PLSC 118 - Lecture 8 - Limits of the Neoclassical Synthesis

Chapter 1. Ambiguity in Mill’s Harm Principle [00:00:00]

Professor Ian Shapiro: So in Monday’s lecture we let something slip by all of us without comment that we probably should not have let slip by, and it’s something I want to focus on today. That is when we spelled out Mill’s harm principle I said, “Is everybody sure they know what it means?” Never mind whether you agree with it or not, but whether you’re sure that you understand what he is saying, and we all agreed that at least it was clear. In fact, though, it’s ambiguous, and the highlighted phrase is the ambiguity I want to focus on.

At the end of that long paragraph I read you when Mill is saying, “If you think something’s bad for somebody or that they shouldn’t do it,” remember I gave you an example of going to law school when I don’t think it’s good for you. Mill says, “Those may be good reasons for remonstrating with him, or reasoning with him, or persuading him, or entreating him, but not for compelling him or visiting him with any evil in case he decides to do otherwise. To justify that (I need to justify forcing somebody to do something or prohibiting somebody from doing something) the conduct from which it is desired to deter him must be calculated to produce evil to someone else.” 

“Must be calculated to produce evil from someone else.” And there are two issues raised by that phrase that I really want us to focus on with laser-like intensity in today’s lecture. The one is signaled by the passive voice in it, “must be calculated.” Well, that obviously puts on the table, who does the calculating, right? And secondly, what does it mean, calculated? It could mean calculated as in intended. “I didn’t intend to harm you. There was no calculation to harm you when I got paralytically drunk behind the wheel of a car, and then I don’t even remember putting the keys in the wheel and driving off. I didn’t intend to harm you,” right? Or is it a third party calculation? Again, then we get to the question, by whom? Who’s going to decide? Who’s going to do the calculating? So what does calculated actually mean, and who is it that’s going to do the calculating? Those are the things we’re going to zero in on today.

And I thought the best way into it was to consider some examples. And one I left you with on Monday was, what about prostitution? This is what is sometimes referred to as a so-called victimless crime. After all, the transaction between a prostitute and a client is a Pareto superior transaction, right? It’s a voluntary market transaction. They wouldn’t do it if it didn’t make both people better off. So should we just say from Mill’s point of view, “There’s no harm here; it truly is a victimless crime and we shouldn’t make things criminal if they are victimless?” How many people think that makes sense? About half. Who thinks it doesn’t make sense? Nobody? Yeah. Okay, so why? Why doesn’t it make sense, somebody who thinks it doesn’t make sense? Over here? Why were you thinking it didn’t make sense?

Student: Even though it’s victimless I think harming yourself has some sort of implications, I think.

Professor Ian Shapiro: So it’s the prostitute harming herself?

Student: Sort of. I think there are some moral implications in there that must be dealt with.

Professor Ian Shapiro: Like what? What kinds of implications?

Student: Besides just harming — okay, let me take that back, harming yourself. It might harm society in the sense that it brings down society’s moral standards, I guess.

Professor Ian Shapiro: Okay, it might harm society. Mill’s very clear that he wants to reject the idea that there are social rights, so he wouldn’t accept that, but I don’t think you should give up so quickly. Is there some other way of articulating what you have in mind there when you say harm society? What do you mean? If you unpack what does it mean when you say, “harm society?” It’s tricky. Anyone else want to have a go? Yeah, right behind you.

Student: I guess it poses a negative externality on society, and therefore…

Professor Ian Shapiro: Okay, and what is the negative externality?

Student: Well, I guess in the case of prostitution it could be the objectification of women in this case.

Professor Ian Shapiro: Objectification of women, okay. How would we say that’s a harm to society? Maybe it would be — again, Mill’s going to reject the idea that society has a right not to be harmed. How can it play out in a way that doesn’t involve making that claim that society…?

Student: Well, I guess you could say it poses a negative externality on the individuals in the society by, I guess…

Professor Ian Shapiro: On women.

Student: Yeah.

