Thursday, August 15, 2019

More Things in Heaven and Earth: What the Law Can Teach Moral Philosophers

by Michael C. Dorf

Last week and weekend, I had the good fortune to attend the 12th annual Rocky Mountain Ethics Congress (RoME), hosted by the University of Colorado Center for Values and Social Policy. Prof Colb gave one of three keynote addresses during the four-day conference, in a speech that was also the 2nd annual Tom Regan Memorial Lecture, co-sponsored by the Culture & Animals Foundation. For those unfamiliar with Regan's work, he was a pioneer in the animal rights movement. I italicize "rights," because while Peter Singer's Animal Liberation inspired much of the modern movement, Singer is a utilitarian who, following Bentham, regards rights as nonsense on stilts. Regan was the first philosopher to make a comprehensive set of deontological arguments for animal rights as such.

Although Prof Colb and I acknowledge the importance of Regan's work, as she put the point in her lecture, the way that scholars pay tribute to one another is by critical engagement with their ideas, and so she offered a critique of a point Regan made. Although Regan was (like us) a vegan who thought nearly all animal exploitation unjustified, he also thought that in triage situations, it is morally permissible, indeed obligatory, to prefer human life to other animal life. Thus, to use his examples, should four humans and one dog find themselves on a lifeboat that could only support four such mammals, the dog should be thrown overboard. Even more arrestingly, Regan said that one should throw over a million dogs before tossing a single human.

In her lecture, Prof Colb explained that although Regan thought experimentation on animals is wrong, his lifeboat examples open the door to experimentation and ultimately to all animal exploitation. I won't attempt to summarize the lecture (other than to say it was awesome), because my main interest in this essay is in the rest of the conference. As one of two legal scholars attending a conference of philosophers, I came away thinking there are many opportunities for fruitful engagement between legal scholars and philosophers. We legal scholars see where philosophy can be helpful; I'm going to suggest that philosophers can do more with the law.

The legal academy includes a fair number of scholars with philosophical training. Just on my own faculty at a relatively small law school, I have four colleagues with doctoral degrees in philosophy (Emad Atiq, Andrei Marmor, Jens OhlinEmily Sherwin), three others with substantial training in philosophy (Steve Garvey, Eduardo Peñalver, Brad Wendel), and two with graduate degrees in Divinity that included work in philosophy (John Blume, Nelson Tebbe). And a great many of us have read philosophy on our own and taken courses in it. For example, as an undergrad, I took a course taught by John Rawls, another taught by Robert Nozick, and yet another taught by Jennifer Whiting (in which Derek Parfit was a guest speaker). As a law student, I took a course taught by Michael Sandel. So there is no gainsaying that we legal scholars recognize the relevance of moral philosophy, epistemology, and many other areas of philosophy to our work.

With some notable exceptions, however, the door does not swing both ways. In a moment, I'll give some examples from the conference to illustrate how philosophers could benefit from some greater knowledge of the law. But first I want to address what might seem like an asymmetry. One might think that the interaction between moral philosophers and legal scholars is appropriately a one-way street because of the nature of the two enterprises.

Here's the objection: The law might or might not reflect morality. Unwise legislators and judges could implement what they believe to be moral principles, but they could be mistaken. Or their judgment could be distorted by considerations of interest. A moral philosopher considering what duties, if any, we owe to future generations to preserve the natural environment will not be influenced by the coal lobby. The same cannot necessarily be said for a legislator. Thus, a public-regarding legislator, executive official, lawyer, judge, or legal scholar will be wise to turn to moral philosophy to address what the law should say, because moral considerations can be, should be, and often are at least part of what goes into the making of the law. By contrast, however, the law--reflecting a jumble of sometimes poorly reasoned moral views and the pull of interest--holds no special relevance for philosophers.

That objection fails, because the law can be valuable for moral philosophers in various ways. Consider that much of contemporary moral philosophy works via so-called intuition pumps, that is, hypothetical examples that prompt moral intuitions that one then attempts to harmonize with other moral intuitions, usually guided by some broader theory. Do you throw the switch to divert the trolley onto the track with one rather than five? Do you push the fat man off the bridge to stop the trolley? Do you disconnect the violinist to whom you have unwittingly become attached? Etc.

One problem with intuition pumps is that sometimes different people have different intuitions. Moral philosophers may have intuitions that have been shaped by their comprehensive views. For example, act-utilitarians will say throw the switch and push the fat man; act/omission deontologists will say do neither; deontologists who accept double effect will say throw the switch but don't push the fat man. (I explained these distinctions here.) How do we know whose intuitions are best?

Insofar as the law in constitutional democracies reflects a kind of averaged out and smoothed over conventional morality, it can be a source of guidance. Whether and how much epistemic deference to give stable legal principles is not entirely clear, but the answer need not be "none."

