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Thursday, April 19, 2018

Must the Law Be as All-or-Nothing as Leo Katz Claims?

In Leo Katz's characteristically excellent book Why the Law is so Perverse, he argues that the law is often all-or-nothing because many phenomena that appear to stretch along continua, like becoming a person or dying or giving consent, are better understood as discrete events. He does not go so far as to "defend the either/or character of legal doctrines," but he purports "to show why any efforts to change things are doomed" (p. 157). He claims that "most of the time either/or can’t be avoided, or more precisely, that if we tried to purge a doctrine of it, we would find that either/or has simply migrated to another part of the doctrine or has been replaced by some other, far more troublesome feature" (p. 157). In short, he writes, "we can only affect where a sharp discontinuity will occur, not whether it will occur at all" (p. 157). (Some of you may remember that Katz shared many of the insights in his book over the course of a week at the Volokh Conspiracy.)

In a recent article, I challenge several of Katz's arguments. I aim to show that many phenomena which appear to stretch along continua could indeed be treated as such by the law or at least treated in a less all-or-nothing manner than they are now. After the jump, I excerpt just one example where I argue that death need not be understood in the discrete terms Katz proposes.

Challenge #1: (parenthetical page numbers are to Katz's book)

Katz acknowledges the initial appeal of understanding death as a continuous process rather than a discrete event: "As we look more closely at the stages through which everyone passes as he moves from being fully alive to being fully dead, it starts to feel increasingly artificial to designate any one point in this progression as demarcating the boundary between life and death" (p. 158).

Despite its appeal, Katz defends a contrary view. He asks us to imagine the spectrum of how alive a person is broken up into about 1,000 increments (or any arbitrarily large number of increments). At one end is a person who is fully alive (H). Then comes another who is just one increment less alive (H - 1) and then another who is two increments less alive (H - 2). Eventually, we reach the last person who is just barely alive (H - 1,000).

Suppose we had to choose, Katz asks, between saving one person who is fully alive or two who are just a bit less alive. Surely, he says, we would choose two people who are just a bit less alive. The incremental reduction in life is very small, and we get to save two people rather than one. Similarly, we would choose to save three people who are two increments shy of being fully alive rather than two people who are one increment shy. Soon, though, we reach an odd conclusion. If "<" means less worthy of being saved, we get:

H < 2(H−1) < 3(H−2) <  4(H−3) < . . . < 1,001(H−1,000).

Katz claims that if we take this view to the extreme, it is better to save 1,001 people who are just barely alive than one fully alive human being. "But this is absurd!" writes Katz. "A single H-minus-1,000 is a collection of completely decomposed cells. How can a set of 1,001 such collections possibly trump a single living human being …? Something has gone wrong" (p. 160). Katz believes that the only way to avoid this conclusion is to identify some "stunningly abrupt transition" where we can no longer "compensate for a drop in quality by vastly upping the quantity of those inferior-grade Hs" (p. 160). Hence, he claims "[t]‌here is no gentle going into that good night, as it were. Death is a cliff, not a gentle slope" (p. 160).

In fact, however, Katz has not identified a "stunningly abrupt transition." He has described a gentle transition from very alive to somewhat alive to barely alive to completely dead. No quantity of bodies described merely as a "collection of completely decomposed cells" will ever equal the value of a human life because such bodies are already dead. The problem is not that there is no continuum of life and death; it’s that Katz is describing a body that has passed the end of the relevant spectrum.

Amounts of life can fall along a spectrum and still reach an endpoint when a body is not alive at all. Consider a property that indisputably falls along a continuum, like the temperature of ice. The continuum starts at absolute zero and gradually increases. But as the temperature rises above the melting point of water, we no longer have ice; we have liquid water. So though the temperature of ice is bounded in one direction by absolute zero and by the melting point of water in the other direction, there is an interesting range where the temperature of ice varies continuously. And just as ice can have an interesting range of temperatures bounded on two ends, human life has an interesting range of vital activity even though it, too, is bounded.

