Legal Commentary

Thanks to those who posted thoughtful comments on my earlier post.

There are many reasons why the methodology that I critiqued, a comprehensive balancing of positive and negative consequences, is problematic.  And the comments pick up on a number of these.

First, not all consequences should matter (either on the question of the permissibility of primary conduct or on the question of the desirability of a legal rule).  Second, not all reasons should matter.  Third, even when consequences or reasons matter, maximizing the net value of consequences or reasons is not always the best moral or legal approach.  Fourth, the supposed comparative advantage of consequentialism over nonconsequentialism is sometimes based on the false assumption that nonconsequentialists are absolutists who never balance one set of considerations against another.  Fifth, the supposed "empirical" advantages of consequentialist approaches--that they are more empirically grounded and more testable than nonconsequentialist approaches--are sometimes overstated.

That's quite a list!  But let me get started...

1.  Not all consequences should matter.  Any plausible consequentialist approach must make value judgments.

Obviously it is not permissible for Joe to drive home at 90 m.p.h. in order to obtain the gun he needs for a bank robbery.  Bringing about an independently immoral consequence is never (or almost never?) a permissible reason for creating a risk.

Nor may Sarah drive that fast just because she wants to see the start of Obama's inauguration live on TV.  Here, though, I would not say that the consequence should not matter at all.  That beneficial consequence could justify her driving home at a safe speed rather than walking home, even though safe driving creates much greater risks than walking.  The important point: what consequences matter, and how much they matter, is itself a contestable question.  Sarah's very strong preference to see the inauguration might have very little social value.  Utilitarians differ greatly in how they define utility (as preference satisfaction, objective good, etc.), and consequentialists differ in how they define and value the relevant consequences (states of affairs? levels of welfare? promotion or nonviolation of rights, too?).  Thus, one supposed comparative advantage of consequentialism over nonconsequentialism, that it does not require difficult value choices, is, at the very least, exaggerated.

Consequences are sometimes irrelevant, and always need normative specification, not just when determining the permissibility of primary conduct, but also when determining what legal rule is desirable.

Of course, even if we embrace a thoroughly consequentialist framework, it does not follow that the legal rule should exactly mimic the utilitarian standard of primary conduct.  For example, even if the law should try to induce actors to engage in primary conduct that satisfies a utilitarian standard ("take a risk only if this maximizes the expected benefits over the expected costs"), legal liability for negligence (defined this way) sometimes will not be worth it--in light of the administrative and error costs of implementing the legal rule.  Strict liability and no liability are sometimes better means to the end.

But the deeper problems with looking only at, and at all, consequences, recur at the level of desirable legal rule, too.  For example: a rule reducing or eliminating recovery for personal injuries when victims act negligently might have no beneficial incentive effects on victims.  Yet there is a plausible nonconsequentialist reason for limiting their recovery: it is unfair to require injurers to pay full damages when victims are also at fault and causally contribute to their own harm.   And: we might conclude that certain consequences matter very little to the desirability of legal rules.  If we are trying to decide whether to require therapists to warn potential victims of serious threats made by their patients, perhaps we should ignore the harm that this rule will do to the prestige of the profession of therapy, while we should weigh heavily the risk that the rule will discourage violent patients from seeking help.

2.  Not all reasons should matter.

I agree with John Oberdiek's comment: the "just balance the competing consequences" approach seems attractive in part because this approach is easily confused with a far more compelling "just balancing the competing considerations or reasons" approach.  Why the confusion?  Perhaps the ambiguous notion of the "purpose" or "point" of a standard or rule is to blame.  Every moral standard or legal rule indeed must have a justifiable rationale.  But this does not mean that the "point" or rationale must be to bring about good consequences.  For example, some conduct might be intrinsically wrong, and some legal rules have an expressive "point".  (Why should South Carolina not fly the Confederate flag at the statehouse?  Because the state should not associate itself with its racist past.)  When we ask what the "purpose" of a moral standard or legal rule is, sometimes we fall into the unwarranted assumption that "bringing about good consequences" is the only eligible answer.

Nevertheless, not all reasons (even reasons other than achieving good consequences) should matter.  Perhaps the (actual) reason D speeds near a crowd of pedestrians is that he derives great enjoyment from seeing their horrified and fearful reactions.  That reason should be irrelevant to the moral and legal permissibility of his risky conduct.

(Some might call this reason a "consequence" of D's risky conduct, but this seems to collapse the distinction between consequentialist and nonconsequentialist approaches.  It need not be the case that D instrumentally selected speeding as an effective means to produce sadistic pleasure; rather, D might simply have been motivated by sadism, a motive that is part of why his risky conduct is impermissible.)

Put differently: everything depends on what counts as "a reason" or "a good reason" for an action.  Clearly the actor's actual reasons don't always have as much weight as she thinks they should.   Sometimes they should not count at all.  (To be continued...)