Let me illustrate with an example from the conference. Philosopher (and medical doctor) Eric Chwang presented a fascinating paper addressing the following question: Why do many people who believe that women ought to have a right to abortion, which involves the killing of a fetus, also believe that women ought not to have a right to endanger their fetuses by heavy drinking or heavy drug use, given that the resulting harm will injure but not kill the resulting baby? The intuitions seem backwards, right? After all, killing is worse than injuring. Chwang's presentation aimed to provide an account of why these seemingly contradictory intuitions are in fact reconcilable. In a generally sympathetic response, philosopher David Boonin offered a somewhat different approach to reconciling the intuitions.

Yet, as Prof Colb pointed out in a question, our law shows that the premise could be wrong. She noted that the Eighth Amendment permits the death penalty for intentional murder but does not permit a sentence of say, being beaten on a daily basis or having an arm chopped off. To be sure, the Eighth Amendment jurisprudence could be wrong. Many people think the death penalty is itself cruel and unusual punishment. But can we say that the law here reflects contradictory views? Is it backwards in the way that the setup for Chwang's paper supposes? Maybe, but maybe not. Looking to the law might have led Chwang to frame the puzzle--and therefore perhaps the answer too--in a different way.

Even when the law provides no epistemic guidance for moral philosophy, it can be a useful source of examples. The violinist example to which I alluded above was introduced in a well-known 1971 essay by philosopher Judith Jarvis Thomson. It aims to show that abortion ought not to be prohibited even if the fetus is a person. Yet one problem with the argument is that Thomson's examples (you find yourself chained to a violinist; "people-seeds drift about in the air like pollen") are so unfamiliar that the audience may have no reliable moral intuitions about them at all.

During the Q-and-A at Professor Chwang's session, one eager philosopher in the audience formulated a hypothetical in which a person finds herself in a room with three switches with different effects, throws one of them, then later learns that one of the switches she didn't throw actually has a different effect from what she thought it had and now must decide whether to go back to the room. The example was so complex that even if one could follow it (and it appeared that none of the assembled very smart people in the real room in which the question was asked could follow it), one has difficulty even locating a moral intuition.

To the extent that I could make sense of the question about the three switches, it seemed to be asking about how the available alternative courses of action bear on the permissibility of a chosen action. If so, the law of torts could have provided numerous realistic examples, given that "reasonableness" typically means reasonableness in light of the available possibilities. If the questioner was asking about the relevance of mistaken beliefs, there too tort law, as well as criminal law, could have provided realistic and easy-to-understand examples.

Or consider a poster session I attended, in which Oxford graduate student Linda Eggert addressed another puzzle. Suppose, she said, that a passerby notices a person in need of rescuing but that the passerby would face a serious risk to herself from attempting the rescue. Even people who believe in Good Samaritan duties would say the passerby has no duty to attempt the self-endangering rescue. Doing so would be, in philosophical jargon, supererogatory (that is, good but above and beyond). Yet, Eggert said, now suppose that the passerby can affect the rescue in one of two ways posing exactly equal risk to the rescuer. One way would rescue the person completely unscathed; the other would result in the rescuee losing an arm. If the passerby chooses the second mode of rescue, we think the passerby acts wrongly, even though the rescuee in this case is substantially better off (alive with one arm) than he would have been had the passerby done nothing (dead), which she was morally permitted to do because the rescue is supererogatory. Eggert's poster argued (persuasively in my view) that once one attempts the rescue, the option of doing nothing should no longer be the baseline.

Yet the poster (and eventual paper) would be substantially stronger were the example more realistic. Anyone who attempts the self-endangering rescue and then for no good reason gratuitously does so in a way that leads the rescuee to lose an arm seems like a completely unrealistic combination of Good Samaritan and moral monster. I proposed to Eggert that she would do better to rely on the following case drawn from actual tort law: Although at common law there is no duty to rescue a stranger, even if one can do so at no risk to the passerby, if a doctor attempts a rescue, the doctor has a duty to complete the rescue. That scenario has the same morally relevant features but is much more realistic than the rescuer who gratuitously sacrifices the rescuer's arm. And to her credit, Eggert seemed eager to learn more about the relevant law (so I followed up in an email).

Accordingly and more broadly, moral philosophers could do better by engaging more with the law.


Joe said...

Is there video of the awesomeness?

Michael C. Dorf said...

I'm looking into it. There was a lot of recording equipment, so possibly.

Greg said...
This comment has been removed by the author.
Joe said...
This comment has been removed by the author.
Samuel Rickless said...

Thanks for this helpful post, Mike. We have a lot of background in common, and it would be great to chat sometime over (vegan) coffee...

Excuse the two-part reply.

