Justice: what is the right thing to do? Theories and Questions. PHILOSOPHY OF LAW 2012 - LUMSA. The runaway trolley. Case 1 : the single worker. The runaway trolley – case 1. Case 2: the heavy man. The runaway trolley (#2).
what is the right thing to do?
Theories and Questions
PHILOSOPHY OF LAW 2012 - LUMSA
Case 1 : the single worker
Case 2: the heavy man
Why does the principle that seem right in the first case (numbers count), seem wrong in the second?
The fat man didn't choose to be involved, we can't use him against his will.
The railway workers willingly incur a risk
Our intention is different
Now you are a doctor…
6 patients come to you. 5 of them are severely injured, but 1 is at risk of his life.
In the time you care about the one, 5 others can die, but in the time you save the 5, the one would die.
Now you are a transplant surgeon. You have 5 patients each in need of an organ transplant in order to survive. You don’t have donors, but…
In the next room there is a healthy guy who came for a check up!
Some moral dilemmas arise from conflicting moral principles. Two kind of moral reasoning:
Consequentialist: locates the morality in the consequences of an act (what is happened, at the end of the day?).
Categorical: locates morality in certain duties and rights. It is wrong to do something (to kill an innocent person), even for a good reason.
Other moral dilemmas arise because of uncertainty: in real life we confront uncertain choices
The morality of an action depends on the consequences it brings about: the right thing to do is whatever produces the best state of affairs, all considered.
Objectivism (philosophy of virtue)
Consequences are not all we should care about: certain duties and rights should command our respect, for reasons independent of the social consequences.
We like pleasure and dislike pain
Maximizing utility is a principle for individuals and legislators
There is no possible ground for rejecting this argument
What did Bentham mean with “utility”?
A balance between…
The Mignonette case
The three man were picked up on the 24th day, and they returned to England.
Dudley and Stephen went to trial, Brooks turned state's witness.
They confessed, but they claimed to have done so out of necessity.
How would you rule?
(put aside the question of law, and concentrate on the moral dilemma)
Necessity vs. Calculation (cost – benefits)
Benefits really overweight the costs?
We can use a human being in this way?
What if Parker would consent to be eaten, in order to save his colleagues? What if they accepted the lottery?
Some moral dilemmas arise from conflicting moral principles
We should save as many lives as possible
It is wrong to kill an innocent person, even for a good reason (categorical objection)
A fair procedure would be better, such as a lottery
Only the subjective consent would make the difference
(lack of agreement objection)
Other moral dilemmas arise because of uncertainty: in real life we confront uncertain choices!
The goatherds appeared to be unarmed civilians
Letting them go would run the risk that they would inform the Talibans of the presence of the US soldiers
US soldiers have a right to do everything they can to save their lives
Not to kill:
It is wrong to execute unarmed man in cold blood.
M. Luttrell's team
Killing two Afghans would have saved the lives of 19 US soldiers
(X = trolley case1 or 2?)
It was a bad decision?
And if goatherds would have been tortured by Talibans to reveal US soldiers' location?
Utilitarianism fails to respect individual rights
It can consider it correct to violate fundamental norms of decency and respect.
Case 1: throwing Christians to lions
Case 2: torture
Is torture consistent with individual rights?
Can we justify torture for its own sake?
The ticking bomb scenario
Information is unreliable
Fear of worse treatment for soldiers made prisoner
Doesn't respect human rights
Dignity lies beyond practical results
But... numbers make the difference?
Would it be morally acceptable (in the name of utility, and of numbers) to torture his innocent daughter, if it was the only way to induce him to talk?
Are those conditions acceptable?
U is based on measuring preferences, without judging them. For that reason, U claims to offer a science of morality:
Cost - Benefit analysis
a) Can we translate complex social choices into monetary terms (it is possible to put a price tag on life)?
b) Can we reduce different preferences and pleasures to a single scale (it is possible to measure pleasures)?
An incredible analysis
What is the real problem?
The disregard for human value...
or a bad calculation of costs?