Professor Ian Shapiro: On women. It poses a negative externality on women. It reinforces the set of stereotypes and so on. Okay, so that might be one way in which prostitution causes harm. Any other ways? Yes, sir?

Student: It could also be said that it has a negative externality because it undermines family values.

Professor Ian Shapiro: It undermines family values.

Student: Which would then, in turn, hurt children and the future generations.

Professor Ian Shapiro: And that would, in turn, hurt children. Yeah?

Student: Well, I think it’s difficult also to disconnect prostitution from this sort of theoretical model from the actual model of prostitution. I think when we put pimps, and sexual slavery, and that sort of thing in the picture then the harm becomes far more real, and it’s questionable whether people are voluntarily participating in these transactions to begin with.

Professor Ian Shapiro: Okay, so if you’re a really hardboiled Millian libertarian I think slavery’s not an issue. Slaves are taken by force, but selling yourself into indentured servitude is not obviously something — would Mill say you should be allowed to do that? It’s your choice. It’s tricky because you’re really giving up your autonomy.

You’ll see in politics, we confront later in the course, what do you do with an election where a party runs, as in Algeria in 1991 saying, “If elected we are going to abolish democracy,” and they get elected. In that case the Algerian military stepped in. If somebody says, “I’m going to sell myself into servitude,” it’s a voluntary act, should we save them from themselves? That’s a very tricky one, but let’s set those ones aside. 

And I think there would be similar issues with suicide for Mill. Should you be allowed to stop people committing suicide? Those are very hard. I think they’re separate, though, from these issues about what we’re calling externalities. People are saying, “Of course there are harmful effects of prostitution. It harms women. It undermines certain kinds of moral codes. What would Mill say in response to that? Yeah?

Student: Well, I think for Mill it really depends on the context of an act. So you can be drunk at home, but you can’t be a policeman drunk on the job. So if we look at prostitution if you’re working as a free agent, sure, you can engage in prostitution, but if you’re a father and you’re married then he should probably view that as something not okay. So it really matters for him what the context is of a certain transaction.

Professor Ian Shapiro: Okay, I think that’s right, and you could imagine a more refined version of the harm principle that tried to incorporate that. I gave the example last time; I think I said, “Mill would presumably be completely comfortable without outlawing drunk driving and punishing that activity, but not punishing drinking.” So presumably the principle would be some version of “interfere with human conduct as little as possible to prevent harm,” right? So it’s killing a gnat with a sledgehammer to outlaw drinking just because some people drive drunk. I think that’s fair enough.

But I think some of the people who were saying allowing prostitution has bigger negative externalities wouldn’t give up that quickly. Anyone who thinks we shouldn’t give up that quickly, that there’s something else here? Nobody? Maybe they would give up that quickly. Okay, we’ll leave that aside for a minute and come back to it.

So if you’re now bearing this in mind go back and reread On Liberty. I think what you’ll come away with is it’s actually quite confusing just what Mill means by harm. Because some harms, he wants to say, are trivial harms, so the harm you suffer through not getting a place in college in a competitive exam, right? He’s not going to allow that harm ultimately to be dispositive. He’s going to allow that to be outweighed by the benefits to society of competitive meritocracy. And remember our free trade discussion last time. So some harms are more significant than other harms and some harms are outweighed by utilitarian benefits.

It seems like, some of the time, if Mill’s saying, “Prohibition shouldn’t be allowed,” he’s saying essentially, “Unless I intend to do you some harm. You might find it offensive that I sit around drinking all day, but it’s none of your business. You might have family values which say that if there are people out there who are prostitutes, it undermines the family. That’s your family value, thank you very much. It’s not my family value,” right? So you could take that view.

And after all, if you think about the debate we’ve had in this country about gay marriage over the past decade or so, that’s exactly the claim and the counterclaim, right? Some people say, “There’s no reason in the world that gay people should be prevented from getting married. They’re not hurting anybody else.” And then people say, “Well, that undermines traditional family values,” right? And the people who support gay marriage say, “Well, so what? Those are your traditional family values, but they’re not our traditional family values, and why should yours….” This is, after all, what Mill says, the tyranny of majority opinion. So what? Right? This is supposed to protect individual freedom against it, so one person’s traditional family values is another person’s tyranny of majority opinion.

