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Wednesday, November 19, 2008

Creeping consequentialism and insidious economics, part II

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...)

Posted by Ken Simons on November 19, 2008 at 03:11 PM in Criminal Law, Legal Theory, Torts | Permalink

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I'll confess to not understanding the distinction between consequentionlist and nonconsequentialist approaches. As far as I can tell, when you say you are applying a nonconsequentialist approach, you're just refusing to do explain your reasoning.

It seems that "unfair" or "intrinsically wrong" just replaces "the expected costs outweigh the expected benefits." In the examples you provide where a nonconsequentialist approach is better (contributory negligence and the potential violence exception to therapist privilege), I don't see how you are doing something other than evaluating costs, benefits, and probabilities of potential consequences.

Similarly I don't understand the difference between "instrumentally selecting speeding as an effective means to produce sadistic pleasure" and being "motivated by sadism" to speed. You suggest sadism is an impermissible motive (why?) while a utilitarian might give some positive weight to the resulting pleasure, sadistic or not. (Though of course if sadism has broader negative external consequences [which I speculate is your unstated objection] those have to be factored in as well.

Posted by: JP | Nov 19, 2008 5:29:46 PM

Well the last paragraph is on its way to the answer: the agent's own reasons never determine whether an action is permissible. The question of an action's permissibility is a question about the actual reasons (or as you say the 'good reasons') in favor of and against the action.

Even though we use the word 'reason' both to refer to the considerations which motivated an agent to act and to refer to the considerations which actually count in favor of and against an action, a consideration's being a reason of the first kind does not grant it status as a reason of the second kind (the reason I went to the fridge was that I wanted a drink and I thought there was some milk in there, but actually there was no milk at all in the fridge so I didn't have any reason at all to go).

When John Oberdiek talks about the balance of reasons in tort law, he is (I think; I don't want to speak for him) only talking about reasons of the second sort: good reasons, or normative reasons as they are sometimes called.

And the balance of these sorts of reasons is what determines whether or not an action is or should be permissible. The whole point of course is that some (many?) of these reasons do not have to do with the consequences of the action in question. They have to do with duties that we owe to other people that arise in virtue of things other than consequences (our status as persons, for example) and that we ought not to break even if breaking them might have good consequences.

Posted by: jsd | Nov 19, 2008 7:14:22 PM

I found this post to be especially interesting and helpful, as it helps to clarify both the strengths and limitations of consequentialist reasoning, as well as place it in a larger perspective concerned with practical (and legal) reasoning and the provision of reasons for descriptive explanation and normative elucidation in general.

Related questions and problems arise in the field of health care provision (assuming Humean conditions of justice) wherein light of limited health care resources the regnant assumption is, in Dan Brock's words, "[that] those resources should be allocated so as to maximize the health benefits they produce, measured by either the aggregate health status or disease burden of a population." Cost-effectiveness analysis (CEA) is the standard analytic tool in this determination, and of course it assumes a utilitarian or consequentialist standard of distributive justice. Often the moral assumptions and larger ethical dimensions at work in using the CEA metric are not clearly understood or acknowledged. Brock himself has outlined a host of issues about equity and justice that arise in reliance on the CEA, concluding, in part, that equity concerns "warrant some constraints on the unqualified maximisation of health outcomes."

Anyway, I thought readers might be interested in a similar discussion by Brock in which we come to appreciate the "complex, controversial, and important issues" regarding equity and justice that arise in reliance on CEA, in other words, "that there are important ethical and value choices to be made in constructing and using the measures; [that] the choices are not merely technicial, empirical, or economic, but moral and value choices as well." No one is arguing that we need necessarily dispense with CEA, only that if we decide to employ it, we need to do so in a manner that is utterly pellucid with regard to ethical and value questions. [Please see Dan W. Brock, "Ethical Issues in the Use of Cost Effectiveness Analysis for the Priortisation of Health Care Resources," in Sudhir Anand, Fabienne Peter, and Amartya Sen, eds., Public Health, Ethics, and Equity (New York: Oxford University Press, 2004), pp. 201-223.]

Posted by: Patrick S. O'Donnell | Nov 20, 2008 9:22:13 AM

Incidentally (or perhaps not), as I've noted at this blog before, Robert E. Goodin has clearly demonstrated the value of a thoughtful (if not unavoidable) employment of utilitarian reasoning in political thought and social policy. See, for instance, and from among his many books and articles, Political Theory and Public Policy (1982) and Utilitarianism as a Public Philosophy (1995). His utilitarian and consequentialism reasoning is often a far cry from more cruder versions found, say, in welfare economics or in the "law and economics" genre.

Posted by: Patrick S. O'Donnell | Nov 20, 2008 9:47:05 AM

"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.)"

It seems to me that associating with racism is *bad* because of its negative application toward our *desire* to live in a fair society. That's the "good consequence" we get from banning racism. Otherwise who cares? We desire a fair society; racism is unfair; therefore, racism is undesirable, and we should "express" a rule that discourages racism.
It seems to me that saying something is intrinsically wrong, regardless of its consequence, is just dogma. Unless I'm missing something.

"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."

Should it be "irrelevant" or should he just *lose*, since we, as a society, value the lives of pedestrians more than individual sadistic pleasure via vehicular homicide? Obviously it wasn't irrelevant, because then the rule would have been expressed as "nobody can ever drive into a crowd of pedestrians, regardless." It seems that you've repaced the analysis for whether a reason "matters" with an expression of societal desirability.

Posted by: Aaron Williams | Nov 20, 2008 11:52:45 AM

The "what should matter" notion echos a thought experience my first year torts class engaged in when I was in law school. The experiment:

What if the only damages one could recover were for emotional distress, and that physical injuries were not a basis for recovery except to the extent that they caused emotional distress?

The scenario turned out to be less than hypothetical. I've actually litigated (and won) such a case in an automobile accident case where economic damages from physical harm were covered by first party worker's compensation, but impairment and emotional distress were not.

A ballot issue on the ballot in Colorado this year (but withdrawn in a global deal between unions and business before it faced the voters) would have established that rule for all worker's compensation cases.

The reality is that a tort lawyer's favorite case is one with a negligence per se element, or a strict liability standard. Proving what a reasonable person would have done under the circumstances is inherently problematic, and hence inherently trial prone, particularly in debatable cases. Moreover, unlike a regulatory regime, one can't use trial court jury verdict precedents to pin down once and for all what a person who wants to comply must or must not do.

Also, the other reality is that the Learned Hand test is rarely so precise that it can keep a case out of the hands of a jury (since creating issues of fact regarding likelihood and magnitude of potential harms isn't hard) even if it weren't more nebulous than it appears when stated in word, and putting a Learned Hand test into a jury instruction has a quite limited impact on the actual jury decision making process. Juries often follow their guts and relying on jury instructions to overcome those gut insticts is a fool's bet.

Posted by: ohwilleke | Nov 20, 2008 5:20:40 PM

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