Is Resistance Futile? On the Potentially Disabling Consequence of Thinking About Consequences
When and how should an individual or an institution act in response to extortion? What should an individual or an institution do to oppose tyranny, illegality, oppression, or horror, if we suppose that the consequences of opposition might not be so good or might be terrible? These questions arose in stark form in 2025 in the context of efforts by the Trump administration to punish and bring to heel law firms, individuals, universities, and others. The underlying debates can be connected with longstanding debates in legal and political philosophy involving act utilitarianism, rule utilitarianism, and deontology.
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I. Responding to Threats
Suppose that someone in a position of power says: “Unless you do as I say, I will do something terrible to you. I will make your life hell.” Let us imagine that you are faced with extortion, threats of violence, or something similar. What, if anything, ought you do in response? Should you capitulate? Should you hide? Should you try to find some way to fight back?
These issues are relevant in many times and places. They are certainly relevant under circumstances of tyranny. As we shall see in some detail, they were highly relevant in Germany in the 1930s. And they are newly relevant in the United States in 2025, when law firms, universities, and others find themselves under serious threats.
When facing such threats, many people are act utilitarians (to be defined shortly), and act utilitarianism will often call for capitulation or some kind of hiding—and certainly not for fighting back. Act utilitarianism is a form of consequentialism, and thinking about consequences is sometimes disabling—or even paralyzing. That is a serious problem. If people and institutions (universities, law firms, newspapers, television stations) are act utilitarians, they will not take steps to combat injustice or cruelty, and injustice or cruelty is likely to continue.
By contrast, some people and institutions are rule utilitarians, and rule utilitarianism (also a form of consequentialism and to be defined in due course) might require people to rebel or fight back. Rule utilitarianism might lead people successfully to combat injustice or cruelty, but it might also fail dismally.
Certain forms of nonutilitarian thinking, which are deontological in character and indifferent to consequences, will also counsel against capitulation or hiding. Sometimes people think: “I must do what is right,” independent of the consequences. That kind of thinking might lead people successfully to combat injustice or cruelty, but it might turn out to be futile and self-destructive.
One or another of the three approaches—act utilitarian, rule utilitarian, and deontological—plays a role whenever people face threats, cruelty, horror, and injustice. For individuals and institutions, act utilitarianism is especially tempting and attractive, even though it is often disabling—or even paralyzing. Rule utilitarian and deontological approaches might be necessary to motivate action in the face of threats, cruelty, horror, and injustice.
II. Dilemmas, Old and New
Act utilitarians do their best to assess the consequences of various courses of action. Here is a standard account of act utilitarianism[1]:
An act is right if and only if it would have best consequences, that is, consequences at least as good as those of any alternative act open to the agent.
Act utilitarianism is a form of consequentialism. It focuses on the consequences of individual action, and it understands them in terms of utility. Act utilitarians believe that it might be best to lie if lying has the best consequences. It might be best to hide if hiding has the best consequences. It might be best to confess if confessing has the best consequences.
The underlying questions are relevant for any person or organization facing some external threat, including a threat from government. Communist and fascist regimes are the most vivid examples,[2] but we can easily imagine and find analogues in nations that are neither. When the government imposes a serious and possibly existential threat of some kind, how should people think? How do people think? What should they do?
These questions are often important to ask, but they became highly relevant in the United States in 2025, with various efforts by the Trump administration to act against law firms, universities, individuals, and others. How should a law firm react when threatened with an executive order that would impose serious economic harm and perhaps endanger its existence? How should a university respond to a threatened loss of federal funds or international students?
If drawn to act utilitarianism, a law firm or a university may make the following calculation:
We could capitulate, which means that we could accede to the demands. Alternatively, we could litigate, which means that we have some probability of winning. Capitulation has one clear set of outcomes, which include losses of specified kinds. Those losses may or may not be intolerable. Capitulation also has an unclear set of outcomes. Once we capitulate to the initial demands, might we be subject to further demands?