One reason Katz’s hypothetical may lead us astray is that he proposes a continuum of life in biological terms. But his reductio argument concerns our beliefs not about how alive a being is but about the relative value of entities with different amounts of life. The valuation of a body need not correspond in obvious ways to the amount of life still in the body. The value of a life depends on the set of properties that give it value, not the number of cells it has that are still living.

For example, as an overly simplistic suggestion, suppose there is a relationship between the value of a person’s life and his level of conscious awareness. Lives with more conscious awareness, on this view, would be valued more than lives with less conscious awareness. Katz might ask, "Isn’t a fully alive and conscious human being worth more than any number of people with just a minute quantity of conscious awareness?" So phrased, however, the answer depends quite a bit on the details. Faced with a tragic choice, we plausibly should save a large number of people with limited awareness (but whose lives still have value) over one person with full awareness. Katz’s reductio ad absurdum has lost its absurdum.

If bodies can be assigned an amount of life from 0 to 1,000, it’s true that there is a point where an abrupt transition occurs in our treatment of those bodies. A million or even a billion bodies assigned zero units of life will always generate less value than even a single non-zero-valued body. But there’s nothing stunning about the transition from living to dead. Katz seems to move from the fact that there is a point at which a body has no life at all to the conclusion that there is no continuum of amounts of life. Consider, however, the set of real numbers—the archetypical case of a continuous range of numbers. We can say that there’s a sharp transition between the set of positive real numbers and the set of non-positive real numbers. That is, we can craft a category that distinguishes numbers zero and lower from numbers greater than zero. But the fact that we can identify a property of real numbers that fits into a binary category doesn’t alter the continuous nature of the numbers themselves. What marks a relevant discontinuity is a matter of perspective.

Consider the historical transition from contributory negligence to comparative negligence. Comparative negligence smoothed the law by more closely tying the reduction in plaintiffs’ recoveries to the extent of their negligence. It surely made the law less either/or. True, we can imagine a sharp distinction between entirely non-negligent plaintiffs and those who are slightly negligent: no number of completely non-negligent plaintiffs will ever equal the negligence of one slightly negligent plaintiff. But this doesn’t strike me as an interesting discontinuity. Comparative negligence smooths tort law variables that we actually care about, and were it beneficial to do so, we could make our treatment of death smoother as well.

Katz offers some additional arguments to suggest that death is not a continuous process. Citing Peter Unger’s work, Katz argues that we tend not to differentially value human lives based on their levels of ability and disability:

[W]‌e generally feel that the rights granted to all human beings should be the same regardless of abilities and disabilities. The progression from life to death is a progression from ability to disability. If we were to treat the dying differently depending on where they are located on that progression, it seems we ought to treat the fully alive differently … and most of us would feel loath to do that. (p. 161)

We do strive to treat people the same regardless of their abilities. But, to reiterate, we must distinguish the claim that life is a matter of degree from the claim that the value of life is a matter of degree or that particular rights should be a matter of degree. Even if the value of a human body is either "fully valued" or "valueless" depending on whether it is alive, amounts of life may still be best understood in a continuous way. Furthermore, the fact that we strive to treat lives as equally valuable does not necessarily mean they are always deemed to have equal value. Most people would not be indifferent if they somehow aged ten years in an instant. Maybe lives do vary in value, but as a matter of public policy, we generally treat them as having equal value because any other scheme is too contentious, prone to error, or otherwise disadvantageous.

Importantly, I do not seek to challenge Katz’s underlying belief that death is a discrete event. Just as I allowed for the possibility that a fetus is ensouled at some moment in time, I do not to purport to disprove the possibility that a life is "disensouled" at some moment in time either. Moreover, even if death is a gradual process, there may still be practical reasons to treat death as a discrete event for legal purposes such that estates, for example, pass to heirs at a particular moment in time. But Katz purports to show that any attempt to make the law less either/or is doomed to fail or to merely shift the either/or feature of the law elsewhere, while I have argued that treating death as continuous need not implicate the serious problems Katz envisions.

