Law in Contemporary Society


-- By CarlForbes - 14 Feb 2008

Utilitarianism focuses on the aggregate happiness or pleasure of a population. The theory considers the moral worth of an action in relation to the action’s contribution to the aggregate happiness or pleasure of a population. Utilitarians are comfortable with harm being done to an individual if it promotes the overall welfare of a group of people.

  • Three repetitive sentences two of which should be removed. The remaining one does't state the theme of your essay, so it shouldn't be where it is. What's the outline?

The idea is good in theory because it aims to maximize society’s happiness and well-being. However, it is not good in practice because utilitarianism is not as forward looking as one would think. Utilitarianism is almost contradictory in that immediate consequences are overlooked for the distant while the happiness or suffering of distant populations is overlooked for the same regarding immediate populations.

  • This appears to say that badly-performed utilitarian calculus produces bad results. This is like saying that McDonald's proves hamburgers are inedible.

“The Blackstone Ratio” – 10:1

William Blackstone said it is “better that ten guilty persons escape, than that one innocent suffer.”

  • NONSENSE. Did you bother to check? You don't give a cite and you show no sign of familiarity with Blackstone. Evidence strongly suggests you took this at second hand, and the likely sources of your "knowledge" are unfortunately deceptive. Eugene Volokh's recent idiotic article on the subject, for example, doesn't even cite the correct page in Blackstone, despite the supposed excellence of law review proofreading and the author's spurious reputation for knowledge, while the Wikipedia stub that you probably relied upon--though it relies heavily upon Volokh and seems to have been primarily authored by one of that fellow's ames damnees -- wisely avoids giving any citation. The actual statement in the Commentaries is not general but specific. Blackstone is giving his listeners (who are not as likely to become lawyers as they are to become lay justices of the peace) a list of five rather confined differences between civil and criminal evidence rules regarding the number of witnesses necessary to prove (1) treason, (2) authorship of a document by testimony of those familiar with the supposed writer's hand, and (3) the stillbirth of any bastard child found dead. Which leads him to a fourth narrow rule of criminal evidence: "All presumptive evidence of felony should be admitted cautiously: for the law holds, that it is better that ten guilty persons escape, than that one innocent suffer." 4 Commentaries *352. The two examples given, which are in fact from the second volume of Sir Matthew Hale's Pleas of the Crown, are that no one should be convicted of theft simply because he refuses to explain how he acquired goods for which no owner has been traced, and that no one should be convicted of murder unless the corpse of the victim has been found. This isn't about some general principle of the calculus of erroneous deprivation; it's a statement about the particular problem of prosecution without corpus delicti, closely related to other narrow evidentiary rules of no general jurisprudential significance. Removing this statement from its context is equivalent to changing its meaning. You should not cite sources you haven't read, and had you read this one, you should not have contributed to the "Blackstone's Ratio" garbage-pile any further.

The ratio that Blackstone established is in great dispute. Some people put the ratio at one guilty to one innocent, some put it at one hundred guilty to one innocent, and some even go as far as one thousand guilty to one innocent. No matter what the ratio, the idea is that it is better to let a guilty person go free than to convict someone of a crime that he or she did not commit. Focusing on American society, we seem to care tremendously about liberty that we cannot fathom situations where it would be okay to convict an innocent man. The issue seems to be that we do not want to give the government too much power to restrict one’s freedom. Therefore, we establish higher burdens of proof in criminal cases because a lower burden of proof, such as preponderance-of-the-evidence, would lead to a higher rate of conviction of innocent people.

  • Pardon me? "[W]e seem to care tremendously about liberty that we cannot fathom situations where it would be okay to convict an innocent man." [sic] You neither noticed the missing word nor explained why it requires any more than a basic, non-tremendous, commitment to justice to eschew convicting the innocent. A utilitarianism that cared entirely for welfare and not at all about justice would be a cartoon, as would a deontological justice so exacting as to be completely uninterested in welfare. You are here growing grass to make into straw with which to stuff a man.

Utilitarianism seems to look forward at ways to benefit society. Regarding crimes, utilitarians search for ways to keep an offender from committing the crime again as well as ways to dissuade other potential offenders from actually committing the crime. Is acquitting ten criminals as opposed to convicting one innocent man a correct form of deterrence? Allowing ten criminals the opportunity to go free for previous indiscretions does not seem like a way to keep an offender from committing the crime again. It does not even seem like an intelligent attempt at deterring potential offenders from committing crime. What is seems to do is highly value autonomy over aggregate social welfare. This cannot make sense because out of ten non-convicted criminals, one is likely to commit another crime.