How are you going to resolve that? What mechanisms does Mill have to resolve that? And I think you could read On Liberty with a fine-tooth comb and not come up with one, and so you could say, “Well, so much the worse for Mill. We thought we had this wonderful rights-utility synthesis where all good things would go together. We could respect individual freedoms, and promote social utilitarian efficiency based on science all at the same time, but actually it turns out to all be resting on a hill of sand, and the minute you walk on it you start sinking.”

Chapter 2. Variation in the Definition of Harm [00:13:23]

And I think this is a good time to go back to the point I made to you right at the beginning of the course when I said you shouldn’t be expecting the silver bullet in this course. You shouldn’t be expecting to find the theory that answers all your questions. What instead you’re going to find is particular insights that you can pick up and put into your bag of tricks and move on with. Because I think it is, at the end of the day, a good critique of Mill to say, “There is no single definition of harm and there’s no good account of who makes the decisions about harm.” And so to that extent his claim at the beginning of On Liberty that there’s one simple principle and this is what it is, fails. Nonetheless, there are some important and enduring insights here that I think we’re not going to want to let go of.

One is, when you think about all of the ways human beings interact, and all of the things we do that cause us to have the possibility of bumping into one another, maybe it shouldn’t be the case that there is a single definition of harm because different definitions of harm are relevant to different types of situation. This is a little like the point somebody here made that Mill would be interested in the context.

If you think about physicians; we allow physicians to buy malpractice insurance in case they kill you by mistake when they’re doing surgery, but we don’t allow bank robbers to buy malpractice insurance so that if they kill you by mistake when they’re robbing a bank they can get off. That tells you right there, there must be different conceptions of harm that operate in different circumstances. And indeed, if you want to start thinking about it a little bit more systematically, harm is treated very differently in different situations.

Think about this continuum I’ve put up here. Some kinds of harm are completely excluded. You’re not held responsible for them at all. If you have a death penalty and legal execution of people, of course you harm the person you execute. Certain kinds of wartime killing, of course you harm the person that you kill, but we allow it. We don’t count it as a relevant harm.

Then here, I’m going down this continuum, we say that the intention to kill is very important in the criminal law. Does anyone know what this term mens rea is in the criminal law? No reason you should, but somebody might. If you’re charging somebody with a criminal offense the government has to prove beyond a reasonable doubt various elements of the crime, that the person did it, that in fact that the crime occurred and that there was something called mens rea, or criminal intent. “Guilty mind,” that’s what it means. And in the criminal law we make that one of the elements of the crime. That’s why things like the insanity defense become so contentious because the person claims, “Well, because I didn’t know what I was doing, I didn’t have mens rea. My client didn’t have mens rea. He didn’t know what he was doing so he’s not guilty by reason of insanity. He’s not guilty,” okay?

Or if you think about — you might say, “Well, we do imprison people for vehicular homicide when they get drunk,” and the person says, “But I didn’t intend to kill them. I didn’t know I was driving. How can you can you say I intended?” Interestingly there we come up with a doctrine in the legal system which we call constructive intent. And what is the doctrine of constructive intent? It’s basically we say, “Well, any reasonable person would know that if drive down to a bar, and you have no way to get home, and you then drink ten beers you would be putting yourself in the position where could harm someone. So we’re going to impute the intent to you even though you didn’t have it.” That’s the doctrine of constructive intent.

That’s using exactly that kind of situation, so in the criminal law, to go back to Mill, we’d say “calculated to produce evil in someone else.” It’s got to be calculated by the person committing the harm, okay? So, why is that, you might say. Well, criminal actions are actions which bring moral opprobrium on people. We lock them up. They’re really things we don’t want people to do, and we want people to internalize the incentive not to do them. So it’s about their intentional actions, and then we’re punishing them for those actions. Therefore, when we put sanctions on them we want them to know that they could have behaved otherwise, and so we want the intent to be present, so constructive intent is sort of like intent, but not exactly.