After all, we often value lives differently. Health policy arguments that focus on quality-adjusted life years implicitly value younger lives more than older lives, all else being equal. If anything, health policy and bioethics are realms in which people are deeply torn as to whether the value of life should have a smooth or bumpy relationship with variables like age or expected remaining life span or have no relationship at all. We needn't feel compelled to treat death in the bumpy fashion Katz proposes. 

(This post is adapted from Smoothing Vague Laws which appears in Vagueness and Law: Philosophical and Legal Perspectives (Geert Keil & Ralf Poscher eds., 2016) (Oxford University Press) (footnotes omitted).)

Posted by Adam Kolber on April 19, 2018 at 02:44 PM | Permalink

Comments

@Asher

I take the lottery paradox and the Sorites paradox to be saying the same thing: both are concerned about the proper relationship of parts to wholes. We can reference many different examples of this: lottery odds, grains of wheat, death. At the two ends of the spectrum are those who claims there are no such things as wholes, only parts, and those who claim there are no such thing as parts, only wholes.

@Adam

"but the transition is as smooth as anything can be (an arbitrarily small positive number to zero to an arbitrarily small negative number)."

Nicolas of Cusa took apart this claim back in the 1400s in the first volume of his "De Docta Ignorantia". He argued that the only way to close the gap between an arbitrarily small number and zero was by the grace of God. He thought it was a feat no human mind could achieve.

Posted by: James | Apr 22, 2018 4:12:07 PM

Your thoughtful comment, Asher, is much appreciated. You may be right about a lot of this, and your instinct to read Katz charitably is certainly a good one. I read his main argument as being the "H-1000" business. And my main response is that just because the value of an entity at some point reaches zero doesn't mean that the transition from life to death is stunningly abrupt. The transition from positive numbers to negative numbers does happen at a particular place along the number line, but the transition is as smooth as anything can be (an arbitrarily small positive number to zero to an arbitrarily small negative number).

I also think there may be useful arenas in which the law can better understand aging as a gradual process (e.g., competency determinations needn't go from full competency to no competency but can reflect gradual changes in a person's cognitive function and corresponding autonomy). It's hard to give examples specifically about "amounts of life" or some such because it's not obvious that "amounts of life," if meant in some strictly biological sense, is itself the sort of thing with moral significance as opposed to something closely correlated with it that does have moral significance.

Posted by: Adam Kolber | Apr 21, 2018 2:34:06 AM

Maybe your disagreement is about the Sorites paradox, not the lottery paradox. Anyway, as you say, Katz himself "has described a gentle transition from very alive to somewhat alive to barely alive to completely dead." He just has an argument that legally, or morally, there must be some sharp cut-off point at which we stop treating the people he seems to concede are barely alive in some scientific sense as if they were barely alive in a legal/moral sense and flatly call them dead. I don't know if that argument goes through or not, but whether or not it does the claim only seems to be, as you've described it, that there is a continuum of death in at least one sense over which we must legally construct a dead/alive binary. At least, that's one reading of your description of Katz; you've actually read it and I suppose there's a stronger reading on which the continuum is only stipulative, and stipulated for purposes of proving its nonexistence by way of reductio.

Posted by: Asher Steinberg | Apr 20, 2018 6:46:15 PM

Maybe your disagreement is about the Sorites paradox, not the lottery paradox. Anyway, as you say, Katz himself "has described a gentle transition from very alive to somewhat alive to barely alive to completely dead." He just has an argument that legally, or morally, there must be some sharp cut-off point at which we stop treating the people he seems to concede are barely alive in some scientific sense as if they were barely alive in a legal/moral sense and flatly call them dead. I don't know if that argument goes through or not, but whether or not it does the claim only seems to be, as you've described it, that there is a continuum of death in at least one sense over which we must legally construct a dead/alive binary. At least, that's one reading of your description of Katz; you've actually read it and I suppose there's a stronger reading on which the continuum is only stipulative, and stipulated for purposes of proving its nonexistence by way of reductio.

