.
The article noted that major healthcare organizations such as National
Center for Advancing Translational Sciences of the National Institutes
of Health, the President's Council of Advisors on Science and Technology,
the World Economic Forum, the Gates Foundation, the Wellcome Trust, and
the Food and Drug Administration had encouraged greater interactions
between physicians and industry in order to bring greater benefits to
patients.
Types
The following are the most common forms of conflicts of interests:
Self-dealing,
in which an official who controls an organization causes it to enter
into a transaction with the official, or with another organization that
benefits the official only. The official is on both sides of the "deal."
Outside employment, in which the interests of one job conflict with another.
Nepotism,
in which a spouse, child, or other close relative is employed (or
applies for employment) by an individual, or where goods or services are
purchased from a relative or from a firm controlled by a relative. To
avoid nepotism in hiring, many employment applications ask if the
applicant is related to a current employee of the company. This allows
recusal if the employed relative has a role in the hiring process. If
this is the case, the relative could then recuse from any hiring
decisions.
Gifts from friends who also do business with the person receiving
the gifts or from individuals or corporations who do business with the
organization in which the gift recipient is employed. Such gifts may
include non-tangible things of value such as transportation and lodging.
Pump and dump, in which a stock broker who owns a security
artificially inflates the price by "upgrading" it or spreading rumors,
sells the security and adds short position, then "downgrades" the security or spreads negative rumors to push the price down.
Other improper acts that are sometimes classified as conflicts of
interests may have better classification. For example, accepting bribes can be classified as corruption, use of government or corporate property or assets for personal use is fraud, and unauthorized distribution of confidential information is a security breach. For these improper acts, there is no inherent conflict.
COI is sometimes termed competition of interest rather than "conflict", emphasizing a connotation of natural competition
between valid interests—rather than the classical definition of
conflict, which would include by definition including a victim and
unfair aggression. Nevertheless, this denotation of conflict of interest is not generally seen.
Environmental hazards and human health
Baker summarized 176 studies of the potential impact of Bisphenol A on human health as follows:
Lessig
noted that this does not mean that the funding source influenced the
results. However, it does raise questions about the validity of the
industry-funded studies specifically, because the researchers conducting
those studies have a conflict of interest; they are subject at minimum
to a natural human inclination to please the people who paid for their
work. Lessig provided a similar summary of 326 studies of the potential
harm from cell phone usage with results that were similar but not as
stark.
Self-regulation
Self-regulation
of any group may also be a conflict of interest. If an entity, such as a
corporation or government bureaucracy, is asked to eliminate unethical
behavior within their own group, it may be in their interest in the
short run to eliminate the appearance of unethical behavior, rather than
the behavior itself, by keeping any ethical breaches hidden, instead of
exposing and correcting them. An exception occurs when the ethical
breach is already known by the public. In that case, it could be in the
group's interest to end the ethical problem to which the public has
knowledge, but keep remaining breaches hidden.
Insurance claims adjusters
Insurance companies retain claims adjusters
to represent their interest in adjusting claims. It is in the best
interest of the insurance companies that the very smallest settlement is
reached with its claimants. Based on the adjuster's experience and
knowledge of the insurance policy it is very easy for the adjuster to
convince an unknowing claimant to settle for less than what they may
otherwise be entitled which could be a larger settlement. There is
always a very good chance of a conflict of interest to exist when one
adjuster tries to represent both sides of a financial transaction such
as an insurance claim. This problem is exacerbated when the claimant is
told, or believes, the insurance company's claims adjuster
is fair and impartial enough to satisfy both theirs and the insurance
company's interests. These types of conflicts could easily be avoided by
the use of a third party platform that is independent of the insurers
and is agreed to, and named in the policy.
Purchasing agents and sales personnel
A
person working as the equipment purchaser for a company may get a bonus
proportionate to the amount he's under budget by year end. However,
this becomes an incentive for him to purchase inexpensive, substandard
equipment. Therefore, this is counter to the interests of those in his
company who must actually use the equipment. W. Edwards Deming listed "purchasing on price alone" as number 4 of his famous 14 points, and he often said things to the effect that "He who purchases on price alone deserves to get rooked."
Real estate agents
Real estate brokers
have an inherent conflict of interest with the sellers they represent,
because the usual commission structures of brokers motivate them to sell
quickly rather than to sell at a higher price. However, a broker
representing a buyer has a distinct disincentive to negotiate a lower
price on behalf of their client, because they will simultaneously be
negotiating their own commission lower.