What about negligence? Negligence is even less like constructive intent. So negligence is the doctrine that let’s suppose you live in a neighborhood where there are lots of children, small children, and you put in a swimming pool. And let’s say the law requires that you fence in your swimming pool, but you leave the fence open, the gate open, and a child goes in and falls into your pool and drowns. The doctrine of negligence would say, “Well, yes of course you didn’t intend that the child would drown, but you were negligent in leaving the gate open, so we’re going to hold you responsible.” So it’s a little less than constructive intent. It’s negligent. Any reasonable person would know that you shouldn’t leave the gate open. So you were negligent. It’s still a state of mind, but it’s obviously not the same thing as intending to kill the child.

And then we could go even further down the continuum and say, “There are some situations where we say, ‘We don’t care about your state of mind at all.’” So if an adult has sex with a 14-year-old and walks in and says, “Well, Your Honor, she said she was 20, and I thought she was 20. She looked 20,” and perhaps that’s true. Perhaps all of those things were true, she said she was 20, I thought she was 20 and she looked 20. “We don’t care,” we say as a society. We don’t care. That’s the notion of statutory rape. It’s sometimes called strict liability. We’re going to hold you liable anyway. And why do we do that? Presumably to give people the incentive to make sure as to find out. So when we say, “If she was 14 it’s statutory rape, or if he was 14 and she was 20 it’s statutory rape,” there it is, too bad. We don’t care what she said, and we don’t care what you believed at the time because we want to ensure that people have the incentive to find it out correctly.”

Or we could think of Good Samaritan laws. This is the situation where you’re walking along, and you see somebody drowning in a lake, and at very little cost to yourself, you could pull them out, but you say, “I’m late for class, never mind. I didn’t push her in the lake.” In many states we have good Samaritan laws, which if it really was at no trivial cost to yourself you could have done that, you can be prosecuted for failing to assist somebody in need of your help, okay?

So that’s obviously a very capacious definition of harm. I mean, after all, the fact that we’re all sitting here rather than doing relief work in Haiti right now means presumably that some people are suffering, perhaps even dying as a result of our failure to go to Haiti right now. So once you go over this line into treating omissions to help as a form of harm, as we do with Good Samaritan laws, where will it end, right?

So you can see from this that if you wanted one definition of harm to cover all situations that obviously isn’t going to make any sense. Nonetheless, if you think about this continuum, where you fall on it has huge implications for how you’re going to run your society. And more interestingly than that, I’ve given you a kind of static picture now, but these things actually change.

Chapter 3. The Redefinition of Harm: Thalidomide Example [00:24:23]

Think about the drug thalidomide. Who knows what happened with thalidomide? Yeah, what happened with thalidomide?

Student: It came out in the late ’50s. It was used to treat morning sickness and it turns out that the racemate of the drug causes teratoma in children born to women taking the drug. And so it was basically a failure of the drug industry to look into the effects of the different structures of drugs in humans.

Professor Ian Shapiro: Correct. That’s a very good summary. And what’s interesting about thalidomide from our point of view is that in developing this drug, which was given for morning sickness, the pharmaceutical companies didn’t cut any corners. They did all the clinical trails correctly. They got the FDA approvals. Everything was done by the book. Nothing illicit was done, and at that time the general standard in tort liability — who knows what tort means, t-o-r-t? Not t-o-r-t-e, we’re not talking about chocolate cake. What’s a tort? Nobody knows what a tort is? Tort just means harm, right? So the general standard for tort liability was negligence, and they weren’t negligent. They did it by the book. They got all of the approvals. They got the clinical trials. The FDA approved the drug.

And it’s a famous case because it was an instrument by which the courts decided to say, “You know what? We don’t care. We don’t care.” They moved from negligence to strict liability. “We don’t care that you did it all right. The fact is, there are all of these children who were born with missing limbs, and you’re going to pay. You, the drug companies, are going to pay. We’re going to hold you strictly liable. We’re going to treat it like (the example I gave before) statutory rape.”