Posted by: Asher Steinberg | Apr 20, 2018 6:46:08 PM

He who wants to read some about the connection between the anatomy of the brain , and religious aspects , like distant places and alike religious issues ( bit complicated , yet , for very determined readers ) then here :

https://pdfs.semanticscholar.org/d111/21688cdc2982456d3552e5cbccd79a190c24.pdf

P.S : as mentioned in my first comment above

Posted by: El roam | Apr 20, 2018 6:08:34 PM

@Adam

Maybe I'm hooked on a linguistic coincidence but in math when we talk about "smoothing" we are talking about a specific mathematical technique that has certain epistemological foundations. Kyburg is attacking those foundations with his paradox. As I see it Katz is also attacking those same epistemological foundations only Katz uses death to illustrate the point.

Posted by: James | Apr 20, 2018 4:31:16 PM

James: The lottery paradox seems to be about epistemology. What should we rationally accept when the probability of some proposition's being true is very low? (And then this may lead to contradictions when combined with other beliefs). I don't see how this closely parallels the example in the post except that both examples have us consider (quite arbitrarily) one thousand things.

Posted by: Adam Kolber | Apr 20, 2018 4:00:05 PM

Thanks, Asher! I take Katz to say that his example about "H" and "H-1000" shows that death is *not* gradual. He thinks it's a "stunningly abrupt transition." I simply argue that I don't believe he proves that. So I think we can still understand death as a gradual process. I admit that, even when we do understand it as a gradual process, we may *choose* to still draw sharp cutoffs for reasons of efficiency or the like. But there's nothing about the nature of death that requires that.

I did meet once with Leo a bit to hash some of these issues out, but it's quite possible that I have misunderstood him on this or other points. So I do see where your question is coming from, and it is possible that there is less disagreement here than meets the eye.

Posted by: Adam Kolber | Apr 20, 2018 3:55:51 PM

Do you and Katz disagree about anything here? You seem to accept the need for a discrete boundary and even grant that death is a discrete event; he, for his part, seems to concede to you that there is an underlying continuous process of death. He just doesn't think the law can see things that way.

Posted by: Asher Steinberg | Apr 20, 2018 1:14:07 PM

Just correction to my first comment :

Should be : mourn the dead , and : memorizing the dead , and not of course :

" mourn the death " and : " memorizing death"

Thanks

Posted by: El roam | Apr 20, 2018 1:12:46 PM

In this instance it seems like Kolber and Katz are collapsing the well-known lottery paradox in different directions.

https://en.wikipedia.org/wiki/Lottery_paradox

Nothing else to say. Tastes like chicken.

Posted by: James | Apr 19, 2018 5:14:03 PM

Just clarification to my comment above :

Theological in the broader sense of it , that is to say , that this is the basic nature of human being , but , whether he is religious or secular or even complete atheist . The human being , by nature , can't escape , can't stop dealing with what is beyond here and now . Who we are ?? what we are ?? Why we are ?? But above all ( almost ) :

Is there something there occurring after death , and what exactly ?? Moreover even not once :

What legacy shall he leave to next generations , to history , after the " abrupt death " and no more according to the respectable author of the related article .

Thanks

Posted by: El roam | Apr 19, 2018 4:34:58 PM

Interesting post , yet , lacking too many basic insights , rendering it bit baseless with all due respect , and one major one :

The nature of human being , is to perceive the world theologically .Theologically In the broader sense of it , it means , that a human being , differentiated from animal , doesn't live his life , here and now , and that's it !! Our brain , anatomically , is built so , that our consciousness is striving towards distant worlds , not tangible or material ones ( see haven V. hell ) . As such , memories , which are far beyond here and now or right now , are seizing us , constantly . In fact , the only living creature , who would mourn the death , performing endless regular rituals have to do with memorizing death , is the human being . Animals typically , live right here , right now , but , wouldn't reside like human being , within a space of recalls , performing so , endless recalls , backward and forward in time and space ,wondering how and why .
As such , memory of beloved person , passed away , laid to rest , would seize us sometimes , more than interaction with living creatures .

And that is sufficient , for refuting the idea , that death occurs , and that's it !! No continuum , and it's all over .

Thanks

Posted by: El roam | Apr 19, 2018 3:36:31 PM

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