Post No.: 0830
Economics is mainly about maximising utility, which is a consequentialist, utilitarian philosophy. An action or choice is good or bad depending on its net outcome. Law also generally serves society as a whole. When economics and law come together, it’s about maximising the pie, which can then be divvied up via e.g. taxes, levies, grants and benefits, to serve the greater good of a nation. However, this can all sometimes create a tension with individual rights, like the freedom of expression, because these can conflict with what’s overall best for the community, like public decency. Fundamental to the concept of rights is that if something is a right, it should be respected even if the consequences will mean that society would be overall worse off.
The ‘trolley problem’ is a group of thought experiments that explore one’s intuitions and justifications regarding when harmful actions are considered morally acceptable.
Would you push a lever to divert a train so that it’ll definitely only hit 1 person, or let that train otherwise definitely hit 5 people if you don’t?
Okay how about this one – would you push 1 person off a bridge whom you know will definitely be heavy enough to stop an oncoming train, or let that train otherwise definitely hit 5 people if you don’t?
If your answer to both scenarios is different then can you justify why? So if you said that it’d be morally okay to push the lever but not the heavy person, what can justify the difference? They’re both essentially about the question of whether to sacrifice 1 person to save 5 people. (Assume for both scenarios that everyone is the same age, gender, ethnicity, intelligence, etc., and the options for each are binary.) Or does the manner in how this is achieved matter?
There are no obviously right or wrong answers here, but a consequentialist would argue that only 1 person dying is always better than 5 dying. Others might instead argue on the grounds of principles, individual rights or some other rationale.
Contract law is one area of law that works from both a consequentialist and individual rights perspective though. It enables two strangers to trust each other despite not knowing each other’s reputations, because the law will protect their rights if the other party decides to defect on their promise to the other. This leads to better overall outcomes for the parties – it basically gets the parties to both rationally cooperate rather than both rationally defect in a classic prisoner’s dilemma. To breach a contract would be to also violate someone else’s rights – the right for them to receive what you promised them; and vice-versa. Therefore whether from a consequentialist or implicit rights-based angle, Contract law is beneficial.
In other cases, do you think that the law should be more utilitarian or more rights focused? Should social welfare be maximised or should individual rights override all? This will pretty much depend on your political stances, which could sit somewhere inbetween these two extremes. Supporters of the former will attempt to argue that if you maximise the greater good then you’ll end up maximising rights, and supporters of the latter will attempt to argue that if you maximise individual self-interests then you’ll end up maximising the outcomes of society. But that cannot always be true because these interests frequently directly come into conflict with each other e.g. how total surveillance and the interception of communications would better protect society from criminals, terrorists and hostile foreign states but would trample upon everyone’s privacy; or how total laissez-faire freedom would allow (some groups within the) generations today to live exceptionally well in the short-term but would decimate the environment for future generations in the long-term.
New and tough dilemmas for the law constantly emerge as civilisation advances, perhaps due to new technologies or the evolution of culture. The law should accordingly continually adapt. But what are the proper limits of the law? And what does it take to ensure that the law adequately protects us from harm?
Liberal societies pride themselves on respecting individual autonomy and freedom, including our capacity to exert control over our independent affairs. But the consent to bodily harm is an example that raises questions regarding the value of autonomy and the proper limits of the law. Many think that the law should only interfere with our autonomy if it’s necessary to protect others from wrongful harm. But if someone wishes to undergo extreme body modification (like the removal of an ear, nipple or tongue-splitting) and gives consent to someone else to cut them up – should this be morally, and legally, acceptable? Should consent always make permissible things that’d otherwise be wrongful?
Well the present law, in the UK at least, says that consent – even if un-coerced and given with adequate mental capacity to understand the consequences – does not always negate liability. So a person who cuts another person up, despite receiving their permission to do so, could still be prosecuted for grrrievous bodily harm.
Whether or not you agree with this – if there’s a line where consent won’t always be enough to make a contract between two parties lawful, where should we draw this line and how should we decide it? Is it sadomasochistic sexual activities, cannibalism or voluntary euthanasia even if administered by a physician, for instance? What would make it sufficiently morally different to legally-permitted surgery, ritual circumcision, scarification, branding, tattooing, basic body piercing, other forms of purely cosmetic surgery, or contact sports like boxing?
If it’s between two private parties – who says such things are in the public safety or interest to require such paternalism? Why should others dictate what’s best for our dignity? Or is it actually in the public interest because if they show their mutilated bodies or practices in public then either others don’t want to see that or it’ll influence others to copy them and lead to a degradation of social standards? Our choices don’t just directly affect ourselves but indirectly affect others – like the environment, the influence on children, the commons – who didn’t consent to our choices. Will it feed body dysmorphia or conversely help treat it? (Like do addictive drugs feed addiction or treat it? Are body modifiers therefore exploitative, like drug dealers are?)