For its part, litigation faces multiple uncertainties. Those who resist the federal government might find themselves in some kind of vendetta. They might not have many cards to play. They might be badly hurt. They might even be destroyed.
III. Confronting or Not Confronting Hitler
In 1977, Alan Beyerchen published a careful, fact-filled book called Scientists Under Hitler,[3] which explores the questions faced by “the physics community” in the 1930s and 1940s. Beyerchen offers a detailed account of the dilemmas faced by German physicists. After Hitler’s rise to power, does one put one’s head down and their work, if one can? Does one quit? Does one support the regime, or does one point out what is good about it in the hope of avoiding danger and perhaps obtaining advancement?[4] Does one leave Germany? Jewish physicists obviously faced far more serious threats than did non-Jewish physicists, but both were at risk. Does one defend Jews if one is not Jewish? Does one speak out? If so, what does one say?
As Beyerchen shows, the German physicists were not at all political. “The foremost concern of the members of the physics community during the Nazi years was the protection of their autonomy against political encroachment. The vast majority of the scientists under Hitler were neither anti-Nazi nor pro-Nazi.”[5] Beyerchen asks whether the physicists opposed Nazism. His answer is stark: They did not show opposition at all. With that answer, Beyerchen did not mean to suggest that Germany’s physicists were, in some way, in league with Nazism. They did not collaborate, at least not in the main.[6] Beyerchen meant to offer a simple, flat statement of fact: They were not part of any opposition.
But these points raise a further question. Why did the physicists not do more to oppose Hitler and Nazism? Why did they do relatively little? Their Jewish colleagues were fired or worse. A number of non-Jewish physicists left Germany. What about those who remained? Why were they essentially silent?
Beyerchen’s answer suggests that his physicists were act utilitarians and therefore paralyzed. As they saw it, open protest was “tantamount to suicide.”[7] In Beyerchen’s account, the scientists were eminently practical people, focused on the consequences and engaged in what has been called “prudential acquiescence.”[8] It is an evocative phrase, but Beyerchen wants to qualify it. His key point: “The truth is not that the scientists were political cowards, but that they did not know how to be political heroes.”[9] That is a common situation for act utilitarians.
IV. “They Did Not Know How to Be Political Heroes”
In Germany under Nazism, the problem was not that the physicists were particularly frightened, although of course some of them were. It was that they did not know what to do to combat Hitler. What could have been done?
Consider the extraordinary words of the physicist Leo Szilard[10]:
“I noticed that the Germans always took a utilitarian point of view. They asked, Well, suppose I would oppose this, what good would I do? I wouldn’t do very much good. I would just lose my influence. Then why should I oppose it? You see, the moral point of view was completely absent, or very weak, and every consideration was simply, what would be the predictable consequence of my action. And on that basis did I reach the conclusion in 1931 that Hitler would get into power, not because the forces of the Nazi revolution were so strong, but rather because I thought that there would be no resistance whatsoever.”
Of course, act utilitarianism is a moral point of view. Szilard was a physicist rather than a philosopher, and he does not seem to appreciate that. He appears to think that “the moral point of view,” properly understood, is deontological. It involves doing what is right, defined independently of the consequences. Opposition, he thinks, is simply right.
In this regard, consider Patrick Henry’s “Give Me Liberty or Give Me Death” speech.[11] Henry’s words were (and are) galvanizing precisely because of their nonutilitarian nature. Henry was no act utilitarian. To be sure, Henry does gesture toward practicality and consequences: “Gentlemen may cry, Peace, Peace—but there is no peace. The war is actually begun! The next gale that sweeps from the north will bring to our ears the clash of resounding arms! Our brethren are already in the field! Why stand we here idle?” But the final words are the famous ones[12]:
What is it that gentlemen wish? What would they have? Is life so dear, or peace so sweet, as to be purchased at the price of chains and slavery? Forbid it, Almighty God! I know not what course others may take; but as for me, give me liberty or give me death!