Government officials
Conflict
of interest in legislation; the interests of the poor and the interests
of the rich. A personification of corrupt legislation weighs a bag of
money and denies an appeal of poverty.
Regulating conflict of interest in government is one of the aims of political ethics.
Public officials are expected to put service to the public and their
constituents ahead of their personal interests. Conflict of interest
rules are intended to prevent officials from making decisions in
circumstances that could reasonably be perceived as violating this duty
of office. Rules in the executive branch tend to be stricter and easier
to enforce than in the legislative branch.
This is visible through one study which highlights how Members of
Congress who have specific stock investments may vote on regulatory and
interventionist legislation. Two problems make legislative ethics of conflicts difficult and distinctive.
First, as James Madison wrote, legislators should share a "communion of
interests" with their constituents. Legislators cannot adequately
represent the interests of constituents without also representing some
of their own. As Senator Robert S. Kerr once said, "I represent the
farmers of Oklahoma, although I have large farm interests. I represent
the oil business in Oklahoma...and I am in the oil business...They don't
want to send a man here who has no community of interest with them,
because he wouldn't be worth a nickel to them."
The problem is to distinguish special interests from the general
interests of all constituents. Second, the "political interests" of
legislatures include campaign contributions which they need to get
elected, and which are generally not illegal and not the same as a
bribe. But under many circumstances they can have the same effect. The
problem here is how to keep the secondary interest in raising campaign
funds from overwhelming what should be their primary interest—fulfilling
the duties of office.
Politics in the United States is dominated in many ways by political campaign contributions.
Candidates are often not considered "credible" unless they have a
campaign budget far beyond what could reasonably be raised from citizens
of ordinary means. The impact of this money can be found in many
places, most notably in studies of how campaign contributions affect
legislative behavior. For example, the price of sugar in the United
States has been roughly double the international price for over half a
century. In the 1980s, this added $3 billion to the annual budget of
U.S. consumers, according to Stern, who provided the following summary of one part of how this happens:
Contributions from the sugar lobby, 1983–1986
Percent voting in 1985 against gradually reducing sugar subsidies
> $5,000
100%
$2,500–5,000
97%
$1,000–2,500
68%
$1–1,000
45%
$0
20%
This $3 billion translates into $41 per household per year. This is in essence a tax
collected by a nongovernmental agency: It is a cost imposed on
consumers by governmental decisions, but never considered in any of the
standard data on tax collections.
Stern notes that sugar interests contributed $2.6 million to
political campaigns, representing well over $1,000 return for each $1
contributed to political campaigns. This, however, does not include the
cost of lobbying. Lessig cites six different studies that consider the
cost of lobbying with campaign contributions on a variety of issues considered in Washington, D.C.
These studies produced estimates of the anticipated return on each $1
invested in lobbying and political campaigns that ranged from $6 to
$220. Lessig notes that clients who pay tens of millions of dollars to
lobbyists typically receive billions.
Lessig insists that this does not mean that any legislator has sold his or her vote.
One of several possible explanations Lessig gives for this phenomenon
is that the money helped elect candidates more supportive of the issues
pushed by the big money spent on lobbying and political campaigns. He
notes that if any money perverts democracy, it is the large
contributions beyond the budgets of citizens of ordinary means; small
contributions from common citizens have long been considered supporting
of democracy.
When such large sums become virtually essential to a politician's
future, it generates a substantive conflict of interest contributing to
a fairly well documented distortion on the nation's priorities and
policies.
Beyond this, governmental officials, whether elected or not,
often leave public service to work for companies affected by legislation
they helped enact or companies they used to regulate or companies
affected by legislation they helped enact. This practice is called the "revolving door".
Former legislators and regulators are accused of (a) using inside
information for their new employers or (b) compromising laws and
regulations in hopes of securing lucrative employment in the private
sector. This possibility creates a conflict of interest for all public
officials whose future may depend on the revolving door.
Finance industry and elected officials
Conflicts
of interest among elected officials is part of the story behind the
increase in the percent of US corporate domestic profits captured by the
finance industry depicted in that accompanying figure.
Finance as a percent of US Domestic Corporate Profits
Finance includes banks, securities and insurance. In 1932–1933, the
total U.S. domestic corporate profit was negative. However, the
financial sector made a profit in those years, which made its percentage
negative, below 0 and off the scale in this plot.