You may think the answer is obvious to you but understand that others will disagree with your answer and have their own justifications. Some argue it’ll just push such procedures underground to unregulated practitioners, or if such practices are okay in private then wouldn’t professionals be safer than home amateurs? Others conversely argue that this is better than seeing a proliferation of such procedures available on the high streets. (Similar arguments relate to firearms and illicit drugs – a few underground is better than wide popularity. With firearms, we can compare the rate of fatalities caused by firearms in the UK (with its very limited regulated market and an unregulated black market) with the USA (with its extensive regulated market and, despite that, an unregulated black market too i.e. something being legally available won’t mean that the shadow economy for it will disappear e.g. bootleg alcohol or cigarettes).)
We also have to mention that cases aren’t decided in isolation but must fit within a large body of existing case law or precedents, which constrains how free judges are when adjudicating any given case. So judges aren’t free to give exceptions to particular cases, even if a defendant provides a novel argument for why they deserve to be considered exceptional. This reduces noise, or improves consistency, when adjudicating similar cases, which should all be judged similarly. But what if every judge ends up consistently following an immoral verdict? Yet it wouldn’t be appropriate for the courts (judiciary) to change that – this should be down to the parliament or congress (legislature) to decide. (The courts can ‘strike down’ or decide if a piece of legislation (even, potentially, if set out by elected representatives in the parliament or congress) is not valid because it is (considered by those presently seated in the highest court at least) unconstitutional or breaches some human rights law or other superior law though. This adds a check on the power of the state against the individual.) However, legislatures tend to criminalise rather than decriminalise behaviours.
Sexual conduct is permitted if all parties involved have given their un-coerced consent, they have the mental capacity to give it, and they are above the legal age. This area illustrates a situation where we want the law to protect us – from sexual harassment or abuse in this case. But what will it take to ensure that the law adequately protects us from harm, and how far should the authorities go to enforce it?
Is sexual harassment best viewed as a wrong committed against a group of people i.e. an inequality or discriminatory wrong – in this case against women mostly? Or should we shift the focus towards the individual and view such conduct as an affront to a person’s dignity? Or perhaps it encompasses both, and maybe even further types of wrongs as well?
Unsolicited touching is definitely harassment but should words count too? Is the perception of an insult or lecherous remark by the victim or ‘victim’ what ultimately matters? Those who alternatively perceive that their comments are innocent point out their freedom of speech rights and will accuse the victims or ‘victims’ of being overly sensitive and emotional ‘snowflakes’ who can’t take a bit of ‘banter’.
But what about a victim’s physical and mental integrity rights? So here is a conflict between freedom of speech rights versus the right to the integrity of the person.
Some behaviours that go too far have also become normalised in the workplace to the point that when a victim opens up about their harassment, they’re gaslighted or greeted with replies like, “It happens” or, “Grow thicker skin.” The victims are thus blamed whilst the harassers are left alone. Harsher legal consequences for sexual harassment would clearly communicate to the public that certain behaviours aren’t acceptable and shouldn’t be perceived as ‘normal’. So the law shapes or clarifies what behaviours should be regarded as acceptable, and most citizens will obey them. But for those who’ll flout them, if the authorities and organisations don’t adequately enforce these laws then they’re practically useless. This poses the question of their proper implementation, and highlights the relationship between on-paper theory, black letter law and real-world practice.
Sex is usually a private activity so can the authorities invade our privacy to protect the safeties of others? With cases like countering terrorism or sexual harassment, the public generally calls demands for the greater protections of citizens, especially after a major newsworthy incident – but in practice this means a level of enforcement that the public may not like, such as intrusive stop and search checks, snooping on our private lives to see if we’re up to no good, and measures that cost public money that could alternatively be spent elsewhere. There’s also the question of whether these measures will actually function to protect us in reality rather than are just security theatre?
Woof. These are highly complex topics, which raise important issues about the kinds of wrongs that we want the law to protect us from, and how far the law should go in doing so in terms of its implementation and enforcement in the real world. Post No.: 0813 wondered if people should be held responsible for accidents that produce harm? They also demonstrate how different rights of ours can conflict with no clear hierarchy regarding which ones should hold primacy over others. These tensions in law reflect society’s political tensions and divisions – and perhaps the only resolution is an overall democratic answer, which arguably on one level is a kind of consequentialist approach because democracy is essentially about trying to please the largest number of people (or at least voters) as we can.