Deontology, governmental action, and the distributive exemption: how the trolley problem shapes the relationship between rights and policy.

• Author: Stelzig, Tim

In proportion to the importance of the ... law ought also to be the care and attention of the legislature in properly forming and enforcing it. It should be founded upon principles that are permanent, uniform, and universal; and always conformable to the dictates of truth and justice, the feelings of humanity, and the indelible rights of mankind:

though it sometimes (provided there be no transgression of these eternal boundaries) may be modified, narrowed, or enlarged, according to the local or occasional necessities of the state which it is meant to govern.

--Blackstone(1)

INTRODUCTION

Blackstone identifies a curious tension resting at the juncture of law and morality. As Blackstone notes, rights are "indelible." Where a right exists, morality prohibits its violation. This prohibition extends even--and perhaps especially--to situations in which greater good can be accomplished by violating the right.(2) Rights act as "trumps,"(3) "side-constraints,"(4) or "shields"(5) against the intrusive designs of the utility-maximizing consequentialist,(6) insulating each person from being sacrificed for the public good. For example, torturing an innocent child is morally impermissible not because it fails to produce the greatest good, but because doing so would violate the child's rights.(7) Nothing more need be said.(8)

Yet, as Blackstone also realizes, the "local or occasional necessities of the state" sometimes demand that rights be "modified, narrowed, or enlarged."(9) Bluntly put, sometimes the public good wins out. Rights clearly must give way in catastrophic cases, where harms of colossal proportion will be suffered unless some right is violated. For example, if stopping a terrorist from launching a salvo of nuclear missiles against China required killing several innocent hostages, it would be undeniably(10) morally permissible--though nevertheless unfortunate--to sacrifice the hostages for the greater good. Even a healthy respect for the hostages' rights cannot suffer consequences of such magnitude. Catastrophic cases(11) do not fundamentally challenge the notion that rights protect us from being sacrificed for the public good. Such cases merely reveal that rights have thresholds.(12)

Most "local or occasional necessities of the state,"(13) however, are mundane by comparison. That is, the public good frequently wins out when no threat of true catastrophe exists. We can readily cull examples from the popular media. For instance, New York City currently is constructing City Tunnel No. 3, a water-supply tunnel linking the city to water in the Catskill Mountains.(14) Twenty-four tunnel workers ("sandhogs") have died digging the tunnel thus far, and it is reasonable to expect that another forty-two will die before the project is completed--a rate of more than one worker death per mile.(15) Although the workers are aware of the risk(16) and receive hazard pay,(17) one misses much by appealing to traditional tort doctrines or imagining the catastrophe of New York City without water to explain the moral permissibility of New York City's actions.

To illustrate, assume that the value to the community of a new source of water, minus the financial costs of worker-safety measures, outweighs the expected costs in terms of human life resulting from the tunnel construction. That is, assume that whatever amount the city is spending to avoid worker death is sufficient. The legitimate value of a worker's life in this scheme is, let us say, N. (This reasoning is decidedly consequentialist.) Whatever the value of N, if even one worker were trapped in a cave-in, then any further building that would substantially risk death to this worker must stop, even if this would cost the city many times N--indeed, almost regardless of the cost. Rights-based norms prohibit "building over" the trapped worker, however expensive it is to remove her. This tension in the deontologist's views begs explanation.

Consider another example. Most people believe that the state may not intentionally incarcerate a person known to be innocent, even if a significant amount of crime would be deterred as a result of this one violation of rights.(18) Nevertheless, as a general matter, it is both legally and morally permissible to increase the penalties for crimes, create new crimes, increase funding for more police on the street, and the like even though such anti-crime policies will likely result in some innocent people being jailed.(19) Examples of similar tensions are commonplace.(20)

These cases raise the issue of when rights operate to protect the individual from the demands of society, and when, conversely, society's interests come first. This question is about the relationship between morality and societal control. In our society, law is infused, both theoretically and practically, with morality. The common law has evolved largely in accord with moral intuitions, the Constitution is infused with moral concepts, and legislative debates often center on moral disputes. To understand existing law, we cannot ignore the strictures and freedoms of morality. Moreover, we should not ignore the interplay between law and morality. Law is not merely a collection of black letters or an abstract theoretic system. Rather, law is the most basic symbol of who we are as a people, our grandest totemic representation. The nature of the right and the good therefore deserve the utmost consideration within legal scholarship.

