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Tort Law and the Harm of Death

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A question related both to philanthropic antinatalism (especially what some see as its apocalyptic implications) and to suicide rights is the question of whether death is a harm to the person who dies. Objections to death being a harm to the deceased person are that nothing can be a harm unless it is perceived by the harmed person, and that, if there are non-conscious harms, it is difficult to assign the harm to a subject. Thomas Nagel, in his essay “Death,” in Mortal Questions, grounds the special harm of death in the idea of deprivation: the subject is deprived (of future experiences), so to the extent that his life would have been worth continuing, he is harmed by death.

But even if death deprives a person of something, what harm is it to him, since he does not suffer by the deprivation? The case that Nagel finds convincing is that of an intelligent adult reduced, through traumatic brain injury, to the mental capacity of an infant. Surely, for Nagel, this person has been harmed, though he does not realize it or perceive it. Nagel, however, imagines this objection, which I imagine would be Jim’s objection:

He does not mind his condition. It is in fact the same condition he was in at the age of three months, except that he is bigger. If we did not pity him then, why pity him now; in any case, who is there to pity? The intelligent adult has disappeared, and for a creature like the one before us, happiness consists in a full stomach and a dry diaper. [Prurient emphasis mine.]

Nagel, of course, does not find this objection persuasive. He sees the harm as occurring, not to the brain-damaged person, but to the healthy person prior to the injury, in having been reduced to such a state. In other words, Nagel is willing to assign harm backwards in time. But is this so strange?

For a long time, I had a hard time intuitively understanding sexual jealousy. It seemed to have about the same objective reality as the cultural tradition of celebrating birthdays or saying “bless you” when someone sneezes. And, as an irrational, ridiculous, harmful social construct, it deserved no respect, and existed only to be eradicated. However, I have since been convinced by evolutionary psychology data that sexual jealousy is very much real, in the sense that it is not “socially constructed” like birthdays, and causes people genuine anguish. Though it is not intuitive to me, it is only proper to recognize that other people feel harmed by it, rather than assume they are making it all up. (Incidentally, the violent sexual jealousy suffered by humans, coupled with the sexual exuberance that humans also display, seems to function as a very real limitation on human happiness, at least given our current biological make-up.)

If harm can never occur unless someone perceives it as a harm, then we must take the position that sexual infidelity does no harm to the cuckolded partner, even where monogamy is promised, unless it is discovered. This presents two problems. First, it conflicts with the widely-held intuition that sexual infidelity is a harm to the unaware partner. If you refuse to sleep with your friend’s girl, you say, “I wouldn’t do that to my buddy” – not “I wouldn’t do that because it might get discovered.” Second, and related to this, is that when a person discovers that he has been betrayed sexually, he does not date the harm to the discovery; he dates it, most certainly, to the incident of the infidelity. (He is not sad that he found out; given the infidelity, he will probably say he is glad to have found out. He is sad that the infidelity occurred.) In cases like this, at least, it is common to backwards-date harm; are we forbidden to do this with the harm of death simply because, given our conception of time, causality cannot actually move backwards?

I must say that I am not entirely convinced of the rightness of either position; the idea that harm can occur when there is no one to perceive it is intuitively strange to me, but the objections commonly offered do not leave my mind easy, either. (See O.H. Green’s “Fear of Death,” in Philosophy and Phenomenological Research, Vol. 43, No. 1, Sep. 1982, pp. 99-105, for a view on how death may be wrong (or “evil”) without actually being a harm.) I am persuaded by the arguments, however, and by the obviously conflicting intuitions of others, to the point where I have severe doubts about the goodness of ending life where a person wishes to continue to live, as prescribed in the “apocalyptic imperative” case.

I want to digress briefly to point out that, in the above-mentioned essay, “Death,” Nagel articulates both a pro-natalist position and the idea that not being born is not a misfortune (usually the more contentious half of the antinatalist asymmetry) in the same paragraph:

The fact that Beethoven had no children may have been a cause of regret to him, or a sad thing for the world, but it cannot be described as a misfortune for the children that he never had. All of us, I believe, are fortunate to have been born. But unless good and ill can be assigned to an embryo, or even to an unconnected pair of gametes, it cannot be said that not to be born is a misfortune.

But back to the harm of death. What I want to explain here is that American tort law, interestingly, accords with the view that death is not a harm to the person who dies, even when that person is killed by the wrongdoing of another!