Now, you might say, “Well, why? Why would you do that?” And interestingly the move in American tort law from negligence to strict liability, those of you who go on from here to the Yale Law School will learn all about it because the intellectual giant of the move from negligence to strict liability was Guido Calabresi, long time Dean of the Yale Law School, and now a Federal Judge on the Second Circuit.

He wrote a book called The Costs of Accidents. And the main argument of The Costs of Accidents was — this was actually about auto accidents. It was essentially utilitarian in that Calabresi looked at what had already stated in New Jersey at that time. If people rear-end one another in cars you can say, “Well, who was negligent here?” Was it the driver in front, or was it the driver in the back? If it was the driver in the front, why, “Oh, well, he stopped too quickly,” or something like that, or the driver at the back says, “Well, my brakes weren’t working or the driver at the front’s brake lights weren’t working.” You have an argument. And they have their lawyer, and you have your lawyer, and you duke it out, and somebody wins and somebody loses. New Jersey said, “It’s not worth it. It’s a waste of court time. It’s a waste of everybody’s time. So we’re going to make the law which says, in a rear-ending situation, the driver at the back pays, always.”

Kind of rough justice, sometimes maybe the brake lights on the front car really weren’t working. “We don’t care. It’s just not worth the State of New Jersey’s time to invest the institutional resources and all the rest of it to allow people to litigate these things. It just costs too much. It’s not worth it.”

So Guido Calabresi came up with a little algorithm in which he said, “The standard should be to minimize the cost of accidents plus the cost of their avoidance.” So you figure out the cost of all the rear-ending, right? And then you figure out, well, if we allow people to sue what’s the cost of avoiding accidents that way, whereas if we don’t allow them to sue for negligence, what’s the cost that way? It’s cheaper. It’s more efficient. And anyway, there are probably some good side benefits; it gives the person at the back the right incentive to keep a distance they can stop, right? So we make a utilitarian judgment. The game’s not worth the candle for negligence. That’s one defense of it.

Coming back to the thalidomide, minimize the cost of accidents and the cost of their avoidance. What do we want as a society? We want the drug companies to have the incentive to go the extra mile to do even more research than they have to do as required by the FDA, to buy the insurance because perhaps they’re the deepest pocket. They have the resources to do the research and to buy the insurance. If you’re a pregnant woman thinking about taking a morning sickness pill or not taking it, you don’t have the resources to do extra research. So we put the burden on the party who can most cheaply avoid it. Now, the drug companies are saying, “That’s outrageous. It’s totally outrageous. We didn’t do anything wrong and you’re punishing us.” Strict liability.

So we moved, and the example of thalidomide is just the tip of an iceberg. In the whole of tort law there’s been this thirty or forty-year move from a negligence standard to a strict liability standard. And a fascinating intellectual debate between Calabresi, who’s the champion of strict liability, and Richard Posner, who you probably have read some of his books, a Judge in the Chicago Circuit who defends negligence as more efficient. So it’s a debate between utilitarians in that sense. And if we had more time I’d have you read some of that debate. You might be convinced at the end of it that Posner wins intellectually, but as a matter of the politics of it, Calabresi wins. That is to say American tort law has moved, since the 1950s, away from negligence to strict liability.

Let’s think of another example.

Chapter 4. The Redefinition of Harm: Marital Rape Example [00:32:03]

In the 1950s in America, a husband could not be prosecuted for raping his wife. There was no such crime. There was, in other words, a conclusive common law presumption that there was no such crime. Now you might say, why? Well, there’s a historical answer. It went back to the suspension of the legal identity of the woman during marriage. Essentially, it goes back to the old patriarchal laws. The daughter was more or less the father’s property and then he gave his property to the son-in-law as the husband’s property.

So the woman didn’t have a legal identity as a person during marriage, and this is why she lost control of her property, right? And that was restored, ultimately, by the Married Women’s Property Acts that recreated women’s property rights over, say, inherited wealth or whatever it was. It didn’t automatically become her husband’s property. But there was this hangover from the nineteenth century that a woman couldn’t be raped by her husband, and not only rape but other things like assault. So in other words, you could walk up to a woman you were not married to on the street, and punch her in the face, and get arrested for that, and convicted of assault, but if you did it to your wife there was no crime.