  • So, to be clear about it and to stick to Blackstone's original point, we ought in general to convict people of theft without testimony as to ownership and murder without evidence of violent death because the people we don't charge on insufficient evidence might otherwise steal or kill again? A powerful argument against all prosecutorial discretion, or else a piece of ridiculous nonsense, or both. I am pretty sure, at any rate, that no prosecutor will agree with the proposition.

According to some studies, the re-arrest rate for formerly incarcerated criminals is about 67%. I am not clear as to what the recidivism rate is for non-convicted criminals,

  • By "not-convicted criminals" I think you mean "innocent persons." I'm not surprised that you find it difficult to establish the rate at which non-offenders re-offend. I'll give you a hint, however: it is mathematically closely related to the rate of reconsideration among the thoughtless.

but it has to be higher than the rate for those convicted. Therefore, it is unclear as to why it would be better to acquit ten guilty men than it would be to convict one innocent man. Convicting the innocent man (whom society may not have to know is actually innocent) could serve deterrence purposes. The ten guilty men would be convicted or would not be released from prison (as some hypothetical situations present it) and potential criminals would have a deterring example. Additionally, society would be happier, which utilitarians want, because potential re-offenders would not be back on the streets.

  • It isn't often that one puts oneself in a position absurd enough to be slain by one elegant sentence from Voltaire: Dans [votre] pays il est bon de tuer de temps en temps un amiral pour encourager les autres.
  • I think the quote translates to: In this country we find it good from time to time to shoot an admiral to encourage the others. - Julian Baez

“The Trolley Problem”

In this situation, a train with no brakes is barreling down a track. Five people are tied to the track. You are standing next to a lever, which if pulled will divert the train to another track. However, one person is tied to the second track. Should you pull the lever? Utilitarianism would say that you should. Additionally, utilitarians would say that pulling the lever would be the morally better thing to do than doing nothing at all. Essentially, the argument for saving the five people at the expense of the one is that it will maximize the greatest good for the greatest number of people. However, this does not make sense considering that utilitarians do not care how the “good” is distributed as long as the greatest amount of good possible exists for society.

How do we know what is going to maximize the greatest amount of good for the greatest number of people? In the trolley problem, how do we know that the one person killed in order to save the five is not going to contribute tremendously to society? That one person whose life the person at the lever may decide to sacrifice to save the five may have been a medical scientist working on a cure to a deadly disease. Clearly, the person at the lever would not have time to find out each person’s life story, but that is the problem with utilitarianism and ethical dilemmas.

  • No, this is the problem with science-fiction examples. You've spent many words explaining only half the "trolley problem" as it is currently discussed, and you haven't said anything enlightening about it. The utilitarian is aware that the ideal is not the real; she can hardly be otherwise. Which is why Jeremy Bentham would be unprintable on the subject of Derek Parfitt. Next week, when we are dying in an open boat in the South Atlantic, we'll see what we can do with your objection.

Utilitarianism does not take individual characteristics into account. The theory does not consider what people can contribute to society at a later time. In the dilemma, the utilitarian only sees the net gain of four lives. The theory does not see that the five people tied to the first track could be serial killers. Would the utilitarian decide to let the five die in this case? How would the situation change if the five people on the first track were average human beings while the person on the second track was your mother?

  • Another serious confusion indicative of unedited argument, unless you meant to point out that my particular mother has done so much for the extension of human welfare. You meant to point to issues involving objective inadequacy of utilitarian calculus, and instead wound up pointing to the subjective difficulty of sacrificing Isaac, which has nothing to do with the situation.

Utilitarianism may or may not have an answer to these twists in the problem that it provides a simple answer to, but the twists show that theories are just that. When placed into real life situations, people do not think based on theories. People’s actions are determined by social interactions and by the consequences that they may face. Freeing ten criminals to save one innocent man may lead to societal chaos while saving five men on a track may lead to the death of a great scientist. The point is that you do not know what you would do until placed in an actual ethical dilemma.

  • This conclusion has nothing to do with the arguments that preceded it.

So we have a little bit of a mess on our hands. In order to edit the essay we need to begin by establishing its thesis. Is the essay about practical problems in making utilitarian calculations? About the irrelevance of moral philosophy to actual moral choices? About the deterrent wisdom of punishing the innocent? Once we've decided what the essay's about we need to pare away the now-irrelevant material that had to do with the surplus themes, and do a little checking of sources on what remains. Then we can construct a new and more robust argument around the remaining propositions from the new outline. It's not a trivial task, but I'm sure it can be managed. You have strength of mind and a broad range of reference to bring to bear in a more focused way.


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r5 - 12 Jan 2009 - 22:45:51 - IanSullivan
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