When a person dies through the wrongful act of another, whether negligent, reckless, or intentional, there are two separate lawsuits (“causes of action,” in legalspeak) that may be pursued. First is what is called the survival action. To call it a “survival action” means that the right to sue existed while the person was alive, and continues after his death. (If someone is legally wronged during his life, he does not lose the right to sue for a remedy if he dies; his estate retains the right to sue for wrongs committed against him during his life.) Second is the wrongful death action, created by statute, to give the relatives of a deceased person a remedy for being deprived of his company and support.

The reason I claim that tort law accords with the notion that death is not a harm to the dead person is that, in the survival action, the decedent may only recover for harm that he experienced during his life. He may recover, for instance, medical expensed incurred prior to death, and for pain and suffering experienced prior to his death. But he gets nothing for being deprived of his life. As the court in the O.J. Simpson civil appeal (Rufo v. Simpson, (2002) 86 Cal. App. 4th 573) noted, in very quick killings, the only “compensatory damages” available may be for the damage to the victim’s clothing. (Punitive damages are available, interestingly, in the survival action for an intentional killing, even if compensatory damages are quite small; this accords with the strange idea proposed by O.H. Green that death may be evil, but not a harm!)

The harm of the death itself is recognized only in the wrongful death action – that is, as a harm to the survivors, not to the decedent himself. Interestingly, this is applied even where the survivors are suing a mental health practitioner for failing to prevent a suicide – the damage is recognized as harming the survivors, not the decedent. It is hard to square tort law’s failure to recognize death as a harm to the decedent with the alacrity with which other areas of the law impede suicide.

Apparently Eliezer Yudkowsky thinks death is a harm, though he doesn’t explain to whom, because “death events” create “negative utility.” Negative utility to survivors? Potential dead people who might fear death? In any case, how can something create negative utility if the people whose utility is to be measured are all dead? Surely there’s someone who’d be very happy to be alone in the world, happier than the average person currently alive. (Average utilitarianism suffers from some of the same problems as utilitarianism based on summing utility.)

[Quotation from poster]Unknown:

“Besides (in the usual single world): is Eliezer willing to kill off everyone except the happiest person, therefore raising the average?”

No. Because that creates Death events, which are very large negative utilities.

Sigh. Seriously, though, dude’s brilliant and I’d like to know what his essential values are.

Edit: Eliezer points to an explanation of his views on happiness and value in his essay, “Not for the Sake of Happiness (Alone).”

Written by Sister Y

June 5, 2008 at 1:22 pm

Nagel Trashing Subjectivism, "Crude" and Otherwise

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The comment that causes the most irritation to people who teach ethics to undergraduates is the laziest objection (to any ethical argument) of all time: “who are we to say?” Who are we to say that female genital mutilation, practiced on children, is wrong? Who are we to say that China shouldn’t torture people? Who are we to say that God isn’t real?

This position – that ethical statements have no truth value, that one moral position is as good (and as false) as any other – amounts to a denial of reason, and ends up closer to nihilism than even the much-maligned David Benatar, who at least recognizes the universal value of preventing suffering.

With this sort of laziness in mind, Thomas Nagel has this to say about the denial of the reality and universality of moral reason:

To reason is to think systematically in ways anyone looking over my shoulder ought to be able to recognize as correct. It is this generality that relativists and subjectivists deny. Even when they introduce a simulacrum of it in the form of a condition of consensus among a linguistic or scientific or political community, it is the wrong kind of generality – since at its outer bounds it is statistical, not rational.

The worst of it is that subjectivism is not just an inconsequential intellectual flourish or badge of theoretical chic. It is used to deflect argument, or to belittle the pretensions of the arguments of others. Claims that something is without relativistic qualifications true or false, right or wrong, good or bad, risk being derided as expressions of a parochial perspective or form of life – not as a preliminary to showing that they are mistaken whereas something else is right, but as a way of showing that nothing is right and that instead we are all expressing our personal or cultural points of view. The actual result has been a growth in the already extreme intellectual laziness of contemporary culture and the collapse of serious argument throughout the lower reaches of the humanities and social sciences, together with a refusal to take seriously, as anything other than first-person avowals, the objective arguments of others. . . .

Many forms of relativism and subjectivism collapse into either self-contradiction or vacuity – self-contradiction because they end up claiming that nothing is the case, or vacuity because they boil down to the assertion that anything we say or believe is something we say or believe. I think that all general and most restricted forms of subjectivism that do not fail in either of these ways are pretty clearly false.

Thomas Nagel, The Last Word (Oxford University Press, 1997).