Ford Pinto (1970)
Lives saved and injures prevented: 180 deaths and 180 burn injures (if no change)
Life's value = 200.000 $ x 180
+ Injury = 67.000 $ x 180
+ Number and value of burned Ford Pinto
= 49.5 $ million
(adding a device to 12.5 million vehicles)
11 $ x 12.5 million
= $ 137.5 million
Highway Safety Administration
calculated the cost of traffic fatality, counting:
future productivity (earnings) losses +
medical costs +
funeral costs +
victim's pain and suffering =
$ 200,000 per fatality
Jury contested the price, not the principle. One should include also the loss of future happiness!
Environmental Protection Agency:
Costs-Benefit of pollution standards (how much we can pollute?)
$ 3.7 million per life saved due to a cleaner air, but...
$ 2.5 million for people older than seventy.
Saving an older person produces less utility
(a young person has more happiness to enjoy).
Critics: placing a value on human life is morally obtuse.
Defenders: many social choices are based on such calculation, even if we don't admit it.
In Italy, the use of cars causes more than 4,000 deaths and 302,000 injured (2010) per year.
Speed (among other factors) influences this rate.
Should we reduce speed limits?
Cost-benefits of higher limits: T/N=C
Time saved ($20 per hour) if limit is 10 mph higher
Number of additional deaths
Acceptable cost of driving faster per fatality
($ 1.54 million per life)
Bentham: pleasure is pleasure, we can't judge them, so we can measure them (if more people want rather watch cockfights than renaissance paintings, the State should subsidize animals arenas rather than museums).
“The quantity of pleasure being equal, pushpin is as good as poetry” (J. Bentham).
J. S. Mill (1806-1873)
He tried to “humanize” Utilitarianism, by demonstrating that:
it respects individual rights;
it is possible to distinguish higher and lower pleasures.
In the long run, respecting liberties will promote the welfare of society as a whole;
“Of two pleasures, if there be one to which all who have experience of both give a decided preference, irrespective of any feeling of moral obligation to prefer it, then that is the more desirable pleasure”.
Soccer, Shakespeare, Isola dei Famosi (Trash-Tv).
Which of those experiences you find more pleasurable?
Which you consider qualitatively higher?
So... higher pleasures are higher because we prefer them, or we prefer them because we recognize they are higher?
1 - no paternalism. Laws can't protect individual from themselves
2 - no moral legislation. Laws can't promote a particular notion of virtue
3 - no redistribution of wealth
Shall we redistribute wealth?
YES: if we take 1 million to Bill Gates, and distribute it to hundred needy recipient overall happiness would increase.
NO - 1: high tax rates (on richest people) reduce the incentives to work hard and produce, leading a decline in economy. The overall level of utility will go down.
NO - 2: taxing is unjust. Taking money from Bill Gates, even for a good reason, violates his fundamental rights to do with his money what he prefers.
Libertarian principles are a challenge to our ideas of distributive justice and self ownership.
Minimal State - Distributive justice depends on two requirements:
Only demonstrating that present situation is due to past injustices, it is possible to remedy through taxes, reparations, affirmative actions, etc…
Eto’o's earnings in 2011: 20 millions USD. Is it just?
It is the consequence of a free market: people prefer see Eto’o playing than others.
Can we impose Eto’o – by taxing him – to support disadvantaged people? Doesn’t it violate his liberty, forcing to make a charitable contribution against his will?
Taxes are is on a par with forced labor?
Libertarians: if the State has the right to claim some portion of my earnings, it also has the right to claim some portion of my time.
TaxesForced labor Slavery
Do I own myself? Do I own my time? Do I own my earnings?
We need to find a way of recruiting soldiers:
Conscription: based on age, or on a lottery
Market: to increase pay and benefits
Outsourcing: to hire mercenaries
Hybrid system (Civil War System): Market + Conscription
Free market is not truly free for those without alternatives
We should know more about the background conditions: is there a reasonable degree of equality and opportunities?
If someone has no other good option, or it is the only way to get a college education, those who choose to enlist may be conscripted by economic necessity.
N.B.: this is not an objection to the vol. army as such, but only to this system when it operates in a society with considerable inequalities
The civic virtue: military service is not just another job
All citizens should serve their country (but one has also other possibilities: Caritas, MSF, Fire Dept.). It is a civic duty, so it can not be sold on the market.
An analogy: jury service (yes, no one dies, but it can be onerous if it conflicts with a good job or other commitments). Can we create a professional jury system?