From 1934 through 1985, the finance industry averaged 13.8% of U.S.
domestic corporate profit. Between 1986 and 1999, it averaged 23.5%.
From 2000 through 2010, it averaged 32.6%. Some of this increase is
doubtless due to increased efficiency from banking consolidation and
innovations in new financial products that benefit consumers. However,
if most consumers had refused to accept financial products they did not
understand, e.g., negative amortization loans, the finance industry would not have been as profitable as it has been, and the Late-2000s recession might have been avoided or postponed. Stiglitz argued that the Late-2000s recession
was created in part because, "Bankers acted greedily because they had
incentives and opportunities to do so". They did this in part by
innovating to make consumer financial products like retail banking
services and home mortgages as complicated as possible to make it easy
for them to charge higher fees. Consumers who shop carefully for
financial services typically find better options than the primary
offerings of the major banks. However, few consumers think to do that.
This explains part of this increase in financial industry profits.
(Note, however, that Stiglitz has been accused of a conflict of
interests and violation of Columbia University
transparency policies for failing to disclose his status as a paid
consultant to government of Argentina at the same time he was writing
articles in defense of Argentina's planned default of over $1billion in
bond debt during the 1998–2002 Argentine great depression,
and for failing to disclose his paid consultancy to the government of
Greece at the same time he was downplaying the risk of Greece defaulting
on their debt during the Greek government-debt crisis of 2009.)
However, it is argued that a major portion of this increase and a driving force behind Late-2000s recession
has been the corrosive effect of money in politics, giving legislators
and the President of the U.S. a conflict of interest, because if they
protect the public, they will offend the finance industry, which
contributed $1.7 billion to political campaigns and spent $3.4 billion
($5.1 billion total) on lobbying from 1998 to 2008.
To be conservative, suppose we
attribute only the increase from 23.5% of 1986 through 1999 to the
recent 32.6% average to governmental actions subject to conflicts of
interest created by the $1.7 billion in campaign contributions. That's
9% of the $3 trillion in profits claimed by the finance industry during
that period or $270 billion. This represents a return of over $50 for
each $1 invested in political campaigns and lobbying for that industry.
(This $270 billion represents almost $1,000 for every man, woman and
child in the United States.) There is hardly any place outside politics
with such a high return on investment in such a short time.
Finance industry and economists
Economists
(unlike other professions such as sociologists) do not formally
subscribe to a professional ethical code. Close to 300 economists have
signed a letter urging the American Economic Association (the discipline's foremost professional body), to adopt such a code. The signatories include George Akerlof, a Nobel laureate, and Christina Romer, who headed Barack Obama's Council of Economic Advisers.
This call for a code of ethics was supported by the public attention the documentary Inside Job (winner of an Academy Award) drew to the consulting relationships of several influential economists.
This documentary focused on conflicts that may arise when economists
publish results or provide public recommendation on topics that affect
industries or companies with which they have financial links. Critics of
the profession argue, for example, that it is no coincidence that
financial economists, many of whom were engaged as consultants by Wall
Street firms, were opposed to regulating the financial sector.
In response to criticism that the profession not only failed to predict the financial crisis of 2007–2008 but may actually have helped create it, the American Economic Association
has adopted new rules in 2012: economists will have to disclose
financial ties and other potential conflicts of interest in papers
published in academic journals.
Backers argue such disclosures will help restore faith in the
profession by increasing transparency which will help in assessing
economists' advice.
Stockbrokers
A conflict of interest is a manifestation of moral hazard,
particularly when a financial institution provides multiple services
and the potentially competing interests of those services may lead to a
concealment of information or dissemination of misleading information. A
conflict of interest exists when a party to a transaction could
potentially make a gain from taking actions that are detrimental to the
other party in the transaction.
There are many types of conflicts of interest such as a pump and dump
by stockbrokers. This is when a stockbroker who owns a security
artificially inflates the price by upgrading it or spreading rumors, and
then sells the security and adds short position. They will then
downgrade the security or spread negative rumors to push the price back
down. This is an example of stock fraud. It is a conflict of interest
because the stockbrokers are concealing and manipulating information to
make it misleading for the buyers. The broker may claim to have the
"inside" information about impending news and will urge buyers to buy
the stock quickly. Investors will buy the stock, which creates a high
demand and raises the prices. This rise in prices can entice more people
to believe the hype and then buy shares as well. The stockbrokers will
then sell their shares and stop promoting, the price will drop, and
other investors are left holding stock that is worth nothing compared to
what they paid for it. In this way, brokers use their knowledge and
position to gain personally at the expense of others.