So then we have the women’s movement. We have a lot of feminist pressure and organization, and so we now have gone to a world in which marital rape is a felony in about forty-five of the states and the federal system. So it’s gone from having a conclusive common law presumption against it, to making it a felony, and all the other things have gone as well, so inter-spousal tort immunity is gone. You can be prosecuted for assaulting — in other words, marriage is no longer a bar to things that would be criminal actions outside.

So we’ve had a huge change in the law there from one definition of what counts as a relevant harm to a different definition of what counts as a relevant harm. In the first case it was an argument about efficiency, and the second is a political movement. The women’s movement had this enormous impact on the redefinition of what sorts of harms the state should take seriously in marriage.

Chapter 5. The Redefinition of Harm: Discrimination Example [00:35:01]

Let me give you a third example. If you go into employment law, or housing law, or education, the American courts have, for many decades, at least since Brown versus Board of Education was handed down by a unanimous Supreme Court in 1954, they’ve been concerned with trying to get rid of discrimination. Discrimination’s a kind of harm, right? So the question is; what do you have to show? What do you have to show to convince the court that you’ve been harmed and there should be remedy? What do you have to show?

And during the Warren Court it was somewhat like strict liability. The Warren Court, Earl Warren was appointed by President Eisenhower in 1953. Eisenhower thought he was appointing a conservative Justice, but he turned out to be wrong. Earl Warren was, perhaps, the most liberal Chief Justice of the twentieth century. And the court, under his leadership, developed the idea that all you had to do was show there was a pattern of discriminatory effects. You didn’t have to show that anybody intended to discriminate against anyone. So in the education area, separate but equal, the court said is inherently unequal. We’re not saying that the White southerners are necessarily prejudiced against Blacks, many of them were, but we’re not going to get to that question. We’re just saying separate but equal is inherently impossible. It’s an oxymoron. You can’t have it, and we’re saying that without reference to the intentions of school administrators or anybody else.

In housing patterns you do these kinds of studies like Ian Ayres and the Yale Law School here is well known for having done. When people with exactly the same objective characteristics, same income, same employment history and so on going for a mortgage it turns out that African Americans are denied mortgages at a higher rate than non-African Americans. You don’t have to show that that mortgage officer was a racist, or was intending. You produce the statistics, you show people with these objective characteristics who are African American get denied and those with the same characteristics who are not African Americans don’t get denied. It’s a patter of discriminatory effects. We don’t have to get into something like mens rea or whatever is going on in the bank mortgage officer’s head.

So that was the standard also in employment discrimination and many other areas of the law of discrimination under the Warren Court. All you had to show was a pattern of discriminatory effects. But the Warren Court was gradually replaced first by the Burger Court, then the Rehnquist Court, and now the Roberts Court, and in that conservative evolution discrimination law has gone this way on the continuum. Now you can’t get a remedy unless you can show the intention to discriminate on the part of some public official. So let’s say in zoning ordinances, you’ve got to show that some public official actually tried to do the zoning in such a way as to exclude Blacks from a certain neighborhood, let’s say, before you can get a remedy.

So in employment, and housing, and education, and all of these areas of discrimination we’ve gone the other way as a society, right? We’ve gone from a very capacious standard which would allow a remedy just from the objective indicators, the patterns of discriminatory effects, now we treat it more like the criminal law. We say, “Unless you can show, you can establish in court that there was some particular person in that bank denying mortgages who intended to discriminate, no remedy.”  So it’s much harder, of course, to get remedies.