The issues addressed in this Comment are theoretical, and their resolution is not amenable to a factual taxonomy. Thus, the discussion below, a search for plausible and structured limits on governmental action, is necessarily quite abstract. This Comment is premised on deontology.(21) That is, I assume here that, even if a deflationary metaphysical account must ultimately be given for them, rights "exist" at the very least for the purposes of applied ethics. Thus, I begin in Part I by offering a very brief introduction to deontology. In Part II, I canvas two leading theories of rights. I first outline Ronald Dworkin's views on legal rights, and then Judith Jarvis Thomson's views on moral rights. Although useful for deepening our understanding of rights as such, I show that neither account answers the questions posed in this Introduction. In Part III, I defend the notion that deontology does not exhaust moral discourse. I first argue for this limitation as a matter of theory, and then outline several types of cases recognized in the philosophical literature in which deontological norms do not apply. Part IV introduces and gives an extended discussion of the "distributive exemption." This exemption to deontological norms is illustrated by the well-known "Trolley Problem." In Part V, I argue that the criteria that trigger the distributive exemption are found in society generally. This insight permits a new justification for the existence of the coercive state, both in conjunction with traditional social contractarian assumptions, and after relaxing these assumptions and taking the modern state "as is." By applying the distributive exemption to the state, this Comment also explains how deontology permits the sort of consequentially justified policy choices most people intuitively accept as correct, but which are in prima facie tension with deontological norms as illustrated by the examples above. It is important to notice that this largely consequentialist conclusion is derived from within a deontological framework.

1. DEONTOLOGY GENERALLY

   Deontology is the theory of moral obligation, and, by connotation, encompasses moral theories that emphasize rights and duties. Put another way, deontological theories are those moral theories of a vaguely Kantian stripe. Kant held that one should "[a]ct in such a way that [one) always treat[s] humanity, whether in [one's] own person or in the person of any other, never simply as a means, but always at the same time as an end."(22) It was not always so. When Jeremy Bentham, one of utilitarianism's founders, first coined the word in 1814,(23) "deontology" referred to the marshaling of self-interested reasons for agents to act for the general good.(24) Essentially, this was a utilitarian theory of obligation, and was quite distinct from modern use.(25)

   Modem-day deontologists focus much attention on rights.(26) It might be thought that this focus is merely a preference, for rights are often taken to be correlative with duties. For example, where this relation holds, if I have a right not to be punched, you are under an obligation not to punch me, and conversely. Thus, deontology may be articulated through either related element. More generally, in theories holding that rights and duties are correlative, one may give an account of rights and then define duties by reference to rights; one may define rights in terms of an antecedent theoretic account of duties; or one may give separate theoretic accounts of rights and duties.(27)

   Rights need not be completely correlative with duties.(28) For example, take the notion of privileges, understood here as a subspecies of rights. The lone occupant of a small and isolated island presumably possesses a privilege to sing show-tunes at the top of her voice.(29) This right, however, has no correlative obligation. It is not just that the island, being otherwise deserted, has no one in whom the obligation inheres. Rather, it is a structural feature of the example that no obligation not to interfere can exist. Introducing another person onto the island would destroy the privilege, for it would be immoral for the singer to subject another person to her showmanship without the other person's consent.

   Likewise, there may be obligations for which correlative rights do not exist. For example, one may be under an obligation to write letters to her grandfather without her grandfather having the right to receive letters written by his granddaughter.(30) "Omissions" may also be understood as...