Perhaps we think that the quality (if the jurors would come from disadvantaged backgrounds) would suffer...
Jurors don't simply vote: they deliberate with one another about the law. It is a form of civic education, an expression of democratic citizenship and societal belonging.
In the same way, turning military service into a commodity corrupts the civic ideals that should govern it.
We pay someone to fight and to die for us. Does it increase liberty, or undermines it?
Our arguments and debates involve the role of markets: is it fair? Are there some goods that money can't buy?
Liberals: letting people engage in volountary exchanges respects their freedom (laws shall respect individual liberty)
Utilitarians: free market promotes the general welfare: if two people make a free deal, both gain. In general, a free market increases overall utility.
The case of Baby M.
Focus on the moral aspects: should we morally enforce such a contract?
YES: a deal is a deal (parents get a genetically related child, the mother get up to 20.000 $).
Trial Court: She was fully informed, and they didn't pay for a baby: they had paid for the service of carrying out their child to term, not for a product.
1. “(A mother) can not take a totally voluntary and informed decision... Any decision prior to the baby's birth is, in the most important sense, uninformed”.
2. “Putting aside the issue of how compelling her need for money may have been, and how significant her understanding of the consequences, we suggest that her consent is irrelevant. There are, in a civilized society, some things that money can not buy”.
Vs 1. When is a supposedly voluntary agreement really voluntary? We are always compelled! Libertarians: justice requires respect for whatever people choose, provided these choices don't harm other people.
Vs 2. Does commercial surrogacy degrade women? We have to suppose that goods differ in kind, thus it is a mistake to value all goods in same way (money). But: how can we value these supreme goods? And why are they so supreme?
New horizon: IVF (in vitro fertilization)
Cost of a surrogacy in USA: $ 20,000 (surrogate mother) and 50,000 other costs.
Cost of surrogacy in India (from 2002 it is legal): in Anand, $ 25,000 (this cost includes surrogacy, medical costs, round-trip airfare, hotel). Clinics for surrogates provide housing with maids, doctors, and cooks.
Does the creation of a paid pregnancy industry on global scale degrades women by intrumentalizing their bodies and reproductive capacities?
I can donate one of my kidneys, but I can’t sell it on the open market. Why?
If I own my body, I should be free to sell its parts as I please. The moral value of my body, or its safety, doesn’t matter.
Should the law ban/allow euthanasia?
Suffering is intolerable, so patients should be able to demand their death, if they want it.
But why only for terminally ill patients?
My body belongs to me as my entire life does, and if I enter into a voluntary agreement with someone to help me to die, the law can’t interfere.
Freedom is not just doing whatever you want. Kant has a more demanding idea of freedom as self-determination.
If someone brainwashes you into doing something, you are not free. Likewise, if you buy expensive shoes only because you’ve had the desire implanted in you through advertising, then you are also not free.
Are smokers fully free?
Do you have impulses, cravings, or desires that you find it hard to control? Would you consider liberating to be able to control them to a greater extent?
Suppose you receive that tie, as a gift.
What can you say, without lying to the donor?
A misleading truth: I’ve never seen a tie like that before!
A white lie: Wow, it’s beautiful!
An omission: smile, and thank!
Suppose you meet a friend in a mall, and he tells you he’s tried by a murder, and he asks you to save him.
You bring him home, and you hide him in the closet. Then, the murder comes.
“Tell me where your friend his, or I’ll kill you”.
What do you do?
President Bill Clinton:
“I had no sexual relationships with Ms Monica Lewinsky”.
During the impeachment procedure the question was: did he lie?
There is a morally relevant difference between a lie and a misleading truth?
The homage to the duty of telling the truth (the argument does not coerce or manipulate the listener).
Suppose you meet someone, and he/she agrees to have sex with you, only for one night.
It would be morally right to do it?
“The desire which a man has for a woman is not directed toward her because she is a human being, but because she is a woman… only her sex is the object of his desires”.
Under what conditions sex is morally right?
Same arguments for selling organs, for prostitution…
John Rawls, A theory of Justice.
A hypotethical agreement is the basis of justice. According to Rawls, principles of justice are those that we would all agree to if we were choosing rules for our society and no one had any unfair bargaining power.
Kant = Rawls:
each person possesses inviolable rights.