The Enron scandal
is a major example of pump and dump. Executives participated in an
elaborate scheme, falsely reporting profits, thus inflating its stock
prices, and covered up the real numbers with questionable accounting; 29 executives sold overvalued stock for more than a billion dollars before the company went bankrupt. A financial institution with a conflict of interest may also be
charged with market manipulation. Stockbrokers that act as market makers
have a duty to establish bona fide.
A conflict of interest serves against that regulation. Stockbrokers
have to prove that their trading interests and transacting interests do
not interfere with serving the interests of investors at brokerages
Media
Any media
organization has a conflict of interest in discussing anything that may
impact its ability to communicate as it wants with its audience. Most
media, when reporting a story which involves a parent company or a subsidiary,
will explicitly report this fact as part of the story, in order to
alert the audience that their reporting has the potential for bias due
to the possibility of a conflict of interest.
The business model of commercial media organizations (i.e., any
that accept advertising) is selling behavior change in their audience to
advertisers. However, few in their audience are aware of the conflict of interest between the profit motive and the altruistic desire to serve the public and "give the audience what it wants".
Many major advertisers test their ads in various ways to measure the return on investment in advertising. Advertising rates are set as a function of the size and spending habits of the audience as measured by the Nielsen Ratings. Media action expressing this conflict of interest is evident in the reaction of Rupert Murdoch, Chairman of News Corporation, owner of Fox,
to changes in data collection methodology adopted in 2004 by the
Nielsen Company to more accurately measure viewing habits. The results
corrected a previous overestimate of the market share of Fox. Murdoch
reacted by getting leading politicians to denounce the Nielsen Ratings
as racists. Susan WhitingArchived 2012-10-27 at the Wayback Machine,
president and CEO of Nielsen Media Research, responded by quietly
sharing Nielsen's data with her leading critics. The criticism
disappeared, and Fox paid Nielsen's fees. Murdoch had a conflict of interest between the reality of his market and his finances.
Commercial media organizations lose money if they provide content
that offends either their audience or their advertisers. The
substantial media consolidation that occurred since the 1980s has
reduced the alternatives available to the audience, thereby making it
easier for the ever-larger companies in this increasingly oligopolistic
industry to hide news and entertainment potentially offensive to
advertisers without losing audience. If the media provide too much
information on how congress spends its time, a major advertiser could be
offended and could reduce their advertising expenditures with the
offending media company; indeed, this is one of the ways the market
system has determined which companies won and which either went out of
business or were purchased by others in this media consolidation.
(Advertisers don't like to feed the mouth that bites them, and often
don't. Similarly, commercial media organizations are not eager to bite
the hand that feeds them.) Advertisers have been known to fund media
organizations with editorial policies they find offensive if that media
outlet provides access to a sufficiently attractive audience segment
they cannot efficiently reach otherwise.
Election years are a major boon to commercial broadcasters,
because virtually all political advertising is purchased with minimal
advance planning, paying therefore the highest rates. The commercial
media have a conflict of interest in anything that could make it easier
for candidates to get elected with less money.
Accompanying this trend in media consolidation has been a substantial reduction in investigative journalism,[106]
reflecting this conflict of interest between the business objectives of
the commercial media and the public's need to know what government is
doing in their name. This change has been tied to substantial changes in
law and culture in the United States. To cite only one example,
researchers have tied this decline in investigative journalism to an
increased coverage of the "police blotter". This has further been tied to the fact that the United States has the highest incarceration rate in the world.
Beyond this, virtually all commercial media companies own
substantial quantities of copyrighted material. This gives them an
inherent conflict of interest in any public policy issue affecting
copyrights. McChesney noted that the commercial media have lobbied
successfully for changes in copyright law that have led "to higher
prices and a shrinking of the marketplace of ideas", increasing the
power and profits of the large media corporations at public expense. One
result of this is that "the people cease to have a means of clarifying
social priorities and organizing social reform".
A free market has a mechanism for controlling abuses of power by media
corporations: If their censorship becomes too egregious, they lose
audience, which in turn reduces their advertising rates. However, the
effectiveness of this mechanism has been substantially reduced over the
past quarter century by "the changes in the concentration and
integration of the media." Would the Anti-Counterfeiting Trade Agreement have advanced to the point of generating substantial protests
without the secrecy behind which that agreement was negotiated—and
would the government attempts to sustain that secrecy have been as
successful if the commercial media had not been a primary beneficiary
and had not had a conflict of interest in suppressing discussion
thereof?