These words are motivating because they are hardly act utilitarian. They suggest that in the face of tyranny, the decision of what to do should not depend on an assessment of its consequences.
V. Rule Utilitarianism
It would be possible to read Henry as offering an argument for rule utilitarianism rather than act utilitarianism.[13] Effective rebels might be rule utilitarians, not act utilitarians. They might adopt a rule: I will rebel against X, Y, or Z, not because it is always good to do that in individual cases, but because it is good, on balance, if all of us adopt and follow a rule to that effect. Consider Hooker’s definition[14]:
An act is wrong if and only if it is forbidden by the code of rules whose internalization by the overwhelming majority of everyone everywhere in each new generation has maximum expected value in terms of well-being (with some priority for the worst off).
Hooker offers a detailed argument in favor of rule utilitarianism, showing that it “taps into and develops the thought that an act is wrong if everyone’s feeling free to do it would have bad consequences.”[15]
It is important to emphasize that there may be no assurances under conditions of threat. Those who do what they think is right might accomplish nothing. Extortionists sometimes deliver on their threats and do horrible things. We might think, or want to think, that a firmly held moral heuristic would have been effective, at least to some degree, against Nazism. Collective action might have achieved something. But it might not have.
VI. Universities and Law Firms, 2025
Return now to 2025 and focus on law firms and universities. Act utilitarianism might argue for something like capitulation: A law firm might be at grave risk if it does not capitulate, and something similar might be true of a university. Not unlike the German physicists in the 1930s, law firm leaders might want to survive as best they can. University administrators might think the same. They might do their work and hope that the threat can be made to go away. If it does not, and if the threat is serious and obvious, they might do whatever they can to convince the government to back off, even if it is necessary to yield on important matters.
Capitulation has a distribution of outcomes, perhaps accompanied by at least a rough assessment of their probabilities. One problem, of course, could be that if it capitulates, a law firm or university might learn that there is no end in sight and capitulation buys it much less than it had hoped. Perhaps the government will keep making demands.
Then there is an alternative approach, which would most naturally take the form of litigation. Here too we might be able to have a sense of probability of a good outcome. Perhaps a law firm is 80 percent likely to win; perhaps a university is 90 percent likely to win. As noted, both bad and good outcomes have an assortment of subsequent consequences, which might be challenging to predict. A likely possibility is that you produce an exceedingly powerful enemy, which might seek and find other ways to hurt you. The very fact that you have chosen not to capitulate might make you a more salient, visible antagonist, and that might not be healthy.
If the fundamental concern is an institution’s self-interest, the matter might be easy or it might be hard. One question is this: What, exactly, does capitulation involve? What is the demand to which one is capitulating? If the demand is relatively innocuous or broadly consistent with the institution’s preexisting values or goals—or not palpably inconsistent with those goals—the argument for capitulation might be pretty strong. Suppose, by contrast, that the demand is one with which the institution cannot possibly comply without giving up its values and even identity. Perhaps the government seeks to run the relevant institution on a daily basis; to have authority over hiring and firing; or even to seize control of clients, causes (for law firms), or curriculum (for universities).
If the demand is sufficiently extreme, there is no question that the argument for capitulation is substantially weakened. The institution might think something like: “Better dead than that.” Or it might think: “Better a 90 percent chance of being dead than that.” Or at least: “Better a 20 percent chance of being dead than that.”
These are all the calculations of an act utilitarian. Suppose instead that a law firm or a university is motivated by a moral norm: “Give me liberty or give me death. Do not capitulate in cases of X, Y, and Z.” More specifically, the law firm or the university might think: “Do not capitulate if the demand is a violation of the Constitution.” That thought might be based on a judgment about what morality requires, independent of consequences.
Perhaps a law firm or a university might follow rule utilitarianism, making a judgment that if everyone follows a rule of that kind, the consequences will be good. Such a judgment about the consequences may or may not be correct. Sometimes the good guys lose. All, most, many, or some relevant law firms and universities might be badly hurt, even if they are able to follow the relevant rule.
