Legal Commentary

My stint as a blogger is drawing to a close, so I ask readers' indulgence as I inflict one further set of thoughts concerning the danger of unreflective consequentialist (especially utilitarian) thinking, in both morality and law.

3.  Even when consequences matter, maximizing the net value of consequences is not always the best moral or legal approach.

From the obvious fact that we often do and often should consider the negative and positive consequences of a possible course of action, it is easy to conclude that maximizing the positive consequences relative to the negative ones is what actors typically do, and should do.  Both conclusions are false.  Raz gives the example of someone deciding whether to move to a new location for an attractive new job, even though this will make it more difficult to keep up old friendships.  It is tempting to analyze this as: "The actor puts a price on friendship, and at a certain price, he will give up the friendship for personal gain.  He will and should maximize the net value of personal gain and friendship."  But that need not be the way the actor thinks about the balance of considerations, and it certainly is not a morally attractive way to analyze the tradeoff.  For example, the actor might owe his friends some minimum of concern, even if this causes him enormous inconvenience.

In many legal contexts, "maximizing good consequences" is an especially dubious criterion.  Even if prosecuting victims of sexual assault for dressing provocatively would be an effective way to prevent such assaults, principles of just deserts, and of liberty of movement and expression, militate strongly against this solution.

4.  The supposed comparative advantage of consequentialism over nonconsequentialism is sometimes based on the false assumption that all nonconsequentialists are absolutists who never balance one set of considerations against another.

True, some retributivists, corrective justice advocates, and other nonconsequentialists offer absolutist views and deny that consequences ever matter.  Some even deny that countervailing reasons counter the absolutist force of their principles.  (Kant might have held such a view of criminal punishment, and Ernest Weinrib seems to hold such a view of corrective justice.)  But there are many, many counterexamples.

5.  The supposed "empirical" advantages of consequentialist approaches--that they are more empirically grounded and more testable than nonconsequentialist approaches--are often overstated.

True, the consequentialist is more likely than the nonconsequentialist to make testable predictions about whether a moral or legal rule is "better" than an alternative.  But we often forget that these predictions are testable only after the theory has make a controversial value judgment about which consequences matter, and how much they matter.  In criminal law, is it more important to prevent armed robbery than to prevent a rape that does not involve the use of force?  More important to prevent three premeditated murders than to prevent four negligent accidental killings?  (Or to prevent ten premature deaths by providing better health care?)

Also, nonconsequentialists do care about the empirical world, in two ways.

(a) Often they do care about consequences; but they decline to give consequences an exclusive role in justifyiing or prohibiting a course of action.

(b) The necessary conditions of a nonconsequentialist theory do consider empirical facts.  A liberal retributivist believes that criminal defendants are less to blame if they faced social conditions that made it especially difficult to avoid crime.  Most retributivists believe that some mental disorders render defendants substantially incapable of moral responsibility.

I do admit, though, that nonconsequentialists too often defend relatively abstract principles, as if the empirical facts about human psychology, genetics, and social circumstances have no bearing on moral and legal obligations.  Fortunately, some of the new work in neuroethics and in empirical law and philosophy is beginning to remedy this problem.