Mitigation
Removal
Sometimes, people who may be perceived to have a conflict of interest
resign from a position or sell a shareholding in a venture, to
eliminate the conflict of interest going forward. For example, Lord Evans of Weardale resigned as a non-executive director of the UK National Crime Agency after a tax-avoidance-related controversy about HSBC,
where Lord Evans was also a non-executive director. This resignation
was stated to have taken place in order to avoid the appearance of
conflict of interest.
"Blind trust"
Blind trusts
can perhaps mitigate conflicts of interest scenarios by giving an
independent trustee control of a beneficiary's assets. The independent
trustee must have the power to sell or transfer interests without
knowledge of the beneficiary. Thus, the beneficiary becomes "blind" to
the impact of official actions on private interests held in trust.
As an example, a politician who owns shares in a company that may
be affected by government policy may put those shares in a blind trust
with themselves or their family as the beneficiary. It is disputed
whether this really removes the conflict of interest, however.
Blind trusts may in fact obscure conflicts of interest, and for
this reason it is illegal to fund political parties in the UK via a
blind trust if the identity of the real donor is concealed.
Disclosure
Commonly,
politicians and high-ranking government officials are required to
disclose financial information—assets such as stock, debts such as loans, and/or corporate positions held, typically annually.
To protect privacy (to some extent), financial figures are often
disclosed in ranges such as "$100,000 to $500,000" and "over
$2,000,000". Certain professionals are required either by rules related
to their professional organization, or by statute,
to disclose any actual or potential conflicts of interest. In some
instances, the failure to provide full disclosure is a crime.
However, there is limited evidence regarding the effect of conflict of interest disclosure despite its widespread acceptance. A 2012 study published in the Journal of the American Medical Association
showed that routine disclosure of conflicts of interest by American
medical school educators to pre-clinical medical students were
associated with an increased desire among students for limitations in
some industry relationships.
However, there were no changes in the perceptions of students about the
value of disclosure, the influence of industry relationships on
educational content, or the instruction by faculty with relevant
conflicts of interest.
And, an increasing line of research suggests that disclosure can
have "perverse effects" or, at least, is not the panacea regulators
often take it to be.
Recusal
Those with a conflict of interest are expected to recuse
themselves from (i.e., abstain from) decisions where such a conflict
exists. The imperative for recusal varies depending upon the
circumstance and profession, either as common sense ethics, codified
ethics, or by statute.
For example, if the governing board of a government agency is
considering hiring a consulting firm for some task, and one firm being
considered has, as a partner, a close relative of one of the board's
members, then that board member should not vote on which firm is to be
selected. In fact, to minimize any conflict, the board member should not
participate in any way in the decision, including discussions.
Judges
are supposed to recuse themselves from cases when personal conflicts of
interest may arise. For example, if a judge has participated in a case
previously in some other judicial role he/she is not allowed to try that
case. Recusal is also expected when one of the lawyers in a case might
be a close personal friend, or when the outcome of the case might affect
the judge directly, such as whether a car maker is obliged to recall a
model that a judge drives. This is required by law under Continental civil law systems and by the Rome Statute, organic law of the International Criminal Court.
Third-party evaluations
Consider a situation where the owner of a majority of a public
companies decides to buy out the minority shareholders and take the
corporation private. What is a fair price? Obviously it is improper
(and, typically, illegal) for the majority owner to simply state a price
and then have the (majority-controlled) board of directors
approve that price. What is typically done is to hire an independent
firm (a third party), well-qualified to evaluate such matters, to
calculate a "fair price", which is then voted on by the minority
shareholders.
Third-party evaluations may also be used as proof that transactions were, in fact, fair ("arm's-length"). For example, a corporation that leases an office building that is owned by the CEO
might get an independent evaluation showing what the market rate is for
such leases in the locale, to address the conflict of interest that
exists between the fiduciary
duty of the CEO (to the stockholders, by getting the lowest rent
possible) and the personal interest of that CEO (to maximize the income
that the CEO gets from owning that office building by getting the
highest rent possible).