Chapter 6. Politics Will Be Replaced by Administration [00:40:25]

So those are three examples. Those are three examples, the thalidomide, the marital rape, and the discrimination, where you can see that there’s enormous flux in our society as to what counts as a relevant harm. And if we had time, I strongly suspect if we had time to have a debate in this room on those three topics it’s not like we would all agree as to whether in discrimination law it should be patented as discriminatory effects or intent. We’d have differences of opinion about that that would stem from our assumptions about the appropriate role of government, how intrusive it should be and so on. Or probably there would be less disagreement today about the martial rape than there would have been in the 1950s, and I suspect intuitions would go all over the place about tort liability and the thalidomide.

So what does that tell us? And this is the second reason I think it’s really instructive to work through somebody like Mill even if, in the end, Mill doesn’t have the answer. I think one of the lessons of this course, and you can see it here very dramatically, is that it is impossible to get rid of political disagreement. It is impossible to reduce political choices to scientific choices all the way down. Science can play important roles in making political choices, but it can’t make them for us, so that one of the big goals of the Enlightenment to come up with scientific principles of politics is never going to be perfectly realized. That doesn’t mean it can’t be partially realized, but it’s never going to be perfectly realized.

You can’t wring the politics out of politics. There’s no way to do it. And so you will see when we come to read Marx and he talks about his utopian communist society, one of his one-liners is that, at the end of the day when we finally have the true communist utopia, “Politics will be replaced by administration,” right? That’s a bumper sticker for saying we’re going to wring the politics out of politics. Bentham, looking for the right objective utilitarian calculus, right? Mill wants to say, “Well, once the harm’s triggered we can do the cost-benefit analysis on scientific principles.” We talked about that last time. Never works. It never works all the way down.

It doesn’t mean to say that scientific thinking can’t condition our normative choices, but you go back and think through these three examples that I’ve just given you these are basically normative choices, right? In the 1950s when this issue about marital rape came up, a lot of things were said that are similar to what is said now about gay marriage. People said if the state starts prosecuting husbands we’re going to destroy the traditional family. And people the women’s movement said, “Great! We’re going to destroy this traditional family because men shouldn’t be allowed to rape women. At least in this respect we won it,” right? So traditional values only takes you so far because the harm principle is by definition, a critical principle for looking at traditional values and saying, “How much should we cater to them, how much not,” right?

So these are political choices. The choice about thalidomide has huge distributive consequences, huge, enormous. You’re going to say to pharmaceutical companies, “You’re going to be liable from now on for the harmful effects of your drugs regardless of whether you got the FDA approval.” It’s a huge burden to put on them. Notice what we could say. We could say, “No, (as a famous libertarian Judge Learned Hand said) in society losses must lie where they fall.” What does that mean? It basically means the women who had the thalidomide children and the children themselves must internalize the loss, or we could say, “We’ll socialize the risk.” We’ll say, “In these kinds of situations when there was no wrongdoing in the sense of cutting corners; the government will bail them out.” Just like we did after 9/11, we created this huge fund and paid compensation to the relatives of people who died in 9/11. Many people die all the time in disasters where we don’t do that, but we could. We could have massive social insurance for unexpected harms. 

So the choice to say, “Losses must lie where they fall,” with Learned Hand, or that we should socialize it by saying, “Well, if you’re born with a physical deformity, obviously it’s through no fault of your own, but really you can’t blame the manufacturer of thalidomide either, so the state will pick it up. We as a society will do it.” That’s a different choice. Or if you say, “No, we’re going to make thalidomide — the manufacturer internalizes this,” that’s a different choice. My point here is it’s always a choice. It’s always a choice.

We’ll come to read a libertarian called Robert Nozick later in the course, and one of his one-liners is that, “The fundamental question of political theory is whether or not there should be a state.” But we’ll see that that’s a bit like saying, “The fundamental question of dental theory is whether or not there should be teeth,” because in fact everything involves collective choices. Even the collective choice to let the loss lie where it falls, that is itself a collective choice.

So you can’t wring the politics out of politics. And at least one goal of the Enlightenment, we’re going to see, there’s this idea of replacing politics with science, or in Marx’s formulation, of politics being displaced by administration, can never be perfectly realized. And that’s an important insight we get from thinking about trying to apply Mill’s harm principle. Okay, see you on Monday.

[end of transcript]

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