But one thing is clear. In 2025, many people reacted with alarm, anger, and disappointment when some law firms and universities engaged in what they say as capitulation to the Trump administration. And many people reacted with relief, enthusiasm, and gratitude when some law firms and universities decided to stand and fight. The underlying judgment was that in the end—and for the time being—the “moral point of view” had proved itself to be robust. Rule utilitarians warmly applauded. Those who were committed to what they saw as the moral point of view offered a standing ovation. For their part, act utilitarians observed the proceedings nervously.
Unfortunately, there are no guarantees in this life. But we cannot doubt that in many times and places, act utilitarianism is paralyzing. It might well call for inaction or capitulation, even in the face of extortion, tyranny, or unjust threats. By contrast, rule utilitarianism or deontology may be both necessary and sufficient to motivate action to combat such threats.
Copyright © 2025 Cass R. Sunstein, Robert Walmsley University Professor, Harvard University.
[1]. D.H. Hodgson, Consequences of Utilitarianism 1 (1967).
[2]. See generally Universities Under Dictatorship (John Connelly & Michael Grüttner eds., 2005); Jonathan Petropoulos, Artists Under Hitler: Collaboration and Survival in Nazi Germany (2014).
[3]. See generally Alan D. Beyerchen, Scientists Under Hitler: Politics and the Physics Community in the Third Reisch (1977).
[4]. For the complex, riveting account of Leni Riefenstahl, see Petropoulos, supra note 2, at 234-260, with these concluding words on page 260: “Trained in a modernist tradition, from which she borrowed freely for the rest of her life, this talented and ambitious artist put her work above ethics or self-awareness, and this enabled her to find a place in the Third Reich.”
[5]. Beyerchen, supra note 3, at 199.
[6]. Cf. Petropoulos, supra note 2, at 304 (emphasizing that “most modernist figures therefore pursued accommodation with self-interest in mind, and tried to benefit from the myriad opportunities that came with Nazi cultural initiatives and building projects”).
[7]. Beyerchen, supra note 3, at 207.
[8]. Id.
[9]. Id. (emphasis added).
[10]. Id. at 209.
[11]. Patrick Henry - Give Me Liberty Or Give Me Death, Yale L. Sch. Libr.:The Avalon Project, https://avalon.law.yale.edu/18th_century/Patrick.asp (last visited Jul. 28, 2025) [https://perma.cc/T9X5-CG5G].
[12]. Note, too, the phrase popular in the 1950s, “Better Dead Than Red” and William F. Buckley Jr.’s powerful account of it. Buckley’s Henry-ish ending is memorable: “Better Dead than Red is an inaccurate statement of the American position, listing, as it does, non-exclusive alternatives. Properly stated it is: Better the chance of being dead, th[a]n the certainty of being Red. And if we die? We die.” William F. Buckley Jr, On Dead-Red, Nat’l Rev. (Nov. 17, 2005, 1:38 PM), https://www.nationalreview.com/2005/11/dead-red-william-f-buckley-jr/ [https://perma.cc/7SYY-LUQP].
[13]. For relevant discussion, see generally R.M. Hare, Moral Thinking (1981); and in particular for the discussion of two-level thinking, David Lyons, Forms and Limits of Utilitarianism (1965); Brad Hooker, Ideal Code, Real World (2000); Hodgson, supra note 1; Peter Singer, Is Act-Utilitarianism Self-Defeating?, 81 Phil. Rev. 94 (1972); Rule Consequentialism, Stanford Encyclopedia of Phil., https://plato.stanford.edu/entries/consequentialism-rule/ (last visited Jul. 28, 2025) [https://perma.cc/4KBL-Y6TN].
[14]. See Hooker, supra note 13, at 32. Hooker continues: “The calculation of a code’s expected value includes all costs of getting the code internalized. If in terms of expected value two or more codes are better than the rest but equal to one another, the one closest to conventional morality determines what acts are wrong.” Id.
[15]. Id. at 5.