A January 2018 report by the Public Citizen
non-profit describes dozens of foreign governments, special interest
groups and GOP congressional campaign committees that spent hundreds of
thousands of dollars at PresidentDonald Trump's
properties during his first year in office. The study said that these
groups clearly intended to win over the president by helping his
commercial business empire profit while he held the office.
"An eye for an eye" (Biblical Hebrew: עַיִן תַּחַת עַיִן, Ain takhat ain)
is a commandment found in Exodus 21:23–27 expressing the principle of
reciprocal justice measure for measure. In Roman civilization, the law of retaliation (Latin: lex talionis)
bears the same principle that a person who has injured another person
is to be penalized to a similar degree by the injured party. In softer
interpretations, it means the victim receives the [estimated] value of
the injury in compensation. The intent behind the principle was to restrict compensation to the value of the loss.
Definition and methods
The term lex talionis does not always and only refer to literal eye-for-an-eye codes of justice (see rather mirror punishment)
but applies to the broader class of legal systems that specifically
formulate penalties for specific crimes, which are thought to be fitting
in their severity. Some propose that this was at least in part intended
to prevent excessive punishment at the hands of either an avenging
private party or the state.
The most common expression of lex talionis is "an eye for an eye", but
other interpretations have been given as well. Legal codes following the
principle of lex talionis have one thing in common: prescribed 'fitting' counter punishment for a felony. In the famous legal code written by Hammurabi,
the principle of exact reciprocity is very clearly used. For example,
if a person caused the death of another person, the killer would be put to death.
The simplest example is the "eye for an eye" principle. In that
case, the rule was that punishment must be exactly equal to the crime.
Conversely, the Twelve Tables of Rome merely prescribed particular penalties for particular crimes. The Anglo-Saxon legal code substituted payment of wergild
for direct retribution: a particular person's life had a fixed value,
derived from his social position; any homicide was compensated by paying
the appropriate wergild, regardless of intent. Under the English Common Law, successful plaintiffs were entitled to repayment equal to their loss (in monetary terms). In the modern tort
law system, this has been extended to translate non-economic losses
into money as well. The meaning of the principle Eye for an Eye is that
a person who has been injured by another person returns the offending
action to the originator in compensation, or that an authority does so
on behalf of the injured person. The exact Latin (lex talionis) to
English translation of this phrase is "The law of retaliation." The root
principle of this law is to provide equitable retribution.
In Babylonian and Roman law
Various ideas regarding the origins of lex talionis
exist, but a common one is that it developed as early civilizations
grew and a less well-established system for retribution of wrongs, feuds and vendettas, threatened the social fabric. Despite having been replaced with newer modes of legal theory, lex talionis
systems served a critical purpose in the development of social
systems—the establishment of a body whose purpose was to enact the
retaliation and ensure that this was the only punishment. This body was
the state in one of its earliest forms. The earliest known use of the
principle appears in the Code of Hammurabi, which predates the Hebrew Bible.
The principle is found in Babylonian Law. If it is surmised that in societies not bound by the rule of law, if a
person was hurt, then the injured person (or their relative) would take vengeful
retribution on the person who caused the injury. The retribution might
be worse than the crime, perhaps even death. Babylonian law put a limit
on such actions, restricting the retribution to be no worse than the
crime, as long as victim and offender occupied the same status in
society. As with blasphemy or lèse-majesté (crimes against a god or a monarch), crimes against one's social betters were punished more severely.
Roman law
moved toward monetary compensation as a substitute for vengeance. In
cases of assault, fixed penalties were set for various injuries,
although talio was still permitted if one person broke another's limb.
In Torah Law
In the Hebrew Law, the "eye for eye" was to restrict compensation to the value of the loss. Thus, it might be better read 'only one eye for one eye'. The idiomatic biblical phrase "an eye for an eye" in Exodus and Leviticus (עין תחת עין,
ayin tachat ayin) literally means 'an eye under/(in place of) an eye'
while a slightly different phrase (עַיִן בְּעַיִן שֵׁן בְּשֵׁן,
literally "eye for an eye; tooth for a tooth") is used in another
passage (Deuteronomy) in the context of possible reciprocal court
sentences for failed false witnesses. The passage in Leviticus
states, "And a man who injures his countryman – as he has done, so it
shall be done to him [namely,] fracture under/for fracture, eye
under/for eye, tooth under/for tooth. Just as another person has
received injury from him, so it will be given to him." (Lev. 24:19–21). For an example of תחת being used in its regular sense of under, see Lev. 22:27 "A bull, sheep or goat, when it is born shall remain under its mother, and from the eighth day..."