I completely agree that philosophers have a lot to learn from legal academics, but I'm not sure that your examples are apposite.

Let’s take 8A. If 8A permits the death penalty but not torture or maiming, that is almost surely because of two idiosyncratic features of the law, features that are insufficiently reflective of morality. The first feature is the emphasis on *cruelty* and *unusualness*, neither of which does a particularly good job of tracking wrongness. Something could be usual and wrong. Something could be unusual and right. And many things are wrong that are not cruel. The second feature is that interpretation of 8A has been heavily influenced by 5A, 14A, and other parts of the US Constitution that appear to presuppose the legality of the deprivation of life, but say nothing in particular about torture or maiming. But here, what the Constitution presupposes to be legally permissible is not necessarily morally permissible. Finally, inasmuch as 8A interpretation helps to understand moral cases, this is probably because the basis of a lot of 8A interpretation is, well, moral theory (though judges do not always recognize what they are doing as moral theorizing). Bottom line: 8A, as currently interpreted, is a poor guide to moral analysis of cases involving the death of fetuses, and, inasmuch as it could function as a good guide, that is because of the fact that it already channels moral principles.

There is a far more important feature of the Chwang puzzle that (surely?) came up in discussion. This is that the fetus arguably doesn’t have the same moral status as a person, whether that person exists now or in the future. So, killing a fetus might be morally permissible, even though damaging it in such a way as to cause harm to the person it will become is morally impermissible. But if we stipulate for the sake of argument that the fetus is a person, then I submit that the puzzle has no solution: the view that killing the fetus is morally permissible whereas causing lesser harm to a future person is morally impermissible seems inconsistent, unless the burdens of pregnancy are particularly heavy.

Samuel Rickless said...

With respect to the three switches case, I would need to hear more about the purported examples from tort law that would make the same point more realistically. If there are such cases, then that really does help the discussion. But at first blush, my sense is that the switches case is deliberately designed to bring out moral parameters that might not be readily found in real life cases. First, there is a moral decision to be made, in a case that has been artificially created to guarantee sameness of consequences, based on what later turns out to be a mistaken assumption. Second, there is a second moral decision to be made based on the correction of the mistaken assumption. Third, the second moral decision concerns whether to place oneself in the same situation one initially faced, with the idea that it might be advisable to go back on one’s initial moral decision. I’m not sure there are a lot of actual cases like this, but I’m totally open to learning about some.

Regarding the case in which it is wrong to pick a way of rescuing someone that leads them to lose an arm over a way of rescuing them that does them no harm, I am missing why the fact that doctors are morally required to complete rescues once they begin represents a better case. I take it that the main point here is that morally supererogatory actions, under the right circumstances, can be wrong. This is very interesting. How does the case of doctor-rescue illustrate this point? It would be legally supererogatory for the doctor to start the rescue. Once the doctor begins the rescue, though, it would be legally wrong not to complete it. But once the doctor has started the rescue, it is no longer legally supererogatory for the doctor to complete it. Besides, even if there is an analogy to the legal case of doctor rescues, the fact that we are dealing with a doctor introduces an additional moral complication to the example, from which it will be difficult to draw general moral conclusions. Once a doctor begins to treat a patient, norms of professional responsibility governing the medical profession become relevant to the case. But such norms are absent in the philosopher's case.

This illustrates an important problem with the use of real-life cases. Admittedly, as you point out, many philosophers' cases are unrealistic and complex, and the lack of realism together with complexity conduces to unreliable intuitions (or, in the case of five rockslides, three grenades, two avalanches, and a lazy susan, simple head-scratching). But, on the other side, the problem with real-life cases is that they are, more often than not, *messy*. Most real-life cases involve numerous morally relevant features. And the purpose of the method of "intuition pumps" in philosophy is precisely to isolate different potentially morally relevant factors from each other, to find out exactly whether they are relevant, and, if so, to what extent and in what way. Real-life cases can sometimes do the job, but, when that happens, it's a (welcome, of course) fluke. It seems to me that the better prescription is often to work on finding a simpler artificial case, if possible.

None of this is to say that philosophers have little to learn from law professors. Quite the opposite. For one thing, the sheer volume of different kinds of cases that appear in the law provides a rich source of ideas for the creation of artificial cases that sheer off the moral complexities. For another, inasmuch as a good deal of the law is responsive to moral facts, many legal academics, whose job it is to make overall sense of branches of the law, where they can, have acquired a finely honed moral sense, even when they aren't themselves philosophers (e.g., a la Sherwin-Alexander, Moore, Hurd, Marmor, Yaffe, and so on). Cornell is a great place for law and philosophy collaboration. There should be a law-and-philosophy group there, if there isn't one already, just as there is close collaboration between the UCSD philosophy faculty and the USD law school faculty.