Principles of justice can be derived from a hypotethical contract, not from an actual one.
According to Rawls, an agreement is not necessarily fair even if it is voluntary.
It is unfair if one of the contracting parties is able to take advantage of the other party because he is stronger, richer, better informed or simply more powerful.
After ten years of faithfulness on my part, I discover that my wife has been with other man. What can I say?
I’m outraged, we did an agreement! You made a promise, you broke your vow! (Consent).
I’m outraged, I’ve been so faithful for my part… I don’t deserve this! This is no way to repay my loyalty! (Reciprocity).
Contracts derive their moral force from consent and reciprocity, but most actual fail to realize both.
In real life, persons are situated differently, and thus the fact of an agreement does not in itself guarantee the fairness of the deal.
But can we imagine a contract among parties who are equal in power and knowledge? And can be such a contract the way to assign duties and rights, and to determine principles of government?
Rawls’s answer is that we have to limit our knowledge. Behind this veil, you do not know anything about yourself.
You do not know your sex, your race, or the social class you belong to. You do not know how strong or weak you are, how stupid or intelligent, or whether you are disabled. You do not even know what your goals in life are, or whether you practice a religion.
In this situation of ignorance, it’s not possible for anyone to propose social rules designed to benefit himself or herself over other people.
What principles would emerge, in that situation?
We wouldn’t choose utilitarianism: in case we turn out to be a member of a religious or ethnic minority, we don’t want to be oppressed, even for the best interest of the greatest number.
We would agree to a principle of equal basic liberties for all citizens, and we would not accept to sacrifice our rights for social or economic benefits.
But what can we do to guard against the risk of finding themselves in poverty?
Suppose that by permitting certain inequalities (higher pay for doctors than for taxi drivers) we could improve the situation of the least advantaged: we would accept that?
We would agree to a principle of difference, according to which social and economic inequalities are permitted only if they work to the benefit of the least advantaged members of society.
5.4 Mln Euro
These (other) systems are unfair?
Aristocracy and caste system.
Free market society, formal equality (libertarian system).
Meritocracy, and natural lottery of talents.
The accident of birth, different family’s opportunities, and even natural talents are arbitrary from a moral point of view. Thus, these factors can’t be the basis for a fair and egalitarian distribution of incomes, rights, duties. We should abstract from these contingencies, in order to find justice.
Incentives: what if talented people decide to work less, or not to develop their skills? They could benefit from their talents only on terms that help the least well off?
Rawls: if incentives (and higher incomes) generate economic growth or services that make least advantaged better off than they would be without it, incentives are permitted.
Effort: Why people that worked hard don’t deserve to be rewarded, notwithstanding their talents and gifts?
Rawls: like other factors in our success, effort too is influenced by contingencies (supportive families, social circumstances) for which we can claim no credit and no desert.
Example: a brilliant young law graduate, with honors. It will be appreciated more in a
1. Democratic society, complex, with an high level of conflict
2. Warrior society
3. Agricultural society
4. Theocratic society
He does fully deserve his success, and his incomes? What other factors influence his success?
Entitlement to legitimate expextations
We focus on two ideas:
1. Justice is teleological – Defining rights requires us to think about the telos.
2. Justice is honorific – To think about the telos implies arguing what virtue it should honor and reward.
Should she be required to do exactly the same gymnastic routine, or is it unfair, given her disability?
What does it mean not to discriminate?
What does it mean to perform well in the role of cheerleader? What is essential to cheerleading?
Callie should be a cheerleader because she displays the virtues appropriate to the role... but: what she properly deserves?
a) in order to determine a fair way to allocate positions and goods, we need to determine the nature and purpose of practices (cheerleading): what qualities are essential to it?
b) determining the essential of a practice can be controversial, because we have to discuss what qualities are, case by case, worthy of honor.
1. Justice involves equality, in a commutative or distributive sense.
2. To determine the just distribution, we have to inquire into the telos, the intrinsic purpose of a practice or a good being distributed.
3. Justice can not be neutral: it means to give people what they deserve, to give his or her due. But to know this, we have to discuss about virtue, honor, good life, ...
Can Casey Martin use a golf cart during tournaments?
According to the American with Disabilities Act, reasonable accomodations are required, provided they don't “fundamentally alter the nature” of the activity (the télos).