The Bible allows for kofer (a monetary payment) to take the place of a bodily punishment for any crime except murder. It is not specified whether the victim, accused, or judge had the authority to choose kofer in place of bodily punishment.
Exodus 21:22-24 states: If men strive, and hurt a woman with
child, so that her fruit depart from her, and yet no mischief follow: he
shall be surely punished, according as the woman's husband will lay
upon him; and he shall pay as the judges determine. And if any mischief
follow, then thou shalt give life for life, eye for eye, tooth for
tooth, hand for hand, foot for foot.
Judaism
Isaac
Kalimi said that the lex talionis was "humanized" by the Rabbis who
interpreted "an eye for an eye" to mean reasonable pecuniary
compensation. As in the case of the Babylonian 'lex talionis', ethical
Judaism and humane Jewish jurisprudence replaces the peshat (literal meaning) of the written Torah.
Pasachoff and Littman point to the reinterpretation of the lex talionis
as an example of the ability of Pharisaic Judaism to "adapt to changing
social and intellectual ideas."
Talmud
The Talmud interprets the verses referring to "an eye for an eye" and similar expressions as mandating monetary compensation in tort
cases and argues against the interpretations by Sadducees that the
Bible verses refer to physical retaliation in kind, using the argument
that such an interpretation would be inapplicable to blind or eyeless
offenders. Since the Torah requires that penalties be universally
applicable, the phrase cannot be interpreted in this manner.
The Oral Law explains, based upon
the biblical verses, that the Bible mandates a sophisticated five-part
monetary form of compensation, consisting of payment for "Damages, Pain,
Medical Expenses, Incapacitation, and Mental Anguish" — which underlies
many modern legal codes. Some rabbinic literature explains, moreover,
that the expression, "An eye for an eye, etc." suggests that the
perpetrator deserves to lose his own eye, but that biblical law treats
him leniently. − Paraphrased from the Union of Orthodox Congregations.
However, the Torah also discusses a form of direct reciprocal justice, where the phrase ayin tachat ayin makes another appearance.
Here, the Torah discusses false witnesses who conspire to testify
against another person. The Torah requires the court to "do to him as he
had conspired to do to his brother".
Assuming the fulfillment of certain technical criteria (such as the
sentencing of the accused whose punishment was not yet executed),
wherever it is possible to punish the conspirators with exactly the same
punishment through which they had planned to harm their fellow, the
court carries out this direct reciprocal justice (including when the
punishment constitutes the death penalty). Otherwise, the offenders
receive lashes.
Since there is no form of punishment in the Torah that calls for
the maiming of an offender (punitary amputation) there is no case where a
conspiratorial false witness could possibly be punished by the court
injuring to his eye, tooth, hand, or foot. There is one case where the
Torah states "…and you shall cut off her hand…"
The sages of the Talmud understood the literal meaning of this verse as
referring to a case where the woman is attacking a man in potentially
lethal manner. This verse teaches that, although one must intervene to
save the victim, one may not kill a lethal attacker if it is possible to
neutralize that attacker through non-lethal injury. Regardless, there is no verse that even appears to mandate injury to the eye, tooth, or foot.
Numbers 35:9–30
discusses the only form of remotely reciprocal justice not carried out
directly by the court, where, under very limited circumstances, someone
found guilty of negligent manslaughter may be killed by a relative of
the deceased who takes on the role of "redeemer of blood". In such
cases, the court requires the guilty party to flee to a designated city
of refuge. While the guilty party is there, the "redeemer of blood" may
not kill him. If, however, the guilty party illegally forgoes his
exile, the "redeemer of blood", as an accessory of the court, may kill
the guilty party.
According to traditional Jewish Law, application of these laws
requires the presence and maintenance of the biblically designated
cities of refuge, as well as a conviction in an eligible court of 23
judges as delineated by the Torah and Talmud. The latter condition is
also applicable for any capital punishment. These circumstances have not
existed for approximately 2,000 years.
Objective of reciprocal justice in Judaism
The Talmud discusses the concept of justice as measure-for-measure retribution (middah k'neged middah)
in the context of divinely implemented justice. Regarding reciprocal
justice by court, however, the Torah states that punishments serve to
remove dangerous elements from society ("…and you shall eliminate the
evil from your midst")
and to deter potential criminals from violating the law ("And the rest
shall hear and be daunted, and they shall no longer commit anything like
this evil deed in your midst"). Additionally, reciprocal justice in tort cases serves to compensate the victim (see above).
