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Legal Commentary: Prawfs
Creeping consequentialism and insidious economics, part III
By Dan Markel, Ethan Leib, Rick Garnett, Matt Bodie, Paul Horwitz , Steve Vladeck, and Orly Lobel
Thanks again to commentators for offering thoughtful responses to my last post. Some reactions:
1. JP doubts the coherence of the distinction between consequentialism and nonconsequentialism. And Aaron Williams suggests that calling something intrinsically wrong is "just dogma."
These are familiar and understandable concerns. To skeptics, nonconsequentialist arguments are either ipsi dixit, and less rigorous or less fully justified than consequentialist arguments; or else disguised consequentialist arguments.
For example, when a court says that it is unfair for a negligent victim to obtain full tort recovery, doesn?t it really mean that the negative social consequences of allowing full recovery here outweigh the positive ones?
Not necessarily. The court might share my doubts that a legal rule limiting the recovery of negligent victims will affect their future behavior. (A jaywalking pedestrian is already ignoring a risk of self-injury; will her incentive to take care really be greater if she now also knows that, if she is run over by a tortious driver with substantial insurance, the damages she would obtain will be less?) Yet the court might believe that it is unjust to require the injurer to pay full damages.
But doesn't "injustice" here translate into "creates (net) bad consequences"? I don't see how it does. To be sure, the court cares about "consequences" in a minimal sense: a legal rule permitting negligent victims full recovery is a "consequence" that the court wishes to avoid. But that is a trivial type of consequence for our purposes: the real question is whether the justification for a rule of diminished recovery is based on consequentialist reasoning (such as utilitarian or economic analysis), or instead on other grounds.
True, specifying what is "unfair" about a victim's obtaining full recovery, or about an injurer creating unreasonable risks to others without having to pay for them, is a complex matter. But that does not mean that the underlying justification really must be consequentialist.
(Here is one useful overview of nonconsequentialist, and specifically deontological, analysis, clarifying how it differs from consequentialism. And here is a useful overview of consequentialism, indicating some ways that it might accommodate deontological objections.)
But there is a wrinkle in this example, and in all cases where we evaluate whether a person's conduct is unreasonably risky. It is especially easy to fall into the trap of assuming that any evaluation of risky conduct must be consequentialist in the deep sense, simply because we must consider the expected harms and benefits that might flow as a consequence of taking the risk. But that assumption is unwarranted. Shooting a gun in the direction of another person is often unjustified conduct because of the risk that it might kill, or wound, or frighten the victim. But the reason it is unjustified could be because it is socially inefficient behavior (warranting legal sanction on a consequentialist account) or because it shows flagrant disrespect for the rights of the victim (perhaps warranting punishment, on a just deserts or retributive account; or warranting a duty to compensate if harm results, on a corrective justice or fairness account).
Put differently, the fact that possible or probable consequences of one's action are morally and legally relevant to its permissibility does not mean that permissibility is just a question of maximizing good consequences. Another example: most agree that a right of self-defense depends on the actor's believing that an aggressor is confronting him with some threshold level of risk of harm (i.e., some probability of a bad consequence), and yet most accounts of why we have a right to self-defense are not consequentialist in the deep sense. E.g., a nonconsequentialist account could rely on the defender's right of autonomy, or the attacker's forfeiture of his right to life. (I have given a fuller account of this argument here.)
2. JSD points out that "reasons" can refer either to the agent's actual motivating reasons for action, or to the normative reasons that, we might say, should have motivated the actor. JSD says that only normative reasons explain the permissibility of an action. Maybe. On the other hand, among criminal law theorists there is a raging debate over whether subjective reasons affect permissibility. If A shoots B, not knowing that B was about to attack him, is A's conduct justifiable? Or is it only justifiable if he was subjectively acting for the right reason (self-defense) or at least with an honest belief (that B was about to attack him)? T.M. Scanlon's new book also explores this issue from the perspective of moral philosophy. (E.g., does the permissibility of a bombing raid that kills civilians depend on the purposes of the bomber, or of the person who planned the bombing? Or does permissibility turn only on the objective reasons supporting the raid?)
3. Thanks to Patrick O'Donnell for his reminder of how widely these debates over how to justify moral and legal norms extend--not only to tort law and criminal law, but also to health law, and indeed, I would say, to every moral and legal issue. And I share his admiration for the work of Robert Goodin, who endorses a nuanced form of consequentialism for public policy decisions.
4. Is a sadistic pleasure (from driving into a crowd, say) really irrelevant to permissibility, or is it simply outweighed by other reasons? A good question. But many utilitarians are willing to "launder" or exclude sadistic, malicious, racist, and some other preferences, giving them no weight in their calculus. Usually it will not matter whether we launder such preferences; for they will normally be outweighed by the bad consequences they are associated with. But on the margin, such preferences, if not laundered, could make a difference to permissibility. We do not permit teenage thrill-seekers to drive faster on public roads than other drivers who get no special thrill from driving fast; but shouldn't a thorough (nonlaundering) utilitarian permit the teenager to drive a bit faster, assuming that all other factors in the utilitarian calculus are the same for both sets of drivers? To be sure, it would be impossible to accurately detect who genuinely obtained that special thrill; but quite apart from this practical problem, I believe that in principle we should, in this context, judge the thrill of speeding irrelevant to permissibility.
4. Ohwilleke comments: If juries are given a Learned Hand instruction, in a form that asks them to apply expected costs and benefits in a utilitarian way, they are likely to ignore the instruction, and rely on their gut. This does not surprise me. Part of the reason for this is that most ordinary people are not straightforward utilitarians. Their "gut" feelings of fairness often reflect nonconsequentialist principles of justice. (But it is also true that their "gut" sometimes reflects unconscious psychological framing effects, hindsight bias, or an unrealistic assumption that if an activity or product is risky, the risk must be unjustifiable.)
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