Is walking an essential aspect of that sport?
To say that something is “essential” is ordinarily to say that it is neccesary for the achievement of a certain object. But since it is the very nature of a game to have no object except amusement... it is quite impossible to say that any of a game's arbitrary rules is essential.
Are sport rules entirely arbitrary? Or, are they designated to call forth and celebrate certain skills and talents?
Is it possible to argue the meaning of different rules? Consider the debates about soccer, and about its rules. Some of these rules have been changed (eg: goal kick rule).
What exactly was the Casey Martin case about? Was it about fairness, or about the desire of golf players to be recognized as athletes?
Are we responsible only for what we ourselves do?
Are we responsible for the sins of our parents, or of our compatriots?
Moral Individualism: to be free is to be subject only to obligations I voluntarily incur. I owe something to others only by virtue of some sort of consent, be it tacit or explicit.
Collective responsibility is unconceivable.
Germany: it has paid billions of dollars in reparations for the Holocaust (to survivors and families); political leaders have offered statements of apology, accepting responsibility for the Nazis' crimes.
Australia: political debates about national apology to the aboriginal people, and measures to overcome social disadvantages (aboriginal children of mixed race were forcibly separated from mothers and placed in settlement camps: in 1997 a HR commission documented the cruelties inflicted on the “stolen generation”).
USA: political debate about reparations for African Americans, or for Natives (the Civil War promise of “forty acres and a mule” for freed slaves never came to be). In 2008 the House of Representatives passed a resolution apologizing for slavery and for racial segregation.
Catholic Church: In 2000, Pope John Paul II issued a formal apology for all the mistakes committed by some Catholics in the last 2,000 years of the Catholic Church's history, including the trial of Galileo among others.
Locke: we are all free, equal and independent beings, and no one can be put out of this estate, and subjected to the power of another, without his own consent.
Kant: to be free is to be autonomous, and that is to be governed by a law I give myself. I follow my will not simply if I choose according to my desires, but when it participates in pure practical reason.
Rawls: we are really free to think about justice if we set aside our particular interests, choosing behind a veil of ignorance.
The moral agent is independent of his or her particular aims and attachments Justice and moral law are without reference to the roles and identities that situate us in the world, and make us who we are.
Thus, once I set aside my identity (as a German, an American, an Australian, a roman Catholic...) there is no basis for saying I have an obligation to remedy past injustices of my country.
Theories of justice that rest on a certain conception of the good life (whether religious or secular) are at odds with freedom. These theories fail to respect persons as free and independent selves.
The freely choosing and the neutral state go together. Everyone has the right to pursue his ends in a way that respects other people's rights.
Right is prior to the good.
Thus, we can not reason about the télos, or about the good.
Can we really understand ourselves as free and independent beings, unbound by moral ties we haven't chosen?
How can we justify moral and political obligations that we commonly recognize and prize, and that arise from the community and traditions?
A possible answer: we ARE that tradition, and that community. Our identity depend on these factors.
Aristotle: human beings are zoon politikon.
MacIntyre: human beings are narrative beings.
Stradivarius' violins are unfortunately very few. But a Stradivarius is now for sale.
A russian wealthy collector wants to display the violin in his living room, and he outbids Anne-Sophie Mutter for it.
Is it a just distribution?
Should we recognize same-sex marriages?
1. recognize only marriages between a man and a woman.
2. Recognize any kind of marriages.
3. Don't recognize marriages of any kind.
1. Is marriage a public affair, or a private one?
2. What is the real issue in the debate, individual's freedom of choice or whether same-sex unions are worthy of honor?
3. Is there a télos in marriage? Two options: a) procreation; b) exclusive and permanent commitment.
4. Do they fulfill both these purpose of that social institution?
We cannot remain neutral: we always face competing conceptions of the good life.
Three approaches to justice:
2. Liberalism / Libertarianism
3. Objectivism (theory of virtue)
But... can we consider only individuals, or should we think about a just society?
R.F. Kennedy “Even if we act to erase material poverty, ... we have to confront the poverty of satisfaction, ... the mere accumulation of things”.
We need to talk about values, and about the community we wish to live in.
Thus, we need to discuss about community and common good. We have to find a way to cultivate in citizens a concern for the whole, a dedication for it.