The Limit to the Pursuit of Happiness

I don't know if this is a particularly original thought but in my torts class today we were discussing the issue of the cost-balance test involved in the negligence standard for liability. The economists' idea is that you want a rule under which activities whose benefits (to any and all affected parties) outweigh their costs will proceed, and activities whose costs outweigh the benefits will not. The negligence standard as applied often acts as a proxy for that intuition. Negligence analysis often acts as a proxy for this kind of analysis, saying that if there would have been a way to avoid the damage the cost of which would be less than that of the damage, there was negligence. But a strict liability standard, wherein the causer of the harm is liable whether they were negligent or not, also results in the same kind of calculus being performed, so long as damages are compensatory only and not punitive. In that case, the potential tortfeasor (that is apparently the word, don't blame me) will balance their own potential benefits against the potential losses that they might cause to others, because those losses will turn into liabilities. If the benefits outweigh the losses, you'll do the thing anyway and pay the damages, and that's a win compared to not doing the thing in the first place.

At some point it came up that this is very different from how the criminal law handles things, and also that the law & economics people haven't always accepted the fact that the criminal law does it very differently. If you commit a crime, let's go with theft for now because it's nice and easy to monetize, and you're found guilty, you don't just pay compensatory damages and walk out of court. Now, you might be supposed to make restitution or something (although that's about removing your own benefit rather than making whole the person you wronged), but mainly you just go to jail for several years. The point of the criminal law is not to get people to weigh the harms to others against their own benefits from committing crimes. The point is to get them not to commit crimes. "But I got so much benefit for it, this expensive jewelry is doing so much more good for me after I stole it than it was for the old rich lady who owned it" is not a defense. And people don't normatively accept it if someone says, well yes this is a crime but I'll just do it anyway and pay the price. Well, most people don't, anyway.


Law & economics people, on the other hand, are very weird. According to our professor, in the early days of the law & econ phenomenon there were debates over the optimal number of murders. And though that was mostly about stuff like the administrative costs of actually eliminating murder altogether, it included the component of the benefit to the murderers. Most of us don't really care about the benefits of murder to murderers. At certain times and places, law & econ people have decided to care about the benefits of murder to murderers. And it makes sense, in a way: in lots of other contexts where people do things that harm other people, we ask how much benefit they derive from it as part of the inquiry whether we should try to prevent them doing it. So why not murder? Why not theft? Why not rape, and various rape-y things? For example, the hypothetical I've heard about raping an unconscious woman who will literally never know she was raped. No harm, right? Her subjective experience of life is not altered in any way, and her rapist presumably enjoys it. Sounds like a good deal! Let's figure out ways to let guys rape unconscious women without their knowledge, right?

Well, no, that's crazy. I should hope we all know it's crazy, as a matter of immediate moral intuition. But, why? Or to put that point more precisely: what is the specific philosophical justification for not including the benefits to the criminal of a crime in our analysis, as we would for a tort? And I think I have an answer to that question. This is a principle that, I think, a lot of us understand intuitively, but that I've never actually seen phrased out loud: there is a limit on the legitimate pursuit of happiness. Not just the usual "harm principle" limit, which says that when your pursuit of your own happiness inflicts harm upon others you lose your unbridled right to that pursuit. That's common-place. No, it's a limit in the very concept of what happiness you are allowed to pursue. This is in a certain way a strange notion, because a very large part of the point of the pursuit of happiness is the ability to pursue your own happiness in your own way, and to decide for yourself what makes you happy. The harm principle limits the extent to which you may properly act to pursue that happiness, but it doesn't limit the permissible targets of your pursuit. I have a principle that does:

The happiness, pleasure, advantage, or other benefits derived specifically from the violation of another's fundamental rights to life, liberty, or the pursuit of happiness, or from the inflicting of severe harms or deprivations of basic needs upon another, shall not be considered legitimate interests.