The ideal of vengeance for the sake of assuaging the distress of
the victim plays no role in the Torah's conception of court justice, as
victims are cautioned against even hating or bearing a grudge against
those who have harmed them. The Torah makes no distinction between
whether or not the potential object of hatred or a grudge has been
brought to justice, and all people are taught to love their fellow
Israelites.
Social hierarchy and reciprocal justice
In Exodus 21, as in the Code of Hammurabi,
the concept of reciprocal justice seemingly applies to social equals;
the statement of reciprocal justice "life for life, eye for eye, tooth
for tooth, hand for hand, foot for foot, burn for burn, wound for wound,
stripe for stripe"
is followed by an example of a different law: if a slave-owner blinds
the eye or knocks out the tooth of a slave, the slave is freed but the
owner pays no other consequence. On the other hand, the slave would
probably be put to death for the injury of the eye of the slave-owner.
However the reciprocal justice applies across social boundaries:
the "eye for eye" principle is directly followed by the proclamation
"You are to have one law for the alien and the citizen."
This shows a much more meaningful principle for social justice, in that
the marginalized in society were given the same rights under the social
structure. In this context, the reciprocal justice in an ideal
functioning setting, according to Michael Coogan,
"to prevent people from taking the law into their own hands and
exacting disproportionate vengeance for offenses committed against
them."
You have heard that it was said,
"An eye for an eye and a tooth for a tooth." But I say to you, Do not
resist the one who is evil. But if anyone slaps you on the right cheek,
turn to him the other also.
— Matthew 5:38–39 English Standard Version
Some interpret this as an admonition not to seek legal steps for any
compensation that corresponds in kind and degree to the injury.
Others interpret it as Jesus simply teaching his followers not to take
personal vengeance, rather than commenting on any specific legal
practice. However, the Epistle to the Romans suggests that neither interpretation is correct, suggesting that vengeance is to be left to God's wrath.
Christian interpretation of the biblical passage has been heavily influenced by the Church fatherAugustine of Hippo. He already discussed in his Contra Faustum, Book XIX, the points of 'fulfilment or destruction' of the Jewish law.
George Robinson characterizes the passage of Exodus ("an eye for an
eye") as one of the "most controversial in the Bible". According to
Robinson, some have pointed to this passage as evidence of the vengeful
nature of justice in the Hebrew Bible. Similarly, Abraham Bloch speculates that the "lex talionis has been singled out as a classical example of biblical harshness." Harry S. Lewis points to Lamech, Gideon and Samson
as biblical heroes who were renowned for "their prowess in executing
blood revenge upon their public and private enemies." Lewis asserts that
this "right of 'wild' justice was gradually limited."
Stephen Wylen asserts that the lex talionis is "proof of the unique
value of each individual" and that it teaches "equality of all human
beings for law."
The Quran (Q5:45) mentions the "eye for an eye" concept as being ordained for the Children of Israel. The principle of Lex talionis in Islam is Qiṣāṣ (Arabic: قصاص) as mentioned in Qur'an, 2:178: "O you who have believed, prescribed for you is legal retribution (Qisas)
for those murdered – the free for the free, the slave for the slave,
and the female for the female. But whoever overlooks from his brother
anything, then there should be a suitable follow-up and payment to him
with good conduct. This is an alleviation from your Lord and a mercy.
But whoever transgresses after that will have a painful punishment."
Muslim countries that use Islamic Sharia law, such as Iran or Saudi Arabia, apply the "eye for an eye" rule literally.
In the Torah We prescribed for
them a life for a life, an eye for an eye, a nose for a nose, an ear for
an ear, a tooth for a tooth, an equal wound for a wound: if anyone
forgoes this out of charity, it will serve as atonement for his bad
deeds. Those who do not judge according to what God has revealed are
doing grave wrong.
— Al-Ma'ida Qurʾān, 5:45
Applications
The death penalty is applied to murderers in some jurisdictions.
The group Nakam sought to kill six million Germans as revenge for the six million Jews killed during the Holocaust.
In 2017, an Iranian woman wounded in an acid attack was given the opportunity to have her attacker blinded with acid per sharia law.
Notable criticism
Coretta Scott King used this phrase in the context of racial violence: "The old law of an eye for an eye leaves everyone blind."