Written by Sister Y

June 2, 2008 at 8:43 pm

Where Do Rights Come From? (Or, A Weird Consequentialist Reason Why Pure Consequentialism Fails)

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Utilitarianism, a form of consequentialism, may be informally defined as a moral system in which each actor is expected to maximize utility (and minimize suffering) with his actions. Deontological systems, in contrast, grant certain rights to people that other people may not violate, even if, by violating those rights, the actor could increase overall utility. An agent may not violate someone’s rights, even if doing so would reduce the overall level of violation of these very rights in the world.

In The View from Nowhere, Thomas Nagel explains rights and obligations in terms of a distinction between agent-neutral values (values we have a reason to promote from an objective perspective, such as the prevention of pain) and agent-relative values (values each person might have a reason to promote, but which we have very little reason to promote from a neutral perspective, such as a particular person climbing Kilimanjaro). Unless I seriously misread him (a distinct possibility, I must admit), Nagel seems to argue that, just as we might have agent-relative reasons to pursue our own goals that others might not have a reason to help us with, we might also have real agent-relative reasons for avoiding doing harm ourselves, even if doing harm ourselves could prevent someone else from being harmed by another person. Perspective matters. “A fully agent-neutral morality is not a plausible human goal,” says Nagel.

In “Personal Rights and Public Space,” however (Philosophy and Public Affairs 24:2, pp. 83-107), he seems to argue in favor of inviolable rights – rights that may not be violated, even to prevent major harm, including greater violation of those same rights by other – for a very different reason. Nagel says, on universal human rights such as freedom from torture and political persecution:

First, it means that these are forms of treatment to which no one should be subjected – that every person, everywhere, is wronged if maltreated in these ways. Second, that the wrongness is not a function of the balance of costs and benefits in this case – that while in some cases a right may justifiably be overridden by a sufficiently high threshold of costs, below that threshold its status as a right is insensitive to differences in the cost-benefit balance of respecting it in each particular case. Rights are universal protections of every individual against being justifiably used or sacrificed in certain ways for purposes worthy or unworthy.

Nagel posits a few rights in particular in this essay – the right to be free from torture, and the right to freedom of speech and thought, including sexual fantasy, are discussed. But where do these rights come from? And what is their justification as rights that should be free from utilitarian calculation (at least below a certain threshold, perhaps that of moral catastrophe)? Why these, and not other rights?

Even though Nagel favors the view of rights as intrinsic, rather than instrumental (valuable only to the extent that they promote happiness and other goods), oddly, extremely oddly, I think Nagel is offering what might be considered a consequentialist justification for a set of deontological rights.

Nagel certainly does not see himself as making a consequentialist argument. Quite the opposite:

I shall try to defend the distinct (but perhaps complementary) position that rights are a nonderivative and fundamental element of morality. They embody a form of recognition of each individual’s value which supplements and differs in kind from the form that leads us to value the overall increase of human happiness and the eradication of misery – and this form of recognition of human value is no less important than the other. The trouble with this answer is that it has proven extremely difficult to account for such a basic, individualized value so that it becomes morally intelligible. The theory that rights are justified instrumentally, by contrast, is perfectly clear and based on uncontroversial values.

To make the argument for inviolable rights in what he considers a “morally intelligible” way, he first defines a status of inviolability (possession of rights that may not be violated, even to prevent a greater violation of rights) as a non-consequentialist value:

Being inviolable is not a condition, like being happy, or free-just as being violable is not a condition, like being unhappy or oppressed. To be inviolable does not mean that one will not be violated. It is a moral status: It means that one may not be violated in certain ways – such treatment is inadmissible, and if it occurs, the person has been wronged. So someone’s having or lacking this status is not equivalent to anything’s happening or not happening to him. If he has it, he does not lose it when his rights are violated – rather, such treatment counts as a violation of his rights precisely because he has it. [Emphasis Nagel’s.]

In Nagel’s sense, inviolability is a non-consequentialist value because it doesn’t correspond to subjective states of the actual violation of a right, but rather the moral status of having the right to be free from the violation, and, consequently, of being wronged in the case that the right is violated. Inviolability is valuable above and beyond the value of not having one’s rights actually violated. But is this really escaping consequentialism? Being inviolable is not the same as being happy. But what, then, is the value of inviolability? People are certainly happier when their rights are inviolable, in the sense that people would prefer to live in a free state with a fairly high murder rate than live in a police state with a murder rate of zero, but in which those suspected of having murderous desires were occasionally summarily shot in order to prevent murders. In this sense, the right not to be murdered – inviolability – must be said to be responsible for real utility gains, since it is preferred (and, I would say, rationally preferred) to a situation where rights are more likely to be violated, but where their violation is a wrong. Indeed, Nagel’s “non-consequentialist” explanation of the value of inviolability sounds profoundly consequentialist:

It is true that a right may sometimes forbid us to do something that would minimize its violation – as when we are forbidden to kill one innocent person even to prevent two other innocents from being killed. But the alternative possibility differs from this one not only in the numbers of innocents killed. If there is no such right, and it is permissible to kill the one to save the two, that implies a profound difference in the status of everyone – not only of the one who is killed. For in the absence of such a right, no one is inviolable: Anyone may be killed if that would serve to minimize the number of killings. This difference of status holds true of everyone whether or not the situation will ever arise for him. [Emphasis mine.]

I suppose my main disagreement with Nagel is that, as I see it, inviolability is a condition “like being happy” – it is one that has subjective value, and a situation that includes inviolability may be preferred to a situation that is materially better for the agent, but in which his rights are violable. In my view, it is strange to think that only subjective affect and material consequences should count toward utility. Nagel himself lists “being free” as a possible consequentialist value, as opposed to, say, the appearance of freedom. If being free is a consequentialist value, why not inviolability? This is especially true since inviolability, like freedom from pain, seems to be one of what Nagel would define as an agent-neutral value – one we have an objective reason for promoting.

This is not an instrumental argument. I am not arguing that people should have rights because rights may be exercised to make people happy, or that agents may be unhappy if morally required to violate the rights of others. I am arguing that the very status of inviolability makes people “happy,” to put it a bit reductively. I think Nagel wants us to look at the world and figure out which rights are really important – meaning, in which cases does inviolability make people feel valuable, special, and happy? Even if rights are violated in the actual world, there is a certain solace in inviolability – sympathy of the community, for instance, and the basic knowledge that the harm to one was a wrong. The possibility for moral outrage in the face of a violation of rights is a basic good.

To put it in a bit more consequential and certainly oversimplified terms, in our current world, we are all vulnerable to succumbing to organ failure. A certain percentage of us will die from lack of organ donors. More people might be saved if we, as a society, held a lottery and culled a certain number of randomly-chosen individuals, transplanting each person’s organs into the bodies of several waiting recipients. More people would be saved, fewer people would actually suffer the harm of dying – materially, society would be better off. But most people would consider this a worse world. This might be because the right not to be murdered – a morally inviolable right – gives us substantial utility, even though we are more likely to die of organ failure in our current world. The right not to be (painlessly) murdered is worth a substantially greater risk of (miserable, prolonged) death. (This example compares a little murder to more natural death; see my earlier example for a comparison of more murder to less murder minus inviolability.)

While my formulation is admittedly a bit flippant, and might be looked upon skeptically especially since it purports to put a consequentialist argument in the mouth of Thomas Nagel, it does have certain advantages. For one, it gives us a place to start when figuring out what our inviolable rights should be: rights occur where the “value of inviolability” is substantially greater than the expected utility gains that might come from the occasional utilitarian violation of the right. (Even Nagel is willing to allow for violation of “inviolable” rights to prevent moral catastrophe; we need only look at things below a certain catastrophic threshold.)

I would go so far as to define an inviolable right – and perhaps the skeleton of an entire moral system – this way: An inviolable right should be recognized, that cannot be violated even to prevent greater harm, including a greater violation of the same right by others, when the value of the right’s being inviolable is greater than the potential utility gains that could be made from its occasional violation.

Unfortunately for my simple little system, in a pluralistic world, few people would agree on the value of the inviolability of all but a few basic rights. Perhaps this is why Nagel limits himself to discussing such basic rights as the freedom from torture. A new question presents itself: how do we measure the value of inviolability? Certainly, it can’t be the average importance accorded to the right among actual members of a particular society. So is it, after all, a sort of first-order utilitarian calculation? Perhaps we need to think of inviolability from the perspective of a potential member of society, as in Rawls’ original position. In our current political system, I feel that the inviolability of the right to die is systematically undervalued, because cognitive bias prevents people from understanding the suffering of the suicidal, and because the competence of the suicidal is too easily dismissed with reference to broadly defined mental illness. But, as Benatar points out, the value of the inviolability of not being born may be undervalued even in a perfect Rawlsian original position – because the decision makers, in order to make decisions, exist, and it is difficult for an existent person to understand the value of nonexistence and the terrible violation imposed on one by being brought into existence.

(I changed the title based on a conversation with Jim – thanks!)

Written by Sister Y

May 28, 2008 at 10:37 pm