The "specifically" part is key here. Benefits from activities which feature or cause such violations or deprivations are legitimate and can be counted in the analysis. But the benefits must derive from the parts of the activity which are not the harms to others. Here's one potential heuristic to help distinguish the two cases: would the benefits remain if one could wave a magic wand and remove the violations/deprivations without affecting the rest of the activity? Take the case of a polluting factory on the one hand, and a rapist on the other. If my magic wand could disappear all the pollution from the factory, none of the benefits from the factory would be in any way abrogated. The factory owner might be a perfectly selfish bastard who wouldn't be even a little bit happy that he was no longer polluting, but he would have no cause to actively mind that he was no longer polluting. It doesn't affect him, and though he will want to get away with it and be allowed to continue polluting here in the real world, he doesn't care about polluting for pollution's sake. The magic wand would, however, prevent the rape itself in its entirety, removing all of the benefits to the rapist. Because in the case of rape, the violation is the entire point. The whole activity is a violation.

Therefore, according to my principle, the benefits the factory creates are wholly legitimate interests which should be taken into account in the social welfare calculus (though they should not necessarily prevail in it), whereas the benefits the rape creates for the rapist are illegitimate and we both may and should properly discount them in our analysis. That's the solution to the "unconscious rape" puzzle: there are no legitimate benefits here, leaving us with no benefits, no harms, and a violation, which carries the day and declares the rape bad. Of course. You knew that already. That's an easy case, the kind of a case where the correct answer is so obvious that it doesn't really require a well-articulated philosophical theory to justify it. Of course there are always people willing to come up with absurd hypotheticals to exploit the lack of such a well-articulated theory, which is part of why I wanted to write about this principle that I think is behind our intuitions in that case. But hopefully the theory will be of use in harder cases as well. For example, one possible counter to the claim that gay people gaying it up don't harm others and should therefore fall squarely within the sphere of individual liberty is that all the gayage harms homophobes because it gives them a subjective icky feeling. The factual claim is certainly true, and a well-enforced anti-gayitude law would alleviate those feelings. But this is an instance of a pleasure (okay, a lack of discomfort) being derived entirely from the impedance of other people's rights to pursue their own happiness in their own way. My principle would, therefore, tell us confidently to dismiss the claims of these homophobes.

One note about a possible misunderstanding of this principle: not all forms of schadenfreude fall afoul of it. In fact much of it is quite acceptable. Getting pleasure from, say, the fact that the New York Yankees were eliminated from post-season contention yesterday, or from some villain getting what he deserves, or a politician you've long considered a dirtbag finally being exposed and suffering humiliation, is fine. So are sadomasochistic sexual practices. But saying "we should kick millions of people off food stamps because bitter rich guys will get a kick out of seeing them starving in the gutters" is not a valid argument. (Note: I've never heard anyone make that argument.) I wouldn't care to try to state a rule that would capture all of the relevant difference here, but certainly any time when we can say that the harms you're enjoying is something the "victim" either signed up for in some sense or brought upon themselves it's probably okay, and any time the harm involved is so significant as to impair the person's life/liberty/happiness rights it's probably not okay.


This relates tangentially to some thoughts I've had, also in torts class, about how to handle situations where you could save N people by killing M people, with N >> M. Specifically I think that while a certain kind of utilitarian approach would say, yes, do it, fewer deaths is always good, there's a more nuanced approach that focuses not so much on adding up the harms on either side but on the violations of rights on either side. The right to life is not a right to continue to be alive forever, for various reasons, and nor is it an absolute right, both positive and negative, to continue being alive as long as is possibly possible if the whole of society devoted itself solely to that end. Or to put it another way, everybody dies. There can be, I think, very real differences in how much a person's right to life is violated by their death. Dying of old age is wholly non-violative. Being cruelly murdered in the street is pretty much maximally violative. Being killed accidentally is, I think, somewhere in the middle. So is dying from an illness that could have been cured. I would argue that any violation of the right to live trumps anything that does not involve death, in a micro sense at least although we certainly do accept certain risks of accidental deaths etc., but when we have to balance the harms of some deaths against those of other deaths I think this rights-and-violations analysis can provide considerable clarity. The connection to the broader subject of this post is the central role that the idea of rights can play.